Amnesty lives, after all. A week after the conservative base of the G.O.P. rallied to block the Senate’s plan for comprehensive immigration reform, President Bush commuted the 30-month prison sentence of I. Lewis “Scooter” Libby. The president’s procedural end-run around the justice system came just after the former chief of staff for Vice President Dick Cheney got word that an appeals court had rejected his petition to get his jail term reduced.
Even for an administration that has made a robust cottage industry out of politicizing the law, Mr. Bush’s fiat was a stunning move. Commutations come with quite explicit guidelines of their own – promulgated by the department of Justice back in the days before it became a Rove-branded house of patronage and prosecutions to solidify G.O.P. tactics of voter suppression.
“Requests for commutation generally are not accepted unless and until a person has begun serving that sentence,” the now-inconvenient manual for U.S. attorneys stipulates. It goes on to describe commutation as “an extraordinary remedy that is rarely granted.” Among the grounds it recognizes for a potentially legitimate commutation are “disparity or undue severity of sentence, critical illness or old age, and meritorious service rendered by the government to the petitioner, e.g., cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action.”
Mr. Libby plainly falls under no such category. The term that judge Reggie Walton, a Republican appointee, meted out actually was on the low end of the scale for federal sentencing guidelines given the serious nature of the underlying crime in Mr. Libby’s obstruction conviction. (Glib Beltway pundits who have likened Libby’s dual conviction for perjury and obstruction to Bill Clinton’s House impeachment on the same charges tend to overlook that obstruction sentences closely track the severity of the offense that obstructers have sought to conceal. Needless to say, now that Mr. Libby’s trial has established once and for all that Valerie Plame, the C.I.A. agent he helped to out, retained her undercover status, the underlying offense is far greater here than in a duly adjudicated civil sexual harassment suit.)
What’s more, Mr. Libby’s own defense team argued strenuously in its sentencing hearings for Judge Walton to employ a more lenient sentence based on his government service, and failed; the judge replied, quite sensibly, that servants of the government should be held to a higher standard of truth-telling before a court of law, not a laxer one. For Mr. Bush now to hand down the Libby commutation on the very slender claim that Judge Walton’s sentence was excessive is to subvert—yet again—the independent rule of law with the blunt, unaccountable instrument of executive privilege, something, it need hardly be added, that he isn’t so readily up to doing for the many Americans moldering in jail cells under draconian drug interdiction and “Three Strikes” penalties.
Mr. Bush’s order is also remarkable for the many legal authorities it omitted from the process—again, in flagrant defiance of precedent in commutation cases. “There are procedures for this,” says Bruce Ackerman, Sterling professor of law and political science at Yale University. “The key question here is the rule of law. And the rule of law is not exhausted by the president’s prerogative to issue pardons. I’m not questioning the constitutional prerogative of the president to issue pardons. But it is not the job of the president of the United States to simply exercise his power without the rigorous consultation of other authorities, and without following the procedures in place for these decisions.”
Mr. Ackerman also notes that the Libby commutation is of a piece with prior Bush White House exercises of executive fiat. Take the brutal interrogation of detainees in the war on terrorism. “To say that Geneva conventions don’t apply is one thing,” he argues. “To say it without actually going through the procedures is something else altogether.”
But as the Libby affront again shows, this presidency is nothing if not something else altogether—and as Mr. Ackerman notes, its procedural excesses are now harming the very reach of executive power it seeks relentlessly to extend.
“The fundamental problem with this administration is that it’s discrediting presidential power,” he says. “the fact that the president didn’t consult with the Justice Department on this, this sort of personalization of power—the idea that the president just decides what he wants to decide—this is all bad,” he says.
Mr. Ackerman’s lawyerly understatement here is itself rather telling—students of constitutional law have exasperatingly few reference points for this new nether realm of executive power. Which is probably why University of Texas law professor Sanford Levinson cites the republic’s most forceful original dissenters from untrammeled executive powers—the so-called anti-Federalist opponents who opposed the Constitution’s ratification by the states.
“The people who opposed the Constitution were described as paranoids and men of little faith,” he says. “But a surprising number of them, including luminaries like George Mason, took what looked like a quasi-paranoid, conspiratorial view of the president’s pardoning power, arguing that a president could be involved in what they called a ‘treasonous cabal’ and would pardon one of his confederates after the fact. Now I obviously don’t think Libby was guilty of treason, and this is a commutation rather than a pardon. But lo and behold, it comes just as an appeals court refused to overturn or reduce his sentence. There’s no question but that this was designed to keep someone involved in an executive branch cabal from going to jail.”
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.