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.