Would Bush Consider 'Pre-emptive Pardons'?

George W. Bush has been exceedingly stingy when it comes to presidential pardons and commutations, issuing fewer than any modern president. But as Bus

George W. Bush has been exceedingly stingy when it comes to presidential pardons and commutations, issuing fewer than any modern president. But as Bush’s presidency winds down, there’s some talk about the president using his powers to help conceal some of the administration’s own transgressions.

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons — whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

There are two angles to consider here: whether the White House would do this and whether the White House could do this.

On the prior, the Bush gang isn’t saying much. The NYT asked the White House about whether “pre-emptive pardons” — clearing people of legal responsibility before they even face charges — are on the table. The Times reported, “Emily Lawrimore, a White House spokeswoman, would not say whether the administration was considering pre-emptive pardons, nor whether it would rule them out.”

On the latter, is this even a legal option? Does the president even have the authority to pardon someone who isn’t even facing criminal charges? Apparently, he can.


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