Archive for November, 2008
reasonable limits on presidential pardoning power

I’m contemplating Bush’s potential pardon of his various underlings for their roles in torture or other illegal actions, and I’m angry.

The Presidential pardoning power can be and should be used for humanitarian reasons — for mercy, or for justice, when for whatever reason those are not available through ordinary means. There’s also a good argument for using it for “national reconciliation” — e.g., pardoning the Viet Nam draft dodgers, or (gag) pardoning Nixon. (Those situations are clearly distinguishable, obviously, but even though I firmly disagree with the Nixon pardon, it’s a reasonable argument.)

But the pardoning power should not be available for use to eliminate responsibility for one’s own misdeeds, and for members of the government that includes actions committed on orders. Members of the government already receive a wide variety of protections for “following orders”. Use of the Presidential pardon power to pardon those who followed one’s own illegal orders is the worst kind of self-dealing, and it places the President above the law. Since “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” it’s clear that impeachment for such crimes was envisioned. Yet pardoning one’s underlings for their illegal activities render it virtually impossible to prosecute the superior that ordered the actions — the President thus protects himself from any such impeachment or other prosecution.

It’s regularly stated that the Presidential pardon power is “plenary” and virtually unlimited, but there must be some level of absurdity. Can the President pardon himself for, say, ordering the massacre of Congress and the suspension of the Constitution? Or bribe an investigative commission and then pardon himself for doing so? Well, yeah. Bush I showed us that they can, with his Iran-Contra pardons. So here we go again. There is just no fucking justice or accountability for members of this administration. God that makes me angry.

update 2/28: See, this is why I should save my wrath until after the fact. I could have used it so much more effectively ….