WASHINGTON — Although it will be months before an appeal court rules on Lewis Libby’s conviction, the question of a pardon for Vice President Cheney’s former chief of staff became a hot political topic in the hours after the verdict was announced Tuesday.
“Ultimately, the buck stops with President Bush. While he failed to keep his promise to fire the leaker (of the CIA employment of Valerie Plame), he should pledge not to pardon Scooter Libby,” said Democratic National Committee chairman Howard Dean after a jury in Washington found Libby guilty of perjury and obstructing justice.
“The president, if he dared to pardon Libby, would further marginalize himself as a leader in this country,” said Rep. Joe Courtney, D- Conn.
Libby an issue in 2006 race
The revelation of Plame’s CIA employment was an issue in Courtney’s campaign last year against Republican Rep. Rob Simmons, himself a former CIA agent.
Courtney invited to campaign with him Joe Wilson, Plame’s husband and the man who wrote the now-famous opinion piece in the New York Times which disputed the evidence for invading Iraq
Courtney said if Bush were to pardon Libby “after the jury has entered a verdict and the prosecutor scrupulously followed the legal process, he would completely undermine his position as someone who took an oath of office to uphold the Constitution.”
Bush spokeswoman Dana Perino said, “I don’t think that speculating on a wildly hypothetical situation at this time is appropriate.”
On Wednesday, the conservative editorial pages of both The Wall Street Journal and The New York Post called on Bush to pardon Libby. "The time for a pardon is now," the Journal said, while the Post said the president "should make things right" with a pardon.
Of course a free pass for Libby would not be the first contentious pardon in American history.
A pardon 'inherently controversial'
As the last president, Bill Clinton, observed in 2001, “The exercise of executive clemency is inherently controversial…. Some of the uses of the (pardon) power have been extremely controversial.”
So said Clinton as he explained in February 2001 why he’d handed out a pardon on his last day in office to fugitive commodities investor Marc Rich.
Clinton said that he or any president had to “do what he deemed the right thing, regardless of how unpopular a decision might be.”
Clinton said “there can be no quid pro quo” when a president hands out a pardon “and there certainly was not in this or any of the other pardons and commutations I granted.”
In his New York Times op-ed piece justifying his pardon of Rich, whose ex-wife Denise had contributed to thousands of dollars to Clinton’s campaigns and to his presidential library, Clinton said that among the trio of Republican lawyers who “reviewed and advocated” the pardon of Rich was none other than Washington attorney Lewis Libby.
The next day the Times had to print a correction: Libby had served as one of Rich’s lawyers and, as such, had proclaimed Rich’s innocence of tax evasion and racketeering charges, but Libby had not asked the president to pardon Rich.
How would it play in 2008?
Now it is Libby himself who may be asking for a pardon.
What are the precedents for pardoning Libby? Would a pardon give the Democrats ammunition in the 2008 election to charge that Bush was trying to conceal actions by Cheney and others in the run-up to the Iraq war?
"Pressing Bush to exclude the possibility of a pardon for Libby is more than just a rhetorical point," said Jano Cabrera, a Democratic strategist. "If Bush's father could pardon Caspar Weinberger for his role in the Iran-Contra affair, it's a very real possibility that George W. Bush is considering pardoning Libby for his role in the lead up to the Iraq war. After all, Libby was a good soldier and that may matter in an administration that prides itself on loyalty.”
But Cabrera said if Bush does pardon Libby, “he may not have the last laugh. Pardons, often the last acts of outgoing Presidents, sometimes — fairly or unfairly — end up epitomizing the administrations themselves. Bush pardoning Libby would just serve as a living reminder that in his rush to war, his administration smeared those who would raise questions and placed more of an emphasis on PR than on actually securing the country.”
If Libby’s conviction were upheld on appeal, there’s precedent for Bush to wait until after the 2008 elections to pardon him.
He could do as Clinton did on Jan. 20 2001, wait until his last few hours as president.
Or he could give Libby a Christmas Eve 2008 pardon, as part of the “goodwill to all men” Yuletide spirit.
Long record of controversial pardons
As Clinton noted in 2001, his pardon of Rich had been “extremely controversial,” but, he argued, so had previous president’s pardons and clemencies.
Some examples:
- President Grover Cleveland’s pardoning of Mormon settlers in Utah to protect from polygamy prosecutions.
- President Harding’s Christmas 1921 pardon of socialist leader Eugene Debs, who was in federal prison for impeding the war effort in World War I. ("I want him to eat his Christmas dinner with his wife," Harding explained.)
- President Ford’s pardon of ex-president Richard Nixon in 1974 for his role in blocking the investigation of the Watergate burglary.
- The first President Bush’s 1992 pardon of six officials convicted in the Iran-contra affair, including former Defense Secretary Caspar Weinberger.
“I believe my pardon decision was in the best interests of justice,” Clinton said of his pardon of Rich.
So, too, Ford argued in 1974, in the face of a storm of protest. Then-Sen. Walter Mondale, D-Minn., who along with Jimmy Carter would defeat Ford and his running mate Bob Dole in 1976 — due in part to the pardon furor — was moved to propose an amendment to the Constitution that would have allowed a pardon to be over-ridden by a two-thirds vote of the House and Senate.
At the time Clinton, then a young Arkansas politician running for Congress, denounced Ford’s pardon of Nixon, saying it “is yet another blow to that vast body of law-abiding Americans, whose faith in equal justice under law has been shaken.”
But 25 years later, as president, Clinton awarded the Presidential Medal of Freedom to Ford and said at the White House ceremony that he’d changed his mind about the Nixon pardon.
“You didn't get caught up in the moment and you were right,” Clinton told Ford. “You were right for the controversial decisions you made the keep the country together and I thank you for that.”
Near-absolute power
The Constitution grants near-absolute pardon power to the president, saying “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
At the constitutional convention in 1787, North Carolina delegate James Iredell (who later served on the Supreme Court) said the only restraint on the abuse of the pardon power by a president was the risk of “damnation of his fame to all future ages….”
Supreme Court Justice Stephen Field wrote in a landmark 1867 decision that a pardon “blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense.” And that's precisely what Libby's critics do not want.
In the wake of the Rich pardon, the Senate held hearings in February of 2001 to debate whether Congress ought to pass the Mondale constitutional amendment or some other limit on the pardon power.
But the storm over Rich soon quieted and by September of 2001 the political focus had shifted to terrorism and the potential for Saddam Hussein to have weapons of mass destruction. And that’s just about where Libby re-entered the drama.