A Constitutiional question

According to this piece they can pardon themselves EXCEPT in case of impeachment. m This Slate article says the issue is up in the air but confirms the opinion that they probably can with the impeachement exception.

interesting fishin', thanks.

Could the President Pardon Himself?
Office of News and Information
Johns Hopkins University
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August 7, 1998
MEDIA ADVISORY
TO: Reporters, Editors, Producers
FROM: Glenn Small, (410) 516-6094, [email protected]

Could the President Pardon Himself?

That question is one issue relating to the presidency that Johns Hopkins University political scientist Joel Grossman examines in a soon-to-be published journal article. The answer might surprise you. Grossman says there's nothing to stop a sitting president from pardoning himself, and there might even be political advantages to such a move.

While the scholarly paper is unavailable until it is published, Grossman is willing to discuss that and other issues relating to the current special prosecutor probe into presidential conduct. Can a sitting president be indicted prior to impeachment? What might happen if a president, facing impeachment, pardoned himself?

Grossman, a professor in the political science department at Hopkins, has taught constitutional law for more than 30 years, and is a pre-eminent scholar in that field. Prior to coming to Hopkins, he taught for many years at University of Wisconsin- Madison.

As events unfold in Washington, an array of serious constitutional law questions may come into play; Grossman is familiar and comfortable with the media, and is a friendly and charming person. If you have an interest in speaking with him, call Glenn Small at 410-516-6094 or e-mail him at: [email protected]

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PRESIDENT CLINTON'S INDICTMENT AND PARDON
PRESIDENT CLINTON'S INDICTMENT AND PARDON ?- COMING SOON
By JOHN DEAN
Friday, Dec. 08, 2000

All the clues suggest that William Jefferson Clinton is going to be indicted by Independent Counsel Robert Ray shortly after the president leaves office. This action, if it happens, will have major political consequences for the new president. If Al Gore becomes president, the indictment will begin a nightmare that could ruin his presidency. But if George W. Bush becomes president, Clinton's indictment could make his presidency.

As for the soon-to-be former president, although he will never go to prison (with his Secret Service detail to protect him and the nation's national security), he may be seriously considering granting himself a pardon. Not merely for himself, but for his wife, his daughter, his party and his country.

Why A Clinton Indictment Is Likely

As I see it, Independent Counsel Robert Ray has only one purpose in life: to indict Bill Clinton when he leaves office at noon on January 20, 2001. That has been evident since Ray replaced Ken Starr in October 1999 as independent counsel. During an exit interview with Larry King Live, Judge Starr explained that he was leaving ?- in essence ?- because he had become "politicized," and that for the good of the continuing investigations and potential prosecutions, he needed to step aside. In short, Robert Ray, an ambitious and able career prosecutor, did not take the independent counsel job merely to write the final report required by the law and close down the operation.

While Ray initially ducked the questions about indicting Clinton, as the months have passed, his plans have become clear. Last summer, just before the Democratic National Convention in Los Angeles, it was accidentally leaked to the media that Ray had empanelled a new grand jury. In September, when reporting that he had "determined that the evidence was insufficient to prove to a jury beyond a reasonable doubt that either President Clinton or Mrs. Clinton knowingly participated in any criminal conduct" relating to the Whitewater matter, Ray acknowledged that his new grand jury was investigating President Clinton's conduct in the Lewinsky scandal. More specifically, Ray told CNN's Late Edition he would give his decision about indicting Bill Clinton "very shortly after the president leaves office in the best interest of the country, and also not to unfairly tread on the new president's administration."

Robert Ray has not been twiddling his thumbs for over a year in his job, not knowing what he plans to do with Bill Clinton. Rather, Ray is waiting for Clinton to leave office because it is doubtful whether a sitting president can be indicted.

No career prosecutor is going to ignore this evidence of the president's criminal conduct and give him a pass. Nor will he let Bill Clinton recover millions of dollars (in legal fees) from the government, which would happen under the independent counsel law if he is not indicted. The retiring president is about to leap from the proverbial frying pan into the fire.

Gore's Nightmare: A Clinton Indictment and Trial

Should Al Gore become president, the indictment and criminal trial of Bill Clinton at the outset of his presidency would be a horror show. Only the resurrection of Richard Nixon could be more disquieting to the Capital City than the return of the Lewinsky scandal. For Gore to govern without the spectacle of the former president in the dock for lying about his sexual dalliances would be difficult enough, given Washington's proclivity for gridlock compounded by the controversy over this presidential election. A Clinton trial would send phalanxes of fuming Republicans, all near paranoid in their conviction that Gore had stolen the election, into a partisan tizzy.

There are only two people Republicans loathe more than Al Gore ?- Bill and Hillary Clinton. Now fearful that Senator Hillary may one day reclaim the White House, Republican zealots will find the Clinton criminal trial an irresistible opportunity, seeing in it the opportunity to further savage Bill Clinton and thereby also taint his wife, as well as any Democratic defenders of the former president. This is exactly the type of nasty partisan activity that the Gore Administration would need to avoid, yet there would be nothing the administration could do to prevent or ameliorate it.

High-powered Democrats would then pressure Gore to pardon Clinton, to end the carnage. He can't do it. For Al Gore to deprive Republicans of both the Oval Office, and their revenge on Bill Clinton, would be political suicide. It would tear the already divided Capitol apart. Gore would lose all hope of working with Republicans, who would be incapable of containing their anger. Fury knows no wrath like that of a politically scorned right wing Republican ?- I know about that, and it's not sane. In fact, many Democrats might oppose a pardon for Clinton. Thus, a pardon could guarantee that Gore, like Jerry Ford, serves only one term.

Bush's Pardon of Clinton: A Political Masterstroke

On the other hand, if George W. Bush is in the Oval Office when Clinton is indicted, a pardon of Clinton will present a marvelous political opportunity for Bush. It would be chance to pacify partisan rancor, and offer an olive branch to the Democrats.

Inherent in the power to pardon is the authority to forgive an offense before an indictment, as President Ford did with Richard Nixon. Thus, Bush can prevent the political embarrassment and distraction of the Clinton criminal trial with an act of grace ?- his presidential pardon. That pardon, of course, would send Independent Counsel Ray packing, for then his work, other than a final report, would be done. While a Clinton pardon would upset a few Republican zealots who want to drive a stake into Clinton's political heart, at best they could only groan, grumble, and growl, and maybe snap at their new leader, but none will harm him.

Clinton Could Refuse a Pardon

The law is not absolutely clear that Clinton could, in fact, prevent a President Bush from pardoning him ?- but it does suggest that this may be the case. It is difficult to find a body of constitutional jurisprudence smaller than that on presidential pardons, which have been the subject of only a handful of rulings by the Untied States Supreme Court. It appears, however, that a presidential pardon cannot be forced on a person.

In 1915, the Supreme Court ruled in Burdick v. United States that there was a "confession of guilt implied in the acceptance of a pardon," so the recipient should have a right to refuse it. However, twelve years later, in Biddle v. Perovich, the Court held that a presidential commutation of a sentence was effective notwithstanding the refusal of the recipient, stating that "[a] pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Notwithstanding the Court's language referring to a "pardon," Biddle must be distinguished from Burdick because in commuting a sentence, unlike with a pardon, guilt has been established ?- so a presidential commutation does not cause an admission of guilt. Biddle addresses the reduction of a sentence (which cannot be refused), while Burdick prevents an imposition of guilt by an act of clemency. Thus, under Burdick, a Bush pardon would appear to have no effect if not accepted by Bill Clinton.

But would Clinton go to court to have a Bush pardon invalidated? His statement during the presidential campaign of his Vice President that he did not want a pardon, however, does not mean that he might not welcome the relief. Faced with an indictment, and the prospect of a criminal trial that would revive all of the sordidness of his sexual liaison with Monica Lewinsky ?- a trial that will require graphically detailed testimony about who touched whom sexually ?- the former president might reconsider his decision to "stand before any bar of justice."

A Bush pardon would give Clinton the chance to avoid giving not only his detractors, but those of his wife ?- the junior United States Senator from New York ?- a new stockpile of political ammunition that could fatally wound them both. It would also allow Clinton to save his daughter, Chelsea, from further humiliation from her father's infidelity, to prevent another media circus where the details of oral sex become daily news, and to end the ongoing accrual of legal expenses that would far exceed the joint income of his presidential pension and wife's salary.

Would Clinton really, upon reflection, sacrifice all this, only to gain the benefit of undergoing a problematic trial in the hope of proving his innocence? Such a pardon might be difficult to turn down.

Clinton's Self-Pardon: Another Possibility

President Clinton is no fool. He understands that if Al Gore becomes president, Gore, for political reasons, will not be able to pardon him. He will not want George W. Bush in a position to politically profit from a pardon, if Bush is the candidate who becomes president. And he surely knows an indictment and trial have a greater downside potential than any upside. For these reasons, I would be surprised if he has not given serious thought to a self-pardon.

To pardon himself, Clinton would need only to take out a blank sheet of White House stationery, write out his pardon (he's signed 185 of them ?- so far the fewest of any of the modern president but enough to know what they say), 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.

If the Independent Counsel were to take him to court over his self-pardon, he would be represented by the Department of Justice, or by a private attorney hired by the Department, if the Department believed it had a conflict of interest. (With Bush in the White House, the Department would indeed suffer from such a conflict.) So this would not cost him more in legal fees.

Good Authority for a Clinton Self-Pardon

While no president has ever pardoned himself, the law supports the president's authority to do so. Scholarly inquiry into the subject was provoked first by fear that Richard Nixon would pardon himself to escape Watergate; later by thought that George H. W. Bush would do so because of the Iran-Contra grand jury; and most recently by concern about Bill Clinton's problem of a possible post-Presidency indictment and trial. And while a few scholars have concluded that the president cannot pardon himself, many more believe that he can.

As one Member of Congress said during the Clinton impeachment proceedings, "the prevailing opinion is the President can pardon himself." Thus, should Bill Clinton pardon himself, and should Independent Counsel Ray decide to go to Court to test his presidential power to do so, not only would that court case delay the prospect of resolving any criminal action against the former president quickly, it would also present a case of first impression, with the authority overwhelmingly on the side of the former president.

The president's pardon power is set forth in the constitution. Article II, section 2 grants the president "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The text of the constitution, its history, and the placement of the pardon power within the structure of the constitution, all show that there are no limits on this power, other than the exception that prevents the president from pardoning "impeachments." Accordingly, the Supreme Court has described this presidential power as "plenary." As one recent commentator summed it up, short of a constitutional amendment, there is absolutely nothing "to prevent any president from pardoning himself."

Will Bill Clinton do so? We won't know until he is indicted, for he would have to plead it as his defense. I would assume that we will have an answer to this question by March, or by end of April at the latest ?- if Independent Counsel Ray proceeds as he has indicated. Although I cannot predict the answer, this much I can promise: it will be interesting. --------------------------------------------------------------------------------

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

The Bush Administration's Dilemma Regarding a Possible Libby
The Bush Administration's Dilemma Regarding a Possible Libby Pardon -
And How Outsiders Such as Fred Thompson Appear to Be Working on a Solution
By JOHN W. DEAN
Friday, Jun. 01, 2007

On June 5, U.S. District Judge Reggie B. Walton will sentence Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, who has been convicted of obstruction of justice, making false statements, and perjury, as the result of the Special Counsel investigation arising from the revelation of Valerie Plame's identity as a CIA agent. I suspect that Judge Walton's actions will create a difficult and delicate problem for the White House.

Needless to say, I have no crystal ball. But it is plain that the White House must be bracing itself for Libby's being sent to prison. Moreover, it appears that high-powered friends of Libby and Cheney have figured out the White House's dilemma, so they are trying to help keep Scooter out of prison in a manner that will not have criminal consequences for anyone involved.

No one has been more active in this undertaking on Libby's behalf than former Tennessee Senator Fred D. Thompson, who has strong Presidential aspirations. Yet, to my surprise, Thompson is either being blatantly dishonest, or he is remarkably uninformed about his efforts. Unfortunately for Thompson, neither state of mind ought to commend itself to Republicans clamoring for a conservative with stature for the GOP nomination in 2008.

Libby's Likely Sentence and Duration of Incarceration

Since Libby's conviction, there has been considerable public speculation about his sentence. Typical of the consensus is an article by U.S. News & World Report that explains, "Under current federal guidelines, Libby's four felony convictions, which stem from an FBI [and Grand Jury] investigation into the disclosure of a CIA operative's identity, would most likely net him 18 months to three years in prison." This report notes, however, that "this is not an ordinary case, and … aggressive lawyering by both sides and the intense media scrutiny add an element of unpredictability."

There is a historical parallel to certain Watergate-related convictions. For example, former Nixon Attorney General John Mitchell, White House Chief of Staff H.R. Haldeman and Assistant to the President for Domestic Affairs John D. Ehrlichman were each sentenced to 30 to 96 months for perjury and obstruction of justice - two of the three crimes of which Libby was convicted (They each served some 18 months before they were released.)

Providing a closer parallel to the Libby situation, Presidential Appointment Secretary and Deputy Assistant to the President Dwight Chapin was convicted for lying about his involvement in the 1972 Nixon campaign "dirty tricks" operation. Chapin was not convicted for involvement in the dirty tricks per se, but rather for making false statements to the grand jury about his activities. Chapin was sentenced to 10-to-30 months in prison, with the judge required that he serve not less than 10. Similarly, Libby was not convicted for leaking information about Valerie Plame Wilson's covert status at the CIA, but rather for lying about his efforts to leak the information.

All of these former Nixon Administration officials were permitted to remain free on bond during the time they unsuccessfully appealed their convictions. But the law has become more settled in the three decades since Watergate, and currently, defense lawyers tell me that unless a defendant has serious legal issues in play on appeal, federal judges seldom allow defendants to remain free on bond during the appeal process. Libby very likely has no strong appellate issues: His trial and conviction were rather uneventful, and Judge Walton - an experienced trial judge -- was widely seen as having been fair to both sides, and careful not to make any mistakes of law.

It is well known that Judge Walton, who arrived on the bench after a successful career in the U.S. Attorney's Office in Washington, DC, gives out tough sentences. He is the kind of "law and order" judge that conservatives praise, except when one of their own is being sentenced. As I was told by one person who knows him well, Judge Walton is tough as they come, and he has the cojones to send Scooter to get his orange jumpsuit sooner rather than later.

How long a sentence is Judge Walton likely to impose? On May 25, Special Counsel Patrick Fitzgerald filed the Government's Sentencing Memorandum asking Judge Walton to sentence Libby in the range of "30 to 37 months." Criminal defense attorneys with whom I have spoken expect that Judge Walton will choose a sentence of roughly 30 months (two-and-a-half years), and to give Libby at most a couple of days to get his affairs in order before surrendering to the Federal Bureau of Prisons.

No doubt, the Bush White House has been making similar calculations. Thus, they are approaching a moment of truth. There are only three real insiders here: Bush, Cheney and Libby. However, it appears that the outsiders have looked at the situation, and acted to try to improve it. And as long as they are outsiders, they can do so without criminal exposure.

The Cost of Clemency: The White House's Dilemma Regarding the Libby Sentencing

If Watergate had any lesson, it was that when someone connected to the White House is heading for prison, it is dangerous for the president or those close to him to even think about - not to mention talk about - clemency.

After all, the March 1, 1974 indictment of Mitchell, Haldeman, Ehrlichman and Chuck Colson (who pled guilty, rather than risk a trial) charged each of them with a conspiracy to obstruct justice by offering to provide clemency to those involved in the Watergate break-in. In addition, as Nixon's tapes showed, the president discussed pardons on several occasions, and this abuse of power was included in the bill of impeachment against him that was pending when he resigned.

If Libby had been acting on his own behalf, a pardon would present no problem; Bush and Cheney could feel it was the humanitarian thing to do, given his long service to the government. However, no one I know believes Libby was acting simply for himself, nor does the evidence suggest it.

Let's suppose, instead, that Libby was doing Cheney's bidding, and that Cheney was deeply involved in both Libby's leak of Valerie Plame's CIA status and the lies Libby subsequently concocted to deflect attention away from the Vice President. If so, then there was a conspiracy to obstruct justice - and if Cheney should go to Bush and request that he pardon Libby, he would be furthering that conspiracy. No wonder then, that Special Counsel Fitzgerald remarked during the Libby trial that there was "a cloud" over the Vice President.

Come Tuesday, that cloud could get much darker for Cheney.

It's likely that only Cheney and Libby know precisely what transpired between them, assuming they are half as shrewd as they appear. In addition, Libby has probably not been foolish enough to directly request a pardon, nor Cheney imprudent enough to directly promise one. Given what happened during Watergate, surely they are smart enough not to have had that conversation.

However, these men have worked together so long and closely that a knowing look, or pat on the back, from Cheney at the right moment could and would have said all that was necessary. And my strong impression, from the outside, is that, indeed, that message has been sent.

Libby's Public Defense Fund and Pardon Efforts

Following the bungled Watergate burglary and the arrest of Gordon Liddy's troops in the Democratic National Committee, there was discussion in the White House and at a meeting of the Nixon reelection committee of setting up a public defense fund. Nixon's friend Bebe Rebozo offered to do so, with the plan of soliciting contributions from heavy hitters who merely were contributing because those arrested had all been Nixon loyalists, and were entitled to a fair trial. But it never happened.

Scooter Libby, however, did create such a defense fund. Whether Dick Cheney quietly picked up the phone to get this going, is not known. If he did, he kept himself well removed. Indeed, Lynne Cheney could well have done it. We will never know. But whoever was behind the defense fund, it has worked.

The drive to pardon Libby has come from people outside the White House who are smart enough to have figured out the dilemma facing the White House. A list of these people can be found at Libby's defense fund site, where these purported friends have gathered. It is a Who's Who of the Right-Wing Establishment -- many of whom have not only raised money to help pay Libby's legal fees, but have also written letters to Judge Walton about Libby's good character and public service, and continue to call for his pardon.

If high-powered folks like Fred Thompson lobby Bush for a pardon, Cheney need not be involved, and risk further participation in a conspiracy to obstruct justice. But the claim, made by Thompson and others, that Libby is the subject of a great injustice in being prosecuted is pure hogwash. This, in turn, suggests that this entire effort is nothing but a charade.

The Bogus Claim that Libby Has Been Unjustly Prosecuted

Frankly, I am not only stunned that Fred Thompson has taken up the "Free Scooter" campaign, but by the crude and thoughtless tactics he has employed. He has either lied or could not be troubled to inform himself of the facts before he attacked Special Counsel Fitzgerald.

Thompson, a former Assistant U.S. Attorney in Tennessee, gave an audience his assessment of the prosecution against Libby for perjury and obstruction of justice in a speech on May 12, 2007. He claims that the investigation was a sham from the outset: that there should have been no Special Counsel selected, and there never was any violation of the Intelligence Identities Protection Act. Indeed, he claimed "that there was no violation of the law, by anyone, and everybody - the CIA, the Justice Department and the Special Counsel knew it. Ms. Plame was not a 'covered person' under the statute and it was obvious from the outset."

This is a remarkable charge - suggesting that the CIA referred the matter to the Justice Department knowing that Plame was not covered by the law; that the Justice Department commenced the investigation even though it had the same knowledge; and that the Special Counsel continued the investigation even though he, too, knew she was not covered. Yet why would Attorney General John Ashcroft's Justice Department have undertaken a baseless investigation? Why would a busy and highly-respected U.S. Attorney from Chicago take the assignment of Special Counsel if the law did not apply? And why would that same highly-respected U.S. Attorney make representations to a federal judge that the law did cover Valerie Plame, if it did not? It seems Fred Thompson has made a remarkably irresponsible charge.

"Furthermore," Thompson claimed, "Justice and the Special Counsel knew who leaked Plame's name and it wasn't Scooter Libby." Yet, Thompson added, "the Beltway machinery was well oiled and geared up so the Special Counsel … spent the next two years moving heaven and earth to come up with something, anything," and finally "came up with some inconsistent recollections by Scooter Libby." Inconsistent recollections? Apparently Thompson does not have a clue about the evidence that was presented at the trial, which proved beyond a reasonable doubt that Libby concocted a complex lie to explain away key behavior.

Nonetheless, based on his two-plus years as an Assistant U.S. Attorney, Thompson informed the audience, "In no other prosecutor's office in the country would a case like this one have been brought." Apparently, other prosecutors tolerate perjury and obstruction of justice. In addition, later in his speech, Thompson explained, "I have called for a pardon for Scooter Libby. When you rectify an injustice using the provisions of the law, just as when you reverse an erroneous court decision, you are not disregarding the rule of law, you are enforcing and protecting it."

That twisted report of the Special Counsel's investigation, and disturbing view on what to do about it is a bit frightening - especially coming from a man who wants to be president. But it is arguments like this that are the basis of the drive for leniency from Judge Walton, for a pardon, and, more broadly, for a change in public opinion regarding this case.

Fitzgerald Responds To The Conservatives' Claims

Although a few paragraphs of the Government's Sentencing Memorandum were filed under seal, Special Counsel Fitzgerald addressed within the publicly-available portions of the Memorandum assertions like those Thompson has made.

In the Memorandum, Fitzgerald advises Judge Walton that until the investigation was as complete as possible, he had not decided who could, or should not, be charged. He also makes clear that Valerie Plame was, indeed, a covert agent, and that the law did, indeed apply to her: "t was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press."

Unlike Thompson, who is free to act irresponsibly, Fitzgerald is not. He backed up his assertion by providing Valerie Plame's employment record. As MSNBC explained, "An unclassified summary of outed CIA officer Valerie Plame's employment history at the spy agency, disclosed for the first time today in a court filing by Special Counsel Patrick Fitzgerald, indicates that Plame was "covert" when her name became public in July 2003."

Although Fred Thompson claims no other prosecutor would have taken action against Libby's perjury, Fitzgerald's filing makes it difficult to imagine how any legitimate prosecutor could have failed to take such action. Fitzgerald quotes and cites United States v. Mandujano - one of a number of cases reaching the very same conclusion - to the effect that "[p]erjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is -- and even the solemnity of the oath -- cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it."

It should be of concern to Vice President Cheney that the Fitzgerald filing on Libby's sentence once again indicates that Special Prosecutor has concluded, based on the evidence, that Cheney was involved in Libby's misdeeds. Fitzgerald all but states that he still has not gotten to the bottom of this investigation because Libby refuses to tell the truth, and that, if he did reach that bottom, he would likely find Dick Cheney, who may well have violated a number of laws.

With Friends Like Thompson, Libby's Pardon Is In Doubt

Judge Walton has agreed to make public the hundred-some letters he has received from present and former government officials regarding the Libby pardon. After Judge Walton sentences Libby, the world will know if the rumor as to his truly having cojones is correct -- for if Walton does tell Libby to surrender forthwith to the Federal Bureau of Prison, the campaign to "Free Scooter" will begin in earnest.

I suspect Patrick Fitzgerald will be watching with great interest any pardon action. After all, he was working in the U.S. Attorney's Office for the Southern District of New York when that office ignored the refusal of the Bush Department of Justice, under Attorney General Ashcroft, to investigate former President Bill Clinton's pardon of financier Marc Rich.

What will happen if Fitzgerald observes Bush pardoning Libby without any better rationale than the paper-thin ones Fred Thompson and friends have been pushing? One would be wise to remember that Fitzgerald will still have five years before the statute of limitations runs to find out why such a pardon was issued, as occurred with Clinton's Marc Rich bottom. Fitzgerald's appointment as Special Counsel ends when he ends it, and given his apparent view that Cheney is at the heart of the Plame scandal, I don't expect him to end it prematurely.
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John W. Dean, a FindLaw columnist, is a former counsel to the president.

THIS indicates there may be more than one way to pardon ones self.

Apparently, it can be done legislatively.

Tricky, tricky, Sir.