No pardons? Bush gave Miers and Rove absolute and irrevocable immunity from prosecution

[nichomachus]

It look like we were had:

Bush gave Rover and Miers pre-emptive immunity

Michael Isikoff reported for Newsweek that while many of us were fomenting about Bush preemptively pardoning at-risk members of his administration, he and his lawyer Fred Fielding (White House Counsel) were concocting one last expansion of executive privilege. Four days before he left office, Mr. Bush authorized Fielding to write letters to Harriet Miers and Karl Rove giving them "absolute immunity" from Congressional inquiry and prosecution. Preemptively. In perpetuity. Absolute and irrevocable.

[malletgirl02]

1. question

To any legal experts out there is there any such thing as absolute immunity?

[verges]

25. Yes there is.

It's called a Presidential Pardon. That does not seem to be the case here. What has been granted is NOT a Constitutional guarantee of immunity. It will probably end up in front of the Supremes, where it should get struck down.

[Tangerine LaBamba]

52. A pardon

is not immunity.

There is absolute immunity, the kind granted to judges. There is transactional immunity and there is use immunity.

But there is no immunity that somehow becomes a pardon. You're confusing apples with oranges.

[mb7588a]

58. But there is no precedent...

Can we really trust Bush's SCOTUS to deem these letters useless?

I guess what we really need to see is a copy of the letter first.

[pinto]

2. He's claiming executive privilege post Administration - this'll end up in court, I assume.

He may well lose there. (ed for grammar)

[Tangerine LaBamba]

53. It's interesting

That would certainly put these RW freaks on the Supreme Court in a real twist, wouldn't it? Because if they were to go so far as to say that this sort of Presidential action is lawful, imagine the power it gives to the Obama administration.

All the while, those fuckers are closing in on the Exclusionary Rule, which just stinks.

[Blue Dog Dominion]

65. Tilting at windmills vs. I heard it through the grapevine

Despite the OP's interpretation of the blog's interpretation of the Newsweek article, the letter from WH counsel says that Mrs. Miers (assuming Rove got a similar letter) is "absolutely immune from testimonial compulsion by a Congressional Committee"

I know how this grapevine works. Too many people see an interpretation and assume its fact and they run away with it.

So no, there is no "immunity" or "pardon" being granted. Only the assertion from counsel that Congress cannot compel them to testify. If congress disagrees, they would have to hold Rove in contempt, he in turn will file an emergency injunction for relief, then its in the courts hands.

An interesting aside is they reference a Reno Justice Department opinion comparing the situation to that of Congress forcing a President to appear before matters relating to his constitutionally assigned functions.


(Fixed spelling)

[Tangerine LaBamba]

68. I want to see these letters

I loved the battle Nixon fought (and lost) with the Supremes during the Watergate experience. I'd love to see what this Court would do with such an issue. They'd certainly be loathe to hand a Democratic President any more power, so they'd be beautifully hamstrung, wouldn't they?

And, welcome to DU, Blue.............

:toast:

[Blue Dog Dominion]

72. Ask and ye shall recieve

Here is the Isikoff article http://www.newsweek.com/id/182240

Here is the PDF sent to Miers:

http://www.newsweek.com/id/182225

Yours in service,

[Tangerine LaBamba]

73. Thank you so much!

I'd seen the article, but not the letters.

So it's the same old same old. They've lost this one at the District Court level, and, as stated in the letter, it's now in the Circuit Court of Appeals for the DC Circuit.

Gonna be a good show.

Thank you again. You're gonna be great here at DU. In fact, to some of us, you already are...........

:hi:

[Blue Dog Dominion]

76. Well, the uber-progressives aren't going to love me

I've already been called some nasties already.

I keep telling them they are lucky the Republicans have been hijacked by fundamentalist Christians who want the Bible to be in the Bill of Rights. Not that I'm against an application of Old Testament justice every now and then, but that should come from the Almighty and not the local school superintendant.

But then again someone donated me a star :)


Thanks again

[Tangerine LaBamba]

79. Someone donated you a star?

There is a lot of love about DU. Thanks for telling me about that.

Now, get out there and MAKE SENSE, dammit -------------------------------------------------->

[JerseygirlCT]

81. Yes, I think so, too

I'm not at all sure he has the power to do something like that. Let's hope that's the case!

[Blue Dog Dominion]

3. What he said ^^^^

Former administration officials can claim executive privillege at any time. It is up to a judge to decide whether or not it is valid.

[jody]

4. I understand "absolute immunity" from prosecution, i.e. a form of pardon, but does that mean they

cannot be forced to testify in a court or to congress?

[Vincardog]

8. IF they gave immunity or are pardoned they can not assert the fifth.

[Occam Bandage]

9. It's not a pardon. He's claiming executive privilege. Forever.

It's nuts.

[Tangerine LaBamba]

12. No

Absolute immunity is not the same as a pardon.

[Blue Dog Dominion]

13. No, executive privillege does not convey immunity

[TahitiNut]

37. The key word is "Congressional"

This Constitutionally-questionable qualification is completely outside of the "Pardon power" (which is centered on the Executive Branch's law enforcement and prosecution role) and asserts an arguable 'privilege' in perpetuity. It's "Nixonian on steroids."

[Vincardog]

5. One last failed attempt at grandiosity. Delusional to the end Fuck him

[MADem]

6. Well, Fred Fielding worked with JOHN DEAN in the Nixon White House.

I imagine he's probably well versed on these things.

I can understand immunity from prosecution...but immunity from INQUIRY? Don't ask, I won't tell? That's a bit, er, much.

[Occam Bandage]

7. I can't believe that'll stand. Executive privilege does not exist in perpetuity.

What's stopping Obama from overturning it?

[Vincardog]

11. What's stopping Obama from overturning it? Probably waiting on an AG with integrity

[Blue Dog Dominion]

16. Obama can't revoke other administrations executive privilege

It is not like an Executive Order which he can do with a swipe of then pen

[tritsofme]

35. Use the arguments of the Bush administration against them.

That executive privilege is so broad and undefined that is basically whatever the POTUS says it is.

[Blue Dog Dominion]

36. Thats why we have a judical branch

[tritsofme]

38. The courts generally don't like to involve themselves with political questions.

Especially if there is agreement among the political branches of government about such a question.

The real scope of privilege has rarely been examined by the courts, and I doubt it will any time soon.

[Blue Dog Dominion]

55. Oh, this is going to court all right. Bank on it.

If congress presses the matter and E.P. is claimed Congress only remedy is to:

A) Sue, appeal, repeat until SCOTUS either rules or declines the case.
B) Pass a law revoking E.P. or establishing limits and establish this retroactivly, then go to A.
C) Amend the Constitution like B, goto A.

[tritsofme]

57. If Obama's Justice Department is in agreement with Congressional lawyers

what are they going to fight over?

[Blue Dog Dominion]

59. Its not the Justice Department that matters

This would be a Congressional subpeona outside of the executive branch. Irrelevant as Rove will most certainly file an injunction for relief.

[Vincardog]

39. Executive privilege exists to protect the advice the President gets. Since KKKarl maintains that jr

got NO ADVICE and was not involved at all. There can be no cl;aim of executive privilege. Now KKKarl could come to the committee and assert that a particular question was covered by EP but he is claiming he does not even have to appear.

That whole claim of absolute EP is BULL$HIT

[Warren Stupidity]

44. I can find no case where it has been asserted post administration.

[Tangerine LaBamba]

74. Check the dates on the letters

It's being asserted prior to the end of the administration.

[Warren Stupidity]

77. Not the time of assertion the effect.

Prior cases have been about protecting the sitting president from a congressional investigation, not about protecting the former president (and his aides, papers,etc.) from such an investigation. As I said elsewhere - there is no separation of powers issue once FuckNutz left office.

[Warren Stupidity]

43. I believe it is unprecedented for a president to assert

executive privilege that outlasts his own term in office. I've looked and I cannot find any precedent. Feel free to come up with one. At this point Bush is asserting that he retains this power while out of office - and that is in my opinion absurd. There is no separation of powers issue here, the basis for the entire theory of executive privilege, as Bush is no longer part of the executive branch.

This is not about undoing Bush's assertion of executive privilege while he was in office, it is about whether that privilege exists once a president has left office. As there is no explicit constitutional power here - and as executive privilege itself has never been fully tested by the courts - Bush can assert any authority he chooses and the issue becomes will we let him get away with it, or more precisely will Congress take this to court and will that result in new and far reaching presidential powers that last in perpetuity?

In perpetuity? This last Bush outrage would allow a president to shield himself, his aides, and his documents from any congressional investigation forever. Oh really? Just a tad excessive perhaps for something never even mentioned in the constitution?

[BlooInBloo]

46. Um, why not?

EDIT: I would love to hear your theory as to why The President cannot cancel The President's claim of executive privilege.

[Blue Dog Dominion]

50. Think of it like client-attorney privilege, which is what it basically is.

Your old lawyer is still bound by convention.

[Warren Stupidity]

62. No that would be attorney-client privilege.

Executive privilege is an unwritten constitution power that allows the president to keep congress away from himself, his aides, and his papers, the theoretical basis for which is separation of powers not attorney-client privilege. As an ex-president is not part of the executive branch, he, his former aides, and his papers no longer need or can get any privilege based on this separation of powers theory and have no such protection from congressional inquiries. Of course Obama could continue to protect Rove, but why would he do that?

[Blue Dog Dominion]

71. Thanks for the correction, I thought I screwed the order up

E.P. is pretty well undefinfed. It hasn't been used very much. I agree with the seperation of powers argument, my comparion to A/C falls apart after that.

WH Counsel took the prudent step of issuing the claim of EP BEFORE the term expired, so we aren't addressing the issue if private citizen Bush claiming EP for actions that occured during his term. However it would be interesting to see the courts interpretation of this.

I highly doubt that a court won't extend EP to a presidents confidantes. The real question here is whether a Presidents EP extends to after his term expires. Can he claim it for actions taken after it expires? Certainly not, he's just a private citizen.

[BlooInBloo]

78. (facepalm)

[Tangerine LaBamba]

10. Interesting

Since the matter of immunity has never fallen within the purview of Presidential powers and is something only a prosecutor can bestow, I find this attempted end run around possible prosecutions truly creative and off the wall.

It looks like a variation on Ford's "unindicted co-conspirator" scam with Nixon, and let us not forget that Fred Fielding was a member of Nixon's White House Counsel's office.

Ah, they're such weasels.

I wonder if this will work.

[Frustratedlady]

22. Well, that's encouraging. Look how that worked out for Nixon.

[verges]

26. Art. II Sec. 2

"...he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."

Nixon was given a pre-emptive pardon by Ford. In essence, immunity.

[Tangerine LaBamba]

27. No, Nixon was given a pardon

He was pardoned as an "unindicted co-conspirator."

By preemptive, I am assuming you mean that Nixon hadn't been convicted of any crime, right? Well, if that's your assumption, that part of it was covered by the "unindicted" language. Not at all preemptive.

And, as your Constitutional quote states, there is no "immunity" language in that particular passage.

[tritsofme]

34. The pardon proclamation makes no mention of his status as an "unindicted co-conspirator."

Here is the acting language from the pardon:

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 January 20, 1969 through August 9,1974.

[verges]

40. That seems pre-emptive to me. nt

[Tangerine LaBamba]

47. That's right

His status was named in collateral documents accompanying the pardon.

I was only a law student then, but I remember a lot of discussion with professors about that language and that status. To them, it was brand new, and to my knowledge, has never been used again.

That's why I find this notion of a President granting some kind of immunity so interesting.

[Tangerine LaBamba]

48. dupe - delete

[verges]

41. It seems to me

that you're splitting hairs on a difference that makes no difference.

And as another poster stated, the pardon said nothing about an indictment. It was a blanket pardon. Therfore, immunity.

[Tangerine LaBamba]

49. You may see it as splitting hairs, but

it's also called attention to the meaning of words.

A pardon is not the same as immunity. That's so obvious as to be laughable.

[verges]

82. To a lawyer, perhaps.

And I'm so glad I can keep you amused. So can you prosecute someone with a pardon? With immunity? I don't think so; and I'm certain you will correct me if I'm wrong on that point. I am, after all, a layman in these things. But, it again seems to me, that if the end result is the same, there are at least similarities.

It's kinda like saying the colors eggshell and cream are completely different! While technically true, to a layman, they're both just off-white.

So, if with a pardon, you are immune from prosecution, you have immunity. Whether that is the correct technical term or not. And if I'm completely off-base here, why wasn't Nixon prosecuted if he wasn't immune?

[Warren Stupidity]

63. But this is neither a pardon nor a repreive

it is an assertion of perpetual executive privilege from congressional investigation. There are no words in the constitution that define such a power.

[Tangerine LaBamba]

70. That's right

So comparing it to a pardon is absurd. It's a completely separate issue, and a very interesting one. I was in law school when Nixon claimed executive privilege in the Watergate tapes case, and I've always wondered how far another President would try to take it.

Of course, it would have to have been Fuckface, the biggest weasel of them all. This Court would surely be baffled were this matter to come before them, loathe as it would be to afford even greater power to a Democratic administration. Scalia would have to turn himself inside out to get around this one, but I'd be willing for him to do that if it meant his demise.

[whoneedstickets]

54. He couldn't pardon them....so they got a 'get out of jail free' card.

..they hadn't been charged with any crime. He couldn't preemptively pardon them without identifying crimes the did commit (an omission of guilt). This the equivalent of the monopoly card and it won't stand in court.

[Tangerine LaBamba]

66. No, he could have pardoned them,

just as Ford pardoned Nixon. Implicit in that, though, would have been an admission that crimes had taken place. I suspect Fuckface was far too self-righteous and rigid ever to admit that. Hence, this alleged "immunity letter."

Personally, I can't wait to see a reproduction of the actual letter.

[leftchick]

14. he can try

but it will be up to the courts to decide. This is unprecedented and not likely to stick. And george thought he was king forever.

[Sydnie]

15. How do we know it was written BEFORE he left office?

How do we know that he doesn't have a load of them waiting with fill in the name blanks waiting for anyone that might get asked to testify? Wouldn't there have to be a record of all such letters that were sent entered into the books somewhere to prove that Rove didn't print it up himself?

[Blue Dog Dominion]

19. It shouldn't matter if it pertains to events that occured to prior Jan 20th 2009 12pm EST

Although I've never heard of any administration claiming executive privilege AFTER their term was over. Interesting.

[Lex]

17. Then what's to keep EVERY President from doing this for EVERY member of their Admin.

when leaving office?

I don't think this will stand.

[hedgehog]

18. Didn't Bush pardon someone and then withdraw the pardon when it proved embarrassing?

I wonder if he set a precedent for the President to take back pardons?

[AtomicKitten]

20. This preemptive "absolute immunity" will be decided in a court of law.

Obama has been asked to weigh in on this. He has opened up access vis a vis FOIA, so I suspect he will err on the side of sunlight. However, if we have learned nothing else over the past eight years, BushCo will judge shop until they find a nice compliant wingnutty judge to rule on behalf of secrecy (energy commission records, second round of torture photos and videos, etc.)

[kentuck]

21. I think this was the work of Fielding and Rove...

Probably drawn up after January 20th, Bush's last day in office. Not worth the paper it is written on. I think Conyers should put Fielding under oath and find out the truth.

[BlooInBloo]

23. (shrug) I fail to see the problem. The President can issue such things....

and The President can rescind such things.

As long as The President rescinds, or otherwise declines to acknowledge such a grant, Rove's got nuthin.


EDIT: It's a cute enough attempt I suppose, but it's all smoke and mirrors. Just keep "The President" firmly in your mind, and it's perfectly clear.

[jody]

29. Agree, Bush's authority stopped at noon, 20 Jan 2009. n/t

[Warren Stupidity]

45. Just right I think.

EP exists only as a presidential power to keep congress out of the president's affairs - as a mechanism to enforce the separation of powers - and that is the argument that has been held to have some merit by the courts. That argument simply does not apply to some person who happened to be president in the past, or some persons or papers related to that ex-president. There is no separation of powers issue with ex-presidents as they are not a branch of government. EP is about the office not the person.

[underpants]

24. They have a note from Epstein's mother?

:shrug:

[hologram]

28. Yep. And he don't have to go to school ever again.

It says FUREVER!!

:rofl:

[tritsofme]

30. It has always been my understanding that the presidency is an institution not a man.

As POTUS, Obama could revoke or clarify any "immunity" that was granted by the White House.

A president isn't bound by the actions of his predecessor.

[Tangerine LaBamba]

51. Except

there is no Presidential power to grant immunity from prosecution.

And, in matters of pardons, yes, a President is bound by the actions of his predecessor, since the Presidential pardon power is absolute. In other words, Obama cannot undo a pardon granted by Fuckface.

[tritsofme]

56. There was serious discussion in 2001 that Bush might "undo" the Rich pardon.

And he was supposedly advised by his Justice Department that he had the power to just that.

Several times in history, but most recently in the waning days of the Bush administration a pardon was revoked several days after it was granted to avoid the appearance of a conflict of interest.

I would argue the pardon power is so absolute that one president certainly could undo the action of another. It was the office of president that granted the pardon, and apparently can revoke a pardon, not the man that acted.

[Tangerine LaBamba]

61. Yeah, the word

"supposedly" covers a multitude of sins.

There's not a lawyer in the world who would counsel that a Presidential pardon could be revoked by another President. The power, granted by the Constitution, is absolute. Whoever told you that about Justice Department lawyers was, I am telling you, all wet.

Yes, Bush granted and then revoked a pardon he had issued. There is nothing to prevent the granting President from revoking a pardon he has issued.

Your last paragraph makes no sense at all. Did you realize that?

[tritsofme]

67. You might find this article interesting:

http://www.washingtonpost.com/wp-dyn/content/article/2009/01/13/AR2009011302581.html

It is certainly a controversial, and mostly theoretical, issue, but I do not believe it is settled.

edit to add this article from 2001 where undoing the Rich pardon was discussed:
http://www.newsweek.com/id/80398

[Tangerine LaBamba]

69. I read that

It's the rehash of the same issue.

Ultimately, though, it always comes back to the language of the Constitution, which is unequivocal and not subject to interpretation.

It's settled, but, like most compelling matters, it will always be in play.

[BattyDem]

31. He's just making shit up!

:wtf:

If he wanted to give them absolute immunity, he had the power to do that: it's called a pardon. He didn't pardon them, so too f*cking bad! He wrote a letter and suddenly that's the new law of the land? Give me a break! He can't issue a "non-pardon pardon" and if the courts decide he can, then why can't Obama make shit up and issue a non-pardon pardon exemption? :P


The SC will knock this down because if they don't, they'll be giving Obama the power to do whatever the f*ck he wants ... and there's no way they'll do that.

[ThomWV]

32. The Constitution gives him the right to pardon, but he has no similar right to grant immunity

[verges]

83. But wouldn't a pre-emptive pardon

more or less have given immunity? I seem to be having a problem grasping a significant difference. You can't prosecute either, can you?

[Lost4words]

33. hmmmm

[grantcart]

42. Photocopy of Bush's letter has now been released

[backscatter712]

60. This'll get shot down.

The President didn't grant a true pardon, and he doesn't have the authority to grant the kind of immunity that Rove's claiming. As far as executive privilege goes, the SCOTUS already ruled in the wake of Watergate that executive privilege does not apply when the Senate or the DOJ is investigating criminal misconduct in the executive branch.

[DearAbby]

64. If they have immunity...I see no reason why they can't testify

without fear of prosecution. If they have immunity, what are they afraid of?

[MiniMe]

75. That is why he didn't pardon Libby

Because Libby would have to talk if he was pardoned.

[DCKit]

80. Bigtime K&R

You gotta wonder if these NeoCon morans realized the scope of the Catch-22 they were creating with the Unitary Executive - Kind of hard to go back on it now, yet they're totally screwn if they don't take every measure imaginable to reign it in as long as President Obama occupies the WH.

Now I'm wondering which of our more outspoken Congressional heroes is going to call the Republics on their hipocrisy each and every time they bitch and moan about Obama "over-reaching".

[merh]

84. WTF - there is no such thing as "perpetuity"

The immunity means Rove cannot dodge the questions and must answer all that is asked of him. He cannot hide behind the immunity and/or the 5th (I refuse to testify on the grounds it may incriminate me.) If he doesn't answer, he can be charged with obstruction and if he lies, he can be charged with perjury. Bush cannot absolve him from all crimes he commits in the present related to his crimes or the GWB crimes committed by that admin or while Rove was part of that admin.

ETA: If, during the investigation it is learned that Rove/Bush/Gonzales/Miers broke the law, the conspiracy to cover it up would be a part of a RICO/conspiracy claim that extended beyond the admin into the new admin and would could be a charged crime, not subject to the immunity provided.