The Scooter Libby Commutation and/or Subsequent Pardon: Playing Right Into Liberal and Progressive Hands?

posted by Damozel | Rejoice, fellow liberals, and especially progressives!  The Bush Administration fell for it.

  As my colleague The Crux has already noted, Robert Bauer,  "General Counsel to the Obama campaign," speaking for himself and not at all for any of his clients,  published this article in The Huffington Post on June 14, 2007: The Progressive Case for a Libby Pardon.

Bush's opposition has braced for a pardon and its rage at the prospect is building. To Bush's antagonists on left, a pardon would be only another act in the conspiracy -- a further cover-up, a way of getting away with it. But this is the entirely wrong way of seeing things. A pardon is just what Bush's opponents should want.

A pardon brings the president into the heart of the case. It compels him to do what he has so far managed to avoid: accept in some way responsibility for the conduct of his Administration in communicating with the public about national security and in its treatment of dissent. If the pardon would be politically explosive, then this is what the administration's critics, hungering for accountability, have been waiting for. The case against this government on the larger charge of abuse of power is diminished, made even laughable, by resolving into a 30-month sentence for an obscure figure named Libby....

Nothing in the nature of the pardon renders it inappropriate to these purposes. The issuance of a presidential pardon, not reserved for miscarriages of justice, has historically also served political functions -- to redirect policy, to send a message, to associate the president with a cause or position....

George W. Bush's father expressed his contempt for the opposition's "criminalization" of policy differences, with a batch of pardons for high Republican officials convicted in the Iran-Contra scandals .

In each of these cases, the president who issued the pardons was, by determining the course of a criminal matter, redefining its political significance and acquiring in it a personal and lasting place. By pardoning Libby, Bush will have done the same. Presidential fingerprints, so far nowhere to be found in this case, will surface at last, indelibly, on the pardon....if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions....(The Huffington Post)

At Swampland, Ana Marie Cox---in whom I have complete faith--- says the Barack Obama  campaign issued the following statement, reflecting generally the views of every outraged progressive in America, i.e., the payoff: 

“This decision to commute the sentence of a man who compromised our national security cements the legacy of an Administration characterized by a politics of cynicism and division, one that has consistently placed itself and its ideology above the law. This is exactly the kind of politics we must change so we can begin restoring the American people’s faith in a government that puts the country’s progress ahead of the bitter partisanship of recent years." (Time/Swampland)

THE TRAP IS SPRUNG.  So why, now that liberals and progressives who don't care for the Administration have got what we "should" want,  aren't we all finding this a lot funnier?  (See the comments that follow for an answer....Damozel).

LINKED, QUOTED, OR CITED

• Ana Marie Cox, Obama on Scooter's Commutation  (Time/Swampland)
  Robert Bauer, The Progressive Case for a Libby Pardon (The Huffington Post)

OTHER RELATED BNP ARTICLES

• The Crux Obama's Lawyer Argues for Libby's Pardon (Buck Naked Politics)
• Damozel, Pardon This:  Bush Rescues Libby from "Excessive" Prison Term (Buck Naked Politics)
• Damozel, Conservative Andrew Sullivan on The Libby Pardon (Buck Naked Politics)
• Damozel, The Legal Experts Weigh in on the Libby Pardon and Scooter Libby's Very Special Treatment (Buck Naked Politics).
• The Crux, Bush Still Might Pardon Libby (Buck Naked Politics)
• Damozel, A Swift Solution to Bush's PR Problems (Buck Naked Politics).

Comments

[Charles]

I think that regarding this as any kind of victory is a mistake. First, the fallout throughout the justice system will be immense. Second, forcing Bush to acknowledge that he has made himself a tyrant does not move toward removing him from heading that tyranny. (though ::ahem:: Senator Obama could assist in that matter by calling for Nancy Pelosi to put impeachment back on the table) Third, one way that tyrants keep people immobilized and desperate is by piling atrocity upon atrocity.

I believe this pardon violated the Constitution because it involved a matter of impeachment. True, the Congress has not yet mustered the spine to confront that eventuality, but it is entirely plausible that the President conspired to weaken the security of the United States and open her to her enemies by causing the disclosure of the identity of a key counterproliferation agent. If the Constitution permits a president to conceal his betrayal of the nation by protecting his subordinates from just punishment, then the Constitution is wrong.

But I believe that the Constitution is correct, and that the commutation of sentence is forbidden as an interference in a matter related to impeachment.

Secondarily, as I understand it, the power to pardon is also forbidden if it would interfere with the proper functioning of the civil courts. Thus, the president cannot pardon civil contempt. But he has interfered in a civil case, one brought by Joseph and Valerie Wilson. Therefore, in spirit if not by the letter, this pardon is also invalidated by its frustration of a citizen seeking justice.

[Damozel]

A fascinating point and one I'm sure many people will agree with. I'm not quite so bothered by it, since I got used to the idea when his dad did it following Iran-contra under equally, or perhaps even more, questionable circumstances; and of course Clinton had his share of allegedly or arguably self-serving pardons. Perhaps the Constitutional power needs to be limited in some way when the executive's own officials are investigated? .... I'm more concerned about Bush's FAILURES to use his constitutional power to pardon, frankly, than this blatant example of cronyism, which after all merely confirms what we already know about his way of conducting himself. (Though "The Crux" has raised some good questions about the timing of this, as did Ellen Podgor at White Collar Crime Prof... ) I still see the Bush administration as more opportunistic than evil. They've managed to get away with things because people don't care. I think most Americans expect cronyism, which might be cynical of me.

As to celebrating, you're so right (I wasn't entirely serious about that part of it). For me, it's all based on a wrong view about the extent of the executive's powers and privileges. The GOP should be concerned about this....considering they were all up in the air about "Rule of Law" when Clinton perjured himself and considering another Dem might prevail next time around.

[Charles]

Of course we expect cronyism, Damozel. Quite a lot of cronyism is legal, useful to normal political doings, and has negligible effects on the functioning of government. Clinton's pardons of his brother and of Marc Rich were favors, but favors where there was no damage to the broader justice system and certainly no obvious advantage to Clinton. The present situation is very different, having inflicted damage on the functioning and the morale of a justice system that is already dangerously demoralized.

I agree that the line should have been drawn with the Iran-Contra pardons. Clinton even failed to release information that would have permanently discredited the conspirators, such as Oliver North's notes on drug running. The CIA Inspector General Fred Hitz later issued a report demonstrating that CIA contractors imported cocaine on a mass scale. The pardons were a travesty, an imperial bit of arrogance that needed to be slapped down.

The reason that we have arrived at this point is that people became "not quite so bothered by it, since [they] got used to the idea" of the abuse of pardons. Let people get accustomed to doing wrong, and there is no bottom to the evil they will tolerate.

The Bush presidency, BTW, is the fifth coup against elective government by the Republicans within just seventy years. The earlier ones were:
* a military coup against FDR exposed by Maj. Smedley Darlington Butler
* the McCarthy era
* Watergate
* The so-called "Clinton scandals"
* The theft of election 2000.
These people are-- it pains me to say it-- fascists. They just do not believe in letting people vote for their leaders.

[Damozel]

You're not wrong, as the Brits say. It seems to me that the only solution to the specific problem is to narrow the scope of the president's power to pardon by limiting it to cases not involving, say, the executive branch itself (where he might be assumed to have self-interested reasons for intervening) or to any action in which he is a party or potential part.

You're right to point up the distinction between Clinton's use of the pardon and (both) Bush's. Those attempting to justify the commutation of Libby's sentence are attempting to blur the distinction in the circumstances; I---pretty much unthinkingly---did so myself.

I suspect---though I do not of course know---that there are reasons of self-interest as well as cronyism involved, as many others have hinted. I think the Republican party is already beginning to reap some of the consequences of its hubris.

As for any lasting perversion of justice resulting from the commutation of Libby's sentence, that remains to be seen. As I said, the posting on which you originally commented was a not entirely serious response to Bauer's Huffington Post blog from some weeks back saying that progressives should WANT Bush to pardon Libby because it would force Bush to step into the stoplight in Libby's place, bringing on exactly the sort of intensified scrutiny of the Valerie Plame affair that I am pretty confident will now follow.

Obviously I didn't do a good job in the posting of making it clear that I was speaking sardonically.

[Charles]

Oh, don't apologize, Damozel. It's a given that shades of meaning are lost over the 'Net. But I think people are fooling themselves if they think there will be any consequences for Bush. There never have been before.

Thom Hartmann read a quote from George Mason to the effect that he refused to sign the Constitution because it failed to adequately provide for such a situation as we now face, in which the president is able to obstruct an investigation into his own wrongdoing.

I wish you were right, that Bush will have to step into the stoplight. Unfortunately, I expect he'll keep right on going.