From: pierce@lanai.cs.ucla.edu (Brad Pierce)
Subject: Garry Wills on the Bush pardons
Organization: UCLA, Computer Science Department
Date: Tue, 29 Dec 92 16:34:15 GMT

[Reprinted *without* permission from the Washington Post.]

Bush's Shameless Finale; The Pardons Undermine Constitutional Intent

By Garry Wills

BEFORE, HE was leaving in defeat. Now, George Bush is leaving on the lam.

Ronald Reagan realized that a pardon of the coverup was bound to look
like a coverup of the coverup - that is why he resisted pleas to pardon
Oliver North and John Poindexter as he left office. But Bush has never
been able to resist the right wing. Because the zealots loved Reagan,
he could keep them in their place. Because they loathe Bush, Bush
continued plying them with favors destined to be insufficient no matter
how exaggerated. He leaves office as he came to it, doing the bidding
of people who despise him.

The president could no more resist the clamor for pardons than he could
keep Pat Buchanan off the podium at the Republican convention in
Houston last summer. Bush opened his political career in 1964 as a
lackey to Goldwaterites in Houston. He closes it licking boots that
have kicked him.  Sometimes Buchanan has worn the boot. Sometimes Pat
Robertson has (Robertson called Bush's New World Order a scheme of
Satan). Bush has rarely been able to look high enough to see whose boot
he is being intimate with.

One of those kicking him toward the pardons was Vice President Dan
Quayle.  The man Bush chose as a weakling he could lord it over
reversed those roles in the last campaign. Quayle, with his
neoconservative handlers, became the tough one. Those promoting pardon
were finally whispering what Elliott Abrams said openly, that Reagan
had been "cowardly" in his dealings with the special prosecutor. The
Wall Street Journal asked if Bush, too, would let Lawrence E. Walsh,
the independent counsel, "carry his associates to the stake." So, in
light from the charge that he is a wimp, Bush rushed to confirm the
charge.

The quick response was to suspect Bush of self-serving motives. But he
probably conceived them as selfless, as taking the guff himself to get
others off the hook. He is always at his most destructive when lending
his patrician gloss to thuggish underlings. He is not in it for
personal gain, he likes to tell himself. As he said of the men
pardoned, "They did not profit or seek to profit from this conduct."
That is the fanatic's defense.  Only the zealot works overtime at
undermining government, the way Ollie North and Abrams did. Thieves
keep saner hours.

The pardon is wrong but not silly. It is the argument for pardon that
slides toward silliness. The president says he is acting in the
tradition of postwar presidents who forgave offenses committed during
war. From what war is he pardoning offenses? The Cold War. But the Iran
crisis arose from the taking of our hostages - not an offense committed
by communists. The Cold War was indirectly connected with the
subsequent diversion of money to the contras in Honduras, but that is
the part of the affair Bush claims not to have known about, and it was
not the focus of Caspar Weinberger's trouble. It is true that some
people invoke the Cold War to cover anything done by the government.
But Bush's use of it in this context verges on parody of that old
claim.

Besides, grants of amnesty after earlier wars were for crimes committed
against the government - from rebellion to draft-dodging to
privateering.  But the Iran-contra offenses were committed by the
government - by officers of the United States executive. Bush's use of
historical parallels is so much smoke emitted to cover the real grounds
for his actions.

Not that those grounds go unspoken in his pardon statement. The war at
issue is not the Cold War but the war of the executive against the
legislative branch - Elliott Abrams repeatedly calls it a war in his
book, "Undue Process," which attacks the Office of the Independent
Counsel (the so-called special prosecutor). Bush uses the battle
slogans of that war in the text of his pardon, from denunciation of
"the criminalization of policy differences" to the "enormous resources"
expended on "exhaustive" investigation.

Take this last thing first, as the least thing. Investigation and
prosecution are always expensive and time-consuming. The goal is not
simply conviction of individual criminals but exposure of the culture
of crime, education of the public, deterrence of other criminals.
Whether one objects to the expense depends on what the educating effect
is. Right-wingers shocked at Walsh's use of the money did not begrudge
the millions spent year after year in the congressional search for
communists and their sympathizers, or the FBI's long history of
investigating domestic dissidents. Besides, it takes some effrontery
for the Republican administration to complain of Walsh's long and
costly effort, producing so little result, when its minions have
labored to obstruct, lengthen and reverse the process - culminating in
Bush's interruption of it by his pardon.

The pardon is not aimed at mercy for the particular defendants, drawing
oblivion over their past deeds. It is aimed at the present struggle
against Congress and its right to pass special prosecutor laws. It is a
political use of the pardoning power. We cannot condemn all political
uses - they were foreseen from the outset. It was to restore
politically peaceful conditions that reprieves, pardons and amnesties
were granted - even for treason. But there was one area that the
ratifiers of the Constitution excepted from the president's pardoning
power, and that had to do with congressional-executive relations.

The exception is impeachment. No presidential pardon can reach
impeachment or conviction after impeachment. Why is this? The usual
answer sometimes misses the point. It is said that the president should
not be able to pardon himself. But the constitutional exception goes
far beyond that. The president cannot pardon a "civil officer"
impeached and/or convicted. Well, that too might be considered
self-pardoning, since the officer is in the president's own executive
department. But a president cannot pardon an impeached judge either. So
the issue is not executive self-protection. It is the right of Congress
to oversee the performance of the other two branches and to punish
those who commit "high crimes or misdemeanors" in either branch.

That is the principle that is denied by many critics of the special
prosecutor's office. People like Elliott Abrams and Terry Eastland
present a simplified view of separated powers in which the executive
and the legislature are supposed to be equally equipped antagonists,
neither prevailing over the other. That makes nonsense of the
impeachment clause and everything that follows from it. Congress can
remove members of the judiciary and the executive. Neither can do that
to Congress as a whole or to any member of it. And, since "who grants
the end grants the means," a Congress required to police and, if
necessary, punish the behavior of the other departments must have the
right to scrutinize, review or investigate that behavior - or to
provide the requisite process for investigation. That is what is at
issue in the special prosecutor's office, and the president has used
his pardoning power to nullify, so far as in him lay, the law setting
up that office.

That is why Bush's pardon is unpardonable - not because it is
unconstitutional in itself, but because it is aimed at subverting a
basic constitutional principle, and one that trenches closely on the
area forbidden to pardons, the right of congressional oversight of
other branches. Impeachment itself is not an issue here - and that
alone saves the act from overt unconstitutionality. But the principle
behind impeachment is at stake, and a constitutional sensitivity, a
sense of constitutional restraint going beyond outright infraction of
the document's provisions, should have inhibited the president. The
ratifiers made it clear that they did not conceive the pardon power as
an instrument to protect other branches from Congress. But that is how
Bush has used it.  None of his cited precedents apply to this, the
crucial part of the pardon.  Even Gerald Ford's pardon of Richard Nixon
- which he left unmentioned - does not apply. Nixon was out of office,
unimpeachable, beyond congressional jurisdiction, when he was
pardoned.

Those just pardoned by Bush were not facing impeachment either; but in
exempting them from indictment or prosecution, not by ordinary federal
attorneys but by Lawrence Walsh, Bush was attacking the very basis of
Walsh's office as a "criminalization of policy matters." This is a
misuse of the pardoning power, in defiance of the Congress that
established Walsh's office.

Luckily, as often happens when Bush panders to his party's right wing,
the whole matter can backfire. Congress will not readily drop the
special prosecutor law, which is up for renewal, now that it has been
attacked so irresponsibly. The less excusable the acts Bush stoops to,
the more useless he renders them. In this case, the party zealots,
already in retreat, sent him out to retrieve their fallen companions
from the field of battle. But Bush, in trying to carry off the wounded,
has lain down among them.

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