Saturday, January 17, 2009

EXCLUSIVE: Pardon me, quick...

In a Runes exclusive, a confidential informant has provided us with a copy of a "highly confidential" memorandum to George W. Bush from his personal attorney in the Office of White House Counsel. After reviewing the background of the presidential pardon power, the author presents two options for the administration's legal endgame:

January 16, 2009

TO: President George W. Bush
FROM: Wetherby P. Thwaitebottom III
RE: Presidential Pardons

In response to your inquiry during our telephone conversation of January 15th, my research indicates the following:

1. There appear to be no limits of the president's power to pardon under Article II, Section 2, of the Constitution, which provides that the president "shall have power to grant reprieves and pardons for offenses against the United States." As Alexander Hamilton wrote in the Federalist No. 74:
Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. man appears to be a more eligible dispenser of the mercy of government, than a body of men.
2. The pardon power applies to all crimes, from actual convictions to cases where no indictment has yet been issued. It does not apply to future crimes, nor does it preclude impeachment.

3. Pardons have been routinely granted since George Washington, on his last day in office, pardoned the leaders of the Whiskey Rebellion of 1794. Other examples include: Gerald Ford's pardon of Richard Nixon in 1974; George H.W. Bush's pardon of 75 people, including Reagan officials who were involved in the Iran-Contra scandal; Bill Clinton's controversial pardon of billionaire Marc Rich and others at the end of his term; and George W. Bush's award of clemency to Scooter Libby.

4. The pardon power applies only to "offenses against the United States" — that is, for crimes defined by federal, and not state, law. By implication, individual states can try and convict, under their own laws, those who are immune from prosecution for federal crimes. Under various state constitutions, governors also have the power to pardon and grant clemency.

Based on the above, I recommend that you consider the following options to insulate yourself and other administration officials from potential liability for war-crimes and other prosecutions after your term ends on January 20th:


1. At 11:30 p.m. on January 19th, you should grant blanket pardons to all administration officials who may be subject to prosecution, including: Dick Cheney, Donald Rumsfeld, David Addington, Alberto Gonzales, Jay Bybee, John Yoo and anyone else who has been, or may be, implicated.

2. At 11:35 p.m. on January 19th, you should submit your resignation from the presidency, effective immediately.

3. At 11:40 p.m. on January 19th, Dick Cheney should be sworn in as the 44th president of the United States; and,

4. At 11:45 p.m. on January 19th, President Cheney should sign an order pardoning you for any and all crimes that you may have committed during your two terms of office.

While this is legally the most cautious strategy for protecting yourself and your colleagues, there are obvious political and historical risks involved that you are quite capable of assessing. Most notably, wholesale pardons of yourself and others would be widely viewed as an admission of guilt — a concession you may not want to make to your political enemies. Moreover, a self-pardon might be construed as a form of legal masturbation.

Alternately, you could pardon everyone but yourself and assume that the next Attorney General would not be brazen enough to prosecute a former president.


Grant no pardons, and obtain none yourself, thereby taking the risk that you and other administration officials may be prosecuted for federal crimes allegedly committed during your two terms.

This "in-your-face" option will dare the new administration and its Department of Justice to initiate "partisan" and "divisive" prosecutions that, as President-elect Obama has already made clear, he would be very reluctant to pursue.

Based on the above analysis, I respectfully recommend that you implement Option II.
Will George W. Bush follow these recommendations? We'll find out over the next 72 hours.

NOTES: Our untold thousands of regular readers will recall that the war-crimes question has been a regular topic on Runes. See, for example, here, here, here and here. Always ahead of the curve...

PHOTO: Soulmates — George W. Bush pardons a turkey during the annual ritual, Thanksgiving 2007 (Wikimedia).

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