Plame Case: "Pardon me, Mr. President"

Matthew Yglesias today rails against the possibility of President Bush pardoning Matt Cooper and Judith Miller, the journos held in contempt in the Plame case. Calling the possibility "appalling," Yglesias states that the pardon power "isn't supposed to be used in order for a president to facilitate a coverup of official wrongdoing by his staff." Fair enough. Just one little thing, though: Does the president even have to power to pardon Cooper and Miller?

Article II, section 2, of the U.S. Constitution, provides that "The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Thus, the president has the power to pardon those accused or convicted of federal crimes. However, pardons reach neither state nor civil liability.

But where do contempt charges come in? In Ex parte Grossman, 267 U.S. 87 (1925), Chief Justice Taft stated, "For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it." However, the Chief Justice explained, a pardon may reach criminal contempt charges because "the sentence is punitive."

One way to distinguish civil from criminal contempt, according to lawyer Laura Thornton, is to examine the penalty sought or imposed. If the defendant "holds the keys to the jail" and can purge himself from the contempt by committing an affirmative act, the contempt is civil in nature.

Thus, in a grand jury proceeding, if you simply refuse to do what the subpoena orders you to do, the prosecutor will ask the court to hold you in civil contempt. Susan McDougal learned this lesson. McDougal was subpoenaed to testify before a Whitewater grand jury, but refused to testify and was held in civil contempt. Because civil contempt is not a crime, and only a way for the court to coerce you into doing what the grand jury wants you to do, the pardon power is inapplicable.

With this context, Miller and Cooper's contempt charges should be civil in nature. And CNN.com's reporting confirms this: "A federal judge Thursday declared New York Times reporter Judith Miller in civil contempt for her refusal to testify before a grand jury, but agreed not to jail her pending an appeal."

http://www.cnn.com/2004/LAW/10/07/miller.contempt/

Ultimately, it looks to me like Miller and Cooper are out of luck under this "appalling" theory. But, then, I'm not a lawyer. Thoughts?