toward a new New Deal: challenging the coming wave of pardons...

...political lamp is still lit...

I’m pleased to see online discussion of my suggestion for a “New Democratic Deal for the American People” (http://www.davidbrin.com/contract.html), as a way for Democrats to get their dissipated and disorganized act together.

Can we look into the past and find a moment in recent history that might serve as their inspiration at this crucial time? Let there be no mistake. The Democratic Party’s present situation is very similar to the Republicans’ - just before the mid-term elections in 1994, when both Congress and the Presidency were in Democratic hands. At that time, the GOP faced similar challenges in crafting an appeal to voters that might help them to achieve a dramatic turnaround in power.

Only fools can pretend that the so-called Neoconservative Revolution of that year was not brilliantly handled by its then-leader, Newt Gingrich, who helped the GOP craft its message with crystal clarity. Conveying the impression of a party with righteous and determined ideas, the “Republican Contract With America” seemed to offer a crisp and cogent deal to voters... including an implicit promise to accept punishment in the event of betrayal or failure.

(A promise that today’s GOP fervently wants the same voters to forget!)

Without any doubt, Gingich’s “Contract” was among the most brilliant acts of political polemic in a lifetime. If we are serious about politics, we will not only study it, but look into taking advantage of the Contract’s successes... and its subsequent blatant failures.

My proposed rough-draft of a “New Democratic Deal for the American People.” is deliberately patterned not only to show how that original Contract’s promise to the people was betrayed, but also to use the same breakthrough technique of clarity as a political weapon.

Achieving this goal does not ultimately require that such a “Democratic Offer” must slavishly follow the Gingrich template! (Though I do so in my prototype “offer,” for the sake of clear comparison. Moreover, it allows some dramatic impact.)

Nor is it necessary that such an offer use the specific proposals and issues that I include in my draft example. (Naturally, that expectation would be arrogant, even for me!) Still, I am pleased that many people out there have responded positively to some of the planks that I wrote down, including (for example) the idea of establishing an office of Inspector General of the United States (IGUS).

But let’s focus. Here, in this space, I’d like to address another of those unique proposals. Among the most important promises that the Dems could make would be to vow that they will, upon retaking Congress:

1) Dare the President to swear immediately that he will pardon no more than twice the total number of people pardoned by BOTH previous administrations, combined.

It's a great no-win situation to thrust upon him. First, it turns public attention to this vital issue, showing that we expect an absolute tsunami of pardons from this administration, especially after the 208 elections. Second, it puts him in a terrible spot. He loses if he says yes OR if he says no!

2) Furthermore, a new, Democratic-led Congress will pass a bill DEFINING the process of Presidential pardoning, so that it includes a requirement that all pardoned individuals spend a day testifying, under oath, before a "truth & reconciliation commission," giving all details about whatever it is they’ve been pardoned for. Under this bill, the President’s pardon is defined as applying only to things that the pardonee discusses, in detail!

Of course, this is especially relevant for people who are "pardoned in advance." (An especially nasty kind of get-out-of-jail-free card that almost-certainly the Founders never had in mind.)

Imagine how many guys are out there, currently grinning in blithe confidence and relying utterly on that getting that free pass, as they’ve been promised, in 2008. Not only assured safety from jail, but from ever having to answer questions! How they would plotz upon seeing that bill pass. How many rats would start diving overboard, copping pleas and tattling on each other, if that happened? Perhaps as early as January 2007!

(Or else... might this only trigger the coup early?)

Of course, every magic bullet has its problems. Most notable for this “great idea”... in the past, the United States Supreme Court has ruled that Presidential authority to grant pardons is “unfettered.”

In fact, I do not think this precedent is well thought-out. Nor is it likely that all of the arguments against it have been made in a test case. For example, anyone could easily come up with a thought-experiment about a madman, say 100X worse than Bush or even Hitler-scale, pardoning vast numbers of total monsters, even for committing heinously anti-Constitutional acts. Is the Court condoning ANY extremum in Presidential pardoning? In which case, is not this power, in effect, given primacy over nearly ALL Constitutional checks and balances?

Suppose a president declared that he is PROSPECTIVELY pardoning anyone who violates a particular law he doesn't like. Perhaps the court would strike this down as, effectively, defying the very principle of law. It would be a tougher case if he simply pardoned anyone who HAD violated a particular law during his tenure as president without specifying individuals.

But then, the President doesn’t have to do that. He will have ample time to make a list of names (no doubt, one already exists, growing day-by-day), and fill them into pardon certificates, as part of a pre-planned skullduggery of crony-base quid pro quo.

So, is my suggestion utterly frivolous and futile? I think not.

First, the proposed bill does not actually forbid the President from issuing pardons! Rather, it is an attempt by Congress to DEFINE a PROCESS for presidential clemency. A process that leaves the end result completely unfettered. His cronies will still walk free. Still, it forces him - and the pardonees - to specify in detail what is being pardoned. Where’s the “fetter” in that?

In other words, if you are claiming a get-out-of-jail-free card, you must at least write down details, and answer questions, about what you’re pardoned for.

In any event, even if such a bill were dumped by the court, the utter and obvious fairness of such a demand - that pardoned people at least explain it all - would appear striking to the American people. If nothing else, it would serve to highlight the prospect, just ahead, of a pardon tsunami and prepare them to resent it, deeply, when it hits.

Under those conditions, it would be a black eye for the Administration even to take the matter to the court at all! The theater of this bill can only be overwhelmingly effective. As should several other gestures contained in a new and bold “New Democratic Deal for the American People.”

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