Prisons

The One Presidential Power Bush Doesn't Care For

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That would be the pardon power.

Former U.S. pardon attorney Margaret Colgate Love writes in the Washington Post:

Bush's 157 pardons say little about his criminal justice philosophy. Most have gone to people convicted long ago of minor offenses, who spent little or no time in prison, and who are unknown outside of their communities. Five of his six sentence commutations went to small-time drug offenders who had spent years in prison and were close to their release dates.

Meanwhile, Bush has denied almost 8,000 clemency requests, many of which were indistinguishable from the ones he granted.

[…]

The Sentencing Reform Act of 1984 made the pardon power virtually the only mechanism by which lengthy mandatory prison sentences can be reconsidered once they have become final. Supreme Court Justice Anthony Kennedy, the author of opinions upholding harsh sentencing laws, urged in a 2003 speech to the American Bar Association that the pardon process be "reinvigorated" in response to "unwise and unjust" federal sentencing laws; "a people confident in its laws and institutions should not be ashamed of mercy," he said. 

[…]

A series of final pardons could highlight flaws in the justice system that would be instructive to the next administration. The Framers considered the pardon power an integral part of our system of checks and balances, not a perk of office. Judicious grants of clemency can signal to Congress where rigid laws should be amended and give policy guidance to executive officials. The president's intervention in a case through his pardon power benefits an individual but also signals how he wants laws enforced and reassures the public that the legal system is capable of just and moral application.

It is ironic that a president who has stretched his other constitutional powers to the breaking point has been so reticent and unimaginative in using the one power that is indisputably his alone.

The one time Bush used the pardon power to make a statement about injustice was when he commuted what he determined was an unfairly long sentence for former Cheney chief of staff Scooter Libby.  There's also some talk now that Bush may pardon all federal counter-terrorism interrogators to clear them of possible torture charges in an Obama administration (Obama has signalled that he won't pursue such charges).  There's also talk (though it seems more far-fetched) that Bush will issue a blanket preemptive pardon for himself and his top advisers before leaving office.

Here are just a few people more deserving.

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  1. There’s also talk (though it seems more far-fetched) that Bush will issue a blanket preemptive pardon for himself and his top advisers before leaving office.

    It would be one of the only sane things he’s ever done in office, if he did it.

    Yikes, I probably fucked up the subjunctive on that one.

  2. He isn’t pardoning anyone because he thinks they should all remain in jail. I’ve got a suspicion that the few easy pardons he did was due to a friend of a friend of a donor.

  3. “There’s also talk (though it seems more far-fetched) that Bush will issue a blanket preemptive pardon for himself and his top advisers before leaving office”
    He resigns a week before the inauguration, Cheney pardons him and everyone else in the administration, and then drops dead of a heart attack.

  4. “Cheney pardons him and everyone else in the administration, and then drops dead of a heart attack.”

    You have to admit that wouldn’t be all bad.

  5. “It is ironic that a president who has stretched his other constitutional powers to the breaking point has been so reticent and unimaginative in using the one power that is indisputably his alone.”

    Does someone other than the president have veto power?

  6. A “blanket pre-emptive”? Hmmm . . . interesting subject but to good to be true.

    Elemenope,

    Sane thing? I’m more inclined to believe his band of incompetents lost the donor list and don’t know who to pardon.

  7. Well, pre-emption is the Bush doctrine.

  8. I’ve got a suspicion that the few easy pardons he did was due to a friend of a friend of a donor.

    Pretty much this. If the pardons are all over the board then it’s not a political statement as much as it is political kickback.

  9. Here’s a list (ususal wikipedia disclaimers)

    Interestingly, 8 of them (5%) the person involved had some variation of ‘lying on a loan application’ – and most of these people were pardonned in Dec ’06

  10. A series of final pardons could highlight flaws in the justice system that would be instructive to the next administration.

    Um well sort of. The Clinton pardons highlighted the flaw that the president has to power to pardon people in exchange for mountains of cash. I’m actually surprised the Bush administration didn’t find that more instructive. Could be because they’re distracted making money while bankrupting the country.

  11. “There’s also talk (though it seems more far-fetched) that Bush will issue a blanket preemptive pardon for himself and his top advisers before leaving office.”

    He could do that?
    Gah! I should be president. :]

  12. ***Does someone other than the president have veto power?***

    The power to veto or sign legislation is just a part of the legislative process, and is by nature limited to a reaction to Congress’s initiative.

    The pardon power is indeed pretty much the only Presidential power that is completely uncheckable. Not even the power of the purse can touch it. The main reason it can be so is because it is only a check on government power- the President can lighten or eliminate sentences, he can not increase or impose them.

    It will be very useful power someday to the first libertarian President. If he wanted to, a President truly intent on cutting government could simply pardon anyone breaking any laws he didn’t like, including drug laws or regulatory laws. The pardon is useless to expand government power, but used liberally it could do much to decrease it.

  13. Everything would be so much fairer if plutocrats and private police ruled.

  14. Lefiti,
    Way to knock down that straw man! Fight the vast force of straw men closing in you! Just remember: Aim for the head!

  15. Does someone other than the president have veto power?

    In fairness, he’s been pretty reticent and unimaginative in using veto power too.

  16. Maybe Dick Cheney will need a pardon of his own.

  17. Government is so evil.

  18. What are the odds on a Pollard pardon?

  19. Look at me! Pay attention to me!

  20. Supreme Court Justice Anthony Kennedy, the author of opinions upholding harsh sentencing laws, urged in a 2003 speech to the American Bar Association that the pardon process be “reinvigorated” in response to “unwise and unjust” federal sentencing laws; “a people confident in its laws and institutions should not be ashamed of mercy,” he said.

    Hey stupid douchebag Kennedy, isnt responding to unwise and unjust federal sentencing laws your fucking job? When you see that a sentencing scheme that is… I don’t know. cruel and unusual, and therefore, unwise, isn’t it your job to strike it down? What a fucking spineless douche. Why should we have any respect whatsoever for SCOTUS?

  21. Obama, who campaigned on change, is apparently going to appoint Eric Holder the next AG.
    Holder admits he negligently didn’t review a potential pardon for Marc Rich so couldn’t advise Clinton not to do it. This will give Bush political cover to pardon just about anyone he wants to. The more things change, the more things stay the same.

  22. The death of the use of clemency and pardons by executive is one of the biggest problems with our democracy. Pardon and clemency was originally the power of the king. Kings used it liberally. Sovereigns are supposed to be the backstop against unfair convictions and sentences in the justice system. Now they are rarely used, which makes our justice system much more severe and unjust.

    The reason I think is twofold. First, executives don’t want to be seen as being soft on crime. But there is more to it than just that. The second reason is a shift in how we view courts and court decisions. The legal field has moved away from the concept of actual truth to procedural truth. Traditionally, people looked at a criminal trial as a pursuit of truth. Implicit in that is the assumption that the truth is something that can be found. But in the 20th Century, legal thinkers started to embrace the idea that a trail, since it is a human endeavor, cannot find objective truth. So, since you can’t find objective truth, trials should be judged not by whether it got the result right but by whether the proper procedures were followed. Trials can only find “procedural truth” by following the proper procedures and giving the accused all of his allotted rights. Issues of practical justice were no longer of importance.

    Everyone thinks of the concept of procedural truth in terms of it letting guilty people go on technicalities. It certainly did some of that. But it also worked perversely in the other way. In the same way that a factually guilty person could be innocent because the procedure found them that way, an innocent person could be guilty for the same reason. This idea perversely infected the executive and law enforcement communities. This is why you see DAs saying with a straight face that this or that obviously innocent defendant should continue to rot in jail because “they were found guilty by a jury”. In the same way, executives when using their pardon and clemency power have stopped looking at issues of factual innocence or justice and instead ask procedural questions about whether the person received a fair trial or a good defense. Traditionally, those were issues for the appellate courts not executives. Executives are supposed to look at the facts of the case and determine by his own judgment if the person really is guilty and if the sentence was just and then grant or withhold pardon or clemency accordingly. For that reason, pardon and clemency power should be something that frequently used. But since they don’t think about it that way anymore, it is rarely used, which is a real tragedy.

  23. “There’s also some talk now that Bush may pardon all federal counter-terrorism interrogators to clear them of possible torture charges in an Obama administration (Obama has signalled that he won’t pursue such charges). ”

    Um, both Obama and Biden talked about “immediate” reviews of Bush admin actions for criminal charges by the Justice Dept. They may be changing their minds now that they won, but this would be a change from the campaign rhetoric.

    Bush would be crazy (from a purely self-interested POV) not to issue a blanket pardon.

  24. Brains! Lefiti brains!

    Wha? There’s nothing in here! Where’s the creamy center?

    Shit. (Kicks pebble, shuffles away)

  25. “Bush would be crazy (from a purely self-interested POV) not to issue a blanket pardon.”

    I am not sure about that. If he issues a pardon he is admitting that they did something wrong. That may not be something that he wants to do. Further, Obama no doubt wants to do many of the same things his supporters want to try Bush and company for. That might give him pause for pursuing criminal charges.

    Lastly doing something like that would be enormously unpopular in the country. Yes, he would win praise from the nut roots, a few law pofressors and nitwit fanatics in the media like Dahlia Lithwick. But, it would galvanize the Republican base for 2010 and turn off independents. With all of the problems facing the country no one outside of the Democratic base, who will vote for him anyway, wants the President to spend time and political capital tearing the country apart refighting all of the arguments of the last seven years. Pursuing the Bush Administration criminally would be the dumbest political overreach Obama could do. I don’t think he is that stupid.

  26. If Bush were to issue blanket pre-emptive pardons, this might become the time for a legal test case to see if the pardon power stretches that far.

    I think a case could be made that the pardon power should only be available to persons who have, at the least, been indicted. Applying it pre-emptively makes it not a pardon at all, but a license to kill.

  27. Lastly doing something like that would be enormously unpopular in the country.

    There’s really no evidence for that. Or at the least there’s conflicting evidence for and against.

  28. I’m pretty curious as to what pardoning madness will occur on the day before Bush leaves office. I’m thinking that it’s going to be pretty far-reaching. When you have the power to prevent yourself and your lackeys from going to jail, and that power is gone forever tomorrow, you don’t tend to gamble with your future.

    Clinton made himself look like an even worse scumbag than he already did with his pardons, but he didn’t give a shit, because it was use it or lose it. I think Bush will be the same way.

  29. “There’s really no evidence for that. Or at the least there’s conflicting evidence for and against.”

    The Republicans would not take that lying down. It would be a brutal nasty partisan fight. Go explain to voters in 2010 why in the middle of the worst recession since World War II, you spent your time handing out bailouts to rich, connected exectutives and trying people who were defending the country.

    Also, if God forbid there is another 9-11 in the next four years. If there is and Obama spent his term trying Bush officials, the Republicans will rightly say “if the Democrats had spent as much of their efforts defedning the country as they did trying to throw those who did in jail, this wouldn’t have happened”. How is that for a campaign commercial? I honestly don’t think the Republicans are living well enough for him to try it. More importantly, if he did it would be a disaster for the country. The Republicans will come back in power and again. When they did, they would immediately look for revenge and start trying Democrats for various offenses and the country would just spiral into cycle of revenge where the price of losing an election is going to jail.

  30. Oh, the SWAT teams, the taxes, the bans of trans-fats–we live in a police state!

  31. STOP SPOOFING ME!

  32. So is the mandatory “STOP SPOOFING ME!!” post after a Lefiti spoof, part of the spoof or really Lefiti? Or maybe the first post was Lefiti and the next one was the spoof?

  33. How is that for a campaign commercial?

    I tend to think that the public is fairly cynical about security-based appeals at this point. Your faction has had fairly limited success whipping up war fever for an attack on Iran using 2002 tactics. I think it’s an open question whether the GOP would benefit even if there was another terrorist attack in the continental US.

    When they did, they would immediately look for revenge and start trying Democrats for various offenses and the country would just spiral into cycle of revenge where the price of losing an election is going to jail.

    The problem with relying on this is that the portion of the populace that is politically aware enough to even conceptualize a Broderite argument like this one is not the portion of the populace where Bush still maintains any popularity. Investigations of Bush administration figures would primarily anger dead-enders of the calibre of folks at Sarah Palin rallies, and they couldn’t follow this argument if you dragged them behind it like a truck.

  34. Holder admits he negligently didn’t review a potential pardon for Marc Rich so couldn’t advise Clinton not to do it.

    That is the least bad explanation for what happened. It could be true, I guess, but I doubt it. I’m guessing that he reviewed it, and was either told or knew good and well that the fix was in, and didn’t want to put Clinton in the awkward position of issuing a pardon over his objection, so he just “no-commented” it.

  35. None of the posts above were mine, you scum sucking algae eaters.

  36. I guess I should add that, all the above being said, I expect Obama to pussy out and not actually pursue any prosecutions, and to even move further down the pussy scale and not have any non-prosecutory investigations.

    Any hope that anyone might have had that the Obama administration would be honest and would pursue justice and not pragmatism should have died the day Rahm Emanuel got his job.

  37. Any hope that anyone might have had that the Obama administration would be honest and would pursue justice and not pragmatism should have died the day Rahm Emanuel got his job.

    Never had it in the first place, dude. To quote Ace Ventura, “man, I’m tired of being right.”

  38. “I tend to think that the public is fairly cynical about security-based appeals at this point. Your faction has had fairly limited success whipping up war fever for an attack on Iran using 2002 tactics. I think it’s an open question whether the GOP would benefit even if there was another terrorist attack in the continental US.”

    The only reason people are cynical if they are is because there hasn’t been an attack. If there is another attack people will overreact like they always do. If you think that there would be another 9-11 and everyone would yawn and go “gee it is good thing we spent the last four years argueing about Iraq and throwing Bush people in jail” you are crazy.

    As far as putting people in jail “angering deadenders”. 47% of the country votedfor McCain in the most Democratic year since 64. You think they are deadenders because you disagree with them. It is not like people voted for Obama because they were so pissed off about the Patriot Act and ABu Garhib. No one outside of a few well dead enders like you cared. Get out more and talk to people. What you will find is that most people who don’t give a shit that we tortured, assumeing we did, and want us to do more of it if it keeps the country safe. Who exactly would Obama be appealing to by doing that? If people really cared about those things, Bush would have lost in 2004. But he didn’t lose in 2004 because no one beyond dead enders like you care and you are going to vote for Obama in 2012 anyway. Doing what you say would look petty and appeal to only about few fanatics who aren’t going to vote Republican regardless.

  39. Fluffy,

    You lost this argument with the country in the 2004 election. Most of the country really doesn’t give a shit about this stuff. If they did, 2004 would have looked like 2008. The reason 2008 looked like it did was because the war in Iraq stopped being on the front page and the economy not because everyone decided, gee we need to do something about warrentless wiretaps and interrogations.

  40. It is funny that you call the people at Palin rallies dead enders. Let’s see Obama voted for the FISA reauthorization, won’t commit to to closing GUITMO, and hasn’t said word one about changing the interrogation techniques currently being used. Yet, you think he is going to go after Bush Administration people for doing those very things. Who is the deadender again?

  41. John,

    Bush won the 2004 election because the public had not yet had time to weary of the Iraq misadventure and because most Bush administration excesses had not yet come to light.

    You can keep telling yourself that McCain only lost because of the economy, but that’s nonsense. McCain lost because in 2005 and 2006 and 2007 the public finally turned against the Iraq war and the war on terror in general in a major way – some people for principled reasons, and some people just from general frustration and exhaustion and ennui. You tried as hard as you could to dance around and wave your hands in the air and shout “We’re winning now! We’re winning now!” and the public ignored you. Even if you can find statistical support for some individual Bush administration failure or misdeed, in the aggregate the public impression of the GOP became one of incompetence, mendacity, viciousness, and international disgrace. If you think that had no impact on the election, you’re crazy.

  42. “would just spiral into cycle of revenge where the price of losing an election is going to jail.”
    Enter third-world dictatorship.

  43. “Even if you can find statistical support for some individual Bush administration failure or misdeed, in the aggregate the public impression of the GOP became one of incompetence, mendacity, viciousness, and international disgrace. If you think that had no impact on the election, you’re crazy.”

    Yes, Bush had a low approval rating. But note, McCain was ahead in the polls until the financial meltdown. Further, just because people didn’t want Bush anymore doesn’t mean that they want to spend the next four years trying to throw people in jail over policy disagreements. Why did Obama win? Because he promised to be a different kind of politician and move beyond the differences of the last 8 years. Yeah, some of his crazier supporters voted for him because they wanted to throw everyone in jail. But the independents and moderates voted for him because they wanted something new. Good luck explaining to them why exactly “something new” and “hope” and “change” means spending your time and political capital investigating stuff that happened five years ago and no one but a few deadenders care about anymore. You can dream about Bush tribunals all you want, but it is not going to happen and if it did it would save the Republican party.

  44. The reason to prosecute Bush and his associates for crimes is so that future Presidents know that they can’t get away with it.

    The best argument against prosecuting them is that future Presidents might draw a different lesson: That they can’t afford to leave office.

  45. “The best argument against prosecuting them is that future Presidents might draw a different lesson: That they can’t afford to leave office.”

    That is the more dangerous lesson. Did we throw Nixon and Johnson and Kennedy in jail for thier crimes, of which there were a lot? No we didnt, but we have never repeated them either. Further, do you in any way trust the Democrats not to go too far and start throwing people in jail for policy disagreements? I don’t. They would just turn into a modern version of the Optimates setting the table for our Julius Ceaser. No thanks.

  46. thoreau admirably encapsulates the arguments @ 11:46.

    Frankly, I have little faith that even a successful prosecution of a former President would act as much of a deterrent on future Presidents. The hallmark of people who seek the Presidency is an almost unhinged arrogance and egocentricity, after all. Clinton’s impeachment doesn’t seem to have restrained Bush, does it?

    I don’t see much chance of a prosecution deterring future Presidents, and I don’t want to risk a banana-republic can’t-afford-to-leave-office mentality, so I say – Move On.

  47. Further, do you in any way trust the Democrats not to go too far and start throwing people in jail for policy disagreements?

    Once the precedent is set, I see no reason to trust the Republicans, either.

    Remember RC’z Fifth Iron Law:

    Any power used for you today will be used against you tomorrow.

  48. “I don’t see much chance of a prosecution deterring future Presidents, and I don’t want to risk a banana-republic can’t-afford-to-leave-office mentality, so I say – Move On.”

    yes move on. Of course the very people who want to spend the next four years settling scores from the last 8, call themselve “MoveOn.org”. go figure.

  49. “Once the precedent is set, I see no reason to trust the Republicans, either.”

    Neither do I. It would just degenerate into a cycle of revenge where losing an election means going to jail. Madness. Absolute Madness.

  50. It would just degenerate into a cycle of revenge where losing an election means going to jail.

    Only if you can be proven in a court of law to have committed a crime.

    You appear to be assuming that widespread prosecutions would be undertaken in the absence of evidence of lawbreaking.

    Either that, or you assume that our laws are so tangled and absurd that some pretext could be found to try anyone at will.

    If the first assumption is true, then our political system is broken beyond repair anyway. If the second assumption is true, then our legal system is broken beyond repair, and every prisoner in the federal system should be immediately released [if the law is so illegitimate that innocent officeholders could be framed using it, then there’s no reason to respect ANY federal conviction or ANY federal law].

    The calculation you’re making – that’s it’s safer to wipe the slate clean and let lawbreaking slide, rather than risk getting caught in a cycle of political retribution – can only be true as long as officeholders are not aware that you will make this calculation. Once the cat is out of the bag that lawbreaking will face no repercussions – as it surely is by now – the math changes, because you then have a situation where every officeholder knows that he can commit any crime he chooses and will never face punishment if he can simply gum up the process of enforcement until he leaves office. And since the executive branch is in charge of the process of enforcement, that’s real easy to do.

  51. Another possibility besides refusing to leave office is more desperate, extensive, and….terminal cover-ups. Leaving no witnesses, if you know what I mean.

  52. “Either that, or you assume that our laws are so tangled and absurd that some pretext could be found to try anyone at will.”

    After the last 20 years or so you haven’t figured that out yet? If the feds want you, they will get you. If not for the underlying crime, then for some misstatement you made defending yourself. Martha Stewart was innocent of insider trading but went to prison anyway for “lying to investigators”, which basically means trying to defend yourself and telling them something they don’t want to hear. They never did prove Scooter Libby ever did anything wrong beyond contradicting the notes of some reporters about conversations.

    The idea that a lie has to be material to a case to be prosecutable is gone the way of the buffalo. Come on Fluffy. You honestly can’t sit here with a straight face and say that the Justice Department run by one party is going to fairly investigate and prosecute officials from the last administration. That doesn’t even pass the laugh test.

    You just don’t like Bush and don’t have a problem with people associated with him being railroaded. That is a really dangerous attitude to have.

  53. You just don’t like Bush and don’t have a problem with people associated with him being railroaded. That is a really dangerous attitude to have.

    Um, no. I actually think that widespread violations of both US and international law occurred under the Bush administration, and I would like to see each and every one of those crimes prosecuted to the fullest extent of available law.

    Since I actually think they’re guilty, it’s a non sequitur to say that I want them railroaded. The guilty can’t be railroaded.

    You honestly can’t sit here with a straight face and say that the Justice Department run by one party is going to fairly investigate and prosecute officials from the last administration.

    If the Justice Department can’t be trusted to prosecute people fairly, then we should empty the federal prisons. If they can’t prosecute officeholders from a previous administration fairly, then they can’t prosecute anyone fairly and we should tear the whole thing down and start over.

  54. John – no. Check the super tracker on fivethirtyeight: http://4.bp.blogspot.com/_5ieXw28ZUpg/SRCJ-N-B9bI/AAAAAAAAAmw/wL0zXeZLcek/S1600-R/1105_super.png

    After Obama won the nom, the only time he was down in national polls (taken as an aggregate, not cherry picking) was immediately after the RNC convention. It wasn’t the economy, it was general public backlash against the republican party.

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