The opposite of a pardon?

March 27, 2006 9:25 AM

Say that a (US) presidential administration was doing something it wasn't supposed to be doing. Could a future presidential administration find this out and prosecute the former administration's officials?

I'm interested in the theoretical question, but a realistic situation would be that the next administration finds out that domestic spying powers were actually being used on political opponents, journalists, or other non-terrorists.

It seems like if this were possible that it would have happened before in US history. Perhaps even if it was possible, the political ramifications would be awful? Perhaps retribution would be feared? Perhaps there is a sort of "former president" club or understanding?

posted by ontic to law & government (15 comments total)

Perhaps there is a sort of "former president" club or understanding?

i've often wondered about that ...

my guess would be a former administration would be likely to get rid of the evidence before they turned the keys over to the next guy ... but if that failed, there's 3 options

1) pardon
2) prosecution
3) pretend it didn't happen

pardon's been done once ... prosecution of a former president could happen but the aura of political vengence around it may backfire ... and in any case, it would be prosecutors that did the prosecution and the sitting president may well keep his distance from that

pretending it didn't happen may have happened several times ... who knows?
posted by pyramid termite at 9:32 AM on March 27, 2006

Just a random related thought; usually when persecutions of past leaders happen, the regime changes, but in the USA the regime has never changed (well, at least in the north). Maybe having one administration persecute a former one would imply that the regime is a bit unstable.
posted by Firas at 9:38 AM on March 27, 2006

Yes, unless the president pardoned the perps. I don't think the president can pardon himself, although he could certanly try.

While it could be seen as political revenge, thats a political calculation the new president will have to take.

There's also the issue of statutes of limitation.
posted by delmoi at 9:38 AM on March 27, 2006

It's unrealistic and counter productive to punish an administration for anything but the most atrocious violations. It's pretty well understood that power comes in cycles and nothing would ever get done if parties were restrained by the thought of prosecution.
posted by geoff. at 9:40 AM on March 27, 2006

Legally it's possible for this to happen. Realistically it never would.

A good deal of the power of the presidency comes from the prestige of the office. Start tearing down former occupants of the office, and you're pretty much shooting yourself in the foot.
posted by tkolar at 9:41 AM on March 27, 2006

There's nothing in the text of Article II that prohibits pardoning yourself. The only restriction is that you can't use it to get out of impeachment.

It may be bad form to start going after your predecessors in office. But it also doesn't help to foster independence from your predecessor when you pardon him. Compare Gerald Ford (ousted from office after 2 years) with Jodi Rell (former Lt. Gov to convicted felon John Rowland, now has 80% approval rating.)
posted by Saucy Intruder at 9:49 AM on March 27, 2006

#delmoi: I don't think the president can pardon himself
#Saucy Intruder: .. prohibits pardoning yourself. The only restriction is that you can't use it to get out of impeachment.

Pardon Two Step: Bush pardons everybody in his administration, resigns, then Cheney pardons Bush.
posted by MonkeySaltedNuts at 9:53 AM on March 27, 2006

delmoi writes "I don't think the president can pardon himself, although he could certanly try. "

The next guy in line is probably willing to do it for him though :)
posted by Mitheral at 9:57 AM on March 27, 2006

Actually the Nixon prosecutions, with appeals, lasted into 1978 and 1979. I'm always coming across appellate decisions from those years that start out with the words "This is a case arising out of prosecutions of Administration Officials during the Nixon Administration."

The President may pardon himself, most likely. There's nothing to say he didn't and the governor of Kentucky did it last month, I believe. Guess what? A Republican, of course. On preview, The Saucy One has it.
posted by Ironmouth at 10:34 AM on March 27, 2006

Pardon Two Step: Bush pardons everybody in his administration, resigns, then Cheney pardons Bush.

I know it was done already, but can a President actually pardon someone for which charges have yet to be filed?
posted by Pollomacho at 10:48 AM on March 27, 2006

The executive branch is like a DA and police—they don't make the laws, but they enforce them. And there is a great deal of power implicit in enforcement that is selective. So, sure, a new administration could ask the Justice dept. or a specific agency to investigate an official or officials of a previous administration. I'm sure they do from time to time. But a large-scale investigation and prosecution of the previous administration is fraught with political problems when the new administration is behind it. But you shouldn't assume that one part of the executive branch will not investigate another or itself. There's a number of investigations going on right now of important people in this administration by the Justice dept., which is under the administration's control. Are they being stymied to some degree? Yes, in the current cases, but only in ways that are subtle and plausibly deniable. A culture of rule of law is very powerful. Most of the workers at federal agencies, including the middle-management and most directors, are career people who have worked, and expect to work, under different administrations and they jealously guard their professionalism and political independence. There is always conflict between the political appointees to these agencies and their career subordinates. For example, there was a lot of push-back by the professionals at the CIA against administration pressure to come to the conclusions it wanted about Iraq and WMDs.

Probably the best and most famous modern example of this kind of thing was Watergate's "Saturday Night Massacre" where Nixon tried to directly control and thwart investigations of the Watergate scandal and high-ranking officials refused and then were fired in succession. And note that this politically damaged Nixon badly.

So my point here is that within the executive branch, there is a lot of intertia and respect for the rule of law and while an administration can greatly affect in various ways the number and scope of investigations pursued by people and agencies under its nominal control, there are a number of limits and pretty much every administration these days is being investigated while in office by its own people. This means that a new admin when it comes to power doesn't have to do anything radical about prosecuting the previous admin, they just have to remove obstacles they have control over and encourage them. And they do.

The other important reason that a current admin isn't beyond contemporary scrutiny and a successor admin doesn't have to initiate incestigations into the prior, is because the legistlative branch often uses its own power to do so—because even the opposition party has some leverage to put scrutiny on the current admin. If nothing else, they can hold hearings. Which they do.

So, for the most part, there is great political risk for a new administration to go all out in investigating and prosecuting individuals from the prior admin, but they really don't need to do so, or be seen doing so, because the change in power means that they merely have to loosen the leashes on their dogs which are already on the trail. And they do.

As to what you're probably thinking of, some sort of comprehensive bringing to justice crimes committed by the very top authorities such as cabinet dept. officials and the pres and vice-president...well, this is just my opinion, but I believe that for the most part, when these folks are involved in questionable activities they are usually careful to insulate themselves, it's always someone just a notch lower than cabinet-level who gets stuck with the blame. That's one reason we don't see these people being directly targeted by a succeeding admin, or anyone. The other reason is simply practical and political, and what others have already said: even if they honestly believe the highest levels of the prior admin behaved illegally, to initiate anything large and intensive would nevertheless be seen by many as a purely politically motivated abuse of power and, consequently, tacitly endorsing this use or abuse of power against them by the next admin. You could say that's craven. But I don't. I think there's so much grey in the world that the cost would be greater than the gain.
posted by Ethereal Bligh at 11:01 AM on March 27, 2006

No, I think it's morally, ethically, and legally wrong to not prosecute a former president simply because of the "political complications". It's not some mature "there's grey in the world" thinking, EB, it's small-minded and immoral to think that way. What's the "cost", exactly? That the party who broke the law will be upset when they go to jail for breaking the law?! If the DA failed to prosecute the mayor, even when the mayor had left office, for high crimes and abuse of power, that would not be some Solomonic wisdom, but rather a weak-kneed avoidance of conflict more befitting a battered child than an upholder and enforcer of the law.

And thinking it would be politically difficult is silly: if a Democrat wins in 2008 and prosecutes Bush specifically for some of the Constitutional violations, he won't necessarily even be unpopular. Certainly Republicans will create a drumbeat of "This is just politics!" to muddy the issue, the same way they have aneurysms when the NSA stuff is brought up and claim it'll be the death of the Democrats, or bleat about "liberal media bias" even when 23-year-old conservative jerkoff plagiarists are being hired left and right, or bleat about "where's the good news in Iraq" when there isn't actually any good news that can be reported that isn't in the shadow "it's a fucking civil war".

Yeah, what a world where criminals can yell and scream that prosecuting them would be the end of the DAs existence: I'm sure Al Capone said things like that too. The current administration wants to make reality a plaything of their own desires and perceptions, and anyone who plays ball with that is a fucking cockknocker. There is no earthly reason why you wouldn't prosecute a former administration- the people themselves repudiated that former administration when they voted them out of office (at least in a party change). Any pretend-wisdom about "the stability of the union" is horseshit.

However, the kind of people who ascend to power are such suckups and weasels- take the spinelessness of the current Democratic party to not support Feingold or to let Alito slide in, despite the incredibly low approval ratings for the Republicans and Bush- that they won't do it not because of precedent or great insight into the true cost, blah blah blah... but simply because they're ginormous pussies.
posted by hincandenza at 12:42 PM on March 27, 2006 [1 favorite]

It's unrealistic and counter productive to punish an administration for anything but the most atrocious violations. It's pretty well understood that power comes in cycles and nothing would ever get done if parties were restrained by the thought of prosecution.

This is staggeringly obtuse, and the spirit of what you're saying runs counter to everything this country used to stand for.
posted by odinsdream at 6:54 PM on March 27, 2006

I was really looking for an explanation rather than a particular justification here, so thanks for all the insightful comments.

It would surprise me that someone could be so good at covering up such a crime that an administration with the full powers of the executive branch couldn't come up with evidence.
posted by ontic at 7:48 PM on March 27, 2006

"No, I think it's morally, ethically, and legally wrong to not prosecute a former president simply because of the 'political complications'. It's not some mature "there's grey in the world" thinking, EB, it's small-minded and immoral to think that way. What's the 'cost', exactly?"

I think that pretty much any crime that a President commits is likely to be of the same character that every President commits. You apparently have much more faith in the honesty of our highest leaders than I do. There is always going to be some dirt that a suceeding admin could dig up and prosecute; if in one case it's not politically motivated but acting the highest ideals, there'll be five such investigations and prosecutions that are politically motivated and not high-minded. I am not saying that an administration shouldn't have to account for its actions, I'm saying that a following administration of the other party is the least productive agency to push for something like this.
posted by Ethereal Bligh at 10:02 PM on March 27, 2006