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.
NEW: Democracy Insurgency Campaign
Whatever happened to We the People?
libertas fugit February 14th, 2008 7:17 pmI’ve been trolling the “blogosphere” rather heavily the past few days, trying to make sense out of the Congress’ passing of the secret FISA Modernization Act, its failure to call any of the Executive to account for the latest bunch of Constitutional atrocities perpetrated by the Cheney/Bush gang, its failure to put a stop work order out on their Iran pre-emptive nuke attack plans, etc. I fear the problem may well be worse than just Democratic stupidity, fear, or inertia.
Think about it for a moment. In the past seven-plus years, we have seen the Cheney/Bush gang forge a “Unitary executive,” virtually unchallenged by the congress of either party. Lip service, yes, to keep the voters pacified, but the Constitutional remedies readily available are routinely “taken off the table” even in the face of overwhelming evidence. We now have an Executive that routinely makes its own laws, which are rubber stamped by the Reichstag, excuse me, Congress. It vetoes anything it doesn’t like with little more than token protest from the Congress.
The Congress has approved the appointment of unqualified party hacks as Supreme Court judges over the strong protest of the people and the legal community.
The Supreme Court was intended to be the Constitutional watch-dog over legislation and edicts by the Executive or the Congressional branches. The reason for lifetime appointments was to keep them free from any possible political pressure or contamination. Look back on earlier Supreme Court nominations. At one time, some of the finest judicial minds in the country were considered. There was even a lot of soul searching as to whether they were qualified to be a Supreme Court judge. The Senate often carefully considered the nomination, and thoroughly questioned the candidate. His background was meticulously checked, and his judicial decisions examined. Usually, those judges worked hard to live up to the trust that We the People put in them. They were Constitutional scholars.
Look at the current process. Any party hack with a law degree from a recognized school, with an impeccable record of following his party’s line, regardless of legal precedent, may be proposed as a candidate. The Senate carefully avoids asking any potentially embarrassing questions and, unless the candidate has done something absolutely obscene or illegal, in public, the Senate rubber stamps the appointment.
As a result, the court has transformed over the years; from one that upheld Constitutional values, to one that, in 2000, abrogates an election rife with fraud to appoint by one vote, a president. In doing so, they virtually disenfranchised the entire United States Electorate. The Supreme Court has now descended into one that is favorable to a Unitary Executive, or to put it in less euphemistic terms, a dictatorship. It has worked hand in hand with the other branches of government to steadily roll back much of the civil and human rights legislation that We the People worked so hard to achieve over the past half-century or so.
Most of the above is obvious to about seventy percent of the American People, many of whom have been steadily writing, phoning and e-mailing their alleged representatives, asking that they reverse this - that they take the lead and impeach this gang before they can do more damage. No, they are told, it is “off the table,” it “would be divisive,” it would “take time away from more important things.” What could be more important than curbing a dictatorship and reaffirming the Constitution and Bill of Rights, our raison d’etre as it were? Let’s look at this from a congressional perspective for a moment and perhaps we’ll see a reason.
Assuming that the Bush Gang doesn’t perpetrate a black op, declare martial law, cancel elections for the “duration of the emergency” which Cheney/Bush have already said will last long after we are gone, what have we got in place?
Since Congress has not curbed these excesses in the past seven-plus years, has allowed the executive to shred and burn the Constitution which it swears to protect and defend; since Congress has not forbade the unilateral cancelling of treaties which, once ratified became part of the law of the land; since Congress seems to allow anything to be covered up by “executive privilege” or claims of national security, we are left with a staggering bunch of legal precedents.
Assuming we have elections in 2008, and assuming that they will not be the fraudulent charades the last few have been, the new President will inherit all these powers intact and functioning. The new “leader” will have legal precedent for using these new powers at will. The dictatorship will have just been passed into new hands.
Can you imagine Clinton or McCain with the powers that Cheney/Bush have usurped? I think the Democratic Party is not about to do anything to curb the Cheney/Bush gang’s power grab because they expect to inherit it, to use for their own ends!
Thomas Jefferson said, “The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first.”
In the past seven plus years, the Congress has carefully allowed the links of those chains to be severed so they can inherit the legalized, criminal version of government that Washington DC has become.
What can We the People do about this?
Thomas Jefferson also said, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
Short of a bloody revolution in which We the People must take to the streets in the face of the dictator’s Blackwater mercenaries with almost unlimited firepower, backed by the enormous wealth and power given to their owners from our treasury, and the probable use of whatever military force can be spared from foreign conquests, our recourse is to unite as a people, regardless of “race, creed or national origin,” as we once united to drive fascism from European shores, and drive it from our shores.
We must unite and search for people who will put the good of the nation, the good of We the People before personal greed and power. Then, we have to elect them overwhelmingly, not as Democrats or Republicans (They are just part of the same two-backed beast. One back has a “D” on it and the other has an “R” and in between is corporate wealth and power, pulling the strings), but as Independents, as Americans, dedicated to the task of returning the Constitution and Bill of Rights, intact and functioning, to the Halls of Government; dedicated to the repeal of the “Enabling Acts,” the mis-named Patriot Act and Military Commissions Act; dedicated to the return of habeas corpus, and the posse comitatus act.
In short, We the People must find members of We the People (not members of the ruling elite). We must find people dedicated to returning to us the Constitutional form of government that once made this country great, and also dedicated to ensuring that this will never again happen to the United States of America.
If we can accomplish this, I’m sure we can then begin to rebuild trust and confidence in the United States throughout the world. That, too will take an enormous amount of effort, but it will be worth it.
Remember, on September 12, 2001 the entire world put its collective arms around us. It would have done anything to help us recover. It would have sought out the perpetrators and brought them to justice. The only thing that destroyed that support is the same thing that has destroyed the United States. The Bush gang and the neocons with their dream of bloody conquest, shock and awe, and world domination. That and, the long-developing establishment of a dictatorship over the American People.
It is We the People, not the Congress, that can bring about this change, for Congress has proven itself part of the problem. The solution has got to come from us, We the People, or we shall surely fail and the forces of wealth, greed and power will take over for many more years.