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Edited on Wed Sep-14-05 06:26 AM by leveymg
I'm going to back off from a firm assertion on the question of presidential self-pardons. There is no actual precedent, and opinion goes both ways.
Anyway, the inevitable uproar would probably force the initiation of impeachment, at which point any self-pardon would be void.
Here are the charges, and the potential penalty under LA State Law
Louisiana State Law, defining negligent homicide:
§32. Negligent homicide
A. Negligent homicide is the killing of a human being by criminal negligence.
B. The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
C. Whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both. However, if the victim was killed as a result of receiving a battery and was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than two nor more than five years.
XXXXX
Regarding legal opinion on the validity of any potential presidential self-pardon,see, Brian Kalt, Note, "Pardon Me?: The Constitutional Case Against Presidential Self-Pardons," 106 Yale Law Journal 779 (1996)
However, other legal experts differ on the question Cf., see,02/08/99- Updated 04:21 PM ET www.usatoday.com/news/index/clinton/qa16.htm 'Pardon me? No, pardon me' Mary Cheh, professor of constitutional law and criminal procedure at George Washington University, in Washington, D.C., says the law is clear at least on impeachment: No pardons for anybody, by anybody. So if somehow Republicans pull a rabbit out of the hat and win a conviction in the impeachment trial, Clinton would be toast. But criminal charges appear a different matter. There is nothing in the law that prohibits a president from pardoning himself, even before charges are filed. "The law doesn't say anything about it, so it's an open question," says Cheh. The courts would be sure to review any such pardon, but "it's a coin-toss" whether they would overturn it, she says. The courts would have to decide whether basic constitutional assumptions -- that no person is above the law, or that one cannot be the judge of one's own actions -- would be sufficient to overturn a presidential self-pardon. No president has ever tried to pardon himself. President Gerald Ford pardoned Richard Nixon for Watergate-related crimes a month after Nixon resigned in August 1974. The New York Times reported Sunday that Starr is considering indicting Clinton on criminal perjury and obstruction charges before he leaves office. That could force Clinton, who has vowed to stay in office "until the last hour of the last day of my term," to pardon himself. Clinton's attorney, Charles Ruff, has said Clinton would not pardon himself, nor accept a pardon from a successor." SNIP XXXX John Dean can be taken as something of an expert on the subject. He has written:www.cnn.com/2000/LAW/12/columns/fl.dean.clinton.12.08/ It is difficult to find a body of constitutional jurisprudence smaller than that on presidential pardons, which have been the subject of only a handful of rulings by the U.S. Supreme Court. It appears, however, that a presidential pardon cannot be forced on a person. In 1915, the Supreme Court ruled in Burdick v. United States that there was a "confession of guilt implied in the acceptance of a pardon," so the recipient should have a right to refuse it. However, 12 years later, in Biddle v. Perovich, the court held that a presidential commutation of a sentence was effective notwithstanding the refusal of the recipient, stating that " pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."
Notwithstanding the court's language referring to a "pardon," Biddle must be distinguished from Burdick because in commuting a sentence, unlike with a pardon, guilt has been established -- so a presidential commutation does not cause an admission of guilt. Biddle addresses the reduction of a sentence (which cannot be refused), while Burdick prevents an imposition of guilt by an act of clemency. Thus, under Burdick, a Bush pardon would appear to have no effect if not accepted by Clinton.
But would Clinton go to court to have a Bush pardon invalidated? His statement during the presidential campaign of his vice president that he did not want a pardon, however, does not mean that he might not welcome the relief.
Faced with an indictment, and the prospect of a criminal trial that would revive all of the sordidness of his sexual liaison with Monica Lewinsky -- a trial that will require graphically detailed testimony about who touched whom sexually -- the former president might reconsider his decision to "stand before any bar of justice."
A Bush pardon would give Clinton the chance to avoid giving not only his detractors, but those of his wife -- the junior U.S. senator from New York -- a new stockpile of political ammunition that could fatally wound them both. It would also allow Clinton to save his daughter, Chelsea, from further humiliation from her father's infidelity, to prevent another media circus where the details of oral sex become daily news, and to end the ongoing accrual of legal expenses that would far exceed the joint income of his presidential pension and wife's salary.
Would Clinton really, upon reflection, sacrifice all this, only to gain the benefit of undergoing a problematic trial in the hope of proving his innocence? Such a pardon might be difficult to turn down.
Clinton's self-pardon
President Clinton is no fool. He understands that if Al Gore becomes president, Gore, for political reasons, will not be able to pardon him. He will not want George W. Bush in a position to profit politically from a pardon, if Bush is the candidate who becomes president. And he surely knows an indictment and trial have a greater downside potential than any upside. For these reasons, I would be surprised if he has not given serious thought to a self-pardon.
To pardon himself, Clinton would need only to take out a blank sheet of White House stationery, write out his pardon (he's signed 185 of them -- so far the fewest of any of the modern president but enough to know what they say), and request that a couple of trusted White House aides witness his execution and delivery of his pardon deed. Is it really so simple? Yes; the courts have said there is no required form or procedure, nor need there be compliance with Justice Department clemency regulations.
If Clinton were to take this action before noon, January 20, 2001, it would dramatically alter the dynamics of the terrible predicament awaiting him after leaving office. Obviously, he will be politically attacked for pardoning himself. But can those attacks begin to equal the problems of an indictment and trial? Not likely. Nor is there anything anyone would be able to do about his presidential action.
If the independent counsel were to take him to court over his self-pardon, he would be represented by the Department of Justice, or by a private attorney hired by the department, if the department believed it had a conflict of interest. (With Bush in the White House, the department would indeed suffer from such a conflict.) So this would not cost him more in legal fees.
Good authority for a Clinton self-pardon
While no president has ever pardoned himself, the law supports the president's authority to do so. Scholarly inquiry into the subject was provoked first by fear that Richard Nixon would pardon himself to escape Watergate; later by thought that George H. W. Bush would do so because of the Iran-Contra grand jury; and most recently by concern about Bill Clinton's problem of a possible post-presidency indictment and trial. And while a few scholars have concluded that the president cannot pardon himself, many more believe that he can.
As one member of Congress said during the Clinton impeachment proceedings, "the prevailing opinion is the president can pardon himself." Thus, should Bill Clinton pardon himself, and should Independent Counsel Ray decide to go to court to test his presidential power to do so, not only would that court case delay the prospect of resolving any criminal action against the former president quickly, it would also present a case of first impression, with the authority overwhelmingly on the side of the former president.
The president's pardon power is set forth in the U.S. Constitution. Article II, section 2 grants the president "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The text of the Constitution, its history, and the placement of the pardon power within the structure of the Constitution, all show that there are no limits on this power, other than the exception that prevents the president from pardoning "impeachments."
Accordingly, the Supreme Court has described this presidential power as "plenary." As one recent commentator summed it up, short of a constitutional amendment, there is absolutely nothing "to prevent any president from pardoning himself."
Will Bill Clinton do so? We won't know until he is indicted, for he would have to plead it as his defense. I would assume that we will have an answer to this question by March, or by end of April at the latest -- if Independent Counsel Ray proceeds as he has indicated. Although I cannot predict the answer, this much I can promise: it will be interesting.
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John Dean is a former counsel to the president of the United States. John Dean is also a FindLaw columnist.
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