Don’t Abuse Presidential Pardons
Dear Mr. President:
We strongly urge you to demonstrate a devotion to the rule of law by refraining from presidential pardons for any current or former White House, Cabinet or agency official in your administration for torture, illegal surveillance, unconstitutional imprisonments, obstruction of justice, perjury, violation of the Intelligence Identities Protection Act of 1982, or otherwise. These crimes rank among the most serious in the entire federal criminal code. The pardons would be tantamount to shredding the rule of law which all presidents are constitutionally obligated to honor. A signed, delivered, and accepted pardon would also be an admission of guilt.
Supreme Court Justice Louis D. Brandeis declared in Olmstead v. United States: “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
The list of officials you should exclude from pardons under this standard includes, but is not limited to, Vice President Richard Cheney, former Secretary of Defense Donald Rumsfeld, Defense Department general counsel William Haynes, former Attorney General John Ashcroft, former Deputy Secretary of Defense Paul Wolfowitz, former Deputy Secretary of State Richard Armitage, former Under Secretary of Defense Douglas Feith, former White House Counsel and Attorney General Alberto Gonzales, former White House political director Karl Rove, former Deputy Assistant Attorney General for the Office of Legal Counsel John Yoo, Chief of Staff to the Vice President David Addington, Director of Central Intelligence General Michael Hayden, and former Director of Central Intelligence George Tenet. It goes without saying that you should not pardon yourself in light of the time-honored constitutional principle that no man should be a judge in his own case. This principle stems back to Dr. Bonahm’s Case in 1610. Further, the resignation of President Richard M. Nixon under an impeachment cloud marked a rejection of the monarch-like principle that if the President does it, it’s legal.
That you and the enumerated officials were involved in fighting the so-called War on Terror, or that their crimes may have been committed in connection with the Iraq War is not exculpatory. To the contrary, Congress and the courts have extended to the Executive Branch in general, and your administration in particular, extraordinary latitude in purportedly defending the United States. Any criminal acts committed in this context are thus particularly egregious because they exceeded even lawful authority to impinge on cherished freedoms. The crimes are also troublesome precedents that invite maltreatments of the United States military or civilians if captured or detained by our adversaries.
Nor is the excuse of “emergency” an exculpatory factor. It remains for future juries to determine definitively whether official actions were criminal, but the range of actions potentially transgressing the law is long, varied and persistent. Criminality that continues day-after-day for years cannot be rationalized as inescapable emergency irregularities. The suspected crimes reflected deliberate policies, not “heat of battle” errors of judgment.
During the constitutional convention, George Mason worried that a president might use the pardon power to evade rather than achieve justice by “pardon[ing] crimes which were advised by himself,” or before formal accusation “to stop inquiry and prevent detection.” But James Madison, father of the Constitution, answered that the constitutional deterrent or remedy would be impeachment by the House and conviction by the Senate: “If 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.”
Later as a Member of Congress, Madison underscored that a conspicuous difference between the President and the British Monarch was that the former would be subject to impeachment for pardon abuses. In other words, the pardon was never intended to be an instrument of the President to conceal his own wrongdoing.
In 2000, you trumpeted to the American people: “I’m running for President because I want to help usher in the responsibility era, where people understand they are responsible for the choices they make and are held accountable for their actions.” To pardon yourself or your inner circle to circumvent criminal responsibility would make a mockery of that high-minded pledge.
Such pardons would additionally be condemned by the rule of law teaching and practices of President Abraham Lincoln. He orated: “As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;–let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children’s liberty. Let reverence for the laws— be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.” As President during the Civil War, Lincoln’s actions at Fort Sumter and unilateral suspension of the the Great Writ of habeas corpus were presented to Congress for repudiation or endorsement according to law.
The last page of your presidency should be an oblation to the rule of law. The pardons that we urge against would be a defilement.
Senator James Abourezk
Senator George McGovern