When I read this diary which was on the Recommended list yesterday, it made me mad. I was once again reminded that around the middle of next January, Bush undoubtedly plans to issue lots of Presidential pardons to the likes of Cheney, Rumsfeld, Feith, Rove, Yoo, and dozens if not hundreds more of all our favorite people, going back through the last eight years of misrule. These guys are going to try and literally get away with murder.
Thinking of that makes me sick. Probably does you too. Is there anything we can do to prevent this miscarriage of justice?
Well, I had an idea. It's not pretty, but it just might work.
Read on...
How do you block a Presidential pardon?
The pardon language in the Constitution says rather tersely that the President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. That's the whole thing. Of course, over the last couple hundred years, like virtually everything else in the Constitution, the Presidential pardon power has been redefined, modified, and expanded by usage in practice, as blessed by the Supreme Court.
From Wikipedia:
The Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites and amnesties.
Since this pardon power has already been expanded a number of times, another little expansion might not be so out of line. That's what I propose.
What if the next President chooses to assert that the Constitutional right to grant pardons also includes the Constitutional right to revoke them, in certain narrow circumstances? And what if our candidate began talking this up starting in about, say, September?
Oddly, this might be as good a moment as we're likely to see for this. The bias of the current Supreme Court could just give us an edge here. Look, at any given point in time, the current makeup of the Supreme Court determines its bias and areas of interest. For example, the Fifth Amendment right against self-incrimination was expanded in the mid-twentieth century by a Supreme Court that was inclined to view that expansion favorably. Currently we have a Supreme Court that views actions and assertions by the Executive Branch more favorably than any in recent memory. Perhaps we might be able to make use of that bias.
To maximize the chances, our candidate would say that the pardon-revoking power only applies in certain narrow circumstances, perhaps only pardons which were both a) granted to persons who have not yet been convicted of the pardoned crime (or perhaps, not yet indicted for the pardoned crime); and 2) granted within the last 120 days.
Limiting it to only "fresh, unused" pardons in this way might carry an aura of "this pardon's still up in the air, it's not settled yet" and make this incremental expansion of pardon power seem smaller and more palatable, perhaps helping to reinforce the idea that this is only intended to address "controversial" pardons.
It's often been noted that the pardon power has been used controversially and at the last minute in secret, including Bush Sr.'s pardon of Iran-Contra figures and Clinton's pardon of Marc Rich. The controversy around these eleventh-hour pardons could be used to create the political opening for the next President to assert the narrow expansion I propose.
This narrow expansion neatly covers these eleventh-hour pardons. If an incoming President can reverse a controversial eleventh-hour pardon, an outgoing President will be far less likely to use this power in the blatantly political manner that has sometimes been the case, especially by the last few Presidents. I think this will lead to the pardon power being used more wisely, and only at points in the cycle when that President is still politically accountable. I think this narrow expansion would be worth it for that alone.
But wait there's more. Let's look at how this might apply to the clowns we're currently stuck with. What are the politics of this going into the November election?
Let's say our Democratic nominee starts talking about this oh, about September or so. By then poor Don Siegelman will have hopefully won his appeal, and our candidate can talk about miscarriages of justice, Karl Rove, U.S. Attorneys, and so on.
Maybe something like this...
"We are Democrats, we believe in equal justice for all in this country. Look at what the Republicans did in railroading poor Don Siegelman. Look at how Bush got Scooter Libby out of prison. Is that how we govern in this country? Is that who we are? Republicans say they are for self-reliance, self-responsibility. But only for other people? Not for themselves? Is January 19 the day they hand out their Get Out Of Jail Free cards? So their bigshot well-connected buddies get off scot-free?
"I don't think so. I promise that if elected I will revoke any last-minute pardon Bush makes. The Constitution gives the President pardon power, and I pledge to use that power to revoke any unjust last-minute Bush pardons. If they think they're off the hook come January ... well, I'll put them right back on the hook by February."
Politically, I think this would go over huge. If the Republicans try to make an issue of it, won't that just shine more of a spotlight on exactly the people they'll be trying to keep low-key?
R: "Oh, we wouldn't do that!"
D: "Yeah? You already did! Scooter Libby!"
R: "You can't do that, it's unconstitutional!"
D: "We think the Constitution allows for this, and anyway, who are you to talk about trashing the Constitution?" [lots of examples here]
And we could talk up who they'll want to pardon here, and why ... Cheney ... Rumsfeld ... Yoo ... Feith ... Rove ...
The more the Republicans freak out, the better case we can make. I think if our candidate plays it right the voters will love it. Talk about a populism platform. Who's protecting the big shots, and who's going after them?
The Supreme Court will quite properly refuse to discuss this in advance of any case before them, so it will remain hanging over the heads of all the people we know and love until at least through this election and well beyond. And hang it shall. Rove and company will be having cows like you would not believe. (OMG what if the Democrats pull it off? I'll have to go to jail! Maybe I should sing now?)
So I can hear you saying, what if it goes to the Supreme Court and they rule it unconstitutional? To that I say, so what? Because any way I look at this we still come out ahead.
Maybe the threat of this will raise the visibility of this issue enough to cause Bush to issue fewer January pardons.
Maybe it will get Rove and his pals to actually sing us a little song.
Maybe it will get denied, eventually, in the Supreme Court. Could happen, sure. But maybe then, the obvious injustice (we'll of course do our best to spin it that way) will cause enough backlash to move a parallel constitutional amendment along. Yes, we'd need 66 senators, mostly Democratic plus a few terrified Republicans, plus 38 states to ratify it. Not easy, sure, but perhaps not impossible in a Democratic administration, with a Democratic House and Senate. And in the meantime it'd be a terrific populism-type organizing issue. Who would be in favor of pardons for big shots?
And ... maybe it won't get shot down by the Supremes after all. Maybe all the inevitable hullabaloo will just reinforce the current Court's tendency towards Unitary Executive laissez-faire, and they'll uphold it, and this whole last-minute political pardon game will be a thing of the past. Or maybe they'll look at next year's Democratic supermajority and remember that Justices can be impeached too, and choose to go with the flow. With courts, you just never know. Stranger things have happened.
So me, I think that starting next fall our candidate might do well to start pushing pardon revocation big time. Crazy fantasy? Wishful thinking? No hope in hell? Or, just maybe ... might fly?
What do you think?
(Note: No candidate wars here? Please? Now, perhaps this strategy will work better with Obama as our candidate, both because Obama's background as a Con Law professor makes a good shield, and because Clinton might be seen as tainted by the Marc Rich situation. But for the purposes of this diary let's stipulate that either of them could raise this. Okay?)