Given the brouhaha over Ms. Taylor’s testimony (relevant thread here ), I had a question but didn’t want to hijack that thread.
For this question, assume that Ms. Taylor has no protection from executive privilege, but she still keeps mum. Congress then holds her in contempt. Couldn’t the President just pardon her? IIRC, the pardon power is very broad and makes no allowance for the separation of powers–could this stymie/check congressional investigatory power?
IANAL, but the President can only pardon someone for past acts, not future ones. So in theory while Bush could pardon any aide held in contempt of Congress the House (or Senate) could simply issue another subpoena and the aide could be held in contempt againg for refusing to comply with this new subpoena. Bush would then need to pardon the aide again and Congress could issue another subpoena and the cycle repeats ad nauseam.
And the President’s pardon power expires on January 20th, 2009 at noon.
So… yes?
That is, as long as the president has ink in his pen and doesn’t mind signing off on a pardon every once in a while, Ms. Taylor is effectively protected from any and all congressional power. She can even ignore any subpoena she receives, as long as the president has her back.
Bricker, clearly the power to pardon ends with his term of office. I’m not quite sure of the relevance of your post.
Does the power to pardon extend to coercive confinement? Clearly the President can pardon someone who has been convicted of a crime, but I thought that coercive confinement was a civil sanction.
Repercussions for real people do not end with his term. Can somebody be pardoned for a crime they were not charged with? I don’t think so. Can they be charged with that crime when the president is out of office? You bet your ass.
Yes, the President could pardon Ms. Taylor or any other person for Contempt of Congress. That would squarely end the matter for that particular act of contempt for the person pardoned.
That would not necessarily end the matter for the President, however. Under our system of checks and balances, Congress has two tools it can use to limit the President’s contept power.
First, though the pardon power is in the Constitution, the Constitution can be amended by Congress and the States, the President having no involvement with the process. If a President gets too high-handed with issuing pardons (like for example, broadly pardoning his Cabinet or White House staff on the last day of his Presidency), the Congress may be moved to limit the pardon power by amendment, and the States may approve. (As an example, when he was Governor of Texas, President Bush’s state pardon/clemency power was quite limited because the Texas political process disapproved of the clemency granted by his predecessors.)
Second, Congress has the power of impeachment, which has been held to be an essentially political power. In other words, though the Article IV, Sec. 4 of the Constitution says “The President . . . shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” the Supreme Court has said that Congress has the sole power, in its legislative judgment, to determine what is an impeachable “High Crime and Misdemeanor.”
To date, nobody has seriously suggested that the impeachment of Scooter Libby might be the basis for impeachment, though Rep. Waxman has convened hearings on the use of the pardon/cemency power, which could, potentially, lead to a Constitutional amendment.
If, however, the President directly challenges Congress by pardoning those Congress holds in contempt, particularly if the contempt findings are upheld by the court system, it is more likely that Congress will be moved to exercise its impeachment power.
Ford pardoned Nixon, who had not been indicted:
Again, Nixon was pardoned for all time for anything he may have done in the period stated in the pardon.
Here’s a related question: How would the President go about implementing the release of someone confined through inherent contempt? The person would be in the custody of the sergeant-of-arms, not the normal civil authorities who are under the jurisdiction of the execution branch. If Congress wants to play hardball they can just ignore the pardon and say “You don’t have that power. If you want to argue otherwise, take us to court.”
If Congress could get away with ignoring a Presidential pardon, I doubt that the warden of a federal prison could. Where would the sergeant-of-arms detain them? Is there a Congressional Jail? Or would he just handcuff 'em to a chair in the Cloakroom?
I think the Capitol Police are under the authority of Congress, not the President. Presumably they have some sort of holding facilities that could be used.
I suppose the sergeant (& Capitol Police?) could set up a room in the Capitol as a makeshift cell. Or get a jail in MD or VA to hold them.
In the unlikely event that Congress chose to exercise its power of inherent contempt, which hasn’t used since 1934, and a pardoned condemnor were being held by the sergeant-at-arms of one of the houses, I would imagine that the pardoned condemnor could petition the courts for a writ of habeas corpus. If granted, the sergeant-at-arms would have to release the pardoned condemnor or else face contempt of court charges himself.
This is, of course, wholly speculative because we haven’t faced that particular Constitutional crisis yet. Ultimately nobody is able to say what will happen under any of the various scenarios that may be spun out because the various potentially conflicting branches of our government have almost always pulled back from direct opposition to one another throughout our history.