Tuesday, July 03, 2007

Presidential Pardons

The President's power to pardon is a guaranteed right under the U.S. Constitution. Many of us wish it weren't so.

Even some of the founding fathers (including Alexander Hamilton) argued against giving the President the power to pardon because it so easily bypasses the justice system. On the other hand, as others argued during the framing of the Constitution, there may be miscarriages of justice, political favors which are in America's best interest, and perhaps certain lackeys or spies that would need to be protected by the President (this argument was made by James Iredell, a contemporary of Alexander Hamilton's).* Certainly Scooter Libby falls under the latter category with President Bush's latest pardon.

It is rare that I agree with President Bush, but I think that he owed this commutation (a watered down version of a pardon) to Scooter Libby. Interestingly, it seems that the vast majority of the editorials out there are in agreement with me.

For those of you whose memory may be a little fuzzy on the matter, let me refresh your memory:

Libby was accused of lying to investigators and obstructing the probe into a leak. There had been a newspaper article written, naming a woman who was married to a small-time ambassador. The point of the article was to discredit the ambassador as unimportant but filled with self-importance: A man who received favors and appointments at the behest of his well-connected wife who worked for the CIA.

When the article hit the newstands, the ambassador and his wife hit the fan. They saw their chance for their 15 minutes of fame, and immediately began to wail that the wife had been "outed" as a spy. When all the facts came out, this claim became ludicrous. The ambassador was fond of introducing his wife at cocktail parties as a CIA operative, and they had never made it a secret before. She was, in fact, merely something clerical: Just a small cog amidst the vast gears, wheels, and pulleys that make up the CIA machine.

Eventually no one got into trouble over "leaking" the already repeatedly "leaked" information. What Scooter Libby did next was the real problem: When the investigation began, Libby stood in the way.

I am in agreement with Timothy Noah of Slate, who writes:

"I don't take lightly the fact that Libby lied to federal prosecutors about his role in unmasking Valerie Plame as a covert CIA employee. The underlying offense probably wasn't illegal... but it was nonetheless disgraceful. Libby understood that, and that's why he committed perjury. His prosecution was appropriate because Bush administration officials need to know that they are not above the law. Libby's trial and conviction, I hope, got that message across to at least some of them.

But Judge Reggie Walton went overboard in sentencing Libby to 30 months. This was about
twice as long as the prison term recommended by the court's probation office, and if Libby hadn't been a high-ranking government official, there's a decent chance he would have gotten off with probation, a stiff fine, and likely disbarment. Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby's routine request to delay the sentence while his lawyers appealed it."

However, it would be wise to recollect Pres. Bush's former pardons. In December 2002, he pardoned numerous small-time criminals (one was accused of tampering with an odometer, another accused of a theft of copper wire, etc.). To justify such pardons, White House spokesman Ken Lesaius stated, "What each case has in common is that each pardon request was from someone who committed a relatively minor offense many years ago. Each has stayed out of any real trouble with the law since then and has gone on to live an exemplary life and become a positive force in their respective communities."

This could hardly be said of Scooter Libby, whose crime is fresh and prominent. On the other hand, Pres. Bush could have pardoned Libby immediately. Instead, he let Libby go through the subsequent trial and sentencing before he pardoned him.

Bush has made similar stands before, both as the Governor of Texas and as President. He seems to believe that a criminal needs to pay in some way, so rather than give Libby an instant pardon (as Ford did for Nixon), he forced him to go through the system first. On the other hand, this seems to be a bit hypocrital, since Libby was attempting to shield both Karl Rove and the Vice President.

But let us not forget the foul series of pardons that Bill Clinton handed out before he stepped down in 1999. These pardons included 16 terrorists from the Puerto Rican group FALN, who were "convicted for conspiracies to commit robbery, bomb-making, and sedition, as well as for firearms and explosives violations." He also pardoned many criminals who had done things far worse and much more evil than the criminals that Pres. Bush has pardoned. And, Clinton additionally pardoned his crony Susan McDougal. Ah yes, there is the parallel: Scooter Libby and Susan McDougal are two peas in a pod.

Ultimately, Pres. Bush has been far more honorable than Bill Clinton was in issuing pardons. However, the real problem is the concept of the Presidential pardon. Assuming that a President is a clean, upstanding, and virtuous politician, we have nothing to worry about.

But, lately we are all coming to believe that such a President is at best an endangered species. At worst, such a President may be extinct.

*There is a very informative article which was written by Daniel T. Kobil who was a Professor of Law at Capital University Law School in Columbus, Ohio, when he stood before Congress to testify on the Constitutionality of Presidential pardons in regards to Bill Clinton's highly controversial pardoning of terrorists, among others. To read his statements, go here.


The Lazy Iguana said...

Susan McDougal was pardoned, but only after she was in jail for a few years.

In fact, most pardons involve people that served time in the system.

The Libby case was not a pardon, it was a deferment. As such the man will not go to jail pending his appeals process. This process can easily be extended so as so run well into 2008, then Bush can grant a full pardon on his way out.

Why not give one now? Well then Libby could not be tried for the same crime again. So he could be called to testify to and would not be able to take the 5th. Nothing he said could incriminate him - but it may incriminate others. Most likely Cheney.

So in effect, what Bush is really doing here is setting up the playing field to pardon himself and Cheney.

Exposing Plame also exposed the "brass plate" company she worked for. Everyone that had known dealings with this company (which operated out of the USA) is compromised. And all because her husband wrote an article that the Bush Administration did not like.

Bush said he would hold anyone in his administration accountable for the incident. But that was back when they thought they could get some low level flunkie to take the fall.

Oh Lt. Col. Oliver North - where are you today? Can't someone fairly low on the totem pole yet high enough to make it plausible step up and take the fall? Guess not.

mal said...

I can not help but feel that Scooter took a bullet here for Cheney and crew. However, I agree that Bush at least has shown some wisdom in how he applied the commutation.

Clinton's 11th hour pardons left a VERY bad taste in my mouth. It was obviously motivated by greed and politics.

Do we continue with this power? I suspect so. Frankly, the presidency has dealt itself other powers that scare me more. Guantanamo and the Patriot Act are larger and more worrisome issues.

Saur♥Kraut said...

Mal, agreed! And, welcome back. It is SO delightful to see you here again. I've missed you.

Lazy Iguana, excellent and interesting points. I hadn't really considered that Bush is, in essence, still shielding Cheney. You make a powerful argument.

Kathleen said...

Saur, kudos to you for an excellent post. I agree.

Ed Abbey said...

I understand the reasonings for Bush commuting a portion of Libby's sentence but at the end of the day, all that the large majority of the American people will remember is that Libby was convicted and Bush "pardoned" him. I think that act will cause a heavy price to be paid in swinging independent voters away from the Republican party which is not what they want right now especially after losing Congress.

Saur♥Kraut said...

Ed, you know, I was wondering if I should use the word "commutation" and you just helped me to make up my mind. I altered the article slightly, due to that. Thanks. And, your analysis is right-on, IMHO.

Kathleen, thank you so much. Your praise is high praise indeed.

Hans said...

What does Bush have to lose by commutting the sentence? Nothing.

The left will moan about it for a short while but they don't want it to gain any traction in the press either. It will just make it that much tougher the next time they have the oppurtunity and use it.

He still could issue a full pardon and if the left goes on too much about it he just might do that. He's not above waving the middle finger at the loyal opposition.

Daniel Hoffmann-Gill said...

I've read your post and it's stance on the pardon but frankly it just looks really, really bad indeed.

Bush is scraping the very bottom of the barrel now.

Saur♥Kraut said...

Daniel, Oh I agree with you entirely. That goes without saying (or so I thought). Sorry if I didn't make that clear enough. I was trying to be objective in my presentation.

Hans, YUP! ;o)

Mr. Grey Ghost said...

Liberals and their faux rage over Libby's commutation is indeed funny. They really wanted Karl Rove, but had to settle for Libby, who was still convicted of a felony and has to pay a $250,000 fine. And of course, the "outraged" liberals will make no note of Richard Armitage's role in all of this or Bill Clinton's pardon of Marc Rich, FALN terrorists, Roger Clinton, et al, or the fact that Bush was used his Constitutional right to pardon or grant clemency less than any other President in the last 100 years. Bottom line Scooter Libby was nothing but a scapegoat for liberals hellbent on getting Karl Rove. He was wrongly convicted and his appeal will show that, thus, no need for Bush to pardon him yet.

Grog said...

Bottom line Scooter Libby was nothing but a scapegoat for liberals hellbent on getting Karl Rove. He was wrongly convicted and his appeal will show that, thus, no need for Bush to pardon him yet.

I find it amusing the double standard being applied by the Bush administration on this one. Considering the fuss that the Republicans made over Clinton lying about a BJ, you would think that lying about matters involving national security would produce a little more outrage.

green said...

We'll see what kind of and how many pardons Dubya hands out when the 11th hour of his Presidency is at hand. Before this time it's not a fair comaprison vs. what Clinton did on his way out of office.

Anonymous said...

This solidifies my view that politicians can fix nothing. Term limits... Please term limits for all offices.


Three Score and Ten or more said...

I haven't commented on much lately. (other stuff on my mind, and I haven't rejoiced enough in some of the things you've said to join in nor disagreed enough to want to argue) but I think you have a real point here. I have been agitated listening to the radio with the pundits from the left raging and those from the right yelling about conviction for a crime that didn't exist. You have hit a nice median. Isn't it strange how truth makes sense?