a citizen’s journal by Thomas Nephew

What trumps a pardon?

Posted by Thomas Nephew on October 10th, 2008

In one very important way, impeachment does — and maybe soon.

The news was quickly buried under an avalanche of financial crisis, Palin, debate, and election horse race stories, but it was significant all the same.  In late September, Murray Waas reported in that Department of Justice investigators were zeroing in on former Attorney General Alberto Gonzales’s July 24, 2007 testimony to Congress.  In this testimony, Gonzales asserted that in a critical March 10, 2004 meeting — immediately prior to the notorious “hospital confrontation” between Comey, Ashcroft, Gonzales, and Card — a key group of Congressional members privy to intelligence secrets* shared a “consensus” with Cheney, Addington, and Gonzales that the NSA’s warrantless surveillance program described to them should go forward.

Unfortunately for Gonzales, this assertion was denied** by many of the congressmembers involved. Waas:

Gonzales said that he had told the congressional leaders “in the most forceful way that I could [about] … the disagreement that existed.” Gonzales said that in response to that, there had been a “consensus in the room” from the legislators, “who said, ‘Despite the recommendation of the deputy attorney general, go forward with very important intelligence activities.’ ”

This assertion that there had been “a consensus” is currently under investigation by the Justice Department’s inspector general as possible perjury or as a false statement under oath.

According to Waas, Gonzales also developed after-the-fact “notes” on the March 10 meeting, at the direction of President Bush; beginning with one sentence(!) , jotted down on March 11.  Gonzales asserted he wrote up the remainder of his notes on the March 10, 2004 meeting “the following weekend,” i.e., March 13 and 14.

But on March 11, when he renewed the NSA warrantless surveillance program, Bush could only have had Gonzales’s say-so and the alleged one sentence note as “documentation” of Congressional acquiescence.  According to accounts like those by the Washington Post’s Barton Gellman, Bush finally modified his March 11 order on March 19 — well after being informed by Comey, on March 12, of likely widespread resignations at the Department of Justice should the program continue in its prior form.

The NSA warrantless surveillance program may well have always been an impeachable offense.  Its continued approval through March 19, 2004, despite the March 12th disapproval of Acting Attorney General Comey — was even more certainly one, at least in my view and that of many others.  Should the March 11th reapproval have been based on evidence of congressional “acquiescence” known to be false or even suborned, that would be yet further grounds for Bush’s impeachment.

But I think it’s also crucial that by feigning that evidence — and by restating that lie in his July 24, 2007 testimony before the Senate Judiciary Committee — Alberto Gonzales can be impeached as well. And there’s nothing President Bush could do to stop that — not even a pardon.

To see why — and  to see why it’s important — many Americans might benefit from a short tour of the Constitution.  In a nutshell,  (1) the president has no pardon power to prevent or undo impeachment, (2) any federal office holder — executive, legislative, or judicial — can be impeached at any time during or after his or her time in office, since (3) the consequence of impeachment and conviction is not merely removal from office, but disqualification from ever holding office again.

Add to that the precedent that failure to comply with subpoenas issued during an impeachment proceeding is itself an impeachable offense, and it becomes clear that impeachment remains both the means and the duty of Congress in uncovering Bush administration “high crimes and misdemeanors” — crimes against the Constitution and the people of the United States.

“Except in Cases of Impeachment”
Article II, Section 2 of the United States Constitution states it unambiguously — the President

“…shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

(Emphases added here and elsewhere.) While the text is plain enough, a little research shows that the intent of the clause is exactly what one would think it is.  In his 1833  Commentaries on the Constitution, the explanation by Supreme Court justice Joseph Story seems all but ripped from the headlines of the Bush years:

§ 1495. There is an exception to the power of pardon, that it shall not extend to cases of impeachment, which takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service. The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. The constitution has, therefore, wisely interposed this check upon his power, so that he cannot, by any corrupt coalition with favourites, or dependents in high offices, screen them from punishment.

Story explicitly contrasted this with the different and greater powers of the English king, who could pardon an impeached and convicted offender: “The president possesses no such power in any case of impeachment; and, as the judgment upon a conviction extends no farther, than to a removal from office, and disqualification to hold office, there is not the same reason for its exercise after conviction, as there is in England.” That is, since impeachment and conviction is a purely political punishment available to the legislative branch, it follows that the executive branch may not undo it.

It also follows — both from Story’s explanation and from the plain text of Article II, Section 2 itself — that there is no distinction in between pardons given before or after criminal conviction.  The impeachment exception is an unassailable legislative tool, trumping any executive pardon.

“Disqualification to hold and enjoy any Office”
So what, many Americans might reply; even if Alberto Gonzales is pardoned for various and sundry offenses, he’s already out of office anyway.  But they would be overlooking the dual purpose and effect of impeachment, which — as Story notes in passing above — is not merely to remove someone from office, but also to prevent their return to any federal office, under any circumstancesArticle I, Section 3:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

While I disagree with some of John Dean’s premises in his 2006 “Refocusing the Impeachment Movement” article, his summary of the value of impeaching a figure like Alberto Gonzales (or John Yoo, or David Addington, or…) can not be improved on:

It would not be an effort to overturn the 2004 election, but rather to rid the government of those who have participated, along with Bush and Cheney, in abuses and misuses of power; indeed, many among them have actually encouraged Bush and Cheney to undertake the offensive activities.

Many of these men (and a few women) are young enough that it is very likely that they will return to other posts in future Republican Administrations, and based on their experience in the Bush/Cheney Administration, they can be expected to make the offensive conduct of this presidency the baseline for the next president they serve. Impeachment, however, would prevent that from happening.

While there are precedents for impeaching persons already out of office (Belknap, arguably Humphreys), they’re unimportant for this discussion.  The Constitution is crystal clear: the point of impeachment is not merely curative, it’s preventive — impeachment cures the constitutional disease and prevents it from recurring.

“Functions and judgments necessary to the …sole power of impeachment”
There’s a final potential reason that impeachment will be a critical tool in any investigation of Bush-era high crimes and misdemeanors: it’s an impeachable offense to ignore subpoenas connected with impeachment.  While this is not spelled out in so many words in the Constitution itself, it was given force by the third article of impeachment against Richard Nixon, passed 21-17 by the House Judiciary Committee on July 27, 1974:

In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. … In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives. …

I don’t know to what degree Bush, Cheney, Gonzales, and others will retain control over documents produced during their term in office, or the degree to which a McCain or even an Obama administration may be tempted to intercede on behalf of former administration members.   But with an impeachment proceeding, I don’t need to know; refusal to testify or produce evidence would immediately make the refuser subject to impeachment himself.

Impeachment is the remedy
It has become another example of foolish conventional wisdom that Ford’s pardon of Nixon ended a national nightmare and somehow healed the nation.  I strongly disagreed when this notion was revived on the occasion of Ford’s death in late 2006:

…one might fairly say Ford bound up a festering wound of executive lawlessness, leaving an infection that flared up over and over again over the next decades. Following Ford’s installment with Nixon’s pardon was not a model of how a republic and democracy should be run; as Avedon Carol wrote the other day, “The original Ford solution is what brought us to where we are now – we can’t do that again.”

The Bush administration has almost certainly managed to run out the clock during its term in office, defying direct subpoenas by Congress of Harriet Miers, Josh Bolten and Karl Rove for information and testimony in Attorneygate, as well as in many other matters — such as warrantless electronic surveillance — constituting high crimes and misdemeanors against the Constitution and the people of the United States.

But we must not allow ourselves to believe it has done so once and for all, even if Bush’s last acts in office are blanket pardons for his various co-conspirators.  The rot has spread far beyond Bush and Cheney, and their ilk will be ready to resume their crimes and constitutional subversions, as they have been before.  At this point I agree with John Dean’s conclusion back in 2006:

We must all hope that the Democrats have recovered from their spinal problems, and that they will bring the invisible Congress back into play as what it is, and ought to act like: a constitutional co-equal. There would be no better way to do it than to commence impeachment proceedings against any on a potentially very long list of civil officers of the Bush Administration who should be removed from government, and disqualified from future opportunities to misuse government powers.

Democrats haven’t yet fully recovered from those “spinal problems’ —  but Bush may leave them little choice if he pardons figures like Gonzales, Yoo, and Addington for their crimes against the United States of America.

* This group — the so-called “Gang of Eight” — is comprised of the House and Senate Intelligence Committee chair and vice chair, the House Speaker and Senate Majority Leader and their opposition counterparts. On March 10, 2004, these were respectively Porter Goss (R), Jane Harman (D), Pat Roberts (R), Jay Rockefeller (D), Dennis Hastert (R), Bill Frist (R), Nancy Pelosi (D), and Harry Reid (D).

** EDIT, UPDATE, 10/10: The Washington Post’s Dan Eggen and Paul Kane reported “House Speaker Nancy Pelosi, a California Democrat, and Senator Jay Rockefeller, a West Virginia Democrat, who were briefed on the program at the time, said there was no consensus that it should proceed. Three others who were at the meeting also said the legal underpinnings of the program were never discussed. “He once again is making something up to protect himself,” Rockefeller said of the embattled attorney general.”

NOTE: Thanks very much to Brett M. for discussing this with me and for the Joseph Story “Commentaries” link.
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3 Responses to “What trumps a pardon?”

  1. Nell Says:

    Thanks for laying this out so clearly.

    The discussion at TPMpire on accountability for torture with Jane Mayer, Dahlia Lithwick, Scott Horton, Spencer Ackerman, and Christopher Hitchens made me want to lie down and die. They all — even Scott Horton — seem to accept the assertion that any effort by a Democratic Congress or administration to treat it as a criminal matter would be seen as partisan vengefulness, and not one of them even pointed to a counter-argument, much less made it.

    As if there were no value whatsoever in the principle that no one is above the law. Or as if the decision to torture were just some policy difference, rather than a direct flouting of treaty obligations and U.S. law.

    I wrote it off to the corrosive effects of elections and pundit-hood on intellectual honesty, and hoped that a similar discussion in December or next February would more actively engage the issues.

    So your integrity and common sense about the practical means by which we can refuse to accept that the powers of the Congress have been permanently diminished is more than usually bracing. Thanks again.

  2. Thomas Nephew Says:

    I hadn’t read that yet, and now I’m not sure I want to. But I will. I’d always meant to blog about an encounter I had with Jane Mayer, at Politics and Prose. She’s clearly on the side of truth, justice, and the someday perhaps American way, but she got quite wrapped up in saying how there were all these good people in the administration who’d spoken with her, and that there were sometimes these honest differences at some levels about what to do. I was surprised, and managed to get a question in during the Q&A period, pointing out how her article on Alberto Mora showed he’d been lied to, and wasn’t that ‘consciousness of guilt’, etc. She seemed to agree.

    I’ve been meaning to write this up, because I think I know who got her going in this direction — Jack Goldsmith. When I read his book it wound up seeming like neither fish nor fowl — on the one hand righteous resistance to overreach, on the other hand lots of hemming and hawing about when that is, precisely. Goldsmith had a hand in putting so much of international law and conventions in disrepute — mere “lawfare,” and so forth, and I think you’d need 200 Goldsmiths to make an administration’s legal system still be halfway just with that attitude at its core. Instead, we had 1 Goldsmith and a dozen Cheneyites. Goldsmith was also sort of blind to the implications of how frequently his opponents were misleading him and others; he never could bring himself to conclude deception = bad faith = guilt.

  3. » Blog Archive » That’s a shame Says:

    […] I know — and I assume Nadler knows — that impeachment has no statute of limitations and that in fact a pardoned person can still be impeached, that lady who walked by my house […]

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