What did White House Chief of Staff Andrew Card learn from Alberto Gonzales and when did he learn it...and what did he do with that knowledge? This "whole new can of worms" (to quote CBS News' Bob Schieffer, on this morning's Face The Nation) is to me the breaking news question of the day. Why? Because on today's Face The Nation, Alberto Gonzales admitted that he called Andrew Card right after he was notified that the Justice Department had opened its investigation of the Plame leak...even though he formally notified The White House staff 12 hours later.

On Face The Nation, Gonzales said the Justice Department contacted him at 8pm and, after responding by saying something to the effect that everyone had gone home for the night, Gonzales asked if it would be okay if he waited until 8am the next day to notify The White House Staff to "preserve all records" etc. Gonzales got permission to do so, but then - again this is Gonzales speaking on Face The Nation - he said he contacted Andrew Card to informally tell him what had happened.

I wish you could have seen Bob Schieffer's face as he came back from commercial break to his next guest, Senator Joe Biden, who he then took up this issue with. Bob Schieffer said to Joe Biden (I'm paraphrasing here...I'll post the transcript when it's available) "You know, everyone in The White House has these BlackBerrys. And you have to wonder what sort of message Andrew Card emailed at 8pm to the other people in The White House...what sort of documents could have been shredded in those 12 hours." There was little Joe Biden needed to add to what Bob Schieffer said. But Watergate - and the famous 18 1/2 minute gap on the audio recording (remember Nixon's secretary, Rosemary Woods posing for a picture in which she tried to demonstrate how she could have accidentally erased those 18 1/2 minutes from the tape?) - suddenly became the "pink elephant" in the room. You could see it on Schieffer and Biden's faces.

Let's imagine for a moment that a member of the Bush Administration was pardoned by the president after being indicted for say, leaking a CIA undercover agent's name to the public. And let us also say for the purposes of this question that the Executive Clemency order was issued after the indictment was proffered but before the case was prosecuted. The very timing of this pardon would virtually steal the golden fleece of justice from American citizens before our Justice system could work its magic.

So then let's further imagine that the federal prosecutor had no choice but to challenge the legality of the executive branch's pre-empting the full and fair prosecution of the law.

Now, finally, here's the question to be posed to Judge Roberts...- "If the President issued this imaginary pardon BEFORE the conviction, and the resolution of this imaginary case came all the way down through the system to end up on your docket, how would you, as a Justice of the Supreme Court, likely rule?

"Bearing in mind, of course, that the subject being prosecuted might well be innocent. Or guilty. We'd never know for sure unless you issued a verdict against the President, finding it to be an abuse of power. Now for the purpose of this question, let's say that the pardoned subject was very close to the President himself, having been a member of his immediate Cabinet ever since the beginning of the first term in office. And because of his position, likely knew and could provide testimony against the very person who had actually cooked up this foul conspiracy and set it in motion in the first place.

"If only he could be compelled to testify. And that's the real twist to this whole puzzle we're asking you to solve. Let's say that due to strong loyalty and friendship, this person could not be compelled to reveal the source any other way than by being threatened with the possibility of prosecution and the resultant serious jail time for criminal conspiracy and obstruction of justice.

"Now wouldn't that be a fine kettle of fish if, by the sheer timing of his pardon, the President was allowed to protect himself, or perhaps shield some other guilty party in his Administration from prosecution for this most serious offense against homeland security?"

Now before you, dear reader, accuse me of a most fantastic flight of fancy that would never actually come to pass in the real world, let me explain. I didn't just pull this specter of an inopportunely timed pre-emptive pardon out of thin air.

In fact, I am only reframing an earlier case that actually set a legal precedent, which was pulled off by none other than George H.W. Bush. That's right, the father of our current president, and former head of the CIA successfully kept special prosecutor Lawrence Walsh from exacting justice for crimes committed during the Iran Contra illegal war which was secretly run out of the basement of Ronald Reagan's White House.

[snip]

Allowing former Defense Secretary Casper Weinberger and five others to skate away scot-free from their heinous actions likely did more harm than anyone ever thought possible.at the time. Besides making it possible for others higher up in that earlier Administration to avoid any threat of embarrassment or inconvenience that an indictment might have rendered, it also set a dangerous precedent and virtually guaranteed that there would be an escape plan for future White House Cabinet members as long as the President could be tied to the crime solely by the threat of their testimony.

All future Presidents could be virtually forced to shield his cabinet from prosecution. He would be required to protect himself from being tainted with the ever-standing threat of any- or- all being plea-bargained into (at the very least) tying him (or others in the Cabinet) with foreknowledge of virtually any crime.

The well-timed Presidential pardon is thus a program which provides Plausible Deniability Version 3.0 for the entire posse.

On Feb. 28, 2001, House of Representatives Judiciary Committee held hearings on the constitutional limits of the President with regards to the power of Executive Clemency. During those hearings, one member eloquently expressed his opinion that "Improperly exercised, the pardon is a travesty of justice—an act borne not of mercy, but of tyranny"

Besides pardoning his Secretary of Defense, Bush Sr. also ordered that the records produced as a result of the Iran Contra hearings be permanently sealed from public disclosure. Executive Order 12356 (also known as the "Weinberger Declaration") classified that material as "Top Secret" due to the probability that the material within would cause "exceptionally grave damage" to our national security. Yet his pardons weren't determined to pose a treasonous threat, because they were held to have only possibly protected him from prosecution.