The Power To Pardon and The "No-Funds" Rider
Published March 23, 2007
The White House is making it increasingly clear that Scooter Libby will be pardoned if he doesn't manage to beat the rap on a technicality. After all, what's a little bit of perjury and obstruction of justice among friends?
Democrats, on the other hand, along with those Republicans still committed to the rule of law (all four of them), are exercising their outrage muscles in anticipation. They ought to do more. So far, Congressional Democrats have shown they know how to use the power of investigation. Now it's time to use the power of the purse, and in particular that Swiss Army Knife of legislation-in-opposition, the "no funds" rider on an appropriations bill: "No funds appropriated in this or any other bill shall be used for the purpose of ..."
Nothing can be done without money. Even an action with no direct budgetary implications still requires someone to do something. So it's a crime (a violation of the Anti-Deficiency Act) for any federal employee to perform an official task forbidden by a "no funds" rider. (There's a specific provision that forbids anyone on the Federal payroll from "volunteering" his or her services, which is why non-emergency employees aren't allowed to come to work in a funding shutdown such as the one Newt Gingrich engineered under Clinton.)
Now the Presidential power to pardon is in the Constitution and is unfettered. So I don't believe that the Congress could Constitutionally forbid the President from issuing a pardon. But Congress could in effect require that he write it out in his own handwriting, by forbidding any other federal employee to help him.
I had previously suggested that such a ban be placed on pardons for Presidential appointees and other "politicals": members of the non-career Senior Executive Service and those hired under Schedule C. That still seems to me a sound principle. But if the goal is to denounce a Libby pardon in advance, there's a much simpler approach. The Pardon Attorney's office in the Justice Department has a set of guidelines, one of which provides that:
No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.So all the Congress needs to do is write that published guideline into law: "No funds appropriated in this or any other bill shall be used to receive or process a petition for pardon, or to issue or prepare to issue a pardon, for any offense of which the person to be pardoned has been convicted within the previous five years."
- The Power To Pardon and The "No-Funds" Rider
- Published: March 23, 2007
- Type: Opinion
- Section: Politics
- Filed Under: Politics: Government, Politics: Law and Rights, Politics: Policy, Politics: U.S.
- Writer: Mark Kleiman
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- Mark Kleiman's personal site
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"The White House is making it increasingly clear that Scooter Libby will be pardoned...."
Based on what evidence? The WH has been mum or at least has made a point of being uncommited on this point. I don't think a pardon is a done deal by any means. No question Bush can pardon Scooter if he so chooses (and it wouldn't surprise me if he did). But at this point it's pure speculation. Actually, just to be safe, maybe Bush should issue pre-emptive pardons to himself and his sidekick, Dick Cheney. Such a pardon might come in very handy one day. And I'm only half kidding. ;)
"I don't think a pardon is a done deal by any means."
Then you don't know politics. If Libby's appeal fails, of course he will receive a pardon before Bush leaves office.
"If Libby's appeal fails, of course he will receive a pardon before Bush leaves office."
Again, based on what evidence? Libby does not meet any of the standards for consideration of clemency set by the DOJ. And Bush has thusfar strictly followed these guidelines and has stated that he intends to continue on this track. This doesn't mean that Bush can't change his mind or that we should believe anything he says, but at least it is an indication that a pardon for Libby is not in the bag. As I said, a pardon would not surprise me, but there are very compelling political reasons why Bush would choose not to grant a pardon in this case.
You keep watching Mr Smith Goes to Wash and the rest of us will deal with political realities.
Of course, they are indicating Bush won't do it. It would be a PR nightmare, but he will on his way out the door Jan 09. Mark your calendar. Loyalty is a very important trait to Bush and he rewards people who stay true.
"And Bush has thusfar strictly followed these guidelines"
Absolutely meaningless as no one this high up has gotten in trouble with the law. Everyone knows it's in the bag but you.
Back to your rock.
"Everyone knows it's in the bag but you."
If you care to make a bet, the odds are on your side. Intrade gives 62% odds that favor a Bush pardon for Libby, which seems just about right, IMO. But if you are 100% certain it's a sure thing, get on over to Intrade and make yourself a pile of money.
"Loyalty is a very important trait to Bush and he rewards people who stay true."
Don't kid yourself -- loyalty is a one-way street with Bush. It's reciprocal only while it suits him. There are bodies of Bush loyalists buried from here to Texas.
The truth is that Libby shouldn't need a pardon. He was railroaded in the most outrageous way, tricked into incriminating himself and all for nothing. He ought to get a break on the sentence on the grounds of pure idiocy.
Dave
Safavian, then Libby...and now Griles form the Dept of the Interior" pleads guilty.
Funny that some think that a GOP prosecutor nailing someone on 4 counts of perjury and obstruction of Justice is some kind of "railroad"...
but some just have to carry that water, i guess...
Nalle...how dare you.....don't you know that Libby's guilty simply because he's a Republican and people like Sandy Burglar are innocent because they have D in front of their name.
I have yet to see anyone on this thread say Sandy Berger was innocent, so feel free to contribute something to the dialogue other than your predictably boring, simple-minded partisanship.
Unless there are claims that Libby was coerced there was no railroading. Admitting to something under oath that isn't true is against the law. He could very well have said he didn't know an answer, which is a permissible and something he would have been told before the proceedings started by his lawyer, Fitzgerald, and was firsthand knowledge as he himself is a lawyer.
This ruse that he was tricked is either a willing lie or derived from ignorance about the law. Take your pick.
AC: Just because Sandy "Burglar" (heh!) got away with something is no excuse for Libby. Both parties use the ploy, "see, the other side did something wrong so it's okay that we do it." It's not okay. Two wrongs are still two wrongs. Good leadership should mean leading by good example. We see too little of that no matter what "side" you happen to lean towards.
"I have yet to see anyone on this thread say Sandy Berger was innocent, so feel free to contribute something to the dialogue other than your predictably boring, simple-minded partisanship."
And I have yet to see anyone claim he's guilty.
"AC: Just because Sandy "Burglar" (heh!) got away with something is no excuse for Libby. Both parties use the ploy, "see, the other side did something wrong so it's okay that we do it." It's not okay. Two wrongs are still two wrongs. Good leadership should mean leading by good example. We see too little of that no matter what "side" you happen to lean towards."
First of all..what Sandy Burglar did was far more aggregious than what Libby did.
Libby didn't out Valerie Plame. What he did was lie under oath. The same thing that Bill Clinton did. The last time I checked every leftist was giving Slick Willie a pass and he never served any time. It seems a tad bit hypocritical that they are all up in arms now about Libby. But then leftists and hypocrisy are no strangers.
I have yet to see anyone say OJ was guilty on this thread either. What does that prove other than people are focusing on the topic. Berger pleaded guilty, so there's nothing to discuss. It is a matter of public record, but than you and idiotic statements are no strangers.
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Tsk tsk tsk.....where was all the outrage when Clinton was pardoning criminals left and right as repayment for political favors during the last weeks of his administration?