July 3, 2007


Libby's Independence Day (Debra Saunders, 7/03/07, Real Clear Politics)

OK. I'm glad President Bush commuted the 30-month prison sentence of Scooter Libby, the former top aide to Vice President Dick Cheney.

Like Bush, I buy the jury's verdict that Libby committed perjury and obstructed justice in a Department of Justice probe to discover who leaked the identity of CIA operative Valerie Plame Wilson. Perjury is no small crime and Libby could have spared himself a long legal ordeal if only he had not lied to investigators. Libby made his own bed. [...]

Bush split the judge's sentence down the middle. He did not pardon Libby, but instead upheld the $250,000 fine and two years of probation. Bush reasoned that the fine, probation and prison time, however, were "excessive."

As Bush noted in a written statement, in making the sentencing decision, the judge "rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation."

Why Bush Saved Libby: Sure it’s controversial. But it’s what presidents do. (Byron York, 7/03/07, National Review)

The White House expected the outrage. The president has been thinking about clemency for quite a while, although he decided he would not act until Libby had exhausted his legal options for staying out of jail. Even then, when Libby had run out of choices, the president opted not to pardon, instead commuting Libby’s jail sentence while leaving intact his conviction on charges of perjury and obstruction, his fine, his probation requirement, and his sure disbarment. Nevertheless, the commutation sparked outrage that is likely to build through the week.

The problem with much of the rhetoric is that it fails to take into account the full meaning and practice of the president’s clemency powers. Yes, there are pardons for ordinary criminal offenders, most of which are dictated by longstanding guidelines at the Justice Department. But there are also frankly political pardons, something the Founding Fathers envisioned when they gave the president the power to pardon, to commute sentences, and to offer mercy in other forms. A number of presidents in the past have faced problems similar to George W. Bush’s, and they weren’t hesitant to use the pardon power when they needed it. No one should be surprised that Bush has, too.

Article II, Section 2 of the Constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Other than the impeachment exception, the pardon power is absolute and unreviewable; neither Congress nor the courts can overturn a president’s decision. “The power is broad and has no limits, except those that are self-imposed,” says Douglas Berman, an Ohio State University law professor who has done extensive research on pardons.

Why such power? The criminal-justice system at the time the Constitution was written had considerably fewer protections for defendants than now, and the Founders believed there should be a safety valve for defendants who found themselves with no recourse to seek relief. “The criminal code of every country partakes so much of necessary severity,” wrote Alexander Hamilton in Federalist 74, “that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

But the point wasn’t mercy alone; the Founders also foresaw that the pardon power might be used for distinctly political purposes. George Washington pardoned the men who had taken part in the Whiskey Rebellion. Thomas Jefferson pardoned those convicted under the Alien and Sedition Acts. Abraham Lincoln and Andrew Johnson granted amnesty to Confederate soldiers. Warren G. Harding pardoned prisoners held under World War I espionage laws. Gerald Ford and Jimmy Carter pardoned Vietnam draft dodgers. And Ford famously pardoned Richard Nixon.

...which is the company he belongs in.

Posted by Orrin Judd at July 3, 2007 7:15 AM

Who did Marc Rich hire to represent him, in the effort to get a pardon from Clinton?

Posted by: h-man at July 3, 2007 2:01 PM

His ex-wife carried the bribe.

Posted by: erp at July 3, 2007 4:59 PM