Citizen Spook Tuesday,
September 13, 2005
The Constitution
Voids Presidential Pardons For Criminal Convictions Or
Indictments Flowing From "Cases of Impeachment" Where The Senate
Has Voted To Convict.
[UPDATED Sept 14, 2005,
7:15 a.m. Substantive additions are in red.]
PROLOGUE:
Citizen Spook has timed this report to coincide with John
Roberts' confirmation hearings for Chief Justice of The Supreme
Court. Roberts' most important function, as far as the Bush
White House is concerned, will be to ensure that presidential
pardons, issued by Bush in relation to Treasongate offenses,
will be upheld by the highest court in the land.
As Chief Justice, Roberts will have the most power to steer the
court and to determine which justice will write the court's
opinion on controversial topics. While the entire nation focuses
on whether Roberts would overturn
Roe v. Wade,
much more important to the Bush White House is the role Roberts
will play in the impending Constitutional crisis over
presidential pardons for the Treasongate offenders.
Many readers of this blog have expressed concern that any
indictments returned by Patrick Fitzgerald's grand jury(s) will
simply be nullified by presidential pardons. Their concern is
certainly justified. Generally, the president's power to pardon
is virtually unlimited and not subject to judicial review.
However, in researching the issue, I was pleasantly surprised to
discover an obscure Constitutional device which insulates
certain convictions/indictments from the broad pardon power
granted to the president. This never before tested
Constitutional process requires the House of Representatives to
Impeach and the Senate to convict "civil Officers of the
United States" so that pardons of those Officers
pertaining to criminal prosecutions flowing from "Cases
of Impeachment" can be voided.
The power to Impeach granted to Congress is essential to our
Republican system of checks and balances. For what good are
checks and balances if they are not employed to maintain the
laws of the nation? If Fitzgerald's investigation properly
alleges criminal activity by Government Officers involved with
Treasongate offenses, Congress must begin Impeachment
proceedings to remove those Officers.
The coming Supreme Court battle has never, in the history of
American jurisprudence, been tested before. The question
presented:
Whether
"civil Officers of the United States", including the
President and Vice President, can be pardoned for criminal
convictions (or indictments prior to conviction) which flow
from "Cases of Impeachment" where the Senate has
voted to convict?
This issue has
never been tested in our entire national history. Actually, I
couldn't find a single legal discussion directly on point. No
civil Officer of the United States has ever been Impeached in
the House of Representatives, convicted in the Senate, then
removed from office and successfully prosecuted in a criminal
court only to be granted a presidential pardon.
According to the Constitution, "civil Officers of the
United States" may be Impeached. So, for purposes of
this analysis, we shall assume that various United States
Officers, from the President and Vice President to Cabinet
members and others in the State and Justice Departments, have
committed impeachable offenses. We will also assume that the
House has impeached these Officers after Patrick Fitzgerald's
investigative report is released and that the Senate has voted
to convict and thereafter removed them from office and that
Grand Jury indictments have been returned following the Senate's
conviction. And finally, we will also assume that the "sitting"
president has issued sweeping pardons for every Officer indicted
in criminal court.
This analysis will be limited to situations where
convictions/indictments occur after House
Impeachment and Senate conviction. Assuming indictments are
returned by Fitzgerald's grand jury(s) prior to
Impeachment, the president, despite the intense political fall
out which is guaranteed to occur, may pardon those Officers
involved, even himself. But Congress would still have a duty to
Impeach those Officers. Assuming such Impeachments are followed
by Senate convictions, all of the removed Officers will
thereafter be subject to indictment, criminal prosecution and
punishment.
Thereafter, according to a fair reading of the
Constitution, criminal court indictments, convictions and
sentences may not be pardoned when they flow from "Cases of
Impeachment" where the Senate had voted to convict.
In order to avoid a double jeopardy defense, the Impeachment
process should be completed prior to criminal trial prosecution
and conviction. However, indictments alone do not trigger double
jeopardy defenses.
It's well established that presidential pardons cannot overturn
the "Judgment in Cases of Impeachment". Such "judgment"
is directly limited, by the Constitution, to removal from office
and disqualification from ever serving as an Officer of the
United States.
The issue which has never been litigated before
is: Whether civil Officers of the United States, removed from
office by conviction in "Cases of Impeachment", who are
later tried and punished in criminal courts, can thereafter be
pardoned by the President? This report concludes that
the Constitution bars any such pardon.
Until now, the White House could take some measure of confidence
that, if all else fails, they will fall back on the erroneous
public assumption that the broad pardon power granted to the
president by the Constitution would shield them from criminal
punishment for Treasongate offenses. But a well educated
Congress and citizenry will make their illegal plight
exponentially more difficult. And that is the purpose of this
blog.
The presidential pardon power, when aimed at anything but "Cases
of Impeachment", is virtually plenary. But the serious
problem the Bush White House now faces is that most of the
Treasongate perpetrators are "civil Officers of the
Government" and are therefore subject to Impeachment.
Should those Officers be convicted in the Senate, following
Impeachment in the House, they will nevertheless also be subject
to criminal prosecution and punishment in the form of prison
sentences or the death penalty. Those convictions, indictments
and sentences which flow from "Cases of Impeachment"
may not, according to the Constitution, be pardoned.
CitizenSpook has prepared the following analysis to educate the
American people for the coming Constitutional crisis regarding
the broad sweeping grant of pardons soon to be issued by the
Bush White House.
WHAT THE CONSTITUTION SAYS ABOUT
PARDONS
Article 2, Section 3, Clause 1:
"The President...shall
have Power to grant Reprieves and Pardons for Offences against
the United States, except in Cases of Impeachment."
That's the only mention of
pardons in the Constitution.
WHAT THE CONSTITUTION SAYS
ABOUT IMPEACHMENT
Impeachment is mentioned
only six times in the Constitution:
Article 1, Section 2,
Clause 5:
"The
House of Representatives...shall have the sole Power of
Impeachment."
Article 1, Section
3, Clause 6:
"The Senate shall have
the sole Power to try all Impeachments..."
Article 1, Section
3, Clause 7:
"Judgment in Cases of
Impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law."
Article 2, Section
2, Clause 1:
"The President...shall
have Power to grant Reprieves and Pardons for Offences against
the United States, except in Cases of Impeachment."
Article 2, Section
4:
"The President, Vice
President and all civil Officers of the United States, shall be
removed from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misdemeanors."
Article 3, Section
2, Clause 3:
"The Trial of all
Crimes, except in Cases of Impeachment, shall be by Jury..."
THE SUPREME COURT'S ANALYSIS OF THE
PRESIDENTIAL PARDON POWER
It's a long established principle, upheld by the Supreme Court,
and supported by commentary from the Constitutional Convention,
that the presidential power to grant clemency is plenary except
in "Cases of Impeachment."
In
Schick v. Reed, 419 U.S. 256 (1974),
the Supreme Court affirmed this broad authority. Chief Justice
Burger stated that the power to pardon flows from the
Constitution and "it cannot be modified, abridged, or
diminished by the Congress." Id. at 266. But the Supreme
Court in Schick v. Reed also announced, in three
separate quotes, the only instance, besides "Cases of
Impeachment", where a presidential pardon would be
unconstitutional:
"Additionally, considerations of public policy and
humanitarian impulses support an interpretation of that power so
as to permit the attachment of any condition which does not
otherwise offend the Constitution."
"...the conclusion is inescapable that the pardoning power
was intended to include the power to commute sentences on
conditions which do not in themselves offend the
Constitution..."
"We therefore hold that the pardoning power is an enumerated
power of the Constitution and that its limitations, if any, must
be found in the Constitution itself."
If a presidential pardon offends the Constitution, the pardon
itself is unconstitutional. Having stated that, let me make it
clear that the basis for my conclusion in this report does not
depend exclusively on the Supreme Court's holding in Schick
v. Reed. Nonetheless, the Supreme Court's opinion in that
case certainly reinforces the conclusion of this report since
the limitation of the presidential pardon power that I have
discovered is found directly within the Constitution.
A
CONSTITUTIONAL MYSTERY
The Constitution is a beautiful, albeit mysterious, creature.
Sometimes it appears that different sections contradict each
other, but such alleged contradictions, when followed to their
logical conclusion, usually reveal the true intention and
symbiotic relationship of Constitutional clauses.
An "apparent" Constitutional contradiction has helped me
discover the conclusions of this report. The Constitution
states, "The President...shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in
Cases of Impeachment."
In Schick v. Reed, Justice Burger recognized that there
wasn't much discussion about presidential pardons at the
Constitutional convention. Burger relied on the following
comments from the convention:
"Mr.
Sherman moved to amend the `power to grant reprieves and
pardons' so as to read `to grant reprieves until the next
session of the Senate, and pardons with consent of the Senate.'
"
2M. Farrand, Records of
the Federal Convention of 1787, p. 419 (1911). [419 U.S. 256,
263]
Justice Berger then stated:
"The proposed amendment was rejected by a vote of 8-1. Ibid.
This action confirms that, as in England in 1787, the pardoning
power was intended to be generally free from legislative
control."
The issue was also
discussed by Daniel T.
Kobil,
Professor of Law at Capital University Law School in Columbus,
Ohio, before the House of Representatives Committee on the
Judiciary Subcommittee on the Constitution (February 28, 2001) :
"While a number of the
delegates, including James Madison, agreed that the power to
pardon treason should not be vested in the President alone, the
framers ultimately were unwilling to allow the Senate to share the
power to pardon."
It is not disputed that the
power to pardon is granted by the Constitution to the president,
and only to the president. Yet, Article 1, Section 3,
Clause 7, at first glance, appears to give Congress their
own power to pardon:
"Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and
enjoy any Office of honor, Trust or Profit under the United
States: but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according
to Law."
Reading the above, it seems to grant Congress the power to pardon
civil Officers of the United States from criminal prosecution if a
"Party" is Impeached in the House, but not convicted
in the Senate; "...but the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law." (Emphasis added.)
Article 1, Section 3, Clause 7 does not say, "but
the Party Impeached shall nevertheless be liable
and subject to Indictment, Trial, Judgment and Punishment." It
says, "but the Party convicted shall
nevertheless..."
Does this grant Congress its own pardon power, to be exercised by
Impeaching those it intended to protect from criminal prosecution,
and thereafter choosing not to convict in the Senate?
The issue causes an apparent Constitutional contradiction since
Article 2, Section 2, Clause 1 contains the only
specific mention of pardons in the Constitution, and the power is
granted therein solely to the president. As stated above, both the
framers at the Constitutional Convention and the Supreme Court
have determined that the power to pardon is only granted to the
president. Hence, a Constitutional mystery is before us.
Since it's clear that the framers firmly rejected the notion that
Congress should share the power to pardon with the president, we
must determine the true meaning of Article 1, Section 3,
clause 7.
THE
MYSTERY REVEALED: The Constitution Voids Pardons Aimed At Criminal
Prosecutions Flowing From "Cases Of Impeachment" where the Senate
has voted to convict.
By now, I'm sure you're wondering why I have consistently
emphasized the term, "Cases of Impeachment". I have done
this because the meaning those words are given by the Supreme
Court in the very near future will determine, for all the world to
see, whether our Constitutional Republic is truly protected by
checks and balances or if we are a nation ruled by a federal mafia
of mad thugs.
The heart of this analysis is surprisingly simple.
Article 1, Section 3, Clause 7:
"Judgment in Cases of Impeachment shall not extend further
than to removal from Office, and disqualification to hold and
enjoy any Office of honor, Trust or Profit under the United
States..."
Let's break down "Judgment in Cases of Impeachment..."
Three things are mentioned:
1. JUDGMENT
2. CASES
3. IMPEACHMENT
"Impeachment"
is the Constitutional process for determining whether the behavior
of civil Officers of the United States warrants such Officers
being removed from office. The power to exercise this process is
granted exclusively to Congress.
"Cases"
are made up of the underlying facts and laws reviewed by Congress
during the Impeachment process.
"Judgment"
is strictly defined by the Constitution and "shall not extend
further than to removal from Office, and disqualification to hold
and enjoy any Office of honor, Trust or Profit under the United
States..."
Article 2, Section 2, Clause 1:
"The President...shall have Power to
grant Reprieves and Pardons for Offences against the United
States, except in Cases
of Impeachment." (Emphasis added.)
Please note that this clause does
not say:
"The President...shall have Power to grant Reprieves and Pardons
for Offences against the United States, except in
Judgments of
Impeachment."
Article 1, Section 3, Clause 7 specifically rules
that
"Judgment in Cases of Impeachment" is limited to "removal
from Office, and disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States..."
It is undisputed that the president cannot use the pardon power to
overturn the "judgment in Cases of Impeachment". If one
of the president's men is removed from office, it is clearly
established that such "judgment" cannot be reversed so as to allow
the removed Officer to regain his position in the Government, nor
can that Party ever again "hold and enjoy any Office of honor,
Trust or Profit under the United States."
The Constitutional limitation of the presidential pardon power
enumerated in Article 2, Section 2, Clause 1 is
not limited to the specific "Judgment in Cases of Impeachment"
listed in Article 1, Section 3, Clause 7. Since
the framers very carefully defined the limitations of "Judgment in
Cases of Impeachment", their wording in Article 2, Section
2 Clause 1,
"The President...shall have Power to
grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment",
enumerates a limitation on the presidential pardon power which
extends to criminal indictments, convictions and punishments
flowing from the underlying facts and laws reviewed by Congress in
"Cases of Impeachment"...but
only when the Senate votes to convict.
I submit to you that this
conclusion is completely supported by a sensible examination of
the particular wording of the Constitution, the framer's intent,
and the opinion of the Supreme Court in Schick v. Reed.
This conclusion also serves as a beacon of illumination for the
mystery contained in the second part of Article 1, Section
3, Clause 7:
"...but the Party
convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment
and Punishment, according to Law."
(Emphasis added.)
The key words here are "convicted"
and "shall". The framers were drawing a clear
distinction between those Officers who would be Impeached and
those Officers who would be Impeached and convicted.
A fair reading of this
Clause implies that those Officers who were Impeached but not
convicted "may be liable and subject to
indictment...", and therefore reasonably pardoned whereas those
Officers who are Impeached and convicted "shall
nevertheless be liable and subject to indictment..."
The Clauses work together,
and must be read together. The mystery is resolved by the very
words in the Constitution. The framers chose their words
carefully. It appears that they were deeply concerned that
Officers of the United States, who were so blatantly in violation
of their duty and loyalty to the laws of this nation as to be
Impeached in the House and convicted by a 2/3 majority in the
Senate, should not be allowed to be pardoned for criminal
prosecutions flowing from such "Cases of Impeachment."
Instead of granting the Congress their own pardon power, which was
clearly not the intention of the framers, the meaning of this
clause can only be understood in relation to the following:
"The President...shall have Power to
grant Reprieves and Pardons for Offences against the United
States, except in Cases
of Impeachment." (Emphasis added.)
"Cases of Impeachment" are fundamentally
different animals than "Judgment
in Cases of Impeachment".
While the Constitution specifically defines exactly what the "Judgment
in Cases of Impeachment" must always be, it is silent as to
what "Cases of Impeachment" are.
This makes sense when you consider that the circumstances, facts
and laws that will make up every "Case of Impeachment"
will be different from every other "Case of Impeachment"
while the opposite is true of "Judgment in Cases of
Impeachment", which, according to Article 1, Section
3, Clause 7, must always be the same.
The legal meaning of the Constitution's distinction between the
words "Judgment" and "Cases"
has never been litigated in the history of American jurisprudence.
My legal research has not revealed even one theoretical discussion
of the distinction prior to this report.
"...but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according
to Law."
As previously stated, this Clause does not grant Congress its own
pardon power. Rather, its mysterious language reveals a unique
specific purpose when read in conjunction with Article 2, Section
2, Clause 1. The purpose is
to clarify that the broad
pardon power granted to the president in Article 2,
Section 2, Clause 1 is only limited as to criminal
prosecutions (indictments, convictions and punishment) which flow
from "Cases of Impeachment" when the Impeached Party has
been convicted in the Senate.
The
specific limitation of the pardon power that this report has
discovered only comes into effect when the House has Impeached and
the Senate has convicted. The president definitely has the power
to pardon anyone who is Impeached in the House but not convicted
in the Senate. Should the Senate follow through on conviction,
things could get interesting.
Please make your elected representatives aware of their
responsibility to Impeach criminals serving as civil Officers of
the United States.
EPILOGUE
Please examine the image carefully. This is a scan of page 8,
Section Ten, of The Sunday Star Ledger (a New Jersey newspaper)
for July 31, 2005.
Let me draw your attention
to the following curiosities:
The bottom half of the page is a history of various secret
societies including The Freemasons, Skull and Bones and Opus
Dei. But the first paragraph of the article states:
"Whether the confirmation hearings for Supreme Court nominee
John Roberts will explode into bitter partisanship or fizzle
like wet fire-cracker is anyone's guess. The payoff for Roberts
if he survives the grueling process, of course, is membership in
one of the nation's most rarefied institutions.
When it comes to tradition
and secret rituals, however, the Supreme Court has nothing on
these groups."
It then describes the history of the various secret societies.
Why is the unnamed author of this article comparing the United
States Supreme Court to secret societies? The Supreme Court
operates in full public view. Its members and powers are
determined by Constitutional authority. Its decisions are
published for all the world to see. If the only purpose of this
article was to portray the Supreme Court as a "secret society",
the article's purpose is insane.
But when we examine the top part of page 8, the cynical message
conveyed becomes clear. Have a look at the top headline:
"A clean slate for ex-cons."
Now look at the type on the document pictured on the top right
side of the page:
"Clear Your Record!
(MAKE A FRESH START)
$350
EXPUNGEMENT"
Now look at the signature on the bold face boxed quote in the
middle of the top half of the page:
"MARGARET COLGATE LOVE, former
pardon attorney for the United States"
Taking all of the inferences listed on this page into
consideration, it appears that the fix is in.
A Senator at the confirmation hearings needs to ask Mr. John "I
don't recall being an officer of the
Federalist Society" Roberts, if he recognizes a
Constitutional difference between "Cases of Impeachment"
and "Judgment in Cases of Impeachment". The future of our
nation may depend on his answer.
ttp://citizenspook.blogspot.com/
by Citizen Spook
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citizenspook@hotmail.com
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Queen
Victoria
