Turley on Blanket Pardons

Law prof Jonathan Turley, I see from my referrer log, agrees with me that a blanket pardon for Bush administration officials involved in torture is a Constitutionally dubious idea:

A “blanket pardon” would raise serious constitutional and criminal questions, though there is some precedent in the Kennedy and Carter administrations. A traditional pardon is a public document naming individuals who are pardoned for specific crimes. One possibility being discussed is the use of a blanket pardon that would not individually name people but cover anyone associated with the unlawful programs. It would be a terrible precedent, if upheld. A president could pardon the world at the end of an Administration — gutting any accountability for criminal acts.

One of his commenters suggests this needs to be addressed through a Constitutional amendment:

I have thought about this since the Scooter Libby disaster, and would propose one that would be something like “A president may not pardon or commute any one in his/her administration for crimes committed during the administration.”

I agree — and think a blanket pardon would touch off a massive, world-wide controversy with unforeseen political costs for the US. It would invite third-country prosecutions of the Pinochet variety.

Blanket Pardon?

Mark Benjamin at Salon thinks Bush is planning a wide-ranging pardon of all in his administration who might’ve been involved in torture. That’s certainly been a possibility all along, and the president’s pardon power is wide-ranging. But I should think it’s at least arguable that it has to be exercised on behalf of specific, named individuals. That makes a long-shot court challenge to an all-encompassing pardon for a class of individuals at least theoretically possible, if someone can be found who has standing. That’s probably a bigger uncertainty than the actual merits.

What Palin Says About McCain

Joe Klein and Andrew Sullivan both see the pick as rash and impulsive:

The Palin pick reflects the most dangerous tendencies in McCain’s foriegn policy–the tendency to react, to overreact, to crises, without thinking it through. It also reflects a defiant, adolescent “screw you” attitude toward governance.

I’m not so sure about that. You can’t govern if you can’t get elected, and I’m not sure McCain thinks he can be elected unless he changes the game. What worries me, though, is that his method of changing the game may be risky in a way not even Sullivan and Klein are seeing. Palin, I’m growing more convinced, is a play to rural voters partially sympathetic to the GOP. That makes it also a bid to tip anywhere from two to four states (Colorado, Nevada, Virginia and maybe New Mexico) firmly into the GOP camp and thus decide the election. Ohio — a mixed bag between rural and urban — would constitute a bonus. 

The risk in this strategy is the possibility of another popular-vote loss for the GOP. And I’m not talking a thin margin like George W. Bush’s 543,895-vote loss in 2000, either. Obama with his organizing prowess could roll up a couple million votes more than McCain thanks to his vote-getting potential in the major cities. 

If that comes to pass, and Obama still loses the electoral vote, the calls for a constitutional amendment will be immediate and impossible to ignore. But Republicans won’t go along with that, as passage of a popular-vote amendment would likely sink their presidential prospects for at least a decade or so.

Such an impasse would make the wrangling we saw after Clinton’s plurality wins in 1992 and 1996 and Bush’s electoral-vote-only win in 2000 seem like mere child’s play. And yet McCain and his team are accepting that risk.

The folks at 538 at the moment believe there’s only a 2.55 percent chance of McCain’s winning without carrying the popular vote. Those are small odds. I don’t know if they’re small enough.