Pardon Me, But WTF?

It has been an exciting time for a scholar interested in the study of presidential power and the use of unusual actions, thus I say with a bit of sadness that I will miss George W. Bush when he leaves office in three weeks. I owe him a lot for making everyone with an Internet connection an expert on the presidential signing statement. And now, as he tip toes toward retirement, he dazzles us once again with an extraordinary action that has everyone up in arms.

Just as background for those not entirely clued in yet, President Bush issued a pardon to 19 individuals who committed a variety of federal offenses. This is typical for a president about to leave office. And the watch has been on as the Bush presidency winds down given the number of high profile folks (Scooter Libby) who have filed for a pardon.

A couple of important points first before I describe the fiasco that happened in as little as 24 hours. The president's power to pardon is absolute. It can be given by the president to anyone who crosses federal law, or may at some point in the future be in trouble with the law (Ford's pardon of Nixon, for instance). There is a process in place inside the Department of Justice's Office of the Pardon Attorney to streamline the thousands of requests for pardon, clemency, etc. that the president receives during his time in office. The process is also in place to give the whole transaction an air of propriety, to make sure that the president is not handing out pardons to the highest bidder, for example. But in the end, it is the president's decision to make.

The second important, and interrelated point, is this administration's desire to enhance and increase the powers of the presidency. If you have listened to Cheney's farewell tours recently, you have heard a great deal about ceding stronger powers to future presidents than those powers in existence during Bush's time in office. This meant keeping Congress out of Article II and apologizing to no one for actions--even extraordinary ones--taken by President Bush or Vice President Cheney.

Now the fiasco. On December 24, President Bush had staff (Press Secretary Dana Perino, to be exact) break the news that one of the pardons was coming back. Here is what Ms. Perino had to say about the grant given to "Mr. Isaac R. Toussie":

Based on information that has subsequently come to light, the President has directed the Pardon Attorney not to execute and deliver a Grant of Clemency to Mr. Toussie. The Pardon Attorney has not provided a recommendation on Mr. Toussie's case because it was filed less than five years from completion of his sentence. The President believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.

Mr. Toussie was a one time a high dollar real-estate developer in New York who spent five months in 2003 in a federal jail for "using false documents to get federally insured mortgages" in 2001 and for fradulently "selling land to Suffolk County at twice the appraised value" in 2002.

What happened in the matter of just a couple of hours between the 23rd and 24th? Was it the red flag of granting a pardon to someone who jumped ahead of the line--ahead of individuals seeking pardons for offenses committed decades ago? No, not that. What came to light was information that Mr. Toussie's father, Robert Toussie, and his wife, Laura, had given a sizeable amount of money to Republican candidates and the Republican Party in the 2008 election cycle. This generated a great deal of heat (Bush may very well green light the pardon in the end, but if so, he should have taken a note from Clinton and granted the pardon as he was heading to the inaugural ceremonies), which caused the administration to look positively foolish. The White House pointed fingers at the Department of Justice while the Department of Justice pointed fingers at the White House. News reporters scrambled to find anyone who knew anything about pardons to get at an explanation of the process, but more importantly to provide answers to the all important question: Can a president do that? Can he publicly announce a pardon and then turn around and go back on his word? This gave 15 minutes of fame to obscure political scientists and legal scholars who have dedicated their lives to the Presidential Pardon (to you reporters who are reading, my money is on Dr. Mark Morris, whose very fine dissertation is pubicly available and is chock full of all sorts of goodies surrounding the Pardon).

While everyone is focusing on the trees, let me step back and talk a bit about the forest in this story. First, while it may have been helpful to have been a contributor to Republicans, the dollar amount at stake here is not really eyebrow raising. It isn't what we might think of when someone uses wealth to gain a foot in the door. So if money wasn't necessarily a primary factor in moving Toussie's application up the list, then what was it? I would shine the light on Toussie's attorney during this process. Mr. Toussie hired Brad Berenson, an attorney and partner at the prestigious DC law firm Sidley Austin LLP. For those who don't know Mr. Berenson, prior to his gig at Sidley Austin, he was an attorney in the White House Counselor's Office during President Bush's first term. Thus this particular decision was made inside the White House and outside the normal process in the DoJ. More than circumstantial evidence if you ask me.

The second "big picture" item of interest is how this particular action contradicts the Bushies stated goal of leaving the powers of the presidency in pristine shape. Recall that the power is absolute and a fairly awesome power in its own right. What has happened to this absolute power when the precedent gets set that a president will be forced to rescind because the public heat from the action has gotten too hot? What possible penalty does Bush face by riding the storm out? He can't be re-elected? Are we to believe that he is so caught up in his legacy that he may threaten presidential prerogatives because his actions may cause presidential historians to stroke their chins? If that is the case, I think there is sufficient evidence to invoke the 25th Amendment!

President Bush is similar to the Energizer Bunny--He just keeps giving and giving and giving....

Eyes Wide Shut, Cheney-Style

Both President Bush and his faithful ward Dick Cheney have been on the media circuit in a series of "Farewell" interviews before they leave office in less than a month. While Bush's interviews have been mostly unrevealing and designed more to help frame the historical view of his presidency, Cheney's interviews continue to be illuminating for their "no holds barred" accounting of presidential power. The interview on the 19th with Fox News (and yes, characterizing it as an "interview" is probably being kind) is no exception (to read the transcript of Bush and Cheney's recent interviews, simply peruse the White House news page).

If you want full specification of the unitary theory (with a good bit of Nixon to boot), then look no further than this interview. Cheney is asked whether there are limits to the president's actions during a war, and Cheney frames his answer in terms of the president's "oath" powers:

"...when you take the oath of office on January 20th...as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic." In sum, when the president does it, it is legal. And who gets to decide whether it is legal or not? The president gets to decide it. Cheney declares: "...I think that what we've done has been totally consistent with what the Constitution provides for." How can he be sure? "What we did in this administration is to exert that [authority]...in a matter that I believe, and the lawyers that we looked to for advice believed, was fully consistent with the Constitution and with the laws of the land."

Which lawyers? Yoo and Addington? Yes. Goldsmith and Comey? Not so much.

To amplify the view that Congress has little control over the president's Commander in Chief powers--including the president's "War" power--Cheney brings up the extreme:

The President of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch the kind of devastating attack the world has never seen. He doesn't have to check with anybody, he doesn't have to call the Congress, he doesn't have to check with the courts. He has that authority because of the nature of the world we live in. It's unfortunate, but I think we're perfectly appropriate to take the steps we have.

So because we decided decades ago that in the event--and an unlikely one at that--of a nuclear holocaust that the president would need unilateral discretion of a nuclear response, that means the Congress also agreed this meant the unilateral use of armed forces for any conflict the president--and the president alone--determined necessary? Cheney does recognize that his statement probably did not include the view of the Congress because he also brought up the War Powers Act, and only then to dismiss it. Cheney acknowledged that the War Powers Act was still in force, but then this:

No President has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution; that it's an infringement on the President's authority as the Commander-in-Chief. It's never been resolved, but I think it's a very good example of a way in which Congress has tried to limit the President's authority and, frankly, can't.

The second half of the interview is just bad journalism--and what you would expect from Fox News interviewing either Bush or Cheney. Soft ball questions designed to enhance the administration's brilliance and demean its critics without any qualifications from the reporter. In particular the exchange about the right to hold those captured during the Global War on Terror indefinitely and without access to the regular courts. Little was said about Cheney's earlier claims that these people represented the "Worst of the Worst" and thus would prove a danger to national security if they had their day in court, which contradicted Cheney's claims in the interview that "hundreds" were released as a result of the review of their cases done administratively--something that was also forced on the Bush administration by the Courts.

I think sufficient evidence exists from the interview to suggest that Cheney is completely out of touch with the realities of the last couple of years. Chris Wallace, the interviewer, refers to a quote by Bruce Fein (which a number of other folks, including myself, have made) that argues that the administration has actually done a disservice to the power it sends forward to the new president by their actions, some of which have been knocked down by the Congress or the Supreme Court. This is in direct contradiction to their claims in 2001 to restore the power of the presidency that was so damaged following the resignation of Watergate. Cheney's reply is to deny that the several Supreme Court opinions dealing with the War on Terror, the loss of support in Congress following 2006, and the dreadful public opinion polls, not to mention heightend media and public attention to such obscure things like signing statements, means anything at all.

Eyes wide shut if ever there was such a case.