-- Nathan Newman
----- Original Message ----- From: "Len Wilson" <lbw at cougar.com>
http://www.washingtonpost.com/wp-dyn/articles/A90-2001Feb27.html
A Pardon Probe? It's None of Congress's Business
As the permanent cadre of congressional Clinton pursuers
embarks on a new and virulent campaign of investigation
into presidential pardons, there is another casualty: the
constitutional basis of Congress's power to investigate.
Contrary to the assertions of the army of legal and
political pundits that the congressional investigative
orgy is a justifiable exercise of legislative oversight
under Article I of the Constitution, there is absolutely
no legal authority for such a proposition. Congress's
power to investigate and conduct oversight inheres in its
legislative power.
Congress may investigate only as an auxiliary to its
power to pass laws or perform other tasks placed by
Article I explicitly within its power. While such a power
is admittedly broad -- precisely because the reach of
Congress's power to legislate is so vast -- it is not
without limits.
The pardon power has been reserved under Article II to the
president, and as every legal expert and even the members
of Congress leading the charge have conceded, the so-called
"abuse of discretion" by the president, particularly
for those already pardoned, as the Supreme Court has
delineated, is not a subject "on which legislation could
be had" (McGrain v. Daugherty, 1926).
How then, and on what constitutional basis, does Congress
inquire into the exercise of discretion by the president
under a power committed exclusively to him?
This is not even a shared power -- like war powers,
executive or judicial appointments or the conduct and
review of foreign policy -- where the branches must reach
an accommodation because the Constitution gives each a
role. An integral part of the separation of powers is the
withdrawal from purview by coordinate branches of certain
matters -- admittedly few in number -- that the Framers
deemed necessary to insulate from the general scheme of
checks and balances.
So, for example, the Constitution states that members
of Congress shall "not be questioned in any other place"
for their legislative acts -- a provision interpreted by
the Supreme Court to immunize members from any judicial or
executive oversight of such acts. The court has remarked
that the Speech or Debate Clause has "enabled reckless
men to slander and even destroy others with impunity,
but that was the conscious choice of the Framers."
The exclusive commitment of the pardon power to the
president was also a "conscious choice," and legislative
revulsion at its use does not supply the constitutional
authority to challenge it. The Constitution similarly
grants the House and Senate the exclusive power to make
their own rules -- even if those rules are arbitrary,
unreasonable or contrary to sound policy. Finally,
some have suggested that Congress needs to conduct
investigations into the pardons so that the public can
be informed about the president's reasons for granting
them. There is no such power.
In 1979, the Supreme Court ruled unequivocally in former
senator William Proxmire's libel case that Congress has
power only to inform itself to enable it to write laws and
that there is no constitutionally based "informing power"
benefiting the general public.
As we learned in the 1950s and 1960s, when Congress tears
loose from its constitutionally authorized investigative
power the courts strike down those forays as excessive,
which diminishes Congress's ability to perform legitimate
and needed oversight in areas that truly warrant it. The
writer was general counsel to the House of Representatives
from 1976 to 1984. ---