Mr. Levinson also cautions that he “can’t really in good faith oppose the pardon power. But at the same time, it is important to realize it can be abused. I think this is a much, much more serious abuse of that power than Bill Clinton’s pardon of Marc Rich, which I assume was tawdry. . . . Even if you agree to stipulate that the Libby sentence was excessive, the alternative isn’t zero.”
Nor are liberals the only legal thinkers taking vigorous issue with the commutation.
Bruce Fein, a former deputy assistant attorney general under Ronald Reagan who now practices international and constitutional law with Bruce Fein and Associates and the Lichfield Group, argues that “impeachable offenses—and that’s what Libby did here—are not worthy of clemency.” Bush’s Libby dictat “again shows how Bush flouts his own promises and statements. Back when the Plame lead happened, he said ‘Anybody in my White House who’s going to be found complicit in leaking will be fired.’ And Karl Rove is right there staring him in the face the whole time. Then when the sentence came down, he said ‘I’ll let the appeals process be exhausted.’ Well, when the appeals process didn’t produce the results he wanted, he decides to override it. It’s a flouting of the law. You may recall that I condemned President Clinton for perjuring himself in the Monica Lewinsky affair. Its seems to me, how can you have someone lie repeatedly and then simply exonerate him?”
Ditching the Libby sentence “makes a mockery of the conservative case to have impeached Clinton, and it makes a mockery of the whole rule of law.”
Has the pattern of abuse reached the point that Mr. Fein—who has already called for the impeachment of Vice President Dick Cheney—would support similar proceedings against the president? “Has Bush committed impeachable offenses at this moment? Yes. Will Congress have the political will and bravery to begin impeach him? No. In part it’s because they themselves don’t want to be held to higher standards. They think, ‘Well, I do this sort of thing all the time.’ ”
Though on the narrow question of the Libby commutation, Congress is largely hamstrung. The broad constitutional pardoning powers granted to the executive also leave Congress and the judiciary little maneuvering room, save to issue statements blasting the commutation and to convene public hearings on the matter—as House Judiciary Chairman John Conyers Jr. is reportedly preparing to do.
And as is often the case in such moments of legal paralysis, citizens can only find meager consolation in the law of historical irony.
The first public pitch to grant a pre-emptive commutation to the felon Mr. Libby came courtesy of a Washington Post op-ed penned by William G. Otis, a former US attorney in Virginia’s Eastern district who also served as a legal counsel to George H.W. Bush and an informal campaign adviser to Mr. Bush the younger in 2000. He is now an adjunct professor at the George Mason University School of Law.