Saturday, October 22, 2005

The Power to Pardon; will we allow this?

Bush's Ace in the Hole-- The Pardon Power

JB

Rumors are buzzing about who will be indicted in the Plamegate scandal, and what further revelations will develop. Some people have even speculated that the Vice-President may be indicted or named as an unindicted co-conspirator.

But just remember that the President always has the means to stop judicial proceedings of his closest political associates from going any further. He can simply pardon persons indicted for a crime, or even those who have not yet been indicted.

On December 24th, 1992, a month before he left office, President Bush's father, George H.W. Bush, pardoned former Defense Secretary Caspar Weinberger and five other individuals for their conduct related to the Iran-Contra affair. In so doing, Bush not only put an end to the criminal prosecutions arising out of the Iran-Contra affair, he also ensured that he would never be required to testify as a witness in a criminal trial after he left office. The former President was no fool. He knew that for many years critics refused to believe his repeated protestations that he was "out of the loop" on the machinations surrounding Iran-Contra during the Reagan Administration. Once under oath, he would be required to divulge exactly what he knew and when he knew it.

If sufficiently high level officials are indicted, his son, President George W. Bush, may also be vulnerable to be called as a witness and placed under oath. The most obvious way to avoid that unhappy scenario is to make sure that no criminal trial ever occurs. The pardon power takes care of that.

The President's power to pardon is effectively un-reviewable. The only real constraint is political: the President must take the political heat for his actions, as Gerald Ford did in pardoning President Richard Nixon. Bush's father was able to pardon Weinberger et al. a month before his term expired, so he had very little to lose politically, and he wagered (correctly as it turned out) that most people would soon forget the potential self-dealing in his decision. Bill Clinton also took considerable heat for his last minute pardons of political supporters near the end of his presidency, but he too figured (also correctly) that this too, would pass.

George W. Bush, by contrast, is in the first year of his second term. Although unlike Gerald Ford he will not stand for reelection, like Ford he must govern for several more years, and he is already in a politically weak position. That would counsel not invoking the pardon power for as long as he possibly can.

If important persons in the Bush Administration are indicted, and there is a significant danger that revelations damaging to the President will surface, don't be surprised if the President uses his ace in the hole-- the pardon power. Some might argue that the President simply wouldn't dare; others will insist that he would be impeached if he tries it. But what the President is likely to do depends on the alternatives if he doesn't act, and remember, the Congress is controlled by members of his own party, not by the opposition as was the case during the Clinton Presidency. This president has a knack for self-preservation; and if the pardon power is the best alternative he has, you can be sure that he will use it.

http://balkin.blogspot.com/2005/10/bushs-ace-in-hole-pardon-power.html

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