Will that be the headline on January 19th, 2009? Before he leaves office, will President Bush use his power to pardon to shield the members of his administration from legal action? If so, his pardons will be a last effort to avoid accountability.
We know that every president grants pardons in the final weeks of their term. And sometimes the people on those lists are surprises and they're controversial. Jimmy Carter pardoned Patty Hearst. Bill Clinton did the same for Marc Rich.
Who may be pardoned is outlined in Department of Justice guidelines:
Under the Constitution, only federal criminal convictions, such as those obtained in the United States District Courts, may be pardoned by the president. In addition, the president's pardon power extends to convictions obtained in the Superior Court of the District of Columbia and military court-martial proceedings. However, the president cannot pardon a state criminal offense.
As described by Robert Longley, before a pardon is granted, the president follows a procedure:
While the Constitution places no significant limitations on them in granting pardons, we have certainly now witnessed the grief that can come to presidents or former presidents who appear to grant them haphazardly, or show favoritism in the act. Surely, presidents have some legal resources to draw upon when saying, "I granted the pardon because..."
Operating under the guidelines of Title 28 of the U.S. Code of Federal Regulations, Sections 1.1 - 1.10, the U.S. Pardon Attorney, of the Justice Department's Office of Pardon Attorney "assists" the president by reviewing and investigating all requests for pardons. For each request considered, the Pardon Attorney prepares the Justice Department's recommendation to the president for the final granting or denial of the pardon. Besides pardons, the president may also grant commutations (reductions) of sentences, remissions of fines, and reprieves.
For the exact wording of the guidelines used by the Pardon Attorney in reviewing requests for pardons, see: Presidential Pardons: Legal Guidelines.
Keep in mind that the recommendations of the Pardon Attorney to the president are just that -- recommendations and nothing more. The president, bound by no higher authority than Article II, Section 2, of the Constitution, is in no way required to follow them and retains the ultimate power to grant or deny clemency.
President Bush has said repeatedly that he feels a kinship with Harry Truman. A president with end-of-term low public approval numbers, Truman has been vindicated by history. Mr. Bush believes that he also will be vindicated. What we consider his failings -- Iraq, Guantanamo, Abu Ghraib, the financial collapse, the housing debacle, the world's low opinion of America, his failed energy policy, no health care plan, attacks on the regulatory system -- will be regarded favorably in the future.
If that is what's in his mind, then he will want to protect all those in his administration from what he would perceive as the partisan attacks by over-zealous prosecutors. For eight years his administration has sought to work in secrecy, using the claim of executive privilege to prevent Congress and the Justice Department from investigating members of his administration. Would he really leave office on January 20th without first protecting everyone from a Democratic Justice Department?
Won't he pardon Donald Rumsfeld, Alberto Gonzales, Karl Rove, and Dick Cheney? Will Ted Stevens make the list now that he has lost his Senate seat?
What about the countless others that we don't know about? Won't President Bush pardon them as well? As we learned when the New York Times reported about the Bush administration's warrantless wiretaps, there are many things this government has been doing that we know nothing about.
His tenure in the Oval Office has been characterized by efforts to redefine the Constitution and create an Imperial Presidency. In the spirit of pushing the boundaries of presidential power, won't he also claim that his pardons cover state crimes as well? If there are protests that he has misrepresented his authority, then he can walk away from the controversy and allow the courts to decide, thereby muddying the prosecutorial waters for decades after he has left office.
If President Bush believes that he is the heir to Harry Truman, he won't care that the public and press will tar and feather him if he issues pardons willy-nilly.
So, the question of the hour is: Who will President Bush pardon before he leaves office? Will he put himself at the top of the list?