The Pardon Card

I have assumed for a long time that George Bush's last act as president will be to issue the most sweeping pardon in the history of the United States. I have scarcely heard this possibility mentioned, and when it is, it seems to be dismissed on the ground that such an act would reflect so badly on Bush and the Republicans that it would never be allowed to happen.

I have serious doubts about this view. First, there is no "allowed to happen" about a pardon. It is one of the most starkly unilateral powers a chief executive has. Bush merely needs to instruct a lawyer, any lawyer, to draw up the broadest, most comprehensive, most bulletproof pardon they can draft, and then he needs to sign it. If he decides to do this, no one can stop him short of incapacitating him. And who would try to stop him? Surely not Cheney, whose indifference to the opinion and fate of the world beyond his front lawn -- including his own party -- could not have been more vividly illustrated these last seven-plus years. I would expect Cheney to be the biggest supporter of such a plan -- perhaps its author.

Second, the kinds of considerations cited by the pooh-poohers have never influenced George Bush. I see no reason to suppose that he will suddenly grow a conscience, or a sense of history, or a competence at strategic thought, in the waning hours of his lame-duck presidency. He knows that everything done under him has been good and true, because it proceeds from him, and he is good and true. He's not going to allow a bunch of lawyers, judges, and Democrats to punish his loyal servants. Remember, this is the man who views the United States Constitution as "just a goddamned piece of paper." (He doesn't even know that the original is on parchment. But then he's probably never heard of parchment.)

This at any rate has been my view before today, when Salon ran a story indicating that senior Democrats in Congress are talking seriously about initiating, after the election, a comprehensive, Church Commission-style investigation into the Bush administration's lawlessness. This suggested to me, for the first time, a consideration that might motivate Bush to forego, or limit the scope of, a pardon: its effect on the testimonial immunity of those involved in these activities. A pardon, at least if accepted by its subject, strips him of the Fifth Amendment privilege against self-incrimination. This of course makes perfect sense: Since he can no longer be convicted based on the acts in question, he cannot incriminate himself by testifying about them.

This raises the possibility that by pardoning everyone in sight for everything they might conceivably have done in service of his administration, Bush would strip them of the ability to refuse to answer questions about those activities. They could be jailed for contempt if they refused, and if they answered other than truthfully they would be open to perjury prosecutions. (I assume, without doing the research, that a pardon cannot extend to acts occurring after its issuance, and surely it cannot extend to acts after the issuing president leaves office.)

This of course suggests another troubling possibility, which is that if pardons are not issued, the witnesses will assert the privilege, which will in turn open the door to granting immunity in exchange for testimony. The grants of immunity then become a political football with the result that targets of the investigation receive the equivalent of a pardon, but from Congress rather than the president. This is exactly what happened with Ollie North. And it points to one of the difficulties with any investigation conducted by a political body (Congress) rather than a professional one (a prosecutor's office). A good prosecutor can be relied upon to offer immunity sparingly and strategically, with the objective of using immunized testimony from small fry to capture the bigger fish. Congress may be more prone to using the immunity power in favor of those with more political clout -- often the bigger fry.

A couple of open questions about pardons, which I hope to research and discuss here in the future. Does a pardon immunize its subject against extradition? If not, it may be open to a future government to extradite, say, Donald Rumsfeld, for prosecution in, say, the Hague. It a pardon bars extradition, might there be other ways to permit a foreign power (e.g., another country, or the International Criminal Court) to take into custody an American citizen on American soil? Do these possibilities resurrect the risk of "self-incrimination" for purposes of the Fifth Amendment privilege? And for that matter, is the threat of foreign prosecution, even without extradition (e.g., a trial in absentia, or the risk of apprehension in a third country) sufficient to keep the Fifth Amendment privilege alive despite a pardon? I would not be surprised if these questions prove to lack existing answers. Which could mean that the Supreme Court would ultimately play a key role.

Whatever happens, it should be worth watching.