Barack Obama has the power to immediately pardon George W. Bush and Dick Cheney of war crimes and of flouting the Constitution.
Yes, Obama can — even though Bush and Cheney haven’t really been charged, let alone convicted.
Oh, it would piss off Bush and Cheney and Karl Rove and the rest of that odious administration. But more than simple revenge and cruelty, it would be the right thing to do, and they would have no recourse.
A presidential pardon would of course imply — in the strongest possible terms — that they committed crimes for which they could be pardoned.
You think I’m kidding? I’m not. You think Obama can’t do it? Yes, he can.
No one has suggested it, as far as I know, but Slate‘s Jacob Leibenluft answered his own question last July, in “Pre-emptive Presidential Pardons: Can you be pardoned for a crime before you’re ever charged?”:
…Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.)
Generally speaking, once an act has been committed, the president can issue a pardon at any time–regardless of whether charges have even been filed….
Obama has already indicated that he’s not much interested in pursuing the Bush-Cheney regime for its numerous bad deeds, and he won’t have the time anyway, with the New Great Depression bearing down on the U.S.
Oh, and we know the acts have been committed, so think about it:
Bush and Cheney would forever wear the scarlet “P” for pardon on their foreheads, and there would be nothing they could do about it.
Oh, would they fight it in court? It’s not appealable, but would they even try? That would open arguments on the merits of their being pardoned. That’s a can of worms that Bush and Cheney would be unlikely to want to open.
So, my one and only suggestion to President Obama: Pardon Bush and pardon Cheney.
Spare us the expense of prosecuting them and their underlings for their malfeasance.
Don’t forgive them their trespasses on the Constitution. Make them official.
Obama could announce the pardons in his inaugural address (which is happening as I write this), but my money says he won’t.
Too bad. That would add to the history he’s already making.
UPDATE, 8:45 p.m.: Obama surely took Americans’ breath away with his inaugural address (video). But he didn’t take my advice to pardon Bush and Cheney.
To those readers who have insisted that Congressional hearings should be held so that the previous administration be held accountable for various tortures and other abuses of people and the law, I’ll just point out that wide-ranging, definitive hearings will most likely never be held.
So, short of our frog-marching Bush and Cheney to the waterboarding tank for some truth-telling sessions, it’s probably either the pardons or nothing.
Obama, you’ve got at least four years to think this over.
This article from the Village Voice Archive was posted on January 20, 2009