President Bush’s commutation of Lewis Libby’s prison sentence Monday set off a rush among Democrats eager to go on record condemning the president’s action. “Disgraceful,” said Senate Majority Leader Harry Reid. “A betrayal of trust,” said House Speaker Nancy Pelosi. “A horrible signal to the American people,” said House Judiciary Committee Chairman John Conyers. “Ideology above the law,” said Sen. Barack Obama. In Iowa last night, Sen. Hillary Rodham Clinton, whose husband left office amid a pardon scandal, said President Bush had “elevat[ed] cronyism over the rule of law.”
Some critics of the White House, like the former ambassador Joseph Wilson, now accuse the president of obstructing justice. There are demands for congressional investigations. And nearly all the president’s adversaries claim the Libby commutation fell outside the government’s guidelines for giving out clemency.
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.
“TOO SANGUINARY AND CRUEL”
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.
In recent years, the pardon power has fallen into disuse — or, in the case of Bill Clinton, misuse. For his first years in office, Clinton mostly ignored his pardon power. Margaret Love, the attorney who headed the Justice Department’s pardons office from 1990 to 1997, points out that for the first seven and a half years of his presidency, Clinton “pardoned less generously than any president since John Adams.” Then, at the end of his time in office, Clinton got to work, issuing what was undoubtedly the worst series of pardons in history. He infamously pardoned the fugitive tax-evading financier Marc Rich (whose attorney was one Lewis Libby), a number of Puerto Rican terrorists, and Susan McDougal, his old Whitewater partner who went to jail rather than answer the question of whether Clinton testified truthfully at her fraud trial.
The ensuing controversy proved one last black mark on Clinton’s record. The public didn’t want to hear anything more about pardons for a while, and it is not a surprise that when George W. Bush entered office, he waited nearly two years before issuing his first pardons. Even when he began to exercise the power, the pardons he chose to give were quite minor and totally non-controversial. There was the postal worker, addicted to drugs, who had stolen $10.90 from the mail many years ago and went on to go straight and lead an exemplary life. There was the moonshiner who was convicted in 1962. And the auto mechanic who rolled back odometers on used cars ten years earlier.
Clinton aside, the decline of pardons is not a big surprise. “The opportunity for defendants to get relief from a court is greater than it was in the Founders’ era, or even 50 years ago,” says Berman. “The need for executive mercy in extreme cases is diminished by the fact that there are so many other opportunities for defendants to appeal a perceived wrong.” A president can quite reasonably argue that a defendant has had plenty of chances in the justice system and does not require a presidential pardon.
Even when the president decides to issue a pardon in a case of some rather ordinary crime, the Justice Department establishes standards that cases must meet to merit mercy. (The president does not have to follow the department’s recommendations, but he usually does.) A certain period of time must have passed since the pardon recipient served his sentence. He must convince the department that he regrets his actions. He must have engaged in good works since his case ended.
That’s not the kind of action involved in the Libby case. “It’s beside the point for people to be talking about whether the Justice Department regulations apply or not,” says Margaret Love. Clemency toward Libby, Love continues, is “a different kind of pardon from the ordinary pardon.” It is more along the lines of what President Bush’s father, President George H. W. Bush, chose to do during the Iran-contra matter, when the White House faced a zealous, indefatigable prosecutor pursuing a case that stemmed from profound differences of opinion about the conduct of U.S. foreign policy.
“A PROFOUNDLY TROUBLING DEVELOPMENT”
By the end of 1992, members of the first Bush administration had long felt that Lawrence Walsh, the independent counsel investigating the Iran-contra affair, had run a highly politicized investigation. Walsh’s “October surprise” — the indictment of former Defense Secretary Caspar Weinberger on the Friday before the 1992 presidential election — simply confirmed what everyone already knew about the prosecutor. Just in case anyone had any doubts, Walsh even helpfully included in the Weinberger indictment evidence which he claimed undercut George H. W. Bush’s testimony in the case.
On Christmas Eve 1992, with less than a month left in office, Bush pardoned Weinberger, former national security adviser Robert McFarlane, and four others. Along with the pardons, the president included a long and sometimes passionate message explaining his action. Weinberger was a brilliant and dedicated public servant who contributed enormously to the United States’ victory in the Cold War, Bush wrote. Beyond that, each of those pardoned, he continued, deserved clemency for other reasons as well: They were motivated by patriotism; they did not seek to profit from their actions; they had long records of service to their country; and they had already paid a heavy price in legal fees and damage to careers.
But the pardon declaration was much more than a testimonial to the men involved. The president took the opportunity to issue a full-throated condemnation not only of Walsh but of what his investigation had done to this country:
The prosecutions of the individuals I am pardoning represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences. These differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the president, not his subordinates; the proper forum is the voting booth, not the courtroom. . . . It is my hope that the action I am taking today will begin to restore these disputes to the battleground where they properly belong.
Although the hope was futile, the pardon statement was a ringing statement of the president’s beliefs. There was no such intensity in George W. Bush’s message accompanying the Libby commutation. Indeed, what is striking about the commutation statement is that Bush did not criticize any aspect of the prosecution. (He characterized the views of some critics but did not suggest that he approved of them.) In so doing, Bush defied the expectations of some observers, who thought the president, if he chose to offer clemency, might make some wide-ranging statement about the CIA-leak affair.
“One could argue that it is a uniquely political crime, or certainly a uniquely political prosecution, so it’s not inappropriate for President Bush to provide a politicized relief,” Douglas Berman told NRO in an interview a few weeks ago (although Berman himself does not necessarily subscribe to that view). “You might make an argument to the effect of, ‘Look, this whole thing is a byproduct of the undue second-guessing that goes on whenever an administration makes tough choices.’”
“THIS IS RIDICULOUS”
One of the men pardoned by the first President Bush in 1992 was Clair George, the former chief of the CIA’s clandestine operations who was found guilty of two counts of lying to Congress. In recent months, George has been watching the Libby case and wondering what was going on. “I think he should be pardoned,” George told National Review in early June. “I don’t quite know what it was that he lied about. But I’m not quite sure in my own trial what I lied about.”
Like Libby’s defenders, George believes his Iran-contra prosecution was politically motivated. And George was grateful not only for the first President Bush’s pardon but for his statement of support. So now, don’t look for George to join the outraged voices protesting the Libby commutation. “I’m a registered Democrat, an opponent of the war, and I’m not a happy camper under this administration,” George says. “But this is ridiculous.”
