Nadler's Unpardonable Penumbra
Jerry Nadler, or someone on his staff, has a sense of humor.
The Amendment he proposes would limit the pardon power of the Executive to acts not commissioned by the Executive him- or herself. And since what are pardoned are by definition crimes, that means the President cannot make him- or herself out to be a criminal (an interesting variation on the theme of the Fifth Amendment).
I find this very amusing, as well as being a good companion piece to the aforementioned Fifth. As is often pointed out, by commentators wishing to drown in cliches, that to accept a pardon is tantamount to an admission of guilt. Nadler's refinement would simply ensure that Presidents did not incriminate themselves by pardoning others.
This, interestingly, would clarify another murky and nebulous region of our divided Government: the nature and scope of Executive Priviledge. Nadler's Amendment would fill this penumbral area with natural disinfectant, by entrusting Congress with the responsibility to ensure that pardons steer clear of examples of crimes commissioned under the present veil of all-pervading Night (I mean Executive Priviledge). So, said Priviledge is opened to Congressional inquiry. We must ensure that presidents will not pardon crimes they commissioned in secret: That neatly slices the Gordian knot.
And entrusting (read: obligating) Congress with this task is evidently necessary to get them to do a damn thing about the most outrageous crimes that have been committed in full view of the world.There is no pardoning this Congress, but maybe future ones won't need to be, if this amendment forces them to do their jobs.





Articleman: are you posting under a new name? Look at
http://tpmcafe.talkingpointsmemo.com/talk/2008/10/huffpo-recycles-my-obama-effec.php
Most odd! If true, why the trickery? If not, why is TPM's archives screwed up?
December 6, 2008 12:44 AM | Reply | Permalink
No trickery of mine here; I'm plain old D, the archives are screwed up.
December 6, 2008 1:14 AM | Reply | Permalink
I agree with all you said, but since the Congress is supposed to declare wars, and bring impeachment charges when high crimes and misdemeanors are committed, I don't see how adding another obligation would get them going. Do you?
December 6, 2008 2:16 PM | Reply | Permalink
I think it will be a perennial problem of how to motivate Congress to do its job.
The excesses of Nixon forced Congress to take some responsibility (the Church Commission). This kept Iran/Contra from completely wrecking our foreign policy. But of course, it was all thrown away in the Clinton Administration.
Congress' nature is to feed at the trough and pretend to wield power. I don't know what incentives can be given them to be otherwise,either.
December 6, 2008 5:12 PM | Reply | Permalink