June 12, 2008

WAR CRIMES DOSSIER: reasons to remove Nancy Pelosi, Part II

Exploring Constitutional Language On Pardons of Presidents

Arguments:

1. Constitutional Language Restricts President's Pardon Power if House Starts An Impeachment; and

2. The Pardon Power of the President is not constrained only if there is a Senate Conviction.

This comment points to language in the Constitution showing the Framers:

A. Intended for the House to thwart the President from granting pardons;

B. Made an important distinction between impeachment proceedings started by the House, and the trial phase with judgment in the Senate on issues related to the Pardon;

C. Intended to place in the Constitution an inherent power of the House, regardless the Senate Action, to deny the Executive of any prospect of a pardon.

Let's accept the Supreme Court's view that Congress may not, by statute, affect a pardon. We accept for discussion pardon is unreviewable, but this does not help the President. The Court concludes the Constitution is the source of the limitation, if any:

"We therefore hold that the pardoning power is an enumerated power of the Constitution, and that its limitations, if any, must be found in the Constitution itself." [ Schick v. Reed, 419 U.S. 256 (1974) ]

Exploring the Constitution

Let's compare two sections of the Constitution discussing impeachment and pardons: Article I Section 3; and Article II Section 2.

Argument:

There is language in the Constitution distinguishing between "case of impeachment" and "judgment":

Judgment in Cases of Impeachment shall not extend further than to removal from Office

A I, S 3

One way to interpret this clause is to say, the Framers intended for the "Case of impeachment" -- the proceeding, started by the House -- to be distinguished from and different than the Judgment in the Senate.

Going back to Article II, the framers repeated the language of "Cases of impeachment", but does not mention, "Judgment". That omission is important:

"[H]e shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

A II S 2

The Framers clearly distinguished in Article I Section 3 between

"judgment"

and

"cases of impeachment"

This suggests one way to interpret the Constitution is the House, by starting an impeachment hearing and trial, could prevent the President from enjoying a pardon.

Article II repeats the language of Article I, meaning the House -- by starting an impeachment proceeding -- denies the President of a pardon.

Had the framers want to permit the President to enjoy a pardon for offenses against the Constitution, the Framers would have delegated a power to the Senate to trump the House; and included express language in re the pardon, "Except in judgment for impeachment."

There is no word "judgment" in Article II meaning, the distinguishing language in Article I defines the pardon power as permissible, except when the House starts an impeachment ["cases of impeachment"].

Any effort to grant a pardon to President Bush after any impeachment proceeding -- regardless the judgment of the Senate -- would be unconstitutional.

The Speaker and President must argue their legal theory to justify no removal, investigation, or Impeachment. However, it is for the House to decide through legislative debate, not for the Speaker to assert, what the Constitution means on this inherent House power of "denying a President any chance of pardon through an impeachment proceeding."

The above is not intended to be a definitive assertion of what the Constitution says or means. Rather, it is the job of the Speaker and President to argue their case, view, legal position before the House and the Senate.

This is a power of the House which the Speaker and President have jointly attempted to thwart the House from discussing, reviewing, debating, or asserting. The House is not obliged to embrace the Speaker or President's views; the House has the power to challenge the Speaker and say,

We would like to act as an independent body, unconnected from the SEnate, and not pressured by the President.

We in the House would like to investigate, review the facts, and let the Speaker and President justify why we should not deny the President a pardon; and why the Speaker should not be removed.

When we gather the facts, we can make an informed decision:

A. Do we charge the President with a crime; and

B. Do we declare the Speaker's position vacant.

Only the House, not the Speaker or President, has the power to decide the above.

Indeed, this has not been tested. We've never had a Speaker make excuses for a President who ignored the Constitution and defied the Geneva Conventions. The way forward is not to throw this to the winds and say, "We have other things to think about." The agenda must be the Constitution, not the partisan smokescreen of fear of division.

The Framers intended there to be division; division challenges tyranny. This Speaker and President fear division because it is a threat to their assertions. They are antithetical to what the Framers intended: Challenges to power.

The answer is to respectfully put the question to the Speaker, in the form of a proclamation declaring her position vacant, and ask her:

Why is she not making the President do the work, make the defense, and argue the Constitution says something in his favor?

The answer is for the House to debate, not for the Speaker or President to declare, "That question is off the table."

No, the Constitution is on the table, and the Speaker and President have not addressed the question: The Constitution.

Let's stop making the President' argument for him. It's time to make the Speaker maker her argument: Why does she take a view of the Constitution that favors the President; but when it comes to the Constitution itself, she puts her party above the Constitution.

The courts have ruled that the language about "pardons" is derived not by the government, but form the Constitution. Pelosi is ignoring the Constitution; but doing what the Framers did not intend: For one faction or one branch to dictate how the Constitution will or will not be interpreted.

The Constitution -- not the Speaker -- says what the President, the House, and the Senate do or do not have by way of power. The Speaker is doing what the President has done with Iraq: Unilaterally asserting a foregone conclusion, sticking to that conclusion regardless the facts, and mandating her view of the law trumps the House, the Senate, and the Constitution. McClellan warned us of this.

That is tyranny, and it must be challenged by removing her as Speaker. The President and Speaker must be confronted for their joint decision to put their decision and agreement before the Constitution. The House is not obliged to accept either decision.

Nor are We the People.


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