Watergate in Kentucky

The Governor of Kentucky, caught up in a criminal investigation of corrupt hiring practices, just pardoned all of his co-conspirators.

Is issuing pardons to potential witnesses against oneself chargeable as obstruction of justice?

What are the impeachment provisions of the Kentucky Constitution?

This matters outside the borders of Kentucky; Fletcher’s “amnesty” could be a test-run for pardons in the Plame/Rove/Libby scandal.

Note that the Governor, having pardoned all the other potential witnesses, now plans to take the Fifth himself.

Update A reader comments:

I don’t see how pardons could be construed as obstruction. The effect would be to remove a witness’s only excuse for not testifying. It is equivalent to giving a blanket immunity to prosecution. All witnesses could be compelled to testify fully, even about their own complicity.

As a practical matter, one might expect that witnesses might be inclined, out of gratitude to the governor perhaps, to shade their own testimony a bit. Presumably, what is already known, however, would set at least some limits on what a participant could do to “improve” the import of his own testimony. I don’t see how the governor could pardon lying to the Grand Jury in advance of actually appearing before the Grand Jury.

It’s true that the pardons remove the privilege the governor’s co-conspirators would otherwise have had against testifying in a way that could have incriminated them. But it also removes any incentive they might have had to secure better plea bargains for themselves by “cooperating” with the prosecution in proving the Governor’s own guilt.

That’s the way such cases are made: catch the little fish, and put them in a position where they can only avoid prison by telling what they know about the bigger fish. (Of course, there’s always the risk that some of them will tell instead what they don’t know.)

So Fletcher has just made himself much more difficult to prosecute. Moreover, he has just given all of his co-conspirators a huge gift. If Ken Lay had handed out checks for $10,000 each to the witnesses in the Enron case, you can bet the prosecutors would have nailed him for obstructing justice by tampering with witnessess. Now consider how much more a pardon is worth then $10,000.

Second update Duhhhh … of course the pardons don’t do anything about potential federal prosecution, and the Kentucky Attorney General may ask for that. Pass the popcorn!

Third update There’s doubt that the Governor of Kentucky has the power to pardon before conviction. In this case, I hope he doesn’t.

But I’m pretty sure that the Presidential pardon power does extend to offenses not yet charged. Presidents have in fact issued blanket amnesties to Confederate veterans for rebellion and to Mormons for polygamy. One of the traditional uses of the royal pardon in England was to induce rebels to lay down arms, as noted with approval by Hamilton in Federalist #74. Neither Schick v. Reed nor Anderson v. Kentucky seems to challenge that idea; the reference to “the convicted person” seems inartful rather than intentional.

It would certainly be wonderful if the pardons turned out to be invalid. As Michael Walzer says, “There is neither profit nor glory in doing evil badly.” But the law isn’t always what we wish it to be.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com