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Blackbird
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Pre-Emptive Presidential Pardons

Tue Jul 22, 2008 9:12 pm

Pre-emptive Presidential Pardons
URL: http://www.slate.com/id/2195689/?GT1=38001

CAN YOU BE PARDONED FOR A CRIME BEFORE YOU'RE EVER CHARGED?
By Jacob Leibenluft
Posted Monday, July 21, 2008, at 6:36 PM ET

Quote:
With six months to go before President Bush leaves office, the White House is receiving a flurry of pardon applications. The New York Times reported that "several members of the conservative legal community" are pushing for the White House to grant pre-emptive pardons for officials involved in counterterrorism programs. Wait—can a president really pardon someone who hasn't even been charged with a crime?
Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time—regardless of whether charges have even been filed.
As the Explainer has pointed out before, there aren't many limits to the president's pardon power, at least when it comes to criminal prosecutions under federal law. The president's clemency power has its origins in the practices of the English monarchy, and as a result, the Supreme Court has given the president wide leeway under Article II, Section 2 of the Constitution. There are some exceptions: The chief executive can't pardon someone for a violation of state law or nullify a civil ruling, and his power doesn't extend to convictions handed down in an impeachment proceeding. (It's also not clear whether the president can pardon himself for future convictions.)

Wow, it never ends with Bush and Cheney...  Wow!


Andrea Kent
 
petertenthije
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RE: Pre-Emptive Presidential Pardons

Tue Jul 22, 2008 9:22 pm



Quoting Blackbird (Thread starter):
Wow, it never ends with Bush and Cheney...

But to date no-one has been pardoned, right? There are requests from people wishing to be pardoned, but that's it. At least for the moment, this is a non-event. Once people actually start getting pardoned, please let me know.
 
Falcon84
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RE: Pre-Emptive Presidential Pardons

Tue Jul 22, 2008 9:42 pm

I think something smells awfully bad if certain conservative groups are already pushing for pre-emptive pardons. It tells me that 1. they really do believe that some of these people DID commit some kind of crimes, of course in the name of "freedom" and "national security", and 2. that they think that if they are not pardoned, there is a good chance they'll be arrested and indicted for crimes.

Why do I get the feeling Dick Cheney is on the top of that list, pushing for one of these?
 
MaidensGator
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 1:20 am



Quoting Falcon84 (Reply 2):
I think something smells awfully bad if certain conservative groups are already pushing for pre-emptive pardons. It tells me that 1.

It smells almost as bad as Bill Clinton, except Bill really did pardon terrorists...  Yeah sure
 
Falcon84
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 1:23 am



Quoting MaidensGator (Reply 3):
It smells almost as bad as Bill Clinton, except Bill really did pardon terrorists...

Oh, I want to see a link to this one.  rotfl 
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 1:24 am

The precedent is clearly established. Ford pardoned Nixon pre-emptively.
 
Confuscius
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 1:40 am

Alberto Gonzales and his former minions at Justice are ahead in line.
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 1:51 am



Quoting Falcon84 (Reply 4):
Oh, I want to see a link to this one.

Ignorance is bliss.

http://en.wikipedia.org/wiki/Bill_Clinton_pardons_controversy

Perhaps before you make a fool of yourself by highlighting your ignorance, you research the matter.
 
MaidensGator
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 2:09 am



Quoting Pope (Reply 7):
Quoting Falcon84 (Reply 4):
Oh, I want to see a link to this one.

Ignorance is bliss.

http://en.wikipedia.org/wiki/Bill_Clinton_pardons_controversy

Perhaps before you make a fool of yourself by highlighting your ignorance, you research the matter.

Thanks Pope... I'm just waiting for him to somehow rationalize that all the bombs set off by FALN weren't really acts of terrorism...
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 2:17 am



Quoting MaidensGator (Reply 8):
Thanks Pope... I'm just waiting for him to somehow rationalize that all the bombs set off by FALN weren't really acts of terrorism...

Funny how all of a sudden he stops posting. Where are the  rotfl   rotfl   rotfl   rotfl   rotfl  now?

It's one thing to be condescending when you know what you are talking about. It's quite another when the condescending posts highlight the poster's ignorance.
 
huskyaviation
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 2:18 am



Quoting Pope (Reply 5):
The precedent is clearly established. Ford pardoned Nixon pre-emptively.

Bingo. Nixon was never charged with anything.

The article questions whether a President can pardon himself, and they clearly can. Probably not for future crimes committed, but Nixon could have pardoned himself. It was an option considered by the White House in 1974.
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 2:29 am



Quoting HuskyAviation (Reply 10):
The article questions whether a President can pardon himself, and they clearly can. Probably not for future crimes committed, but Nixon could have pardoned himself. It was an option considered by the White House in 1974.

There is serious doubt whether any court would even hear the challenge to a pre-emptive pardon of either the President himself or of anyone else. As the Court highlighted in US v. Nixon (the federal judge not the President), it does not want to get into the business of telling other branches of government how they can exercise the powers the Constitution gave them alone.

Whether we like it or not, the pardon power is absolute. While many members of the GOP got all upset about Pres. Clinton's exercise of his pardon power and the purported payoffs that were offered, it's doubtful that even if he said, I sold a pardon for $X dollars, anyone could have done anything about that. Congress couldn't make the selling of pardons a crime because to do that would be an unconstitutional restriction on the absolute power given to the President.
 
Falcon84
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 3:22 am



Quoting Pope (Reply 7):



Quoting MaidensGator (Reply 8):

Thanks for for linking that. I honestly had not heard of that. You guys can have a laugh at my expense, as I learned something I didn't know tonight.

Quoting Pope (Reply 9):
Funny how all of a sudden he stops posting.

Pretty hard to post driving home from work.  Yeah sure
 
stlgph
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 3:39 am



Quoting Falcon84 (Reply 12):

so they're terrorists, but this so called conviction was only secondary?


what an interesting proposition.
 
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czbbflier
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 4:18 am



Quoting Falcon84 (Reply 2):
Why do I get the feeling Dick Cheney is on the top of that list, pushing for one of these?

Somehow, I don' think Dick Cheney honestly thinks he's done anything wrong. Heck, he himself directly shot a friend in the face by his own hands with his own gun and his friend took the blame!
 
huskyaviation
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 2:44 pm



Quoting Pope (Reply 11):
Whether we like it or not, the pardon power is absolute. While many members of the GOP got all upset about Pres. Clinton's exercise of his pardon power and the purported payoffs that were offered, it's doubtful that even if he said, I sold a pardon for $X dollars, anyone could have done anything about that. Congress couldn't make the selling of pardons a crime because to do that would be an unconstitutional restriction on the absolute power given to the President.

Well it wouldn't be criminal in the constitutional sense, but if Clinton had done that, Congress could have stripped him of his post-presidential benefits, not to mention making such acts an impeachable offense. I think you'd see a movement to amend that power if it got that far out of hand.

Every outgoing President doles out pardons--people forget Bush 41 pardoned Cap Weinberger over Christmas after he had been indicted for lying during Iran-Contra. The timing was so perfect that it literally caused Judge Walsh's literally endless investigation to collapse with absolutely nothing to show for it.
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 3:02 pm



Quoting HuskyAviation (Reply 15):
Well it wouldn't be criminal in the constitutional sense, but if Clinton had done that, Congress could have stripped him of his post-presidential benefits, not to mention making such acts an impeachable offense. I think you'd see a movement to amend that power if it got that far out of hand.

Actually I might want to withdraw my previous statement. I just went back and read Article II, Section IV. Bribery is a specifically stated reason for impeachment. The issue would then be, is the absolute pardon power subject to the restriction on bribery or not.

Interesting academic argument.
 
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seb146
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 4:56 pm



Quoting MaidensGator (Reply 3):
It smells almost as bad as Bill Clinton, except Bill really did pardon terrorists...

And there is the Clinton attack from the right....

So, when Bush II starts pardoning people, that will be worth defending, I suppose... The fact that rights were limited, CIA spies were outed, torture was used, lies were sold as truths... all that will be find because Bush did it, I suppose.
 
MaidensGator
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 5:29 pm



Quoting Seb146 (Reply 17):

Quoting MaidensGator (Reply 3):
It smells almost as bad as Bill Clinton, except Bill really did pardon terrorists...

And there is the Clinton attack from the right....

So, when Bush II starts pardoning people, that will be worth defending, I suppose... The fact that rights were limited, CIA spies were outed, torture was used, lies were sold as truths... all that will be find because Bush did it, I suppose.

You like putting words in people's mouth, don't you... Speculating about what I might say is worth about as much as speculating about who Bush may or may not pardon.... It's not worth too much...

I prefer to level my criticisms AFTER the fact, not before, as I did when I pointed out that Clinton had used his pardon powers to free convicted terrorists. I could have painted a better picture of Clinton and mentioned that he also pardoned a person who had paid Hillary's brother 200K to get him the pardon... These are well known facts, not conjectures...
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 5:41 pm



Quoting Seb146 (Reply 17):
And there is the Clinton attack from the right....

It seems pretty clear that MaidenGator's statement was factually correct. Is it now an attack to point out facts? Are you now arguing that it's unacceptable to state facts or that it's only unacceptable to state facts when they're critical of Bill Clinton?
 
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DocLightning
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 6:19 pm



Quoting Pope (Reply 5):
The precedent is clearly established. Ford pardoned Nixon pre-emptively.

Not sure if that establishes the precedent or not. The issue is that Ford said that he would pardon Nixon if he was found guilty of anything. That put a stop to conviction proceedings because there was no point. See, Ford would still be President when Nixon was convicted.

I am not sure if that sets precedent for pardoning someone for a conviction due to happen after the end of the Presidency.

And for those of you railing against Bush for this, Clinton did a lot of last-minute sketchy pardoning, too.
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 6:36 pm



Quoting DocLightning (Reply 20):
Not sure if that establishes the precedent or not. The issue is that Ford said that he would pardon Nixon if he was found guilty of anything. That put a stop to conviction proceedings because there was no point. See, Ford would still be President when Nixon was convicted.

That's not correct. Ford issued an actual pardon to Nixon before Nixon was ever charged with a crime. It was issued on September 8, 1974 and is proclamation 4311

Quote:
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

 
Falcon84
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 6:40 pm



Quoting Pope (Reply 21):
That's not correct. Ford issued an actual pardon to Nixon before Nixon was ever charged with a crime. It was issued on September 8, 1974 and is proclamation 4311

That is true. The Articles of Impeachment, if I remember right, had been drawn up, but not presented as of yet. Nixon resigned before he could actually be impeached. So the precedent was set, in this case, as Pope as said.
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 6:47 pm



Quoting Falcon84 (Reply 22):
That is true. The Articles of Impeachment, if I remember right, had been drawn up, but not presented as of yet. Nixon resigned before he could actually be impeached. So the precedent was set, in this case, as Pope as said.

Remember, impeachment and criminality are two different things. The President can't pardon impeachment. Article II Section 2 of the Constitution states ". . . he shall have power to grant reprieves and pardons for offenses against the United States, except in case of impeachment." So if Nixon had been impeached Ford couldn't have done anything. Furthermore, the punishment for the impeachment is limited to removal from office (and disqualification from future service). Article I, Section3. So to be criminal convicted Nixon would have to have been separately charged and successfully prosecuted of a crime. The a finding of guilt alone in the impeachment trial wouldn't have had any other effect than his remove from office.
 
victrola
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 6:55 pm



Quoting MaidensGator (Reply 3):
It smells almost as bad as Bill Clinton, except Bill really did pardon terrorists...

Big deal! These guys already spent at least 16 years in prison. As the article notes, this was far more than the average person convicted of their crimes paid.

The Bush administration is well known for its double standard on terrorism. This is why Luis Posada Carriles, the principal suspect in the Cubana flight 455 bombing in 1976 is living freely in this country today. 73 people died in that incident.
 
huskyaviation
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 7:59 pm



Quoting Falcon84 (Reply 22):
That is true. The Articles of Impeachment, if I remember right, had been drawn up, but not presented as of yet. Nixon resigned before he could actually be impeached. So the precedent was set, in this case, as Pope as said.

Yes. The House Judiciary Committee had always passed the articles of impeachment out of committee, but it had not reached the floor of the House yet when Nixon resigned.

Quoting Pope (Reply 21):
That's not correct. Ford issued an actual pardon to Nixon before Nixon was ever charged with a crime. It was issued on September 8, 1974 and is proclamation 4311

Yup, it was a full, immediate pardon granted in September 1974. Interestingly, the issue that Ford (and Nixon) grappled with was not so much whether a pardon could be given to someone who had not yet been indicted for a crime, but whether acceptance of such a pardon was an implicit admission of guilt. Because Ford was satisfied that the Supreme Court held that acceptance of a pardon was in fact an admission of guilt (the 1915 Burdick case), he went ahead and pardoned Nixon. Even though Ford pushed hard to get Nixon to openly admit as much in his pardon acceptance statement, he never really did.
 
Pope
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 8:14 pm



Quoting HuskyAviation (Reply 25):
Yup, it was a full, immediate pardon granted in September 1974. Interestingly, the issue that Ford (and Nixon) grappled with was not so much whether a pardon could be given to someone who had not yet been indicted for a crime, but whether acceptance of such a pardon was an implicit admission of guilt. Because Ford was satisfied that the Supreme Court held that acceptance of a pardon was in fact an admission of guilt (the 1915 Burdick case), he went ahead and pardoned Nixon. Even though Ford pushed hard to get Nixon to openly admit as much in his pardon acceptance statement, he never really did.

I heard that Pres. Ford carried around an excerpt from the Burdick case in his wallet until the day he died,
 
huskyaviation
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 9:02 pm



Quoting Pope (Reply 26):
I heard that Pres. Ford carried around an excerpt from the Burdick case in his wallet until the day he died,

I've heard the same thing. Apparently in his mind that case is what made his pardon legitimate.
 
slz396
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 9:48 pm

President Bush can't pardon himself (or any of his co-war mongers) for any crimes committed against international laws, like going to war without valid reason and all the consequences it has had.

Sure, for as long as GW Bush and his inner circle stay in the USA after January 20th next year, they'll be safe, but the moment a single one of them dares to cross the border, I wouldn't be so sure none of them will never be at risk of being taken in custody somewhere around the globe, some day.

It may take a while before the cat and mouse game starts, but it only takes one complaint by a single one of the tens of thousands of victims from the war in Iraq for instance, taken into consideration by a single judge somewhere around this globe and half the current senior White House administration may face an international arrest warrant as soon as they step outside of the USA.

Ludicrous you say? From today's perspective it may indeed. But we've seen legal proceedings taking place against several heads of state in the recent past and whereas at first it always seemed an impossible thing to prosecute a head of state, it does look like it is pretty difficult to keep on hiding from justice for the rest of your life, once you're out of office. The rest of your life can be a pretty long time, you know.

As such GW Bush may very well turn into a pariah pretty quickly after his second term ends, forced to live a life of reclusion at home, deprived of any international respect and foreign travel or alternatively he may end up like Chile's President Pinochet: once respected and praised in the western world, but slowly brought down by its opponents, safely hiding behind legal immunity for years at first, yet suddenly and much to his own surprise caught oversees and even locked up for some time before ultimately being spit out by the world, only able to escape justice by dying while being kept under house arrest.
 
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seb146
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 10:10 pm



Quoting Pope (Reply 19):
Are you now arguing that it's unacceptable to state facts or that it's only unacceptable to state facts when they're critical of Bill Clinton?

Just the fact that Bush is considering pardons before any charges are brought is telling moreso than Clinton pardoning people that have already been convicted and punished. From the Wikipedia article cited:

"All of the 16 had served 19 years or longer in prison, which was a longer sentence than such crimes typically received, according to the White House"

and:

"President Clinton cited executive privilege for his refusal to turn over some documents to Congress related to his decision to offer clemency to members of the FALN terrorist group."

So, these people committed a crime, were punished longer than normal and were pardoned but the president used executive privilege to explain why he did it. Oh, well... executive privilege... that has NEVER been used by Bush, has it? I guess that clinches the case as to why Clinton is the deamon spawn. /sarcasm

Besides, how many of his administration did Clinton have to grant pardons to before any charges were ever filed? How many under Regan? Bush I? Carter? I do not see this as a "Clinton vs. Bush" issue, but rather how the Bush Administration as a whole is.
 
MaidensGator
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 10:22 pm



Quoting Seb146 (Reply 29):
So, these people committed a crime, were punished longer than normal and were pardoned but the president used executive privilege to explain why he did it.

You need a basic understanding of law to participate in this discussion; otherwise you'll just keep putting your foot in your mouth over and over again. Clinton used executive privilege to NOT explain why he did it...

Quoting Seb146 (Reply 29):
Oh, well... executive privilege... that has NEVER been used by Bush, has it?

It's been used by every president... so what?

Quoting Seb146 (Reply 29):
Just the fact that Bush is considering pardons before any charges are brought is telling moreso than Clinton pardoning people that have already been convicted and punished.

As I said before, you should wait until something happens before condemning it. The NY Times article states:

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

In other words, there is no substance to this story. There is absolutely no evidence that such pardons are being considered. It's simply speculation. The article also points out the Bush has granted far fewer pardons than Clinton or Reagan.
 
huskyaviation
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RE: Pre-Emptive Presidential Pardons

Wed Jul 23, 2008 10:32 pm



Quoting Seb146 (Reply 29):
Just the fact that Bush is considering pardons before any charges are brought is telling moreso than Clinton pardoning people that have already been convicted and punished.

Please show me where in this article it says that Bush is considering these pardons. Further, please show me where it says that the Bush Administration is actively soliciting these pardon requests. The President, regardless of who he/she is, receives a LOT of pardon requests, particularly as the end of their presidency nears.

I don't think anyone can deny (in fact, IIRC, even Hillary has kind of hinted at her feelings) that Pres. Clinton's pardon dealings just as he left office had a peculiar stink about them.

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