Friday, November 28, 2008

Pardon Me

This is the time of forgiveness
When trespassers get well
By making requests
To get out of hell
And return to the living
In the land of the giving
Where crime has no punishment
And lies find new nourishment
But what is the precedent
To pardon the President
For crimes by himself and his friends
Is this where it ends?

Article II, section 2 of the US Constitution provides the specific power for the President of the US to grant pardons and commutation of sentences with virtually no limit. Normally, this is of little consequence to the average citizen, but can be critical for the petitioner seeking clemency or relief. There have been some famous pardons issued over the years. Yes, even George Washington issued pardons and the power has been used in myriad ways in history. President Washington pardoned some of the guilty participants in the Whiskey Rebellion of 1794. Citizens were energized by the steep increase in the whiskey tax of 1791 and they essentially took the law into their own hands to fight the Feds. There was a serious governmental income shortage and the tax was levied in such a way that many felt it was ex post facto and a terrible personal burden. The ex post facto feeling came to those who had already used whiskey in barter and were required to pony up cash by the federal tax collectors (federal marshals), especially those of Allegheny County in western Pennsylvania. That rebellion may have influenced events to this day when barter is rarely used and cumbersome when it happens. Some of the pardon recipients were never convicted. We will see that replicated under Gerald Ford and William Clinton where Nixon and Rich avoided convictions but enjoyed pardons.

Following the Civil War, there were several pardons issued to assist in the reconciliation of the Union with the Confederacy. Thousands of pardons were executed by Andrew Johnson to help heal the wounds of the Civil War. A few were very long in coming. General Robert E. Lee was not specifically pardoned until one hundred years following his death in 1870. Lee had petitioned Andrew Johnson in 1865, but due to colossal red tape and the technicality that his citizenship had been revoked; the request languished until a researcher found Lee’s handwritten oath of allegiance in a dusty old box in Washington. General Lee had been accused of treason and the loyalty oath was wanted to execute the pardon. Lee got his pardon, but had long lost his famous property that became what we now know as Arlington National Cemetery. President Gerald Ford signed the pardon in 1975. Actually, Andrew Johnson had issued a blanket pardon of all involved in the “insurrection,” but scholars differ as to whether or not the blanket pardon covered General Lee due to his specific loss of citizenship.

Pardons can be controversial such as when President H. W. Bush pardoned Cap “The Knife” Weinberger for his role in sending arms to Iran and the following cover up in what became known as ”Iran Contra.” In that case, there was an independent prosecutor, Lawrence Walsh (lifetime Republican) who sought personal information held by the elder Bush in contemporaneous notes when he was Vice President under Reagan. There were six senior Reagan officials pardoned by Bush. Bush himself was described as a “person of interest” due to his specific knowledge of events and personal notes that he withheld from Walsh. Bush was never charged, and he moved quickly to pardon those who were convicted and those who were about to be convicted. Walsh also cited notes held by Weinberger as being key to impeach President Reagan for his role in Iran Contra. Bush outwitted Walsh and moved more rapidly than he to remove Weinberger from the line of fire before the courts could actually capture the evidence but after it was demanded by the independent prosecutor. This probably saved Reagan the embarrassment of impeachment and may have cost Bush a second term, but it allowed virtually every airport, road, bridge and building to be named after Reagan. Ironically, on his election, it caused Clinton to remark that the concept of pardons had to be examined after this episode of crime and cover up. "I am concerned by any action that sends a signal that if you work for the Government, you're beyond the law, or that not telling the truth to Congress under oath is somehow less serious than not telling the truth to some other body under oath." He would later be accused of harboring a personal interest in a couple of his pardons as well as stretching the truth himself. In that sense, pardons can be a powerful tool to change outcomes or to reward loyalty.

Clinton became an object of scorn for his last minute pardons of dozens of petitioners and non-petitioners alike. Two of those brought special heat and an investigation led by Senator Arlan Spector to determine whether the pardons were actually signed before noon on 20 January 2001. Clinton’s half brother was in the list of 140 pardoned that day and peopled clacked that there was a conflict of interest in Clinton’s action although Roger Clinton had already served his time. One of Clinton’s pardons was granted to J. Fife Symington III, the disgraced Republican governor of Arizona. Symington had once saved William J. Clinton from drowning and, when president, he returned the favor in kind. Far more controversial was the pardon of Marc Rich who was never convicted and, in fact, was a fugitive of justice, parked in Switzerland where he still resides. Marc Rich’s wife was a major contributor to the Clinton campaigns. Clinton claimed that his pardon did not preclude civil court action to recover from any harm alleged to have occurred. Interestingly, it was none other than Scooter Libby, who presented the argument for the Rich pardon. He has since become famous, after being convicted of perjury and obstruction of justice in the Valerie Plame case and receiving a commutation of his sentence through GW Bush. There seems to be a circular motion that connects pardons as with the elder Bush and Reagan. Again, there was no conviction of Rich prior to the pardon and Congress was powerless to overturn the pardon. Scooter Libby merely played a helping role for President Clinton by claiming that there was no criminal case and that the offense was a civil matter.

So what are we to make of all this history as we count the days until G.W. Bush leaves office and has his final opportunities to issue pardons? First, the presidential power to pardon is essentially without limit. You don’t have to be found guilty in a court of law to be pardoned. On the other hand, if there is a civil wrong, a separate civil court may hear arguments despite the pardon. There is some fuzziness about broad pardons such as those issued by President Andrew Johnson so that identification of the specific recipients may some day be required. Robert E. Lee was not seen as qualified for the general pardon. Can G.W. Bush pardon himself? The answer is yes…but that would set up a qualifying assumption that he was guilty of promoting torture or some other crime and Bush has adamantly denied that. Can he pardon the hundreds that were acting on his orders to conduct “harsh interrogations?” Perhaps if he is able to name them, but recall that did not work well for Andrew Johnson. It may be bad form to pardon oneself but it is legal if the president names himself and others. If he does not pardon himself, Rumsfeld and Cheney, for example, then the crimes of torture and extraordinary rendition are without a statute of limitations and they are internationally recognized offenses. This means that world travel for the leaders in power during Abu Ghraib and Guantanamo may be limited. It also means that at any time in the future, criminal trials may be held here in the United States.
Will the incoming administration or the Congress have the courage to face up to rule by law or will we merely pass to some future generation with a sense of duty and justice? We have a lot to do, but are not the rule of law and the Constitution worth defending? We cannot presume guilt, but without investigations and trials, the rule of law may appear to be no more than a passing suggestion. Be heard. Give Congress some courage and a little hell along the way. Remember…no Peace without Justice. It cannot end here with rule of law traded away for temporary peace and a future draft pick.

George Giacoppe
30 November 2008

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