I'm a little confused (and don't agree that Pelosi should be removed necessarily). I'm more worried about Bush having the POWER to pardon people on his way out of office more than him receiving a pardon himself by subsequent administrations (I *think* a pardon for Bush is what you want to forestall?).

My question is if Bush can pardon someone for crimes that have not been revealed and/or that they have not (yet) been convicted of? Another question is if he can pardon someone (presumably for an unrevealed crime) but keep that pardon secret for "national security reasons"?

There is no way to save the collective ass of this country unless we find a way to hold our public officials accountable for their actions. Right now it appears as though Bush will walk. If he does we are screwed. And just for the record this is about moral cowardice. Political cowardice is why we are in this mess. And Pelosi should not be speaker. She has not fulfilled her lawful obligation to the citizens or the Constitution. Her actions are 100% framed by political considerations and 0 % by what is required by law.

I. Legal Requirement, Without Discretion

The House has work to do. Pelosi must lead that work, not shirk her legal obligations under the Geneva Conventions and Nuremberg precedents.

The Constitution s a legal document, not a partisan playground, with legal obligations. Nuremberg shows us, when the sitting President is not prosecuted, and the Congress refuses to impeach, that nation is not civilized:

"Under any civilized judicial system he could have been impeached and removed from office or convicted"From

The Speaker's oath is to the Supreme Law, not just the Constitution, which includes all treaties, including Geneva. A decision to not investigate, not impeach, and not prosecute means the Speaker, by default, accepts the implications of the Nuremberg precedent: America is not civilized. That conclusion is not one the Speaker alone can decide; nor is it for any of us to agree. Our legal obligation is to remain civilized, fully assert the Constitution, and challenge the Speaker to fulfill her obligations under the Nuremberg Precedents.

II. Preparing for the Constitutional Challenge To Bush's Pardon

Let's fast forward ten (10) years from now to 2018 and presume the President is tried under US law in a US court for offenses against the United States. Suppose Bush's defense fails, and he is convicted. Any President could pardon him.

One might argue that today's investigation would be a waste. But that ignores the next step in 2018: Would that Presidential pardon of Bush after 2018 be legal?

In 2018 the question would go back to what was known or investigated after 2001, starting in 2008 with an impeachment investigation. One way to examine future Pardons of Bush is whether the pardon of Bush would offend the Constitution.

"pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution" 419 US 256

The House investigation in 2008 would, in theory, determine whether the proposed pardon of Bush after 2018 would or would not offend the Constitution. Without an investigation under Pelosi, it is speculation a pardon for Bush is or isn't Constitutional. The Speaker has the power now to end the speculation, and ensure this President is confronted after trial; and should he receive a pardon.

The time is now to investigate, and determine what must be done:

A. Do we create a record showing any pardon of the President would offend the Constitution;

B. Do we make excuses to not examine facts;

C. Do we lay the foundation now to challenge a future pardon of the President;

D. Do we agree to do nothing;

E. Does the leadership failure compel us to discuss new oversight for the United States.

It's parlor game to argue for inaction, especially when Nuremberg concludes impeachment or prosecution is required. There has been no prosecution; no effort to deny a pardon; nor an effort to challenge the Constitionality of any pardon of Bush; nor an effort to confront the Speaker.

The way forward is to gather facts. If the Speaker will not gather facts, she is -- by default -- asking the world to embrace the Nuremberg precedent, and conclude the United States is not civilized. She's also not fully supporting a foreseeable Constitutional challenge to any pardon of the President.

The Speaker should explain why she is keeping options on the table for the President; but denying the House the option to present its evidence to the Senate for their debate. The public needs to see how the Speaker, House, and SEnate do or do not manage these legal requirements under the Geneva Conventions, Nuremberg precedents, and the Supreme Law. The voters will have information to make informed decisions:

Do we support this leadership;

Do we find new leaders;

Do we restructure how the United states is overseen;

Do we examine other options.

The Speaker's inaction is tilting the scale away from trust in this leadership and this system of oversight; and tilting toward discussing new oversight. Pelosi by removing one option from the table requires us to replace that option with another option: New oversight.

It's pure politics that keeps Pelosi from pushing this but weigh this against political reality. Maybe someone should invest in a few polls to see where the American people stand on impeachment. I'm not saying testing the political winds is a justification for ignoring the Constitution, but what lawmakers are going to support this when their constituencies can't afford gas, are losing their homes, can't get a job, etc. and Congress initiates impeachment hearings? Damn well better have an open and shut case to convict because the impeachment will become a MAJOR issue in the fall campaign and as soon a Democrats are seen as "ignoring the plight of average Americans to engage in partisan politics". Don't get me wrong BushCo can rot in hell for all I care, but I'd rather have a Dem president and Congress come fall. Maybe a new Attorney General and some more liberal Court appointees can undue some of this mess. History will judge them accordingly...

The public cannot be expected to make an informed decision of whether they do or do not support an impeachment investigation until they have the information about what was wrong; and can review the report. It's premature to say a poll for or against impeachment irrelevant when there has been no invetsigation to find what is relevant.

Exploring Constitutional Language On Pardons of Presidents

Arguments:

1. Constitutional Language Restricts President's Pardon Power if House Starts An Impeachment; and

2. The Pardon Power of the President is not constrained only if there is a Senate Conviction.

This comment points to language in the Constitution showing the Framers:

A. Intended for the House to thwart the President from granting pardons;

B. Made an important distinction between impeachment proceedings started by the House, and the trial phase with judgment in the Senate on issues related to the Pardon;

C. Intended to place in the Constitution an inherent power of the House, regardless the Senate Action, to deny the Executive of any prospect of a pardon.

Let's accept the Supreme Court's view that Congress may not, by statute, affect a pardon. We accept for discussion pardon is unreviewable, but this does not help the President. The Court concludes the Constitution is the source of the limitation, if any:

"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." [ Schick v. Reed, 419 U.S. 256 (1974) ]

Exploring the Constitution

Let's compare two sections of the Constitution discussing impeachment and pardons: Article I Section 3; and Article II Section 2.

Argument:

There is language in the Constitution distinguishing between "case of impeachment" and "judgment":

Judgment in Cases of Impeachment shall not extend further than to removal from Office

A I, S 3

One way to interpret this clause is to say, the Framers intended for the "Case of impeachment" -- the proceeding, started by the House -- to be distinguished from and different than the Judgment in the Senate.

Going back to Article II, the framers repeated the language of "Cases of impeachment", but does not mention, "Judgment". That omission is important:

"[H]e shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

A II S 2

The Framers clearly distinguished in Article I Section 3 between

"judgment"

and

"cases of impeachment"

This suggests one way to interpret the Constitution is the House, by starting an impeachment hearing and trial, could prevent the President from enjoying a pardon.

Article II repeats the language of Article I, meaning the House -- by starting an impeachment proceeding -- denies the President of a pardon.

Had the framers want to permit the President to enjoy a pardon for offenses against the Constitution, the Framers would have delegated a power to the Senate to trump the House; and included express language in re the pardon, "Except in judgment for impeachment."

There is no word "judgment" in Article II meaning, the distinguishing language in Article I defines the pardon power as permissible, except when the House starts an impeachment ["cases of impeachment"].

Any effort to grant a pardon to President Bush after any impeachment proceeding -- regardless the judgment of the Senate -- would be unconstitutional.

The Speaker and President must argue their legal theory to justify no removal, investigation, or Impeachment. However, it is for the House to decide through legislative debate, not for the Speaker to assert, what the Constitution means on this inherent House power of "denying a President any chance of pardon through an impeachment proceeding."

The above is not intended to be a definitive assertion of what the Constitution says or means. Rather, it is the job of the Speaker and President to argue their case, view, legal position before the House and the Senate.

This is a power of the House which the Speaker and President have jointly attempted to thwart the House from discussing, reviewing, debating, or asserting. The House is not obliged to embrace the Speaker or President's views; the House has the power to challenge the Speaker and say,

We would like to act as an independent body, unconnected from the SEnate, and not pressured by the President.

We in the House would like to investigate, review the facts, and let the Speaker and President justify why we should not deny the President a pardon; and why the Speaker should not be removed.

When we gather the facts, we can make an informed decision:

A. Do we charge the President with a crime; and

B. Do we declare the Speaker's position vacant.

Only the House, not the Speaker or President, has the power to decide the above.

Indeed, this has not been tested. We've never had a Speaker make excuses for a President who ignored the Constitution and defied the Geneva Conventions. The way forward is not to throw this to the winds and say, "We have other things to think about." The agenda must be the Constitution, not the partisan smokescreen of fear of division.

The Framers intended there to be division; division challenges tyranny. This Speaker and President fear division because it is a threat to their assertions. They are antithetical to what the Framers intended: Challenges to power.

The answer is to respectfully put the question to the Speaker, in the form of a proclamation declaring her position vacant, and ask her:

Why is she not making the President do the work, make the defense, and argue the Constitution says something in his favor?

The answer is for the House to debate, not for the Speaker or President to declare, "That question is off the table."

No, the Constitution is on the table, and the Speaker and President have not addressed the question: The Constitution.

Let's stop making the President' argument for him. It's time to make the Speaker maker her argument: Why does she take a view of the Constitution that favors the President; but when it comes to the Constitution itself, she puts her party above the Constitution.

The courts have ruled that the language about "pardons" is derived not by the government, but form the Constitution. Pelosi is ignoring the Constitution; but doing what the Framers did not intend: For one faction or one branch to dictate how the Constitution will or will not be interpreted.

The Constitution -- not the Speaker -- says what the President, the House, and the Senate do or do not have by way of power. The Speaker is doing what the President has done with Iraq: Unilaterally asserting a foregone conclusion, sticking to that conclusion regardless the facts, and mandating her view of the law trumps the House, the Senate, and the Constitution. McClellan warned us of this.

That is tyranny, and it must be challenged by removing her as Speaker. The President and Speaker must be confronted for their joint decision to put their decision and agreement before the Constitution. The House is not obliged to accept either decision.

Nor are We the People.

I've been to Europe while Bush is in office. They hate Bush, and they hate what the Bush administration has done /is doing.

They do not hate us.

This is not the time for impeaching anyone and believe me - you can send Congress 3 million petitions, they still won't do it.

Congress will not impeach Bush. You really are spitting into the wind - they are not going to do it.

perhaps, if an impeachnent is in process, it will keep bush/cheney too busy to attack iran?

<Planet Earth>

The President...shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

The purpose of impeachment by the House and trial by the Senate is to remove a person from office. All "except in cases of impeachment" means is that if someone is pardoned, he or she can still be removed from office after impeachment and conviction by the Senate. It doesn't mean once you're impeached, you can never be pardoned for violating federal law.</Planet Earth>

Thank you for your comments above. Let's accept your premise that the President is, in theory, subject to the law; and the House could deny the President a pardon only on the impeached offenses. That leaves quite a bit of room for the President to cause mischief. Some have suggested the arguments were too long; or even if shortened inaccurate. That's the point: There's no agreement. The President has no fear when we have not examined the facts, much less discuss the merits of the legal theory he may or may not have correctly or incorrectly used.

Some of the arguments above well state a legal conclusion; and others reasonably conclude a contradictory position. That is the point. We're not making the President defend himself; we're doing his arguing for him. An impeachment investigation would end the speculation about what might be, and focus the attention on the President. Whether we get straight answers, or more confusion is secondary.

What do we do about that; and what do we do about the lawyers who still embrace this view who are not immediately challenged?

A few thoughts . . .

Fact Finding: Impeachment Investigation To Answer, "Now What?"

What might be useful is some discussion of what we're dealing with. This comment attempt to briefly outline some of the assumptions Addington, Yoo, Gonzalez, and the Vice President had about Presidential power; and how Rove and the President assumed they could build off that legal theory.

A. The Problem

B. What Do We Do

C. Options in The Constitution

D. Options World Powers Believe They Must Assert

E. Remedies Required

Let's presume there's disagreement on whether a House impeachment will or will not deny the President a pardon. The Framers intended -- and we must demand -- that no President believes he can get away with this abuse of power.

It appears the GOP starting in the 1990s did two general things: Established an agenda to build off the successes of the Cold War; and politically, establish GOP control of the US Government.

That baseline would give Rove and the President -- in concert with Addington, Yoo, and McClellan -- the impression the President could do what he wanted: The President would never face any confrontation from the Congress; and all civil actions to challenge the President, in theory, could be handled with intimidation and media smearing.

Hamilton in Federalist 69 leaves the distinct impression that no President could believe they are immune to the law. However, it appears the President's legal team went to work to establish -- as a policy -- the theory the President is above the Constitution. We know this because the FISA violations, POW abuse, and rendition all assumed no Congressional inquiry and no judicial involvement.

What changed? Someone refused to continue with the agenda. The DoJ Staff balked, but the President retaliated with firings; the NSA and intelligence balked, but the President retaliated with Plame's outing.

The Theory

This President has a problem because there is not universal acceptance he is above the law. He never was, but he didn't anticipate -- as he should have -- that someone would disagree with him, but not respond to intimidation. The President can debate and argue whether he believed or didn't believe something. That appears to be a smokescreen. His beliefs about WMD are unrelated to whether there was an imminent threat. There was not.

The President (reluctantly) realized he was no longer sure of Congressional deference, and he realized -- if he wanted to remain immune to the law -- he would have to create the impression in the mind of the DNC leadership that the law -- if asserted -- was bad for the DNC.

However, we've seen no evidence fact finding, investigations, impeachment, or a failed trial in the Senate -- despite overwhelming evidence supporting those actions -- would be a problem. There can only be a credible claim of a backlash if the DNC attempts to impeach where there is no evidence. However, a chance the Senate may not convict is not the same as whether there is or isn't evidence justifying the House impeachment.

This President created the fiction that fact finding -- to decide what to do -- is dangerous. Indeed, facts are dangerous, but not for those doing the fact finding, but for those subject to fact finding.

Pelosi needs to provide specific data, information, and a basis to assert that she has information showing conclusively -- now, before doing fact finding -- that action going forward will backfire. This assertion is as meaningless as the WMD claims. This is GOP propaganda which the DNC, without questioning it, has embraced as an excuse not to confront the President.

Let's call Pelosi on her bluff: Where is the data showing there will be a backlash. Then let's independently check those claims, and understand how -- without any fact finding -- anyone can unilaterally decide that fact finding will cause a backlash. That defies reason.

President's Propaganda

McClellan's book, the DoD emails, and the military analysts show a common propaganda theme: Excuses not to act, but to pretend the President's activity is lawful.

Yet, if we look at the FISA violations, POW abuse, rendition, and civil litigation against the telecoms: The pattern emerges. We've been subjected to propaganda to accept without question that evidence of illegal activity must be shielded by a claim of privilege. No, it does not. There is a crime-fraud exception trumping the attorney-client; and Nixon established the President's privilege only applies to his personal legal counsel, not to the legal counsel who work for the United States.

In 2001, 9-11 occurred

Whether this was planned by the GOP or taken advantage of by the GOP seems (for now) hardly worth differentiating: The net result was an expansive abuse of power under the false notion the GOP control of Government would never be challenged; and the President would never face any consequences.

On the table is the Constitution, and the excuses not to enforce the law. The Constitution does not permit the President to grant pardons in cases of impeachment. A novel legal theory emerged, which is causing the President some problems: Suddenly, the issue isn't whether the Senate will or will not convict; but whether the House will or will not deny the President a pardon.

Let's suppose for the sake of argument that, in fact, the Constitution does not deny the President a pardon; and a future President could grant this President a pardon; and the President and legal counsel going forward from 2001 planned to enjoy a pardon. As written, the Constitution does not permit any review of how a future GOP President would or would not use his pardon to immunize the President.

Put aside the question of how a trial would occur when the GOP controlled the government. In theory, the GOP control would ensure there was no prosecution. Perhaps this explains the intent of the US Attorney firings: To consolidate power, block any hint the US Attorneys would confront the President. We saw discussion notes of DOJ talking about removing Fitzgerald.

Constitutional Problem

Let's take the GOP view of things for the moment: Let's pretend, in fact (for the sake of conversation only) there is no check on the President. Pretend that is true. Our job must be to discuss: What do we do about that. We're concerned less with the immediate investigation, prosecution, and government oversight. We're focusing more on what structures of government should exist.

Arguably, when we go through the Federalist Papers, we should see the solutions. We do. Hamilton in Federalist 69 well discusses the problem of an Executive believing they are immune to the law; and plan illegal activity; carry that out; and are pardoned.

Let's pretend that is what Addington, Rove, Yoo, and the President were assuming in 2001. Let's also suppose Feith and McClellan were working in 2001 to justify the already decided transformation of Iraq and Iran. Going forward from 2001, the easy answer: The President, being above the law, can use the success of the cold war, transform the Middle East, and we'll be greeted as liberators. That was the idea. Put aside the issues of the laws, lack of planning, and flawed assumptions.

This President's agenda was to justify his actions only when he had no other choice. This means his legal memoranda in DoJ OLC are not prospective memoranda: They are retroactive, after the fact, and not contemporaneous nor deliberative. They were convoluted rubber stamps driven by propaganda, not facts, nor the law. This means under the rules of evidence those legal memoranda cannot be protected, regardless the President's decision to block FBI General Counsel Valarie Caprioni on the POW abuse at Guantanamo.

Let's pretend the President and Addington have found a way to ignore the Constitution, never have an impeachment, trial, or face a Senate conviction, and always enjoy a pardon. Let' pretend that that was what they were thinking.

Our job must be to examine the Constitution, and find out what must be done to ensure this notion doesn't take root again. The Constitution contains the answer: the House can deny the President any change of a pardon on those charges subject to an impeachment proceeding. The issue is whether others want to act on that presumption; or debate it as if it is still uncertain.

But let's take the other view of the President: Nothing can stop him. Fine, then let's discuss what will stop him. What would have had to be in palce; what is required to ensure that this does not happen again.

- Will disclosure of media contacts between the US government and media mitigate propaganda?

- Must there be guaranteed equal time for different view points?

- What happens when there are legal duties, but the Constitutional officers aren't interested?

- What do we do to ensure the government does not deny rights to the public; but then, as public officials, claim those denied rights as privileges and immunity to oversight?

- What happens when the independent auditors and Congress are compromised?

- What if everything -- in its present form -- fails, and the prosecutors, States, and citizens go along with it: What's the solution?

We need a circuit breaker. We need something that is going to put the breaks on the non-sense, override the momentum, and move away from the illusion of "we need to act now" to something that resembles order and prudence. Geneva was supposed to do that with the requirement for an imminent threat. The government ignored that.

Our job must be to show the international community, including the powers of Russia and China, that we as citizens understand this abuse of power. If we do not solve this, the Russians and Chinese have every intention to join forces and confront America. We need to send the great powers a clear signal: We know there is a problem; we have a plan in place; and we're going to be responsible. Until we do that, they will do what the Allies did before WWII: Prepare to confront the abusive powers.

We have a mess on our hands because the system was circumvented; and it's been seven years since 2001. That's three years longer than the United States was officially waging war against Japan and Germany after Pearl Harbor.

- Why didn't we mobilize in 2001, but take the show string approach: Who is still approving this approach?

High priced contractors, unemployment: Why no Presidential or Congressional leadership mobilize on the mandate of 9-11 as was done with Pearl Harbor: Neighborhood watches, local citizen discussion groups. The United States lost its way, closer to the German SS model, not the WWII American GI model. It was something this President had the power to lead, and did not require more attacks to really wake people up. We were ready after 9-11, and this President squandered his support.

Think about what happened: What if the public hadn't learned about the NSA; what if the public did not ask questions about an imminent threat; what if the President provided false information to smear Ambassador Wilson and he rolled over like Pelosi?

It doesn't take much to stand up to the President. It also doesn't take much to shut down the opposition. The GOP since the mid 1990s have been planning this. The lawyers are taking notes. They are lobbyists. They're chomping at the bit, trying to figure out how to make these war crimes problems, go away. They're still wandering the halls of Congress, appearing on media talk shows, and still on special lists to provide propaganda.

Things appear to be a little chaotic right now because the GOP lawyers didn't expect the public to stand up, and oppose this abuse. In the mid 1990s, their idea of progress was milk and honey as they cleaned up the rose petals in downtown Baghdad, onward to Tehran. Little did hey realize the American civilian population would actively confront -- through reason -- the lawyers, propaganda, intimidation, and the abusive NSLs and warrantless surveillance.

Something happened the GOP did not anticipate, but the GOP now knows it must manage. Whatever that is, the public needs to understand what teh GOP plans to do to thwart that check on this abuse. Our job must be to accept the Constitution, for now, in the light that Addington and the President view it; and discuss what must be done to ensure Hamilton's vision in Federalist 69 is realized:

- How will we ensure the President are reminded of their legal obligations;

- What will prompt the House to gather facts and impeach;

- What must be done to ensure the Constitution remains above the political parties;

- How will we ensure no political leader puts partisan goals befo