Attorney General Alberto Gonzales has committed perjury in his testimony before the Senate Judiciary Committee. Among other areas of possible grounds, he has claimed, under oath, that there was no disagreement over the constitutionality of the NSA Domestic Spying Program. Yet former Deputy Attorney General James Comey has said that several people objected. The question has been raised as to whether or not President Bush can pardon Gonzales for this. The answer, I believe, is no. First, let's look at what the constitution says about impeachment:
Art II, Sec 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.
I think even a non-lawyer would concede that perjury qualifies as a "high crime", so the grounds for impeaching Gonzales certainly exist. Could the president pardon him to keep that from happening?
Art II, Sec 2, Clause 1: ..., and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
No, he cannot. But, and this is a big but, can the president pardon Gonzales even after he's convicted and removed from office? I say not and here's why. According to my dictionary's explanation on usage of the word "shall", it says "SHALL used with pronouns other than I or we denotes determination or command. (You shall go, even if you don't want to.)
That's a very specific word and it appears many times in the constitution. It removes any doubt about whether or not someting is optional or can be overlooked. The second blockquote above clearly specifies that the president's authority to grant a pardon does not extend to cases of impeachment. But what does the constitution say about the punishment for being convicted:
Art I, Sec 3, Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
My reasoning is thus: If Gonzales is impeached, convicted and removed from office, and because the president's pardon authority does not cover impeachments, Gonzales still "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." This is an imperative, and if the framers meant for the president to be able to pardon an impeached official, they would have explicitly said so. They did not. And for obvious reasons. If the worst a government official who was a BFF of the president had to worry about was losing his job, he could (and I'm sure would) do anything. But Since A1 S3 C7 says he "shall...be liable and subject to indictent...", and does not say unless the president pardons him after the conviction, it's clear that this language means the president cannot simply pardon Gonzales for lying to Congress to keep him from doing time. Gonzales could (and should) face jail time.
But what if the president pardons him before Gonzales is impeached? (Is there any reason to think they wouldn't try that, given how far they've tried to push executive authority so far?) I would argue that even if Bush issued a pardon for the perjury, this clause then gives the authority to go ahead and prosecute an impeached and removed Gonzales despite any pardon issued by Bush, because it would be a case of impeachment, and the president's pardon authority does not cover those. A conviction for perjury that resulted on Gonzales being removed would nullify any pardon issued by the president.
If anyone has a specific case reference that proves this wrong, I would be interested in hearing it and the explanation. The constitution specifies where leeway can be given, and this isn't one of them. The Congress needs to impeach Alberto Gonzales immediately, try him, find him guilty (because we all know he is, and anyone who votes no is not "taking care that the laws be faithfully executed") and remove him from office. Then they should go ahead and charge him with perjury and send his sorry ass to jail. That's my take on it. What's yours?
UPDATE: I should add that the only way that I can see for Gonzales to avoid going to jail is for him to resign (or be fired) before being impeached and removed from office, and then Bush immediately pardoning him. That way, there would be no conflict between the pardon clause and impeachments clauses. Do not be surprised if Bush decides to announce that he is simultaneously firing and pardoning Gonzales. Just don't believe Bush if he says that Gonzales "served his country well." That would be yet another lie. Gonzales has most certainly not served his country well, but he has made a career out of serving Bush well.