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December 23, 2008

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Actually, I don't have any doubt how the story will play out.

Me neither. I’m sure my version doesn’t match yours though. ;)

Murray Waas needs a copyeditor.

[...]

Asked about this during his FBI interview, Cheney was at a loss to explain how the change of the talking points focusing attention on who specifically sent Wilson to Niger would not lead reporters might lead to exposure of Plame’s role as a CIA officer.

Sorry. Can't help myself.

"I wonder if the media will point out the comparative significance of the use (and abuse) of the power of the pardon in the context of Holder's hearings and the pardons that Bush will inevitably hand down to his inner circle."

I do think it's necessary to wait for Bush to actually pardon people to criticize it.

True Gary. I'm just expecting them in the next couple of weeks - pre-Holder as it were.

Me neither. I’m sure my version doesn’t match yours though. ;)

Would that be like your version of the election in which liberals were constantly referring to Obama as "The Messiah," whereas conservatives only noticed it on occasion, and used the term themselves sparingly? ;)

Posted on an earlier thread, but apt:

One of three things is true about Cheney:


1) He feels like the “invulnerable” bad guy near the end of a movie: the hero is in his clutches, and will soon be dead. Its time to explain everything, so the hero will know as he dies how fiendishly clever, and cleverly evil, the bad guy has been.
(Of course, the hero always escapes and vanquishes the villain.)

Which means the fix is in and Bush has already drawn up the pardons which he will sign on the way out the door.

2) Cheney is really totally pathological, and believes everything he says, and that everything he and the rest of that gang did was necessary and heroic.

Which means the fix is in and Bush has already drawn up the pardons which he will sign on the way out the door.

3) His heart condition is really, really bad, and he figures he’ll be in the ground before he can be prosecuted.

Which means the fix is in and Bush has already drawn up the pardons which he will sign on the way out the door.

I vote for all of them.

Bush did actually pardon 19 people today.

None seem to be remotely political.

He's still got a month left, to be sure.

Nadler calls for independent counsel on torture:

Democratic Congressman Jerrold Nadler of New York has urged Attorney General Michael Mukasey to appoint an independent counsel to investigate Vice President Dick Cheney, former Secretary of Defense Donald Rumsfeld, and other senior Bush administration officials for violations of the law relating to the torture of prisoners in US custody. Nadler is the chair of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties. [includes rush transcript]

Needless to say, the odds of Mukasey doing this are, ah, low, but perhaps Eric Holder will consider it.

Bush doesn't need to pardon anyone else after Libby for the Holder/Libby dichotomy to be 'operative'.

Speaking of 'operative', check out the handle of one of the pardonees from today: Delano Abraham Nixon of Neosho Rapids, Kan. Forging the endorsement on a U.S. Treasury check.

Woodrow Milhouse McWashington!

sorry for the tautology.

Lyndon Obediah Jefferson!

While I have no illusions that the next Congress will have the testicular fortitude to use it, there is a remedy for this administration's perfidy that operates above and beyond the president's power to pardon: Bush, Cheney, Rumsfeld, Gonzales and others are still subject to impeachment by the House of Representatives and trial by the Senate even after leaving office.

Paragraph 7 of Article I, § 3 of the Constitution states:

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.

The expiration of the current president's term does not make impeachment moot; the House can still investigate and vote articles of impeachment, with the Senate to determine disqualification from holding federal office in the future. As a matter of fact, a pre-emptive pardon could even facilitate this process, by abrogating the pardoned official's privilege against self-incrimination.

This is not a mere academic question. After serving as president, John Quincy Adams served in the House of Representatives and William Howard Taft served as Chief Justice of the United States. After serving as vice-president, George H. W. Bush and Richard Nixon served as president (other than by direct succession to a vacancy) and Hubert Humphrey served as a U. S. Senator. Walter Mondale served as Ambassador to Japan and was nominated to run for the Senate from Minnesota when Senator Paul Wellstone died in a plane crash.

Here's hoping that the next Congress will pursue articles of impeachment as to whether President Bush has taken care that the laws be faithfully executed as to torture, electronic surveillance and any number of other subjects.

Why doesn't the Obama campaign issue a statement by holder in advance listing the points he will make about the Rich Pardon? These should include an admission that it wasn't the office's best hour but then a point by point comparison with republican pardons from Nixon to Reagan to both bush's. A minute should be given to the consideration of every single self interested, dubious, immoral pardon that the republicans have ever made or make over this holiday season. Holder should state that he will read his points into the record as soon as he is asked about Rich. That should be the end of the delay and the hold up in his confirmation.

aimai

"The expiration of the current president's term does not make impeachment moot"

We've discussed this at ObWi approximately one bazillion times.

Would that be like your version of the election…

Not exactly. Your comment was in the context of “I wonder if the media…”. In terms of the media and what we’ve seen already: Holder was minimally involved. Nothing to see here. But if Bush issues a pre-emptive pardon for Cheney? ZOMG!

And a preemptive Cheney pardon should be ZOMG. But they’ll downplay the Holder issue.

"Why doesn't the Obama campaign issue a statement by holder in advance listing the points he will make about the Rich Pardon?"

Why feed the media cycle unnecessarily? It'll just perpetuate the attacks on Holder longer. They'll obviously get to it, but what's the advantage of starting early? To keep the story in the papers and on tv that much more?

The thing that really irritates me (if I let myself dwell on it) is that Cheney & friends destroyed Plame's career with no object other than to make a stupid talking point. Is Wilson's '03 op-ed really more or less credible because his wife might or might not have been the one to suggest him for the Niger trip? If the reconstruction of Iraq had been planned with the same detail and care that was spent on this sort of idiocy, Baghdad would look like Geneva by now.

The thing that really irritates me (and I did let myself dwell on it for long enough to write a blog post) is that in any discussion of Cheney's treason with regard to Valerie Plame, someone fairly soon will come up with some criticism of Joseph Wilson's behavior...

(The outing of Plame as a covert agent was the last time, that I remember, that I heard of actively criminal behavior by the Bush administration and simply didn't believe it - too outrageous to be true, I thought. Ha.)

2) Cheney is really totally pathological, and believes everything he says

is that Cheney & friends destroyed Plame's career with no object other than to make a stupid talking point.

We cannot read minds, and people very often lie about their internal states & motivations. Believe it or not, people are often uncertain themselves about their motivations. It's true. Politicians lie very very well and very frequently, even in prvate conversations. If you need examples I can provide them. All we can really do is to quote what people say about their internal states and motivations, and regard those statements with whatever skepticism we feel is appropriate or comforting.

There are several possible reasons a fervent neo-con like Cheney would want the point person on Iranian nuclear development & Central Asian proliferation removed from a position of influence. Reasons Cheney would never ever reveal, even privately.

Reasons I don't really want to go into, since people seem to believe what Cheney & Libby say. Sometimes? Whatever. To me, that's barely evidence.

Can the preznit pardon someone for a crime with which they have not yet been charged or of which they have not yet been accused?

If so, can the preznit pardon someone for future crimes not yet committed?

"Politicians lie very very well and very frequently, even in prvate conversations. If you need examples I can provide them."

Indeed.

"Can the preznit pardon someone for a crime with which they have not yet been charged or of which they have not yet been accused?"

Yes.

"If so, can the preznit pardon someone for future crimes not yet committed?"

No.

Where is the difference in the law? The constitution says "The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

If that can be construed to allow a pardon for offenses that someone has never been charged with, how does it disallow a pardon for offenses not yet committed?

"If that can be construed to allow a pardon for offenses that someone has never been charged with, how does it disallow a pardon for offenses not yet committed?"

Pardons must be affirmatively accepted, and acceptance constitutes an admission of guilt. You can't be guilty of something you haven't done yet. Therefore....

Burdick v. United States.

This doesn't speak directly to pardons for future offenses, and I don't know that any U.S. court has directly ruled on such a thing, but it's never been done, and IANAL, but I've not run across any legal authorities who have ever said it could be done. To be sure, a president could try it, I suppose, and see what SCOTUS eventually says.

Pardons must be affirmatively accepted, and acceptance constitutes an admission of guilt. You can't be guilty of something you haven't done yet

Why can't you accept guilt for something you haven't done yet? People do it all the time. The preznit gives a pardon for all future crimes that someone may commit, and they accept it. How does that not meet the requirement in the constitution?

And I'm really not trying to get the lawyers to weigh in here, because I don't care. In fact, that's my point, none of this has anything to do with the law. The law is a joke. Not a good one.

"Why can't you accept guilt for something you haven't done yet? People do it all the time."

Not in court in a legally binding fashion.

"The preznit gives a pardon for all future crimes that someone may commit, and they accept it."

You asked for an answer, and I gave it to you. You don't like the law, fine.

"And I'm really not trying to get the lawyers to weigh in here, because I don't care."

Stupid me for thinking you were interested in facts, or an actual answer. I'll try to keep in mind in future that you aren't.

How does that not meet the requirement in the constitution?

Watching CNN, I saw excerpts of Cheney's Sunday interview on FOX an hour or so ago and am continually amazed that the man's arrogance has no bounds.

Made me think how it is always said, rather obviously, how the VP selection is a presidential candidate's first major decision and, boy, did this one turn out to be a tipoff of George H.W. Bush's special brand of wizardry.

Bedtime,

Yup, Bush offloaded that decision to Cheney, like so many others in his administration.

Gary: I do think it's necessary to wait for Bush to actually pardon people to criticize it.

I don't. I'm perfectly at ease criticizing those pardons in advance.

It's a Bush family tradition to pardon the most egregious criminals in one's administration. W has already commuted Libby's sentence. He was famously unable to think of anything he himself had done wrong. He's cheerfully acknowledged having authorized torture.

There are plenty of reasons to expect these pardons, many more than reasons to think he might not. If George W. Bush leaves office without issuing them, I'll be happy to apologize. But it will still have been reasonable for me to expect them, and to denounce them in advance.

Is the idea, Gary, that we are to give the benefit of the doubt forever? It's one thing to urge moderation in assessing the Obama administration a month before it even exists. It's another to call for prior restraint on sound predictions of further corrupt abuses of executive power by a regime that has specialized in them. At almost every turn, this clique has gone further than even the most pessimistic observers would have predicted. Lies, defiance of settled law and constitutional principles, snubbing subpoenas, open flouting of treaties. Their whole approach to governing is summed up in an expression that's come to characterize them -- snarly in Dick's case and and smirky in George's: "So?"

No, I don't think it's necessary or proper to wait for the pardons before denouncing them.

@John in Nashville:

Thanks for your comment, which is very much on point. Don't let Gary's churlish comment keep you from making the case. There are quite a lot of issues we've discussed more than once here, and this one is currently very timely.

I'm with you: the Constitution lays out a clear remedy, and despite efforts to diminish and tarnish impeachment as a tool, it has real value. If it ends up not being used to remedy executive lawlessness now, then it will become a dead letter.

Those who tire of this discussion are free to go join one of the thousands of others taking place, some as close as the next thread.

The legal question would be: Does impeachment annul the pardons already given (provided that the pardons have anything to do with the cause of the impeachment)?

"So?"

Yeah, in the end, the two-letter word that sums up the attitude of the Bush Administration -- George, Dick, Gonzo, Brownie, Rummy, Scooter, the whole incompetent lot of them -- toward you and me, the American people.

It may only be symbolic for now but this whole notion that Biden will be the "Middle Class Vice President" warms the heart after eight years of the Bunkered One and his trashing of the U.S. Constitution -- not sure if the Dick uttered the words "middle class" that whole time.

Picking up on what Nell said, I suspect Bush will end up making Clinton's pardoning of Mark Rich look like child's play.

Some thing I have been thinking of the past few days: Is a pardon even necessary?

I ask because I have read in several places (Jack Goldsmith, Charlie Savage, and others), that an OLC opinion gives the cover of law, in that their interpretation becomes binding on the Federal Gov't. That any one later charged with a crime has only to say, "I was relying on an OLC opinion when I did that." and that is a defense in any court of US law. What is more, even if an OLC opinion is later withdrawn, they are still covered by it during it's time as the official interpretation of what "the law" meant. Given the several OLC opinions issued reinterpreting torture, wiretapping laws, and who knows what else, don't they already have the needed "get out of jail free" card?

As to the outing of Valarie Plame, didn't Bush give Cheney the power to declassify material, before she was outed? And if so, was Cheney not able to declassify her undercover status? As such, he did not break the law in outing her, which I suspect, is why nobody went to jail for it. (Libby went to jail for being stupid and lying when he did not need to)

Maybe I am wrong, but a pardon seems unnecessary for these "crimes".

and before I get jumped all over for putting crimes in quotes, it is only a crime if the law says it is. It might be a truly heinous act, but totally legal. I hate to think my interpretation could be accurate, but that is what I have read.

As to the outing of Valarie Plame, didn't Bush give Cheney the power to declassify material, before she was outed? And if so, was Cheney not able to declassify her undercover status?

No. The President cannot unilaterally override statutes that prevent the disclosure of the identity of undercover agents.

And even then, did Bush give him that specific authorization? If so, we should hear about it.

Is the idea, Gary, that we are to give the benefit of the doubt forever?

No, Nell. The idea is to give Bush the benefit of the doubt until he actually does or does not issue sucj pardons. I realize you are impatient, but it's less than a month until we know for sure whether or not such pardons will be issued. It shouldn't be too hard to wait that long.

I suspect that some pardons along these lines will be issued. I'll argue against them. However, making attacks based upon the idea that they have already happened is wrong.

Honestly, you and Jes have gotten pretty tedious in the way you jump to conclusions based upon sketchy or non-existent evidence.

"The President cannot unilaterally override statutes that prevent the disclosure of the identity of undercover agents."

Yes, he can. This is not a case of "if the president does it, it's legal." It's a case of the law specifically saying the president has this power. Executive order 13292.

See:

PART 3--DECLASSIFICATION AND DOWNGRADING

Then:

[...] c) If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification. Any such decision by the Director may be appealed to the President through the Assistant to the President for National Security Affairs. The information shall remain classified pending a prompt decision on the appeal.
The President is the final authority on what can and can't be declassified.

See also section 3.3c:

[...] The President may direct the agency head not to exempt the file series or to declassify the information within that series at an earlier date than recommended. File series exemptions previously approved by the President shall remain valid without any additional agency action.

"And even then, did Bush give him that specific authorization?"

Yes, that happened, and it was in the news at the time for those of us paying attention.

See here. The Vice-president was added. I wrote a post about this two and a half years ago.

For that matter, we discussed it here.

Gary,

I'm not sure that the executive order you mention covers the identities of covert operatives, which is protected under a separate statute - and is not information that is classified via executive order.

The executive order you cite seems to have more to do with the process of classifying information, and then declassifying it.

And either way, did Bush follow the procedures set forth in that executive order?

Yes, that happened, and it was in the news at the time for those of us paying attention.

Bush gave Cheney specific authorization to out Valerie Plame's identity? Do you have a cite. Admittedly, my memory is fuzzy.

"Bush gave Cheney specific authorization to out Valerie Plame's identity?"

No, he included the Veep as having the same declassification powers as the president, as I explained in my post that I linked and the cites I linked to.

Classified information about people is classified information.

The law you're referring to is the Intelligence Identities Protection Act, and it provides: "(2) Paragraph (1) shall not apply [...] B) in the case of a person who has authorized access to classified information."

Which includes the President and the Vice-president.

It brings me no pleasure to be aware of these facts, but these are the facts. The vice-president, if he acted in his official executive capacity, has the legal right to declassify things, including classified identities.

This doesn't make it right, but it does make it legal.

If some law professor who is more expert than I am on these laws would like to correct me, I'm all ears, but no one has told me in the past two and a half years that these readings are incorrect, no matter how much we don't like them.

This is why I jumped up and down at the time to get people to blog about these changes in the law. But did anyone listen to me? Nooooooo.

Where were all you big name bloggers back in 2006, when more public awareness could have been raised on this. Not reading my blog, you weren't, dagnabit.

(Just like today no one is writing about Admiral Dennis Blair, and in two years everyone will wake up and say "gee, we never knew there was anything questionable about him," I expect.)

" covert operatives, which is protected under a separate statute - and is not information that is classified via executive order."

And yes, what the status of someone is, that is, what the status of whether information about them is classified or not, is classified by executive order. There's no law designating people into various categories; Congress doesn't label people (they define covert, but it just covers who the Executive does and doesn't name); it's all executive order, ultimately.

(For others' aid, these are the relevant laws regarding covert activities and national security.

The idea is to give Bush the benefit of the doubt until he actually does or does not issue sucj pardons.

We'll agree to disagree, then. By repeatedly and systematically flouting law, tradition, policies, and regulations to expand executive power and protect his fellow flouters, he has forfeited the right to receive the benefit of the doubt. That's why I and and millions of other Americans are expecting him to pardon many of the criminal suspects in his administration.

The benefit-of-the-doubt gauge doesn't magically reset to 'full' after each transgression; it drops further toward zero. The gauge for George W. Bush is in the 'running on fumes' area.

Nell, this is the sort of approach that leads to things such as noting that the administration didn't bomb Iran before the last election, or the one before that, after all, despite equal certainty from you.

Confidence that something is likely is one thing; confidence to the point of treating it as fact before it's happened is another.

Neither does it have to do with one's opinion of the Bush administration; I won't let anyone claim that they think less of the Bush adminsitration than I do. I simply have a practice of not confusing my opinion of the future with facts. YMMV.

So, when it comes to the Plame affair, there is some disagreement... Tho Gary seems more sure than you do Eric.

What about the other? Getting cover from OLC opinions? Is my reading accurate there? And if so...

Why would Bush even bother to issue any pardons? Aren't they unnecessary (at least for FISA and torture)?

Unless of course, there is something else out there that we don't know about... Any bets?

There is still that pesky SCOTUS that could sh|t on the OLC argument one day, although I doubt its validity in any case. I don't think we have to wait for the president sacrificing virgins to Gatanothoa in the name of national security with OLC backing (with the current SCOTUS it would likely be a 5:4 though).

Hi

Bush, Cheney et al have certainly overthrown the U S Constitution. Their acts have worked down to civilian law enforcement.

If anyone does not know it we are living in a police state.

A dragnet of civilians are working with law enforcement to "watch" their fellow citizens and are armed with electronic weapons to use on unsuspecting ordinary citizens. I have spoken to people who have received letters from Chicago Police Department. These letters ask these people to "watch" their fellow citizens. Translated to spy on their fellow citizens.

Chicago Sun-Times December 12 2008 Chicago Police Department putting 14,500 assult weapons in the hands of Chicago Police Department.

Caroline

Hi

Bush, Cheney et al have certainly overthrown the U S Constitution. Their acts have worked down to civilian law enforcement.

If anyone does not know it we are living in a police state.

A dragnet of civilians are working with law enforcement to "watch" their fellow citizens and are armed with electronic weapons to use on unsuspecting ordinary citizens. I have spoken to people who have received letters from Chicago Police Department. These letters ask these people to "watch" their fellow citizens. Translated to spy on their fellow citizens.

Chicago Sun-Times December 12 2008 Chicago Police Department putting 14,500 assult weapons in the hands of Chicago Police Department.

Caroline

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