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Congress vs. White House Pardons

December 5, 2008 - by Donny Shaw

Rep. Jerrold Nadler (D-NY) is leading the way in Congress for blocking President Bush from pardoning administration officials on his way out. People like Dick Cheney’s former chief of staff Lewis “Scooter” Libby, the NSA officials who ran Bush’s warrantless wiretapping program and the intelligence officials who tortured could very well be in the running for last-minute Bush pardons.

Two weeks ago, Nadler introduced a non-binding “sense of the House” resolution declaring that the “President of the United States should not issue pardons to senior members of his administration during the final 90 days of his term of office.” The full text of that resolution can be read here.

Today, Josh Marshall at Talking Points Memo reports that Nadler is planning to introduce a constitutional amendment to limit presidential pardons powers once and for all. I think Nadler has very little chance of getting his constitutional amendment enacted (besides passing Congress by 2/3rs majorities in both chambers, constitutional amendments have to be ratified by 4/5ths of the states), but the idea raises some important questions. Are there crimes that should be excused because they were committed in good faith? What about crimes committed at the behest of the only elected official that is chosen by the country as a whole? Will the amendments still allow Presidents to pardon turkeys? Or, in the words of Josh Marshall:

>I’d be curious what people think. It’s certainly come in for some abuse. But in addition to always being leery of fiddling with the constitution, I don’t know if I like the idea of changing the pardon power. I think it’s an important safety valve in our constitutional system. If it’s been a problem, rather than changing the constitution, maybe we need better presidents.

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