Wednesday, November 14, 2007
Ending Impeachment Myths IX -- "He'll just get pardoned, anyway."
The source of this myth isn't exactly clear to me, but I've seen it on a regular basis. Fortunately, it is extremely simple to dispel, because impeachment convictions are specifically exempted from the pardon power by the Constitution.
Check it yourself. Article 2 Section 2 states:
As you can see, the Founding Fathers were thinking ahead.
There are some recent cases in history that may have contributed to the birth of this misconception. Among them:
Does this mean that if H Res 333 is successful, Cheney is immune from prosecution? Not at all. It means that he would be stripped of office, stripped of the dubious "executive privilege" defense, and be able to face criminal charges in a court of law as a private citizen.
While it is possible that the President would try to issue a "pre-emptive pardon" (as in the Nixon case), this could be challenged. Arguably, honorable Republicans would oppose this move in order to prevent further destruction of their party's public image.
SUMMARY:
Check it yourself. Article 2 Section 2 states:
"The President ... shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
As you can see, the Founding Fathers were thinking ahead.
There are some recent cases in history that may have contributed to the birth of this misconception. Among them:
- the "pardoning" of Richard Nixon by Gerald Ford -- Members of House Judiciary Committee (including John Conyers) had finished approval of the first three articles of impeachment against Nixon, conclusive evidence had emerged that Nixon was abusing his powers of office, and it was clear to all that the full House would vote to impeach soon. Conviction in the Senate seemed unavoidable. Republican leaders of Congress went to the White House to discuss things with Nixon, who was convinced to resign. New replacement President Gerald Ford issued a pardon about a month later for "all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974."
This so-called "pre-emptive pardon" had a questionable legal basis, as it was completely novel. Hindsight makes clear some of its lingering effects. People were not happy: Ford's polling numbers dropped sharply once it was issued.
The very reasonable argument was put forth that, although the President does have the Constitutional right to issue pardons, a pardon cannot be properly issued until after a conviction has occurred. Since there were never any criminal charges filed against Nixon, the validity of this argument was never tried in court. However, the legality of a "pre-emptive pardon" is hardly set in stone, and it would take a ruling in a court case to see if the idea passes judicial muster.
The important part of all this is that Nixon's "pardon" was not for his impeachment. Nixon resigned before the article of impeachment against him even passed out of the House of Representatives. Also, the decision not to pursue criminal charges was optional. The legitimacy of the "pardon" issued by Ford could have been challenged. - the commutation of "Scooter" Libby's sentence by President Bush -- After "Scotter" Libby's conviction for his role in obstructing the investigation into the Valerie Plame affair, President Bush decided to commute Libby's 30-month sentence, ensuring that he would serve no jail time for his crime. As many observed, this also ensured that he would not testify about the role Vice President Cheney (Libby's boss) played in the scandal. Many people were displeased; as noted earlier, polling immediately afterward showed 54% of the public in support of beginning impeachment hearings against Cheney.
Please note: Libby was not pardoned for his crime, and the conviction remains on his record... for now. Many believe that a full pardon will be issued at the end of Bush's term, especially in light of Bush's refusal to rule this out.
Does this mean that if H Res 333 is successful, Cheney is immune from prosecution? Not at all. It means that he would be stripped of office, stripped of the dubious "executive privilege" defense, and be able to face criminal charges in a court of law as a private citizen.
While it is possible that the President would try to issue a "pre-emptive pardon" (as in the Nixon case), this could be challenged. Arguably, honorable Republicans would oppose this move in order to prevent further destruction of their party's public image.
SUMMARY:
- This myth is pure fantasy: The Constitution prevents the issuance of pardons to reverse an impeachment conviction.
- Impeachment opens the way for criminal charges.
- Don't forget: "Pre-emptive" pardons are not necessarily legitimate.
