“Mr. Marks, by mandate of the District of Columbia Prepardon Division, I’m placing you under acquittal for the future murder of Sarah Marks and Donald Dubin that was to take place today, April 22 at 0800 hours and four minutes.”
I like the way in which, thanks to Bush, Republican government inevitably entangles us in serious moral dilemmas: “Wait—can a president really pardon someone who hasn’t even been charged with a crime?”
And you thought that Republican science fiction was all about Intelligent Design.
UPDATE: In my defense, I didn’t really think this could work. I just wanted to call the post that.
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Ford did that.
While the president can pardon someone before that person has been charged with a crime, he cannot pardon someone in advance of commission of a crime.
This is why I thought the disappointment with the Democrats over FISA was quite reasonable but was overblown in its predictions of the effects of the law. Surely we were never going to see prosecutions of telecom companies or Bush apparatchiks no matter what happened, because Bush would have preemptively pardoned everyone.
“he cannot pardon someone in advance of commission of a crime.”
I’m not sure this is actually true. “There aren’t many limits to the president’s pardon power, at least when it comes to criminal prosecutions under federal law.” Is it clear that the few limits that exist include precluding the pardon of pre-crime?
Rich, the reason the FISA bill was so horrible is because it granted immunity from civil suits, something that the Bush Administration couldn’t do on its own. He could pardon them, but he could not completely remove them from the jurisdiction of the courts (and, ergo, from courts’ fact-finding powers—subpoenas, depositions, etc.). He needed the collaboration of the Democrat-controlled Congress to do that.
But see Ex Parte Garland (quoted in the Salon piece):
71 U.S. 333 (1866) (Emphasis added).John, ISTM that the president doesn’t have the power to pardon pre-emptively, but it’s most likely a question that will never be answered until some president tries to do it. At which point he will get away with it because this is the type of political question that the courts don’t like to address.
What about that British ‘license to kill’ thing, isn’t it pretty much the same thing?
According to wikipedia
Is it clear that the few limits that exist include precluding the pardon of pre-crime?
Well, I acknowledge that the question has yet to be litigated, but there is a very strong argument to that effect:
The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of James II’s forced abdication.
http://caselaw.lp.findlaw.com/data/constitution/article02/09.html#10
Is there really anyone out there who would put this past the SOB? Can’t you just see the scene on the day of BHO’s inauguration, as a line of shady operative walks out of the White House, waving signed confessions to war crimes, and signed pardons right along with them?
Yeah, I think John’s off-base here—pardons can clearly come before prosecution and must clearly come after commission.
But he still wins, for the double-axle-pun-with-a-twist title.
“At which point he will get away with it because this is the type of political question that the courts don’t like to address.”
The question could only come up if the person were criminally prosecuted and presented the purported pardon as a defense to the charge. The court would have to allow the defense or deny it. Either way, the court would be ruling on the validity of the pardon.
the crimes have already occurred—different from Dick (Minority Report)
I should clarify. I didn’t really think that the President could do this. I was just too in love with the post title. (Thanks, Jacob!)
Unfortunately, the title of the post, no matter how difficult to execute, should be disqualified for making the wrong move, since the President’s power of pardon doesn’t apply to torts, not even post-tort.
On a somewhat different point, it’s odd that Ford pardoned Nixon for crimes he ‘may have committed’ in addition to crimes he ‘has committed’. It’s as if he’s a modal realist who thinks he has sovereignty over merely possible worlds. I suppose the real explanation is more mundane: Ford didn’t want his pardoning statement to imply that Nixon had actually committed any crimes. What he meant to say is that his pardon covers all crimes Nixon has committed, if he has committed any.
In other words, the title was meant to be pun-ish, but it failed because it didn’t involve punish-ment.
“The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws,”
I thought that it was a matter of consensus among serious Washington thinkers that the Commander-in-Chief (let’s give him his proper title) has this power for the duration of the current unpleasantness, and has properly exercised it. The problems discussed here only seem to arise because of the unaccountable tradition of changing Commanders every eight years.
Yes, clearly I’m in the wrong here. Tort. Quite right.
But in my defense, my (obviously ridiculous) thought about prepardon was that, assuming that you have a pool of precogs seeing events ‘from the point of view of eternity’ – unable even to distinguish past from future: ‘is it now’? – then the concept of crimes that have happened, vs. ones that will happen but haven’t happened yet – becomes problematized.
In Britain, the Intelligence Services Act 1994 authorizes the secretary of state to grant immunity from British prosecution to personnel when they engage in any acts abroad that would be illegal under British law, such as murder.
But surely if the acts were committed abroad, they wouldn’t come under British law anyway? If I go to the US and shoot someone, I can be prosecuted under US law, but I can’t be prosecuted for murder in Britain; I can only be extradited.
And you thought that Republican science fiction was all about Intelligent Design.
John, you know a Democrat is just someone who hasn’t figured out the Republicans killed JFK and tried to pin it on Cuba.
@19, there are, I believe, such things as ‘crimes of universal jurisdiction’. If, however, MI6 are committing any of these, we really are in the sh1t. I think the key point here is that, in the unlikely event of a country seeking to extradite a British spy for putting a cap in the local Blofeld, the Act renders that impossible.
Well, it says “grant immunity from British prosecution“, not extradition. Of course this is wikipedia, take it for what it’s worth.
Section 9 of the Offences Against the Person Act 1861 gives the courts in the UK jurisdiction over homicide committed by “any subject of her majesty” outside the UK, meaning that the UK courts would be able to try our hypothetical secret agent absent immunity granted under the Intelligence Services Act. I don’t think the question of what effect such a immunity would have on extradition has come up, although extradition might be avoided as the conduct would perhaps fail to satisfy the double criminality requirement as the immunity would mean that the actions were not a crime in the UK.
ajay- I can’t say for sure about British law (though I suspect it’s like US law here) but under US law, the law extends beyond borders. So, if a US citizen goes to the UK and kills someone there he can be prosecuted in the US for this. Or, if a person in the UK kills an American, US law also applies. I’m fairly sure, though less confident, that similar things apply even if no American is involved. The issue here isn’t of the reach of the law but rather of the jurisdiction of a court, something related but not the same. The rules for civil actions (torts, contracts, etc.) are similar but somewhat different. In general, though, it’s not at all unusual for law to have extra-territorial effect.
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