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March 26, 2007

Intriguing op-ed on pardon realities

With the Lewis Libby case in mind, George Lardner Jr. has this interesting op-ed about pardon law and realities in today's New York Times.  Here is a taste:

Mr. Libby may escape prison time, but if he accepted a pardon, he (and Mr. Bush) would have a hard time continuing to insist that he was an innocent victim of a vengeful prosecutor. It would also undermine the claim that the Plame investigation was a partisan ploy to discredit the White House, and leave another stain on Mr. Bush's legacy. Here's why: If Mr. Libby were to accept a traditional presidential pardon — a "full and unconditional" grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I.

Perhaps it shouldn't be that way, but it is — no ifs, ands or buts about it.  So, while many who have been pardoned like to claim they have been "exonerated," that simply isn’t so.  The Supreme Court laid down the law in 1915 in a case that, paradoxically, grew out of a debate over the sanctity of a newspaperman's sources.

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In 1999, Bill Clinton granted a full an uncodntional pardon to Henry O. Flipper, who certainly did not accept it. Flipper was quite dead. The pardon (valid and effective so far as I know) was not simply based on the ground of innocence. It was also based on the premise of Justice Department officials that acceptance is no longer a condition for pardon. This premise was also influential when DOJ officials were considering revocation of the Marc Rich pardon. That is to say, it carried over into the Bush administration. I am not aware of anything suggesting the premise has now been forsaken.

http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/LibbyBlog.htm

Posted by: P.S. Ruckman, Jr. | Mar 26, 2007 12:00:17 PM

If Mr. Libby were to accept a traditional presidential pardon — a "full and unconditional" grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I.

two additional points, which emptywheel and looseheadprop have discussed at the next hurrah and firedoglake.com.

1. If Libby accepts the pardon, he can then be compelled to testify about the conduct for which he has been pardoned. He is no longer allowed refuge in the 5th amendment protection against self-incrimination. Think Ollie North- and why not? A lot of the felons from Iran-Contra are involved with the Iraq mess we're in now. Do you really think Dubya wants Libby to testify about how Big Time ordered Scooter to lie to the FBI? Nobody in the White House likes that line of questioning, becuase the next question from Pat Leahy is, "Did the Vice President order you to discuss Plame with reporters?" In response to that question, Libby can either (a) lie and say no, which gets him prosecuted for perjury all over again, or (b) tell the truth and say "yes" which will provoke another Constitutional showdown, as senators threaten to drag Cheney under the Kleig lights and Cheney makes angry noises about urinary executive and his place in the fourth branch of government.

2. After Congress asks Libby whether he was ordered to out Plame, they'll ask him if he actually did it, or if he knows anyone else who did (Rove). Libby will be forced to take the 5th in response to THAT question, because it's a DIFFERENT crime that he won't have been pardoned for yet, since Fitzgerald didn't charge him with it (Hint: this one starts with a "T" and ends with "reason").

So from the White House perspective, nothing good can come of a Libby pardon, while there are several fatal outcomes. Remember, the investigation was never supposed to go this far: Ashcroft was supposed to kill it, and Rove probably had Fitz on his short list of prosecutors who needed firing. Libby told a bunch of lies to cover Cheney's ass, because that's what Cheney ordered him to do. They didn't expect he would be caught in his lies, because they trusted DOJ to kill the investigation by firing the prosector before he got too close. Now that Libby has been caught for his lies, the White House has no incentive to bring any attention back to the issue, becuase the crime here truly is worse than the cover-up.

Libby already has ample incentive to keep his mouth shut about what else went on in EoP and OVP: the "underlying crime" that he wasn't been charged with carries the death penalty. And just becuase he hasn't been charged with it yet doesn't mean that he can't be charged later. I don't think there is a statute of limitations on high treason. Since all he's looking at now is a maximum of 25 years, I bet he's actually pretty relieved. It's amusing to me that Libby's supporters who demand clemency from the President haven't thought this through.

Posted by: smiley | Mar 26, 2007 12:09:49 PM

Again, Libby's "acceptance" is a non-issue. Bush can grant the pardon, without a request from Libby, and Libby cannot break into prison (if he is even sentenced to prison) because he refuses to "accept" it.

http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/LibbyBlog.htm

Posted by: P.S. Ruckman, Jr. | Mar 26, 2007 1:04:12 PM

Compare Lardner's commentary with Ex Parte Garland (1866):

"The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It 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. The power is not subject to legislative control ... A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity."

http://www.rvc.cc.il.us/faclink/pruckman/pardoncharts/LibbyBlog.htm

Posted by: P.S. Ruckman, Jr. | Mar 26, 2007 1:36:00 PM

if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights.

Except, that is, his right to claim 5th amendment protection against self-incriminating testimony about the pardoned conduct. So if Bush issues a pardon to Libby, Leahy would get to ask Libby why he lied to the FBI, and why he lied to the grand jury, and if anyone ordered him to tell those lies, or if he just came up with this scheme himself. Oh, and by the way, did Libby ever talk to Karl Rove about Plame?

Cheney can't allow those questions to happen- not in front of the Senate Judiciary Committee, on C-SPAN, piped through my video capture card onto YouTube to be played over and over and over again. So, no pardon will be forthcoming.

Posted by: smiley | Mar 28, 2007 2:47:33 PM

Except, that is, his right to claim 5th amendment protection against self-incriminating testimony about the pardoned conduct.
---------
I am not familiar with the precedent case for this logic. Please share.

best,

Posted by: P.S. Ruckman, Jr. | Mar 31, 2007 1:32:06 AM

From Schick v. Reed (1974)

Various types of conditions, both penal and nonpenal in nature, were employed. For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects of "banishment." This practice was never questioned despite the fact that British subjects generally could not be forced to leave the realm without an Act of Parliament and banishment was rarely authorized as a punishment for crime. The idea later developed that the subject's consent to transportation was necessary, but in most cases he was simply "agreeing" that his life should be spared. Thus, the requirement of consent was a legal fiction at best; in reality, by granting pardons or commutations conditional upon banishment, the Crown was exercising a power that was the equivalent and completely independent of legislative authorization.

Posted by: P.S. Ruckman, Jr. | Apr 16, 2007 11:27:26 AM

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Posted by: DFDF | Jul 29, 2007 1:16:07 AM

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