Intriguing, But…

3 comments July 2nd, 2007at 07:53pm Posted by Eli

Kagro X makes a fascinating find:

The following is from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis.

In the [Constitutional] convention George Mason argued that the President might use his pardoning power to “pardon crimes which were advised by himself” or, before indictment or conviction, “to stop inquiry and prevent detection.” James Madison responded:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty…

Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected.

This is all well and good, but is it actually codified in the Constitution in any way? Do the Founders’ opinions have any legal weight here, or are we basically just stuck saying, “Gee, the Founders sure wouldn’t approve of this, but there’s really not much we can do…”?

Entry Filed under: Bush,Constitution,Corruption/Cronyism,Democrats,Libby/Plame

3 Comments

  • 1. david  |  July 2nd, 2007 at 8:08 pm

    What I remember from con law is that the founders’ intentions as reflected here do have bearing on constitutional interpretation. The actual language of the constitution is not always clear to latter-day readers (eg, ‘ the right to bear arms’ ambiguity), that’s why intent has value. I think (not a lawyer, though). But hey, oops, who’s on the supreme court now??

    We have here a case of pretty sleazy self-dealing and crony/lackey protecting by the administration, not related to national security or some other valid interest. But politicians don’t care about intellectual integrity; it’s about what plays in the world of deals and perceptions and strategies, so who knows if anyone will hold bushcheney accountable for anything.

    Sick how bush wouldn’t commute any death sentences, but he commuted this cuz it was ‘excessive’. Bah.

    I thought they’d stall until after the election and then pardon scooter. This took big balls. Unless they checked with Roberts first.

  • 2. Eli  |  July 3rd, 2007 at 12:13 am

    But hey, oops, who’s on the supreme court now??

    Originalists! They’re all about the original intent of the Framers. Except when it conflicts with Republican ideology, of course.

    I thought they’d stall until after the election and then pardon scooter. This took big balls. Unless they checked with Roberts first.

    Yeah, when the conviction was announced and Dubya demurred on a pardon then, the way he phrased it made me think he would at least wait until the appeals process ran its course. But he may have been assuming that Scooter would not be in prison while appealing.

  • 3. Spear and Magic  |  July 3rd, 2007 at 1:13 am

    The issue here seems to be that the President has a power of pardon that is not subject to revision by any other branch: once (s)he pardons someone, there’s no way of undoing it. We can read Madison as asking: what checks that power? His answer: Only the recognition that some exercises of that power might be criminal, even if they cannot be overturned. For instance, if a president trades pardon for perjury, that pardon cannot be undone. But the fact that it cannot be undone does not mean that the trade was not a crime on the President’s part and that impeachment might be just the ticket.

    Perhaps Madison should be read here not as providing a gloss on any constitutional language but rather as merely making a point about the political structure of the branches in certain extreme cases.

    Originalists! They’re all about the original intent of the Framers. Except when it conflicts with Republican ideology, of course.

    Originalists like Scalia contend that the meanings of abstract constitutional terms (like “cruel and unusual”, “due process”, and “high crimes and misdemeanors”) are determined by the way that those were understood broadly, by the populace as a whole at the time of enactment rather than the way that they were understood by the Framers in particular. The ideas is that we are ruled by publicly accessible law rather than private, murky intentions. This is also supposed to get you around the subjective guessing game of figuring out what the Framers would say about a particular controversial case; of course, it presumes that the guessing game of figuring out what the populace as a whole would have to say about particular controversial cases is any easier or more coherent.

    Here’s a fun game to play when you meet an originalist: Ask how they would have decided Plessy and Brown, and then watch them sputter.

    That took big balls.

    Eh. Public outrage matters not a whit to them now; they have nothing to lose, politically speaking. It would have been more dangerous for them to give other administration members the impression that cutting a deal would be better than keeping your mouth shut.


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