Tuesday, June 20, 2006

War Room - Salon.com

War Room - Salon.com

The War Room is one of my favorite places to go for political gossip, especially regarding whats going on inside the halls of US power. This was a fascinating look at what may happen with the Scooter Libby prosecution in the future, and it raises an interesting question for me. Does the fact of a pardon change the fact of a criminal trial?

Lets say, for the sake of argument, Bush chooses to pardon Libby for ‘any and all crimes he is, or may be, charged with in relation to Fitzgerald’s probe’ this fall, before the scheduled start of his trial. Does that pardon necessarily preclude holdings the trial? The existence of a pardon doesn’t change the fact that a trial took place, and it is NOT the same thing as pleading the 5th Amendment against self incrimination. So if someone is pardoned in advance of a trial, I don’t see why that means a trial won’t be held.

It seems to me that the pardon does nothing to avoid a trial. You can’t pardon someone until they are found guilty of something, and without a trial, no one can be found guilty. As such, if Bush issues a pardon and then no trial is held, how can one say a pardon was issued when there was no crime to pardon? The existence of the pardon in advance has no bearing on the outcome of a trial, and as such the granting of that pardon should not preclude the holding of a trial. And given the fact that without a guilty verdict, there is nothing for which to pardon someone, it seems logically impossible t pardon someone before a trial is held.

I do “get” the notion of pardoning for crimes they MIGHT be found guilty of, but my point is that doesn’t have any bearing on the determination of that guilt. It determines how the person will be treated after the verdict, and how punishment will unfold, but it has no bearing on whether the facts support a guilty verdict or not. Some might say that without punishment, the trial has no meaning, but discovering the truth of a situation has meaning in and of itself, even if you can’t do anything about it. And in this case, determining the truth around Scooter Libby’s involvement in all this has value in and of itself, even if punishing Libby (or exonerating him) isn’t part of the deal.

So I am curious if anyone can answer whether a pardon in advance will make it impossible to have a trial, and if so, what the legal principle behind that is? It seems to me, if the point of the legal process is to determine the truth of what happened in a situation, to determine the facts based on evidence and testimony, then the existence of a pardon is really immaterial to that process. If the legal system is about blaming people for things and then punishing them, perhaps a pardon does have meaning for the trial, but that’s a VERY narrow definition of what the legal system is trying to do, IMO. It seems to me that most people expect a trial to shed some light on what actually happened, and they expect that evidence presented will determine the facts and truth of a situation. Given that, the existence of a pardon for one of the participants at trial seems irrelevant, at least until the sentencing phase, lol.


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