[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 made 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 crimial 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 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 at the top of this page carefully. This is a scan of page 8, Section Ten, of The Sunday Star Ledger (a New Jersey newspaper) for July 31, 2005.
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.
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.
By Citizen Spook
citizenspook@hotmail.com
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