The Libby Commutation through a Nixonian Lens

Even Nixon understood that the pardoning of Halderman, Ehrlichman, Mitchell, and the Watergate burglars was Presidential suicide. Even Nixon understood it left him vulnerable to being accused of using the pardon process as a means of obstructing justice to protect himself, and in essence, left him vulnerable to being accused of committing the crime of bribery if Congress concluded that he used the pardoning process to buy the silence of the conspirators or burglars.

Congress gets to interpret what a high crime and misdemeanor is. Had Nixon pardoned the Watergate conspirators and burglars, Congress certainly could have interpreted Nixon’s abuse of the pardoning process as an obstruction of justice for Nixon’s own personal purposes in order to buy their silence, and as a quid pro quo, which is essentially a bribe. Congress could have found Nixon’s pardoning of these individuals to be grounds for impeachment of Nixon himself.

So even Nixon understood that pardoning the Watergate burglars and conspirators was not an option. What Bush has done, even Nixon didn’t dare do, because Nixon was apparently afraid of being accused of abusing the pardon process to obstruct an investigation into Nixon’s role in Watergate.

Impeachment serves several purposes:

1. To remove the person from office and it is true that Libby is not part of the administration anymore, so this reason really does not apply.

2. To prevent the President from pardoning persons who might rat him out in exchange for a pardon. Libby should be impeached. Congress should impeach Libby so that Bush cannot use a pardon to buy Libby’s silence. That is also what the founding fathers made clear, hence the clause in the constitution which allows impeachment to nullify a Presidential pardon. The impeachment clause which nullifies a pardon, prevents the President from using a pardon to obstruct investigations into the President’s own wrongdoing. This prevents the President from granting a pardon in exchange for silence, in essence, a bribe. Abuse of the pardon process and using the abuse to obstruct an investigation into the President’s own wrongdoing, in exchange for the silence of the person who is pardoned, in in essence bribery, and bribery is a listed impeachable offense.

3. To prevent the impeached person from ever serving again. If Bush later pardons Libby, Libby will be able to serve in the government again. An impeachment of Libby will stop this. This is what should have happened to the Iran-Contra criminals who were pardoned by Bush, senior. A number of them were permitted to serve in the government again.

Constitutional Sources for these conclusions regarding the purposes of impeachment are as follows:

Text from Article II, Section 4 of the Constitution regarding impeachment itself (please note bribery is a listed basis for impeachment):

Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Text of Article II, Section 2, the constitution regarding pardons and the effect of impeachment on pardons, (please note last 2 clauses):

Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

As mentioned above, when one looks at the text of Section 4, it is also quite clear that a pardon in exchange for silence could very well be a bribe, a listed impeachable offense. I believe Nixon must have understood this. So, it should be quite obvious that the Libby commutation deserves the scrutiny of Congress, especially the way Bush has used it, which gives Libby an excuse to remain silent until Bush leaves office or the Appellate Courts conclude Libby’s appeal.

Regarding the question of whether someone can be impeached when one is no longer in office, I must say that I can not speak with certainty on this, but the argument would be that if any person did not want to be impeached, he could avoid the penalty of “never again serving in office” by simply resigning before the impeachment process was complete. If Congress’ purpose of impeachment is to ensure that a certain person who has held office is never able to serve again, Congress must be allowed to go through with impeachment proceedings regardless of whether the person is in office or not.

David G. Mills is an attorney who has practiced law nearly thirty years. This article may be reprinted as long as the author receives credit for its authorship. Mr. Mills may be reached at Read other articles by David, or visit David's website.

4 comments on this article so far ...

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  1. Hue Longer said on July 12th, 2007 at 6:41am #

    gerald, if you believe that lawers are liars whose words should therefore be scrutinized, fine… But don’t throw the baby out with the bathwater and assume all is shit. I am not a lawer, have read this article and can find no fallacy or hidden agenda. If you were to explain what I’m missing without ad hom against Mr. Mills, I’d appreciate it.

  2. Hue Longer said on July 12th, 2007 at 6:43am #

    I may be a lawer but I am not a lawyer…heheh

  3. davidgmills said on July 13th, 2007 at 6:00am #

    Let me add a few comments.

    Most lawyers don’t actually know the text of the Constitution very well. This is proof. It does not surprise me in the slightest that many of the legal pundits on TV and elsewhere have missed this important provision of the Constitution.

    But let’s give our founding fathers credit. Certainly, they did not want the President to have the unchecked power to pardon the members of his administration because the founders knew the power of the pardon could be used to silence the people the President had put in office.

    Apparently, Nixon, who was a lawyer, had read this provision of the Constitution or had lawyers who had read it. For whatever reason, Nixon knew better than to pardon the Watergate conspirators and burglars. But Bush is not a lawyer and the lawyers he has around him constantly interpret the Constitution in ways never envisioned. Apparently Bush was not counseled against it, or if he was, he went ahead anyway.

    Why don’t lawyers and Congress know this? Because there probably has never been a case like it and they are relying on case law rather than the text of the Constitution itself. There probably has never been so clear a case of a President using the pardon power to obstruct justice into his own wrongdoing. And none of the lawyers or Congressmen involved has bothered to look at the text of the Constitution to see how the founding fathers envisioned handling this situation.

    But this really is simple. Congress has the power to stop the President from these pardons because they are so suspicious on their face. And Congress has the right to decide that when the President abuses his pardon power in this manner and when the pardon power is used quid pro quo and in essence used as a bribe to obstruct justice.

    Impeach Libby first and make him do his time (and maybe he will talk).

    Impeach Bush second for the high crime of bribery (if Libby rats him out).

    So damn simple. These people in Washington need to get a clue.

  4. gerald spezio said on July 14th, 2007 at 10:09am #

    Oh, now I understand. Bush, his lawyers, and most other lawyers don’t understand daLAW! They mis-read The Constitution. They are legally deslexic or have ADHD. They trained too much? Or too little?

    They are relying on case law – casuistry. The stupid bastards. Why can’t they read The Constitution, for Chrissake?

    Yabut, there are really smart lawyers who know daLAW. The smart lawyers will cornhole the stupid lawyers just like the founding fathers planned. Hey, Leon Jaworski got Nixon.