Will Bush pardon himself?

Daniel Schorr

December 30, 1992|By Daniel Schorr

IF President Bush wants to avoid being investigated an bring a final end to the Iran-contra prosecution, there is one more person he will have to pardon -- himself.

By pardoning the former secretary of defense, Caspar Weinberger, and five other defendants, Mr. Bush exposed himself as the only person left for the independent counsel, Lawrence Walsh, to pursue.

Mr. Walsh has left no doubt that he intends to do so. He will probably call President Bush before a grand jury after the president leaves office on Jan. 20.

Mr. Walsh said on Thursday that the president is now the subject of his investigation because Bush "may have illegally withheld documents." He was referring to a diary that Vice President Bush started in November 1986, when news broke of arms deliveries to Iran and the Nicaraguan contras.

Can a former president and vice president, once out of office, be held legally accountable for his actions in office? There is no doubt of that.

After Richard Nixon's resignation in August 1974, the Watergate special prosecutor, Leon Jaworski, warned Gerald Ford's aides that Mr. Nixon faced indictment unless he was quickly pardoned.

Does a president have the power to pardon himself? Walsh says he has not thought about that and would be inclined to doubt it. But legal scholars see nothing in the Constitution to prevent it.

Article II states that the president has the power to grant pardons "for offenses against the United States, except in cases of impeachment."

By specifically saying that the president cannot use pardoning power to shield himself from accusation and trial by Congress, the framers of the Constitution left the way open for him to protect himself from judicial action.

Presidential self-pardon has never been tested. It was considered by Mr. Nixon in the summer of 1974 as the shadow of impeachment fell over him because of Watergate. This was revealed by Gerald Ford in October 1974 in a rare appearance by a president before a House Judiciary subcommittee when he testified about his pardon for Mr. Nixon.

Mr. Ford said that on Aug. 1, a week before the Nixon resignation, the White House chief of staff, Gen. Alexander Haig, met with him alone for 45 minutes. General Haig had insisted that all vice presidential aides be barred.

In the meeting, Mr. Ford testified, General Haig outlined five options open to Mr. Nixon: tough it out to impeachment; invoke the 25th Amendment to the Constitution to leave office temporarily; pardon only himself and resign; pardon himself and all the Watergate defendants before resigning, or resign in the expectation that he would be pardoned by his successor.

Mr. Ford said that when he asked about the legal basis for these options, General Haig gave him a two-page legal memorandum supporting them. The general did not say during the meeting who had written it, but he has since said it was given to him by Mr. Nixon's counsel, J. Fred Buzhardt. Aides to Mr. Ford have told me it was actually written by Mr. Nixon's special counsel, James St. Clair.

Mr. Nixon chose the final option and was pardoned (although Mr. Ford denied to the House Judiciary subcommittee that there had been any deal). So the nation was spared the turmoil that would have ensued if Mr. Nixon had exploited his constitutional power to escape retribution for the Watergate cover-up.

Is pardoning himself something Mr. Bush would consider in the few weeks left to him? Could he invoke the same argument he made about the others -- that prosecution would represent a "criminalization of policy differences?"

Highly unlikely; Mr. Bush would probably see that as the coward's way out.

So the likelihood is that when George Bush leaves office he will enter a nightmare of investigation by a prosecutor whom he has left with no one else to investigate.

Daniel Schorr is senior news analyst for National Public Radio.

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