|July 22, 2005|
THE question for Congress to ask Judge John G. Roberts' during his confirmation hearings for Supreme Court Justice
Can loyalty to the President also be treason?
A BUZZFLASH READER CONTRIBUTION
This is possibly THE question for Congress to ask Judge John G. Roberts' during his confirmation hearings for Supreme Court Justice. The balance of power between the three branches of our government here in the U.S. may be at dire risk due to a long-time loyalty between the nominee and the President. The answer to this question may stop the nomination process in its tracks if the answer reveals that loyalty between friends trumps his loyalty to do justice.
Let's imagine for a moment that a member of the Bush Administration was pardoned by the president after being indicted for say, leaking a CIA undercover agent's name to the public. And let us also say for the purposes of this question that the Executive Clemency order was issued after the indictment was proffered but before the case was prosecuted. The very timing of this pardon would virtually steal the golden fleece of justice from American citizens before our Justice system could work its magic.
So then let's further imagine that the federal prosecutor had no choice but to challenge the legality of the executive branch's pre-empting the full and fair prosecution of the law.
Now, finally, here's the question to be posed to Judge Roberts...- "If the President issued this imaginary pardon BEFORE the conviction, and the resolution of this imaginary case came all the way down through the system to end up on your docket, how would you, as a Justice of the Supreme Court, likely rule?
"Bearing in mind, of course, that the subject being prosecuted might well be innocent. Or guilty. We'd never know for sure unless you issued a verdict against the President, finding it to be an abuse of power. Now for the purpose of this question, let's say that the pardoned subject was very close to the President himself, having been a member of his immediate Cabinet ever since the beginning of the first term in office. And because of his position, likely knew and could provide testimony against the very person who had actually cooked up this foul conspiracy and set it in motion in the first place.
"If only he could be compelled to testify. And that's the real twist to this whole puzzle we're asking you to solve. Let's say that due to strong loyalty and friendship, this person could not be compelled to reveal the source any other way than by being threatened with the possibility of prosecution and the resultant serious jail time for criminal conspiracy and obstruction of justice.
"Now wouldn't that be a fine kettle of fish if, by the sheer timing of his pardon, the President was allowed to protect himself, or perhaps shield some other guilty party in his Administration from prosecution for this most serious offense against homeland security?"
Now before you, dear reader, accuse me of a most fantastic flight of fancy that would never actually come to pass in the real world, let me explain. I didn't just pull this specter of an inopportunely timed pre-emptive pardon out of thin air.
In fact, I am only reframing an earlier case that actually set a legal precedent, which was pulled off by none other than George H.W. Bush. That's right, the father of our current president, and former head of the CIA successfully kept special prosecutor Lawrence Walsh from exacting justice for crimes committed during the Iran Contra illegal war which was secretly run out of the basement of Ronald Reagan's White House.
You may recall when members of the CIA illegally traded arms for the crack cocaine that then saturated our West Coast neighborhoods and then somehow U.S. citizens who were being held as hostages in Iran got mixed up in that very clandestine and very, very illegal deal.
Unfortunately, you and I will likely never know the answer to who masterminded that one because Poppy Bush actually did order Executive Clemency for those whom Special prosecutor Walsh had just nailed. But did Bush Sr. have an act of compassion in his mind, or was he motivated by loyalty and self-preservation? And did this act harm the best interests of the citizens of this country?
Because wasn't this an abrogation of Judiciary power by the Executive Branch? It is now obvious that a proper determination of the Weinberger Six's fate by our court system could have stood as a very real deterrent to those now in the Executive cabinet who committed the very real and very dangerous crime of spotlight-the-agent.
Allowing former Defense Secretary Casper Weinberger and five others to skate away scot-free from their heinous actions likely did more harm than anyone ever thought possible.at the time. Besides making it possible for others higher up in that earlier Administration to avoid any threat of embarrassment or inconvenience that an indictment might have rendered, it also set a dangerous precedent and virtually guaranteed that there would be an escape plan for future White House Cabinet members as long as the President could be tied to the crime solely by the threat of their testimony.
All future Presidents could be virtually forced to shield his cabinet from prosecution. He would be required to protect himself from being tainted with the ever-standing threat of any- or- all being plea-bargained into (at the very least) tying him (or others in the Cabinet) with foreknowledge of virtually any crime.
The well-timed Presidential pardon is thus a program which provides Plausible Deniability Version 3.0 for the entire posse.
On Feb. 28, 2001, House of Representatives Judiciary Committee held hearings on the constitutional limits of the President with regards to the power of Executive Clemency. During those hearings, one member eloquently expressed his opinion that "Improperly exercised, the pardon is a travesty of justice—an act borne not of mercy, but of tyranny"
Besides pardoning his Secretary of Defense, Bush Sr. also ordered that the records produced as a result of the Iran Contra hearings be permanently sealed from public disclosure. Executive Order 12356 (also known as the "Weinberger Declaration") classified that material as "Top Secret" due to the probability that the material within would cause "exceptionally grave damage" to our national security. Yet his pardons weren't determined to pose a treasonous threat, because they were held to have only possibly protected him from prosecution.
It is notable that he proclaimed that the "common denominator of their motivation -- whether their actions were right or wrong -- was patriotism."
Yeah, right. They're Patriots.Now according to Alexander Hamilton the ''power of pardoning in the President has...been only contested in relation to the crime of treason.'' The delegates to the Constitutional Convention believed treason was a crime leveled at ''the immediate being of the society''— an offense meant to strike at the heart of America's institutions and values. Article III of the Constitution includes giving aid and comfort to the enemy in its definition of treason. In 1999, George H.W. Bush said "... I have nothing but contempt and anger for those who betray the trust by exposing the name of our sources. They are, in my view, the most insidious, of traitors." But Gee Dubya obviously disagrees with that assessment. It's loyalty above all else in HIS White House.
Now in their twisted attempt to shield whoever in the Bush cabinet leaked the name of a CIA undercover agent to the press, supporters of the current President have done everything from downplay the importance of the position of the CIA's undercover agent to question the intent and the patriotism of those who support her. The act of downplaying her position is important to the upcoming fight over the question of whether the act itself constituted treason.
What it will ultimately come down to is a test between the branches of government and Judge Roberts' loyalty to the President who he had worked for during the election debacle of 2000.
You remember, that's when Al Gore got more votes for President but was prevented by legalistic maneuvers by Roberts and others, in (of all places), - the Supreme Court.
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