Thursday, November 08, 2007

Pardons for Bush

Getting ready for bed last night, I was hit with a wonderful idea for the next Democratic President. At least, I think it's a wonderful idea. Tell me what you think.

On his first day in office, the new Democratic President should pardon George W. Bush.

I know, it galls me too. The number of crimes this administration is implicated in boggles the mind, and it is infuriating that they will likely go unpunished. But let's be serious here -- there is a precisely 0% chance that President Bush, or any top member of the Bush administration, will ever be prosecuted for anything. It would look partisan, it would look retaliatory, and it would end up being awful politics.

So why a pardon? Simple: you don't pardon people who haven't done anything wrong. The very act of pardoning Bush establishes him as someone who needed a pardon. Pardons damage the reputation of their recipients -- it's not like Nixon's pardon convinced Americans that he really just got a bad rap (even just-defeated Kentucky Governor Ernie Fletcher's spate of pardons, which he cast as protecting the targets from illegitimate prosecution, made both him and them look much worse than they were before). Meanwhile, President Obama the Democratic President looks magnanimous, moving the country forward rather than focusing on rehashing the malfeasance of the past. And of course, removing the specter of criminal prosecution from President Bush, under a variety of precedents, makes it easier to compel him to testify about the events in question, if that ever becomes necessary.

It is important to establish Bush's historical legacy as someone who ran one of the most corrupt, extra-legal administrations in the history of the nation. Prosecution would be the most direct route, but that's not going to happen. Counter-intuitive as it is, issuing a pardon would permanently enshrine Bush in that rarefied class of Presidents who needed a pardon -- and that would likely secure his legacy almost as well as (politically contested) indictment.


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Jill Rodde said...

That is pleasantly passive-aggressive. You have learned well.

PG said...

Er, doesn't there need to be at least an indictment before there can be a pardon?

David Schraub said...

Nixon wasn't indicted before he was pardoned, and my understanding of pardon law is that a pardon can occur at any time.

A bigger problem might be that pardons can be refused, Burdick v. U.S., 236 U.S. 79 (1915), precisely because they carry the imputation of guilt. But I don't think there is any procedural bar to giving the pardon.

Anonymous said...

Just for all us ignorant people out here, could you perhaps list a few of the crimes of which President Bush is guilty?

David Schraub said...

Obstruction of justice (passim) and conspiracy to commit war crimes (torture) would be the two most obvious that spring to mind.

Mark said...

On the first case, what do you mean by "corruption." If my dim recollection of history serves me, wasn't Grant's Presidency spectacularly corrupt? What makes you think this administration was comparable or worse, or was your statement about the Bush administration hyperbole?

And aren't those crimes to which you refer are jurisdictional disputes between branches, which are a different sort of crime than say those the former president Clinton dallied in, that being being rape, sexual misconduct (harassment), and perjury. I guess you prefer the latter, however ... you know ... as you tend to speak out as a "feminist" (whatever that means).

Holding the President personally liable (with jail for example) for balance of power issues is an unusual tact. Perhaps that might make Congress more shy as well, if we jail Congressmen who sponsor laws which the SCOTUS overturns? But then, how do we curb similarly the judges (who overstep their bounds)?

David Schraub said...

I'm confused how torture is a "jurisdictional dispute." Perhaps I could be enlightened? I mean, I guess it is insofar as Congress makes laws and the executive is breaking them, but that's kind of the definition of a crime.

There is indeed a qualitative difference between the crimes of President Clinton and Bush. The former's were "personal", if you will -- appalling as they were, they had nothing to do with the institutional levers of government, and they involved little more than incidental usage of the apparatus status of the state. President Bush's crimes are the opposite -- they aren't personal, but rather are illegitimate usages of the state apparatus for political ends. The latter, I think, are more dangerous on the whole, simply because they threaten the legitimacy of government writ large, while Clinton's crimes are much more limited in scope. Certainly, it's not a good thing to have a sexual harasser in the Oval Office, but it poses negligible risk to the continuance of America as a free and democratic state compared to, say, turning the Justice Department into a political hit squad or sanctioning torture and kidnapping.

"One of the most" = granting there are other competitors for the title. I'm not sure it's the best strategy to defend the Bush Administration by arguing "there was an administration about 130 years ago that was even worse!" The fact that Bush is, in fact, competitive with Grant, Harding, and other members of the wall of shame, is pretty terrible in of itself.

Anonymous said...

Thanks for the list. Would you please define torture? The term is thrown around a lot without any agreed-upon definition. If you are referring to waterboarding, Congress has thus far refused to make it a crime. What laws that Congress passed has the Bush administration broken?

Mark said...

"On of the worst" regarding corruption. You mention several other Presidents Administrations regarding corruption. That sort of corruption involved bribery, cronyism, and the like. While GW does admittedly have a penchant for trusting those of personal acquaintance, it's certainly not clear that government contract and the like follow to profit those in his cabinet in any way like those in the past. "One of the most" was your term. I'm not granting it, I'm doubting it.

And yes, I'll agree that there is more danger inherent in separation of powers issues than personal perfidy. If Clinton was a serial killer instead of a serial sexual offender it is far less important to the nation than if he tried to implement the "Alien and Sedition Act" outside of Congressional approval. The point is, we don't pardon or jail people for such offenses. It's a silly notion, as demonstrated by the idea that stupid laws authored in Congress don't redound on the author and put him/her in the slammer (or warrant or require pardon).

David Schraub said...

Anon: Waterboarding is a crime under the Convention Against Torture, as well as 18 U.S.C. 2340, and we've actually prosecuted people for it. Just because the word "waterboarding" isn't specifically mentioned doesn't mean its not illegal -- it is indisputably a "an act ... specifically intended to inflict severe physical or mental pain or suffering" (quoting the statute). No specific techniques are mentioned under 18 U.S.C. 2340, it's a comprehensive ban.

Mark: I think Bush's cronyism stands up with the "best" in category. Personal profiteering, less so, but he also has a tendency to do suspicious things with elections (see,e.g., New Hampshire 2002). But I will freely admit I'm willing to hang my hat here entirely on the torture issue, which I think is a trump card, as it is both a felony, and unbelievably damaging to America's status as a free and democratic nation (incidentally, passing dumb laws, or even passing unconstitutional laws, isn't illegal -- it's the laws themselves that are unconstitutional (in the latter case) -- the act of passage is not a crime, just as advocacy for illegal acts is not a crime, only actually carrying them out. Bush's problem isn't that he advocated torture, it's that he specifically conspired to have people be tortured.).

PG said...

I suspect Bush would refuse the pardon with great disdain, and ultimately the pardon "would look partisan, it would look retaliatory, and it would end up being awful politics."


FYI, sex harassment is not a crime. It's a civil cause of action arising from Title VII. That's why Paula Jones was suing Clinton instead of being the star witness of a prosecution against him.

For what rape was Clinton ever charged, much less indicted or convicted of? At most, Katha Pollitt (perhaps you'll accept her feminist credentials) has said that Broaddrick's claim of rape is as corroborated as Anita Hill's claim of sex harassment by Clarence Thomas, although Hill never signed an affidavit denying the harassment as Broaddrick signed one denying the rape.

Moreover, if Gore in the 2000 race had mentioned the possibility of pardoning Clinton, he would have lost the election clearly. It wasn't even on the table. So how is Clinton relevant to this discussion?

Anonymous said...

Lord, every lawyer to a man
(And woman, I suppose)
Let take a cue from Pakistan
Judicially as those

That there did struggle for the rule
Of law before one man´s;
So let us emulate--but who´ll
Likewise break stupor´s trance?

Now is the time for taking suit
Of those who gave the orders
Or tacitly permitted: brute
Their deeds have had recorders.

None ought to be proclaimed exempt
By virtue of his standing--
How Cheney drips with his contempt,
Or Rumsfeld, "free" from branding.

Even most popular of all
Executives be held
Accountable--held to the wall
So I might add, dispelled

All semblance of immunity
Based upon holding office:
Laws have been broken, this we see,
Which not a thing to scoff is.

Nor even retroactive make
Exemption for complicit
Parties--such firms as dared laws break
So let the laws revisit.

Democracy demands fair law
So Gerald Ford was wrong
Pardoning Nixon: cretins saw,
Emboldened and made strong.

Cheney averred, whatever action
A president committed
Was thereby lawful--his attraction
Since Nixon was acquitted

De facto to the spoils of power--
Jurists, and men of law
(Women too), let now come the hour
To strike malfeasance raw.