Bush may try to outfox the nationwide impeachment movement by granting himself two different self-pardons as a preemptive defense against his now-documented fear of impeachment. This post addresses these 2 types of self-pardons, which are generally legal, and explains why a preemptive self-pardon should not be valid as a bar or defense to future impeachment.
The courts and precedent are clear that a president may not pardon an official who has been impeached. Nixon received a pardon after he resigned to end the impeachment proceedings and the issue of self-pardons for Clinton was limited to future criminal prosecution. It is also clear that pardons for a criminal offense can be preemptive in the sense that a pardon can be granted at any time and need not be delayed until after conviction. Therefore, the issue of preemptive self-pardon is limited to Bush granting himself a pardon now to plead as a defense to future impeachment where the underlying offense is a putative impeachable offense subject to the impeachment process.
(1) The express and unilateral self-pardon.
The primary type of presidential self-pardon is the express pardon where the president executes his own pardon deed. Courts have not yet addressed the issue of self-pardon authority, but the majority view of scholars is that the law supports a president’s authority to issue a self-pardon. Moreover, Bush could secretly execute a self-pardon because the Constitution does not require a public announcement. For all we know, Bush may have a pardon deed sitting in his desk drawer.
The self-pardon process itself is very simple and fast:
“To pardon himself, Clinton would need only to take out a blank sheet of White House stationery, write out his pardon … and request that a couple of trusted White House aides witness his execution and delivery of his pardon deed. Is it really so simple? Yes; the courts have said there is no required form or procedure, nor need there be compliance with Justice Department clemency regulations.”
The minority view of scholars is that self-pardon authority is invalid, partially because it would permit a “president to escape the possibility of impeachment.”
(2) The implied and bilateral self-pardon would be a White House/Congressional agreement to retroactively validate Bush’s illegal acts.
The implied, bilateral self-pardon would most likely take the form of an agreement, express or implied, with Congress or other entity or official, to pardon Bush under the guise of a political deal or other agreement that is not labeled a pardon, such as the White House deal with members of Congress to retroactively validate Bush`s illegal NSA spying of Americans.
No one but the White House would know that this deal may set the stage for a future argument that Congress and the White House preemptively pardoned Bush for any putative impeachable or criminal offenses committed during his term. For both Congress and the public, this political agreement would be cast as a simple matter of “fixing” FISA. The reality is that the substantive terms of this FISA deal have the hallmarks of a President Lincoln Ratification. During the Civil War, President Lincoln usurped Congressional functions, just as Bush usurped both Congressional and judicial functions with the NSA spying. Under Lincoln Ratification, the corrective measure was President Lincoln asking Congress to ratify and confirm his acts, which Congress promptly did. This is the ratification that the White House now seeks from Congress in the NSA deal. However, the key elements of Lincoln’s ratification were that Lincoln took emergency actions when Congress was not in session and these actions were consistent with congressional powers in the Constitution. Given that these key elements are not applicable to the Bush case, if you strip away the key elements, the substance of this NSA deal would be Congressional forgiveness of Bush’s illegal acts and removal of any penalty by retroactive validation, or, a pardon. While Congress does not have constitutional authority to pardon Bush, the presidential pardon power is virtually unlimited unless there is a restriction in the Constitution. Given that a president has self-pardon authority, this implied pardon may be argued by the White House to be valid based on Bush’s agreement to permit Congress to participate in the pardon process.
(3) There are several reasons why Bush can not use a preemptive self-pardon, whether express or implied, to avoid impeachment.
(a) The legislative history of the pardon clause indicates that the Founding Fathers’ intention was that a pardon could not be pleaded as a defense to impeachment.
The case law and statutory language for the pardon clause is not plentiful. One tool used by courts to interpret constitutional clauses is the intention of the drafters. The history of the pardon clause at the 1787 Constitutional Convention shows that it was initially drafted to include a phrase which expressly stated that a pardon could not be pleaded as a defense to impeachment: “The power of pardoning vested in the executive (which) his pardon shall not however, be pleadable to an impeachment.” After a couple drafting changes, the phrase emerged from the Committee on Style in its present form: “And he shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.” There was no discussion over the substance of the pardon clause, except for a motion to include treason as well as impeachment, which was defeated in the Convention. The change in language without debate suggests that there was agreement with the original phrase that pardon could not be pleaded as defense to impeachment, but the committee simply changed the style of wording.
(b) The exception excluding impeachment cases from the pardon power was designed to prevent a President from abusing the power by barring the use of pardons to prevent the investigation and conviction by impeachment.
The Constitution expressly states that the pardon power does not apply to “cases of impeachment.” This restriction can not be limited to the situation where a president is impeached and then precluded from issuing a pardon for that impeachment. The exception must also apply to barring a president from a preemptive pardon. Otherwise, a preemptive pardon would strip the impeachment power from the Constitution. Which president would wait to be impeached by Congress if a preemptive pardon could wipe out the underlying offenses that would be subject to impeachment?
Commentaries often cited as persuasive authority in US Supreme Court decisions agree. Blackstone’s Commentaries state that a “pardon cannot be pleaded to any such impeachment, so as to impede the inquiry, and stop the prosecution of great and notorious offenders.” Any pardon so pleaded to bar impeachment is “illegal and void.”
Joseph Story Commentaries on the Constitution agree that a President can not use a pardon to preempt impeachment of officials: “The president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.”
(c) One limitation on pardon power is judicial review when an act of pardon impairs other constitutional provisions or offends the Constitution.
The US Supreme Court has suggested it has judicial review authority over presidential pardons when the pardon contravenes powers reserved to Congress. For example, a presidential pardon cannot contravene the appropriations power reserved to Congress in the Constitution. Similarly, if Bush were able to use a self-pardon to defeat impeachment proceedings, then the self-pardon would contravene Congressional impeachment authority.
In addition, the US Supreme Court has stated that presidential pardon power cannot “otherwise offend the Constitution.” Once again, if Bush could use a self-pardon to defeat impeachment, then the self-pardon would clearly offend the Constitution by essentially removing both Congressional impeachment authority and the exception against “cases of impeachment.”
Therefore, there is the potential remedy of judicial review should Bush grant himself a preemptive pardon.
(d) A preemptive pardon would constitute an abuse of pardon power, and, according to the US Supreme Court, the appropriate remedy for such abuse is impeachment.
If Bush did execute a preemptive pardon, Congress and/or the public may construe such action as an abuse of the pardon power itself which is grounds for impeachment. The US Supreme Court noted that the US constitution confers this vast pardon power on the President in “confidence that he will not abuse it.” If the pardon power is abused by the President, the remedy is “a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.”
The upshot is that the Bush team is clearly worried about the real possibility of impeachment, particularly given that the Democrats may regain control of Congress in the midterm elections. Bush will no longer have his shield of loyal GOPs to prevent or delay probes of his conduct. It is equally clear that the Bush team are masterful manipulators of public opinion and convoluted spin. We need to be prepared to address these arguments by considering what theories Bush team may use to avoid legal and political accountability for his actions.
One way to render this strategy politically inviable is for reporters to obtain Bush’s promise that he will not pardon himself or permit any official, agency or institution to use any power that grants him the equivalency of a pardon during his term for any putative impeachable or criminal offenses, and, if any such actions have already occurred, he will render them null and void immediately. After all, there is the precedent of White House Press Secretary Joe Lockhart, as well as then-President Clinton and Vice-President Gore, assuring reporters that Clinton would not pardon himself to avoid criminal prosecution in the Whitewater and Lewinsky probes.
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