Wednesday, November 5, 2008

The President: The Question of Senator Stevens

The folks at the Washington Post are pondering the future of Alaska Senator Ted Stevens who is said to be "within striking distance of an improbable victory for a seventh term." The 84-year old Republican is currently ahead in the vote count by more than 3,000 votes. But there are also 40,000 absentee ballots to be counted.

The options for the convicted felon? 1) expulsion from the Senate via a two-thirds vote 2) resignation followed by a special election for a replacement 3) retain the seat somehow during the course of a lengthy appeal - Stevens, after all, maintains that he is innocent and finally, according to the Post, 4) obtain a presidential pardon. PardonPower is not sure why mere censure is not considered a possibility by the Post. Yale law professor Steven B. Duke - whose area of expertise is criminal procedure and evidence and, so far as we can tell, has never published anything on the topic of federal executive clemency - explains that presidential pardons are rare, "But this is Ted Stevens. This is not Joe Sixpack. ... this is an extraordinary case."

PardonPower notes the following: First, to the best of our knowledge, no U.S. Senator has ever been the recipient of a presidential pardon. Second, PardonPower is not aware of any political, practical, social or legal reason that would justify such an extraordinary pardon from the President. Stevens is not Mr. Popularity among Republicans. He has no social ties to the President. His case has been no cause celebre. As we have noted before, he is no Scooter Libby. Nor is he even close. Third, even if Stevens is pardoned, he could still be removed from the Senate by a two-thirds vote. That institution can determine its own standards for membership. A pardon would thus be largely irrelevant, or could be made to be so very quickly. Why would Bush grant such a pardon, knowing a Democratic controlled Senate could stuff it right back in his face? That might be a dream scenario for critics of the President, but they would do just as well to expect pardons for Rove, Cheney, Gonzales and everyone else in the administration. Fantasy needs to be separated from reality at some point in political analysis. See the Post story here.


Tamara said...

The reason for Senator Stevens wanting a pardon may not just be to retain his seat. A pardon is like "an act of G-d" and it's the ultimate forgiveness of a crime. He may want a pardon simply for the symbol alone, not for any political purposes. It's telling the country, "Even though a jury found me guilty, the President forgave me of the offense." At that point, the REASON is irrelevant.
Attorney Tamara Holder

P.S. Ruckman, Jr. said...

Editor:But one has to wonder if he would really even want a pardon. First, it would not rescue his Senate seat. Second, he would have to put up with the logic that says his acceptance of the pardon amounts to an admission of guilt. Again, so far as we are aware, he claims he is innocent.

Anonymous said...

Prof Ruckman,

You are entirely correct that acceptance of a pardon typically impies guilt, but that precept is also widely ignored by pardon recipients and their supporters. It is not uncommon for a pardon recipient to assert that it is evidence of having been vindicated, and lots of folks in the public believe this, even if its not true. So, while the other problems you point out would remain (he could still be kicked out of the Senate, why would Bush do it, etc), a pardon might have a substantial PR benefit. The other obvious reason Stevens wants a pardon is that it forcloses the possibility he might actually go to prison.

Tamara said...

Acceptance of a pardon is not an admission of guilt. 2 ways to get a pardon:
1) Total Innocence - best example is DNA evidence exonerating a convicted murderer, or
2) Total Rehabilitation - the person says, "Yes I did the crime, but I have proven myself to be a productive member of society since then."

In Stevens' case, although we aren't talking about DNA, the President can pardon him because the President believes he's innocent.

Don't be confused, the President can pardon him with no explanation or reason...and that's just my point. He may grant the pardon "just because".

P.S. Ruckman, Jr. said...

Editor:Good points all. The political / PR aspect is certainly interesting. Follow a pardon with a presidential statement (from a wildly unpopular president) declaring innocence and that would be quite a show. But, for the reasons identified in the previous post, this does not seem likely. Even accepting this incredible scenario, Stevens could be tossed out of the Senate, in part, because of the votes of members of his own party, and the national news media could (and will) spin the "acceptance is guilt" theme 24/7 (as prep for a Scooter Libby pardon, of course). The President already has a hot spotlight on him with respect to the use of clemency powers in the final days of the term. The Stevens provides little incentive for clemency in this environment.

But there still remains the issue of whether or not Stevens would even want a pardon. For now, he claims he is innocent. If he is pardoned, he can still be thrown out of the Senate and he would lose any right to an appeal of his convictions.

Staying out prison would be a major benefit, to be sure. But, again, Stevens is no Scooter Libby.

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