Bush to Country: “And Here Are My Parting Gifts . . .”

Thankfully, it looks like the Bush administration is actually going to leave on January 20, 2009. At the height of their power festival I often wondered whether they would leave at all; visions of an “emergency” cancellation of the 2008 elections did an elephant dance in my head. Yet, say what one will about the weakness of the Democrats of the 110th Congress, in my view they at least made any formal Bush dictatorship untenable. So now we turn our minds to contemplate the shenanigans the Bushies might yet foist upon us in their final daze.

More of Less. Many have written of the administration’s rush to finalize their usual contra-regulatory agenda that would make everything from mines less safe to work in to water less safe to drink. The administration had set its own deadline of November 1, 2008 to finalize its parting regulations, with, of course, the always useful loophole “except in extraordinary circumstances.” Interestingly – and, as you’ll see, ironically – a dozen years ago the Newt Gingrich led Republican wingnut “Contract With America Congress” enacted the Congressional Review Act as Subtitle E of its Contract with America Advancement Act. (Ahhhhh, remember those halcyon days of the post-Reagan “conservative” Republicans?). Among other things, this law permits Congress to vote to disapprove regulations finalized in the last 60 days of a congressional session. So, what’s ironic here? Newt and his wingnut brigade had enacted this legislation to respond righteously to President Clinton’s midnight regulatory machinations, and it is that very law that is now being viewed as a way to undo at least some of Bush’s own last minute trashing of federal regulations. However this works out in the 111th Congress, this is one area of concern as Bush prepares to leave town.

The Gifts That Keep On Taking. Another concern is the conversion of political appointees into career civil service employees. The practice, called “burrowing,” (yes, as in ticks) is nearly impossible to reverse by the new administration, and is roundly criticized by true civil service employees who had to work their way up. Bushies are burrowing in at quite a few agencies including Interior, Labor, and Social Security. When this occurs it is another way in which the Bush agenda will retain some vitality in the Obama years, and beyond, although some point out that the Obama administration can move many of these employees to places where they will be less obstructive.

For example, one may employ the “lateral arabesque,” first identified by Laurence Peter and Raymond Hull in the 1969 classic The Peter Principle. In a lateral arabesque an incompetent or uncooperative employee is not fired but is provided a longer title and a bigger office in a remote part of the agency. Let’s imagine one rather unsavory example from Bush’s Interior Department, Mr. Matthew McKeown, who once referred to the Endangered Species Act as “hospice care” and who touted the Orwellian titled “Healthy Forests Initiative” (what environmental groups call the “No Trees Left Behind Act”). In any event, Mr. McKeown has burrowed in to a career position as Deputy Associate Solicitor at Interior, although the department maintains that Mr. McKeown met all relevant hiring requisites. It’s interesting, though. Mother Jones reports this month that Mr. McKeown told a 2004 group of property rights advocates, “I am a temp . . . I am not a career bureaucrat.” Well, he is now, but perhaps he can be “arabesqued” to Chief High Forest Ranger on Lake Superior’s Isle Royale and spend his civil service years dodging wolves and befriending moose.

Pardon the Turkey, Not the Turkeys. The nightmare of mass pardons of Bush administration cronies haunts many. There is no need to list the probable sources of purposeful misgovernment and actual lawbreaking. The names on the list for investigation would include far more Bush administration officials than it would exclude. There has never been a time in our history when investigations are more needed, accountability more important. Thus, the fear is high that many, or all, of the potential perpetrators will escape justice through a stroke of one man’s pen, a pen wielded by perhaps the most culpable of the very group which he pardons – and he may, to purposely put too fine a point on it, pardon himself.

Our Constitution is brief regarding the pardon power, a power replete with history well before its placement in our charter. “The President … shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” (United States Constitution, Article II, Sec. 2) The courts have upheld the power and its absolute nature. In the primary pardon power case the Supreme Court, in Ex parte Garland, asserted:

“The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence [sic]. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” 4 Wall. (71 U.S.) 333, 380 (1866)

Also, the pardon power is personal to but one person, the President. Although it was originally thought to have been exercisable in a narrow way, for example, in times of war and rebellion, the power has been used far more broadly, and the courts have interpreted it so. President Bush most famously used the pardon power to commute the sentence of I. Lewis “Scooter” Libby, but clearly the power has been used by many presidents for what some consider political gift giving, for example, President Ford’s controversial pardon of Richard Nixon and President Clinton’s scandal ridden “midnight pardon” of tax evader Marc Rich. Yet, the Constitution prescribes no role for any other person, branch, or governmental agency in the pardon/commutation process, although in the deliberations about the original pardon power a role of advice and consent was unsuccessfully proposed. The Department of Justice does include an Office of the Pardon Attorney to “assist” the President in exercising the power, and it operates under regulations regarding applications for commutations and pardons; yet, President Bush, as is his right, did not employ the Pardon Attorney in the Libby commutation. The power is both supremely constitutional and, perhaps therefore, utterly political in that there is little that can be done to impede it other than to bring political pressure directly upon the President. Happily, on November 2oth, Congressman Jerrold Nadler (D-NY) introduced what amounts to a very good idea to do just that.

President Bush, Heed Your Own Words. Regarding the pardon power, in February 2001 President Bush asserted, “Should I decide to grant pardons, I will do so in a fair way. I will have the highest of high standards.” Well, let’s just say we have doubts. About his word. About his definition of “fair way.” About his definition of “highest standards.” He has set a notoriously low bar in all those areas, and with Scooter Libby he gave us a preview of the likely outcome of his use of the pardon power in areas presenting political difficulty for himself and the GOP, issues like torture, eavesdropping, war profiteering, politicization of federal agencies, interference in criminal prosecutions, violations of habeas corpus, renditions, and all the other delightful daily activities of the Bush regime.

Mr. Nadler introduced House Resolution 1531 (text). Nadler’s press release:

WASHINGTON, D.C. – Today, Congressman Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, introduced a Resolution in the House of Representatives demanding that President Bush refrain from issuing pre–emptive pardons of senior officials in his Administration during the final 90 days of office. H.RES.1531 is in response to President Bush’s widespread abuses of power and potentially criminal transgressions against our Constitution. The Resolution aims to prevent undeserved pardons of officials who may have been co-conspirators in the President’s unconstitutional policies, such as torture, illegal surveillance and curtailing of due process for defendants.

“This Resolution declares that we will not tolerate a last minute attempt by President Bush to shelter his cronies – cronies who may well be guilty of serious criminal offenses – from the full force of the law,” said Rep. Nadler. “President Bush must not excuse his own officials from possibly illegal acts committed outside the context of their official duties. Such pardons would merely obfuscate the truth and amount to a gross miscarriage of justice.”

Beyond preventing pre–emptive pardons, the Resolution also recommends the establishment of a special commission or select committee to investigate the potentially illegal activities – including abuse of pardon power – of senior Bush Administration officials. It also calls for the next Attorney General to appoint an independent counsel to investigate and prosecute any crimes.

True, its a resolution. And true, it’ll draw relatively scant support, although you may implore your congressional representative to do so here. And true, the Senate has no similar resolution, although Senator Russ Feingold (D-WI) sounded the right notes in his Salon.com article yesterday. And as a final “true too,” even if a resolution passes either chamber (assuming one is even introduced in the Senate), it’s utterly unenforceable. It is, however, a way to send another message to Mr. Bush. Perhaps with enough outcry – and a President who is contemplating his legacy – he will indeed heed his own words and employ the pardon “fairly.” If he does not, Mr. Nadler’s resolution is, if nothing else, another way to underscore the “legacy” of an administration that is in many ways humanly unpardonable.

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