Letters to the Editor

The baseless, and failed, "move to the center" cliche Why do Democrats continue to follow the same strategic advice that has produced one failure after the next? Glenn Greenwald [2008-06-29]

• Baldie McEagle

  You're right that the Constitution is fuzzy on the point of exactly what is required for a pardon. However, common sense says that an "offense" must be reasonably well defined for a pardon to be executed. For example, if Karl Rove were to be accused of witchcraft, a pardon might be impossible, because the offense does not legally exist (outside certain small towns in New England). Am I right in thinking that?

  "Offenses against the United States" are pretty much enumerated in the US Code. Specifically, Title 18 (18 USC) enumerates federal crimes. If witchcraft is a crime under 18 USC, then the president can pardon it; if not, not.

  In this case, it seems to me that a pardon could be crafted to excuse a narrow class of entities from a narrow class of offenses, even without specific charges, let alone a conviction. And it could be general enough that no charges could then ever be brought against those entities for any 4th Amendment-violation-related action.

  Any prosecution of telecoms (or their personnel) would doubtless have to be brought under the The Electronic Communications Privacy Act of 1986 which was an amendment to the Wire Tap Statute of the Omnibus Crime Control and Safe Streets Act of 1968, all of which is codified under 18 USC Title I Chapter 119 "Wire and Electronic Communications Interception and Interception of Oral Communications". A pardon exempting any offenses under this chapter from prosecution or punishment would do very nicely.

  But I dunno. Is there precedent for pre-charge pardons?

  Plenty. I think the first Supreme Court decision that upheld this was Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366 (1866). President Andrew Johnson pardoned Arkansas attorney and Confederate sympathizer Alexander Hamilton Garland, who had not been tried, for any offenses he might have committed during the Civil War. Garland sought to practice in federal court, but federal law required that he swear an oath that he never aided the Confederacy. Garland argued that the pardon absolved him of the need to take the oath.

  The court agreed with Garland and held:

  The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.

  Class action pardons are generally known as amnesties. Thus Andrew Johnson pardoned thousands of members of the Confederacy after the Civil War and Carter pardoned (granted amnesty to) all Vietnam war draft dodgers.

  The text of Ford's pardon of Nixon reads as follow:

  Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974.

  No constitutional scholar has thus far been able to find fault with this formulation even though it is a blanket pardon for any and all offenses against the US during Nixon's time as president.

  -- Frankly, my dear, ...
  [Read Frankly, my dear, ...'s other letters]
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