Dean and Bush and Pardons

John Dean’s piece on FISA reads with all the angst of someone who–after a number of people have demonstrated his error–is hoping to persuade Barack Obama to get him out of the hole he created for himself. "Please, Obama," Dean seems to be saying, "hold Bush accountable so I don’t have to admit immunity really is immunity."

One gaping problem with Dean’s argument is the absence of any discussion of statutes of limitation. Even if Obama did what Dean wanted–and announced he would direct his AG to immediately review the warrantless wiretap program–the Republicans in the Senate could just filibuster approval of Obama’s AG until, say, April 26, 2009 (five years and 45 days after the authorization signed by Alberto Gonzales on March 11), and the statute of limitations on the known crimes would expire.

But the proposition I find really ridiculous is Dean’s contention that Bush isn’t going to issue blanket pardons of all the law-breakers in his Administration.

Given the downside, it is not clear whether Bush would issue a pardon in this context.

If it were issued by Bush, however, a blanket pardon to his “national security” miscreants would require acceptance by them of the fact that they had broken the law, and thus an admission of guilt. Were Bush to issue such a remarkable pardon, it would, of course, cement his historical stature as several notches below even that of Richard Nixon, who refused to pardon those who (many “for national security reasons”) engaged in the so-called Watergate abuses of presidential power on his behalf. Not many presidents want to be viewed by history as worse than Nixon. And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch. It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.)

Bush is very politically savvy. He knows that a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election. Most Americans are deeply concerned about Bush/Cheney’s conduct of foreign affairs and national security, which ignores American laws and treaty obligations. So if Bush is forced to pardon his national security zealots, or if GOP standard-bearer John McCain was forced to embrace such action (as he likely would be), it raises the issue of whether Americans now want to elect a president who is subject to the law, or endure another temporary monarchy which ignores it. And that is no small issue in this 2008 election.

First, given that Nixon never really had to admit his guilt, I don’t see why anyone would expect Cheney, Libby, Gonzales, Yoo, and Addington would have to either. Is anyone now talking about how guilty Cap Weinburger is?

Second, Bush already is viewed–even by historians–as worse than Nixon. His approval rating has been in the toilet longer than Nixon’s, and he’s not going to have a peace treaty or a China relationship to show for his time in office. And the damage Bush has done to the economy will linger in historical memory for quite some time.

More importantly, I expect that Bush’s priority, as he leaves office, will be (as Nixon’s was) on avoiding criminal prosecution rather more than on his historical legacy. And given Congress’ determination not to impeach Bush for all his law-breaking, that puts Bush in precisely the opposite position as Nixon was in. Nixon got his pardon (again, without admitting culpability), which left him free, in turn, to deny his aides their pardon, because they couldn’t do anything to him! Bush, on the other hand, is utterly dependent on Cheney and Addington and Gonzales on keeping silent about his own culpability. And the best way to keep them silent–as we’ve already seen with Libby–is to make sure they avoid any real legal consequences for their actions. We know that Bush authorized the illegal warrantless wiretap program himself, in spite of FISA’s clear restrictions against it, so we know Bush is ultimately the one on the line. And the best way for him to avoid legal consequences for that act is to make sure his aides don’t talk about it. All the more reason, then, for him to issue a boat-load of pardons as he leaves office, for this issue and for others. (And yes, I’m aware that these newly pardoned thugs would then not be able to invoke the Fifth if Congress were to call them to testify–but I think past behavior and Bush’s frequent invocation of executive privilege suggests we’re not going to see that happen).

Finally, I don’t know why Dean believes that "a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election." Obama frequently uses the phrase "Scooter Libby justice," so he’s effectively already doing what Dean says he might do if Bush were to offer pardons (which, of course, wouldn’t actually be issued until Obama has won the presidency anyway). But that "Scooter Libby justice" phrase really doesn’t reflect on McCain. Furthermore, Bush’s commutation for Libby proves that the electoral consequences of excusing law-breaking won’t keep him from doing excusing law-breaking–so long as his own ass is on the line.

And given that it is, on FISA more than on any of the Administration’s other law-breaking, you can be sure Bush will issue the pardons to keep himself safe.

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    • Bushie says:

      In Dean’s column, he stated that the immunity provision is for civil actions, not criminal. Unless some GOPer or Obama offers an amendment granting full immunity, the evil doers could, but will not, face criminal indictments.

      • wigwam says:

        Here is what I see quoted from H.R. 6304:

        No cause of action shall lie in any court against any provider of a wire or electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under this chapter for electronic surveillance or physical search.

        IANAL. Does “cause of action” refer only to civil suits?

      • drational says:

        An opinion that no matter who becomes the next president, no member of the Bush Administration will ever need a pardon for criminal liability for FISA violations.

        Tuesday will almost certainly close the civil discovery process and as EW notes, the statute of limitations will start ticking. And there is no congressional power nor existing Presidential candidate that will ever choose to or be able to put Bushco in a position where they will need a pardon for FISA violations.

        Pessimistic, yes. But there you have an explanation for my sentence.

  1. PraedorAtrebates says:

    There is only one real hope: the rest of the world.

    Perhaps Spain, which was instrumental in arresting Pinochet and other similar criminals, would issue a warrant and arrest Bush, Cheney, Rumsfeld, etc, at the first opportunity for war crimes. No pardon, no executive privilege claim would save them. Once any of these criminals leave the confines of the USA, they are subject to arrest by any moral, justice-seeking country.

    Then again, with rendition as a model, any other country is well within their rights to snatch any or all of these bastards from their homes in the USA proper so they can be whisked away for justice. Goose, gander, etc.

  2. Mary says:

    I can’t say re: all the lawbreakers in the Bush Admin, but for the FISA felons, I think Bush may very well be able to get by without issuing pardons. The Dept of Justice is one and the same Dept of Justice, even after Bush leaves and it becomes the ObamaDoj. As an entity, the US DOJ has intervened in wiretap litigation and as an intervening party has taken the position that the telecoms were acting without criminal intent.

    I just don’t see how they aren’t held to claim preclusion on that in any subsequent litigation (I carelessly call it res judicata, which it isn’t really). Maybe the difference in nature of the civil v. criminal proceedings and the difference in the representation of public interests v. Executive liability might create layers to peel apart, but basically you (here, the Dept of Justice) can’t go into litigation and take a position vis a vis another party, for the record and on the record, then in subsequent litigation involving those same parties take a completely different stance, at least, to the extent the issue was ruled upon. Maybe it’s not clear that the dismissal for reliance on AG/President/Intell Chief authorizations is an adjudication on the issue of mens rea, but I think you’d have a very hard row to hoe there.

    And then there’s the co-conspirator issue of DOJ and the telecoms. I just don’t see how you get a successful criminal prosecution when the prosecution is a co-conspirator. It’s just a sad punch in the gut, but it is what it is.

    I do think for the murders killings he will issue pardons and maybe for some of the rest of the non-FISA felonies. But in the game of chicken, what most of it boils down to is that people like Pelosi and Rockefeller are smack in the middle of any real criminal or Congressional investigation, as are all kinds of people affiliated with DOJ currently as well as formerly, and a lot of covert operatives may also be invovled. Stir that pot together, and there’s enough of a vested interest for everyone in keeping it under cover, and Obama is such a poltical creature who will enjoy the power that derives from cowardice, that I don’t see Bushco feeling a big need for pardons on a lot of fronts.

    And when he doesn’t issue them, and Dems do nothing while the frustrated few continue to bang the drum, albeit more and more slowly, it becomes a non-issue over time. After all, you aren’t not going to vote for Obama and risk letting scarey McCain in office, just bc Obama is a hollow man, are you? Nope. No consequences for anything.

    Except, of course, the worldwide consequence of Muslims watching el-Masri and Parhat and Arar cases and beginning to wonder what avenues are left for justice. Feel safer?

    • bmaz says:

      I don’t need all of one hand on which to count the number of people who understand the role of issue preclusion in this context.

      Finally, I don’t know why Dean believes that “a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election.”

      WTF?? I am up dung creek with things going on this morning, so I have not yet read Dean or al Haramain, but the pardons won’t bee issued in time for Obama to yammer about before the November election. Dean is either losing it, on better drugs than I have, or is just making shit up.

  3. perris says:

    Bush is very politically savvy.

    dean is wrong, bush is a moron, he is noy “savvy” in any sense of the word and this includes the political venue

    and it seems he has grown more moronic through the passing of time

    and he has become brazen, dean is clearly wrong, bush will use the old, “because I said it, it is so” and claim there is no admission of guilt even if he did pardon his administration

  4. wigwam says:

    In blanket pardons, people need not be named. Rejecting it, keeps open their ability to plead the fifth. Accepting it, lets them off. Of course, they don’t have either until the last second. Until they want to play one or the other of those cards, they can ignore the pardon.

    BTW, in 2002 Dean wrote at FindLaw, that a president, e.g., Bill Clinton, could pardon himself. I wonder whether he still considers that an option.

    • bmaz says:

      I have never understood where the “acceptance of pardon, acceptance of guilt” bunk came from. You DO NOT have to accept a pardon, you don’t even have to ask for a pardon to get one. You don’t have to do diddly squat. You can stand totally mute and the pardon is effective. And by doing so, you are NOT accepting guilt. This whole meme is a crock o dung.

      • wigwam says:

        Per the Wikipedia:

        Burdick v. United States, 236 U.S. 79 (1915)[1], was a case in which the Supreme Court of the United States held that:

        * A pardoned man must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court.
        * To do this, the pardoned man must accept the pardon. If a pardon is rejected, it cannot be forced upon its subject.
        * A pardon carries an ‘imputation of guilt’, and accepting a pardon is ‘an admission of guilt’.

        A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on.

        • earlofhuntingdon says:

          I agree that’s the law, but it’s not the public’s or the perp’s perception. We’re talking of comparing the GOP spinmeisters’ description of what pardons would mean against the Democrats’ spin-apprentices. No contest.

          • wigwam says:

            So far as I can tell, this “imputation of guilt” has no operational significance. It’s sort of like a moral stigma. And Bush certainly doesn’t shy away from those.

            • bmaz says:

              That is exactly right; in fact the only real operational significance that I have ever determined is, or would be, in terms of a related civil suit. Somewhere (I once long ago and far away actually litigated some of this pardon crap) there was a case where there was an assault or some other act causing physical damages, and the fact of acceptance of pardon/guilt was simply used as some type of evidence or finding regarding the nature of the act. The defendant may even have been dead in that case, and this was used to keep the estate from denying the act or something like that. I can’t remember, and may be hallucinating with these recollections, but at any rate, that is the only general type of use I recall in this regard.

              As to the other contention above, Mary has hit the nail on the head. The problem is, in the instant case, no cases will ever get filed to get to that point, even if it would maintain (and, again if I recall correctly, Burdick was a bit weird in it’s structure). I hope that this theory would work out different than I am suggesting, but I would bet zero money on it.

    • BoxTurtle says:

      The one limit on the presidents power to pardon is impeachment. Clinton was impeached by the house and aquitted by the senate.

      Bush could certainly pardon himself, unless someone submitted articles of impeachment against him.

      Bmaz, EW, do you think the Kuchinich’s articles against Cheney would prevent Bush from pardoning Cheney?

      Boxturtle (Still dreaming of BushCo being perp-walked across the tarmac at The Hague)

      • perris says:

        Bmaz, EW, do you think the Kuchinich’s articles against Cheney would prevent Bush from pardoning Cheney?

        they couldn’t prevent the pardon, they could only prevent criminal charges

      • perris says:

        Bush could certainly pardon himself, unless someone submitted articles of impeachment against him.

        even if somoene subitted those articles and even if they were taken up, he could still pardon himself, he just couldn’t pardon himself against the impeachment

  5. MarkusQ says:

    After all, you aren’t not going to vote for Obama and risk letting scarey McCain in office, just bc Obama is a hollow man, are you?

    Why not? If Obama isn’t going to stand up when it counts, how is he any better than McCain? When he wanted my vote in the primaries, he clearly told me one thing, and now that he’s getting ready for the general it sounds as if he’s going to do the exact opposite.

    If that proves to be the case, why should any rational; person prefer one over the other?

    –MarkusQ

    P.S. And, for the record, I feel that corporations are a far greater threat than Muslim extremists. They are richer, better organized, more ruthless, they kill more Americans and they are much better at escaping the consequences of their actions. They, and not some foreign boogymen, are the real threat and this bill put their interests above the American people. Voting for it is tantamount to treason in my eyes.

  6. Cheryl says:

    OT – Has anyone heard whether Fitzgerald responded yet to Waxmans request for documents re: this from his June 27th letter?

    To assist the Committee in evaluating the Department’s position, I request that you produce the following information to the Committee no later than July 3, 2008:

    1. Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Office of Special Counsel or the Federal Bureau of Investigation and the President of the United States, regarding the conduct and use of the interview or interviews of the President conducted as part of the Valerie Plame Wilson leak investigation.

    2. Documents sufficient to show the date and terms of all agreements, conditions, and understandings between the Offrce of Special Counsel or the Federal Bureau of Investigation and the Vice President of the United States, regarding the conduct and use of the interview or interviews of the Vice President conducted as part of the Valerie Plame Wilson leak investigation.

    If such agreements, conditions, and understandings were not memorialized in writing, I request that you submit a written description of the date and terms of any such agreements, conditions, and understandings.

    Wasn’t the deadline July 3, 2008?

    • PJEvans says:

      I don’t see anything on his official page, although there might be something on the committee page.

      • Cheryl says:

        Thank you PJ — the person answering the phone at the Committee contact phone number didn’t know anything.

        • rosalind says:

          just called the committee again. person answering still doesn’t know, but said if response does come in today might not get posted until next week.

    • BayStateLibrul says:

      I’m wondering if Fitzy had to run it up the flag pole first?
      Is he back from his honeymoon, or is it over?

  7. earlofhuntingdon says:

    Even if George’s intellect [sic] remains safely inside his portable bubble, Cheney’s isn’t. My guess is that the topmost document in his safe is the list of Presidential pardons he wants George to issue before he leaves office. The only thing those on that list have to fear, I’d wager, is that Dick is incapacitated beforehand. Addington, as substitute, hasn’t the access or the Oedipal hold over Shrub that Big Dick has, though I’m sure Ed Gillespie and others would do their darndest to pick up the ball.

  8. JTMinIA says:

    Starting about a year ago, I predicted that Bush would resign a few days before the end of his term so that Cheney could pardon him.

    I stand by that prediction, but have added plans to avoid visiting Tehran during that time.

  9. Mary says:

    14 – I was being a little snarky there, sorry if it didn’t come through that way.

    18 – keep in mind the context of that case, which is that someone was being criminally pursued over something for which they had arguably been pardoned, but there was some lack of clarity. So you are talking about for the purpose of interposing the pardon as a defense to a prosecution that a prosecutor is otherwise going to pursue.

  10. MarkusQ says:

    14 – I was being a little snarky there, sorry if it didn’t come through that way.

    I suppose it did. I’m just fed up with people chanting that we must support BO because he’s a D, even if he morphs into a slavering neocon before November. And the whole slew of people trying to spike any discussion of the FISA/immunity bill on most blogs.

    – MarkusQ

    • Cheryl says:

      Could it have something to do with the “Military Commissions Act of 2006 PUBLIC LAW 109–366—OCT. 17, 2006?”

      I looked at the Youtube and could only find this bill when searching the Senate.

      Page 38 of the pdf of the bill does have:

      1005(e)(1) of Public Law 109–148 (119 Stat. 2742) and the subsection
      (e) added by added by section 1405(e)(1) of Public Law
      109–163 (119 Stat. 3477) and inserting the following new subsection
      (e):
      ‘‘(e)(1) No court, justice, or judge shall have jurisdiction to
      hear or consider an application for a writ of habeas corpus filed
      by or on behalf of an alien detained by the United States who
      has been determined by the United States to have been properly
      detained as an enemy combatant or is awaiting such determination.
      ‘‘(2) Except as provided in paragraphs (2) and (3) of section
      1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801
      note), no court, justice, or judge shall have jurisdiction to hear
      or consider any other action against the United States or its agents
      relating to any aspect of the detention, transfer, treatment, trial,
      or conditions of confinement of an alien who is or was detained
      by the United States and has been determined by the United
      States to have been properly detained as an enemy combatant
      or is awaiting such determination.’’.

      Sorry for the long answer. I didn’t read the entire bill so the Cafferty show on Youtube could be right. Interesting…