The Op-Ed That Wasn't

Apparently Jeff Lomonaco submitted this op-ed to The Los Angeles Times a couple of weeks ago predicting the Libby commutation only to have it rejected. Some key grafs:

It is precisely out of the desire to avoid such uncomfortable questions for himself and his vice president that President Bush is likely not to pardon Libby but to commute his sentence, or otherwise keep him out of prison without fully clearing him. That would enable Libby to remain free while he seeks legal vindication through the appeals process. But more importantly, it would enable Bush and Cheney to continue the strategy they have successfully pursued in deterring journalists seeking their explanations with claims that they shouldn't comment on an ongoing legal proceeding. If Bush were to pardon Libby, he and Cheney would no longer have such a rationale for evading the press' questions - nor would Libby be able to claim the right against self-incrimination to resist testifying before Congress about the role that Cheney and Bush played in directing his conduct.

But if Bush simply commutes Libby's prison sentence without effectively vacating Libby's conviction, the appeals process goes forward and Bush and Cheney continue to have their rationale for not answering the press' questions. This strategy would also have the added benefit for Bush of eliminating the chance, however remote, that under the pressure of prison time away from his family and abandoned by the White House he served loyally, Libby himself would tell the true story of his own and others' conduct.

To repeat a thought from yesterday, I'm extremely skeptical that the pardon power is, on balance, a good thing. Clearly in principle it can be used to rectify serious injustices. In practice, however, the use I'm most familiar with is for Republican presidents to deploy the pardon power to facilitate cover-ups of serious wrongdoing -- think Gerald Ford and Watergate, George H.W. Bush and Iran-Contra, and now George W. Bush and Scooter Libby. A better president, like Bill Clinton, by "contrast" winds up using the pardon power in more trivially abusive -- but still abusive -- ways as with Marc Rich.

Comments

"I'm extremely skeptical that the pardon power is, on balance, a good thing."

The problem is not pardon power per se, but instead the larger issue of the framers creating a powerful executive separate of the legislature.

We basically have an elected Caesar, restrained only bluntly by the other branches. A bad President is capable of all kinds of abuses.

Under the powerful executive model the framers had in mind, in a lot of senses, Presidents really are above the law. They just can't re-write the law.

Posted by Petey | July 3, 2007 8:37 AM

Dept. of Irony: Marc Rich's attorney was....

Scooter Libby.

(from Atrios)

It is very unlikely that we'd amend the constitution to change the executive clemency power, but an easy cure would be to amend it to limit it similarly to the existing DoJ policy, which Bush ignored - thus creating the perception that Bush engaged in a obstruction of justice by his action.

Pardon: Section 1-2.112 Standards for Considering Pardon Petitions

In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence. The Department's regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 C.F.R. § 1.2). In determining whether a particular petitioner should be recommended for a pardon, the following are the principal factors taken into account.
[more]
....
Commutation of Sentence:
A commutation of sentence reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed. Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding.
[more]

Posted by JimPortlandOR | July 3, 2007 9:01 AM

Sorry about bad link above. Here's a good one:

link to DoJ policy

Posted by JimPortlandOR | July 3, 2007 9:04 AM

I always thought the Marc Rich scandal was meant to distract from the Susan Macdougal pardon. I mean, there must be some reason that a smart guy like Matt can't remember a Democratic president using the pardon power to facilitate a cover-up of wrongdoing.

Posted by Thomas | July 3, 2007 10:12 AM

Actually, Clinton's pardon of Marc Rich was far worse. The charges against Rich went beyond perjury and obstruction of justice, and, most importantly, he fled the country rather than face trial. Bush is bad, Clinton is worse.

Posted by Alan Vanneman | July 3, 2007 10:17 AM

Bush is bad, Clinton is worse.

Wouldn't it be better for chanting if you got rid of both 'is's?

Posted by lemuel pitkin | July 3, 2007 10:22 AM

I think Scooter is going to drop his appeal any day now. Why? If his appeal is successful, the Court of Appeals is likely to order a new trial. If he stands trial again and is convicted again (which is likely, considering the overwhelming evidence against him), he will be sentenced to prison again. But all that will take a couple of years. The Court of Appeals will be in no particular hurry to hear a criminal appeal from someone who is not incarcerated. Ditto the District Court on remand. By the time Scooter is re-sentenced after his second trial, there'll be a new president in the White House--a president far less likely to commute his sentence. He'd be crazy to go forward with an appeal.

Posted by Rich | July 3, 2007 10:26 AM

Leahy and Schumer shd now take the position that Libby's commutation in effect "immunizes" Libby. He shd be subpoenaed by the Judiciary Comittee and compelled to testify w/o recourse to his 5th Amendment right.

Posted by helmling | July 3, 2007 10:44 AM

congratulations, alan vanneman! you have faithfully produced for us the contents of the official right-wing talking points on the libby commutation, complete with turning tax evasion (normally a right-wing favorite) into something worse than obstruction of justice.

just to deal with reality for a moment, was the clinton pardon of rich a good idea? no, even though by all accounts, ehud barak thought it was. but was it equivalent to the libby commutation? let's see: rich is living high off the hog in europe. clinton's pardon brings him back to face the music in new york state (it was only a federal pardon, and didn't deal with the state tax evasion matter).

so, in short, so.

as for Thomas, there was no watergate wrongdoing that bill clinton was party to, so your assumption about susan macdougald is completely and totally wrong.

now, as for the serious matter, what's really interesting to me is: why did the LA Times reject this piece?

Posted by howard | July 3, 2007 10:58 AM

howard, Macdougal refused for years to testify in the investigation of Clinton. She was rewarded for her silence with a pardon. What's difficult about this?

Posted by Thomas | July 3, 2007 12:02 PM

"If Bush were to pardon Libby, ... nor would Libby be able to claim the right against self-incrimination to resist testifying before Congress"

I don't understand how pardoning Libby for perjury and obstruction convictions would in any way immunize him against any criminal jeopardy for any underlying criminal acts - unless the pardon were to specifically mention those underlying acts. I'm fairly certain that Fitzgerald could charge a pardoned (for perjury and obstruction) Scooter Libby with outing Valerie Plame if he thought he had the goods. He could certainly re-empanel a grand jury, and recall Libby to testify. And if Libby lied again, we could go another whole round of all this.

As for testimony before Congress: You want Libby to not be able to take the 5th? Give him immunity. The reason (I think) that hasn't already happened is doing so would have potentially screwed up whatever criminal charges Fitz was going to be able to bring (see: North, Oliver). But if Fitz is done with Scooter, as he most likely is, then let the immunity and Congressional testimony begin, pardon or no.

Posted by Robert Earle | July 3, 2007 12:33 PM

Re: The problem is not pardon power per se, but instead the larger issue of the framers creating a powerful executive separate of the legislature.

when the USA was founded the office of president was actually weaker and more restrained than that of most contemporary executives-- these being of course reigning (and usually ruling) monarchs. Even George III of Britain, though constrained by Parliament, still had a lot of power in his office.

As for the pardon power, it definitely needs to exist, to handle gross miscarriages of justice. But it's too bad we don't have a mostly ceremonial and non-political head-of-state office (like the Canadian Governor-General) to whom this power could be given, thereby greatly lessening the chances it will be used egregiously.

Posted by Jonf | July 3, 2007 2:22 PM

Actually, Petey, in Parliamentary systems the executive has a lot more power than in America. American enthusiasts for Parliamentary systems should learn something about them.

Posted by Pithlord | July 3, 2007 3:21 PM