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PlameGate and Bush's Pardon Power

Yale Law Professor Jack Balkin explains Bush's pardon power in the context of Plamegate.

  • A president's pardon power is unreviewable
  • He can pardon people before they are charged with a crime or anytime after they are charged or convicted

Why Bush might pardon his cronies in Plamegate:

  • To avoid being called as a witness in a criminal prosecution

Why Bush might not pardon his cronies, at least right now

  • The political fallout. He is only in the first year of his second term.

The bottom line:

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.

One thing that also has to be put into the equation is Joseph Wilson's possible civil suit for damages arising from the leak of his wife's identity. A pardon wouldn't relieve Bush or Cheney from having to give depositions in the lawsuit.

Perhaps Joseph Wilson has gotten word to Libby's and Rove's attorneys that if they agree to plead guilty to any charges, he would consider his pound of flesh extracted and not file a civil suit.

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    Re: PlameGate and Bush's Pardon Power (none / 0) (#1)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:12 PM EST
    Just got out of jail for beating a cop up, can i get a pardon? long life the bull down with bush hang him in fact hang all the people in government, but keep the good looking woman.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#2)
    by Steven Sanderson on Sat Dec 17, 2005 at 01:05:13 PM EST
    It's almost a given that Bush will, at some point, pardon any of his loyalists who get indicted in the Plame outing. The future Plame pardons, along with memories of the Iran-Contra pardons, will reveal just how deeply committed conservatives are to protecting the Constitution, our country, and the rule of law. Their rhetoric can't cover that nakedness.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#3)
    by Lis Riba on Sat Dec 17, 2005 at 01:05:13 PM EST
    I really don't think this is going to happen. I explain in more detail on my blog but in brief:
  • Bush can’t pardon himself,
  • nobody else would pardon him,
  • so why should he put his own neck on the line saving his friends?
  • That kind of self-sacrifice just isn't in his nature.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#4)
    by cpinva on Sat Dec 17, 2005 at 01:05:13 PM EST
    hmmm, where does it say that the president can't pardon himself? the only exception to the president's power to pardon is for impeachment, which is not a criminal proceeding. a president could conceivably grant him/herself a pardon, be impeached, and then go on the talk show circuit. anyone who seriously suggests a possibility of impeachment is deluded: there is no evidence, at this point, that bush committed an impeachable act, certainly not sex. even if he had, this is an entirely different breed of republican in the house & senate, in thrall to this republican president. this was not the case in 1974, when even staunch republicans didn't care all that much for nixon, and a democratic majority in both houses gave them the cover needed to try and bury their own stink. there is, however, a potential price to be paid for this thrall, if it is proved that bush either actively coordinated a plan leading to an illegal act, or actively engaged in a cover-up of said plan. should the democrats demand his head on a platter, and the republican majority refuse, they run a great risk at the polls, in 2006, of being tarred by that same taint. bush could well find himself being sacrificed, for the long-term cause. of course, again, this is all speculative, since no one but mr. fitzgerald, and those he's directly dealt with, have any real clue what's actually going on.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#5)
    by killer on Sat Dec 17, 2005 at 01:05:13 PM EST
    Bush can pardon them, but it's my understanding that accepting a pardon is an explicit admission of guilt. This would open all of them up to civil action by at least the Wilsons.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#6)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:13 PM EST
    I wouldn't put anything past Bush. So if he thought pardons would buy him time, I think he would. But here is my question (especially for any law types out there) -- If any indidvidual receives a pardon, does this form of amnesty make it impossible for this person to assert their Fifth Amendment rights against testifying? In other words, can a court or prosecutor then force a pardoned individual to testify or face charges of contempt? Or would such contenpt charges be covered by the original pardon?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#7)
    by Molly Bloom on Sat Dec 17, 2005 at 01:05:13 PM EST
    Are you suggesting Wilson would try to force a pardon, so he could then use Rove and Libby as witnesses in a suit against Bush? Seems to me he'd better nail their testimony down 1st and how likely is that?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#8)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:13 PM EST
    Bush canít pardon himself
    I don't see any nonpolitical reason why he can't. There's nothing like that qualifcation of the pardon power in the constitution.
    he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment


    Re: PlameGate and Bush's Pardon Power (none / 0) (#9)
    by Molly Bloom on Sat Dec 17, 2005 at 01:05:13 PM EST
    Even if Bush could pardon himself, I don't think he can stop the Senate from removal... Of course that depends on how blindly loyal the GOP Senate is. My guess is, not that loyal and this ain't no tawdry tale of human frailty and psersonal sins against the marriage contract.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#10)
    by Edger on Sat Dec 17, 2005 at 01:05:13 PM EST
    This is off topic, I know, but it appears now that while everyone is distracted by Plamegate, that the administration may be quietly expanding the Iraq war to Syria, according to Dan Simpson, a retired U.S. ambassador, now associate editor of the Pittsburgh Post-Gazette, 2 days ago. Shades of Cambodia?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#11)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:13 PM EST
    If Bush pardons Cheney and others, they will obviously have complete immunity against prosecution for the crimes for which they have been pardoned. That means they can be required to testify under oath about those crimes since they are not in jeopardy. They can be prosecuted for perjury if they lie under oath and they can be held in contempt and jailed if they refuse to testify. Bush, if he is still in office, could pardon them again if they are convicted, but a smart prosecutor would bide his time and wait until Bush was out of office before applying the screws.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#12)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:13 PM EST
    Jeralyn: Could you ask Prof. Balkin: 1) about the idea of bringing charges in district or state court to avoid a pardon. 2) what effect, if any, would a hypothetical impeachment of Bush have on pardons already granted?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#13)
    by killer on Sat Dec 17, 2005 at 01:05:13 PM EST
    I was thinking that someone who's parent or child was killed as a result of the conspiracy could sue anyone (including unindicted co-conspirators) for wrongful death. For that matter, could conspirators be charged with murder if people were killed as a result?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#14)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:13 PM EST
    The point about giving up a civil suit if there is a plea bargain is an interesting one. It is, of course, unethical to threaten criminal or administrative action, in order to obtain advantage in a civil suit, but I wouldn't imagine that the reverse would be true, or is it?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:13 PM EST
    Given that this is all supposition based on numerous what ifs, and therefore is totally devoid of any real meaning (we don't know that Bush will pardon anyone and the fact that many of those here are willing to believe he would do so for political purposes does not change this fact), here's another possible twist: Bush pardons Cheney et al. Bush resigns in December 2008, making Cheney president until January 20, 2009. Cheney pardons Bush. I wonder if there was this much discussion of the possible use of the pardon power to avoid criminal prosecution when Clinton and his friends were under investigation. Does anyone remember such?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#16)
    by norbizness on Sat Dec 17, 2005 at 01:05:13 PM EST
    Isn't that why Bush the Elder issued all those Iran-Contra pardons at the last minute? So that he wouldn't have to testify?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#17)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:13 PM EST
    So he wouldn't get thrown in the slammer, more like... It still amazes how a President could get away with selling military hardware to an enemy state (when he was V.P., of course)....and the next one gets impeached over lying about a b**wjob.... Look no further than the late 80's to figure out when Treason became Patriotism...this Plame-Gate is only Round Two...

    Re: PlameGate and Bush's Pardon Power (none / 0) (#18)
    by Quaker in a Basement on Sat Dec 17, 2005 at 01:05:13 PM EST
    Some might argue that the President simply wouldn't dare;
    Wouldn't dare?!? This president? Haw!

    Re: PlameGate and Bush's Pardon Power (none / 0) (#19)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:14 PM EST
    The website for Plame-Gate....anyone seen this little gem yet?

    Re: PlameGate and Bush's Pardon Power (none / 0) (#20)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:15 PM EST
    cpinva: "there is no evidence, at this point, that bush committed an impeachable act" HILARIOUS. You must really love the cherry Kool-Aid -- you know, the kind of cherry that just LOVES to be broken again and again. Bush's impeachment crimes are almost innumerable. However, for the latest example, his failure to respond to Katrina is CERTAINLY impeachable. Every single day we are in Iraq is impeachable. Removing Haitian president Aristide with Blackwater mercs is impeachable. Harboring Posada Carilles, who has admitted blowing up a civilian airliner, is impeachable. Covering for executive traitors is impeachable. Conspiring to take the country to war over lies is impeachable -- even now. The list is enormous. His cronyism alone is impeachable. His 350 days + of vacation time is impeachable. His violations of Geneva Conventions and UN charter are impeachable. Charitably, you confuse politically-possible for the appearance of high crimes themselves. Remember that impeachment is not conviction -- it is a trial, and we have the RIGHT to that trial for his constant stream of illegality and conspiracy, regardless of whether we can force one upon him or win the case in the Senate.

    Re: PlameGate and Bush's Pardon Power (none / 0) (#21)
    by chemoelectric on Sat Dec 17, 2005 at 01:05:15 PM EST
    Perhaps Joseph Wilson has gotten word to Libby's and Rove's attorneys that if they agree to plead guilty to any charges, he would consider his pound of flesh extracted and not file a civil suit.
    Why would the Wilsons do that? They would be suing for the good of the nation, not to extract a pound of flesh. They have no use for a pound of flesh. They will sue to force the facts into the light. And they should do it, they should do it well and at the right time, when it has a chance of succeeding, when the Bushist regime is unable to prevent it.