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

It look like we were had:

Bush gave Rover and Miers pre-emptive immunity

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

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.

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.

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.

He may well lose there. (ed for grammar)

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.

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)

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:

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,

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:

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

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

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

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

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

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

It's nuts.

Absolute immunity is not the same as a pardon.

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."

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.

What's stopping Obama from overturning it?

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

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

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.

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.

what are they going to fight over?

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

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

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

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.

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?

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

Your old lawyer is still bound by convention.

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?

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.

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.

"...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.

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.

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.

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.

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.

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.

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?

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

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.

..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.

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.

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.

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?

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

when leaving office?

I don't think this will stand.

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

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.)

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.

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.

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.

:shrug:

It says FUREVER!!

:rofl:

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.

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.

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.

"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?

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

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.

: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.

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

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.

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

Because Libby would have to talk if he was pardoned.

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".

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.