Senator Dick Durbin is search-engine savvy. In a response to President Bush’s commutation of sentence for “Scooter” Libby, Durbin mentioned the President and Dick Cheney and added, “Even Paris Hilton had to go to jail.” Why, if he had gotten Anna Nicole Smith in there, he might have shown up on every computer screen in America!
But the reference to Tinseltown was fitting. For weeks, the media have been telling a Hollywood tale. Bush would have to grant a pardon or Mr. Libby must go to prison. The tension created by repetition of the storyline was blinding for Bush was in no such pickle. The clemency power provided him with four options that would have kept Libby out of prison without a pardon, and he chose one of them. The shrill reaction suggests some feel cheated. They wanted to say “pardon” and “Nixon” as much as possible, and now this!
I have followed the commentary primarily among fellow bloggers because, unlike the media, I have little interest in what candidates clawing for face-time have to say — the exception being Mrs. Clinton (because laughter is good for the soul). In the blogosphere, Bush’s explanation for the commutation is notably unconvincing and he is inconsistent, contemptuous of the law and worthy of impeachment.
Most of the time, presidents provide no justification whatsoever for clemency decisions, even “controversial” ones. But Bush explained that he thought Libby’s sentence was too severe and brought it back in line with recommendations made by the probation department. The clarity of his statement prompted swift response from Patrick Fitzgerald, who defended the sentence as being within a range established by “law.” Unfortunately that is about 1/4 of what any fair-minded person would want to know — the other 3/4 being that the “law” establishes “guidelines,” there were legitimate disputes about their interpretation and application and they were not binding.
The government section of the public library must be a spooky place for those who find Bush’s explanation of the lowest-grade quality. In the Annual Report of the attorney general, one can see pardons have been granted because criminals were “reformed,” promised to reform, or because their release might cause others to reform. Pardons have been given to those who were insane, went insane in prison, and those who might have gone insane if put into prison. Pardons have also been granted so criminals could take care of someone else who went insane, was going insane or did not want to go insane. Benjamin Ogle (convicted of manslaughter) was pardoned by Abraham Lincoln, in part, because Ogle was “rather remarkable for his good-humored disposition.” Now, imagine if Bush had written that! Lincoln was also moved by John Lawson’s “reputation for honesty.” Lawson (alias John Lassano) had been convicted for passing counterfeit money. If you think Bush’s explanation was among the very poorest, you just don’t have a library card.
Some passionately note there are many others who have been sentenced harshly under the same guidelines. Having done so, it is not altogether clear what to make of that. Should individual acts of clemency have a retroactive, class-action component, or not be granted at all? Should presidents review every sentence? Should prisoners be forced to apply for clemency? Should presidents micromanage the day-to-day decision making of the judiciary? Should they also review sentences from all previous administrations? No sound principle or policy follows the initial observation.
As long as presidents swear to uphold the law and pardon those who have violated it, we can complain about inconsistency and hypocrisy. George Washington argued ignorance of the law was a “frivolous” plea, but justified his first pardon on the ground that the recipient had not “informed himself” of the law. Vice President John Adams was angry that Washington pardoned the Whiskey Rebels. But, as president, Adams pardoned participants in Fries’s Rebellion. William H. Taft argued it was “necessary” for rich criminals to serve out their sentences, but pardoned some of the wealthiest people ever convicted. Rutherford B. Hayes pardoned Ezra Heywood because he thought Heywood had been wrongly convicted for “obscenity.” After Hayes got a good chewing-out from his wife, he refused to “nullify” the law or “intrude” when persons were convicted for similar behavior. Grover Cleveland had pardons for vote fraud committed in favor of his own party. Otherwise, it was a “barefaced and wicked” offense. Dwight Eisenhower took Harry Truman to task for last-minute pardons, then followed suit. Why, if the bloggers had it their way, Andrew Johnson and Bill Clinton would be two data points in a pile of presidents impeached for “inconsistency.” The complaint simply spreads too thin.
As for the future: One can expect the media will remain fixated on the possibility of a pardon and ignore six other available options. If the Republicans win the White House again in 2008, I would not expect a pardon from Bush. If the Democrats win, that is another scenario.
For now, I dream I am a reporter with a mic in Dick Durbin’s face. “Senator, are you aware that O. Henry, Thoreau, and Dr. King spent time behind bars? And do you think Woodrow Wilson was wrong to pardon female suffragettes before they had a chance to go to prison?”
— P. S. Ruckman Jr., a political scientist, is the author of the forthcoming book Pardon Me, Mr. President: Adventures in Politics, Crime and Mercy .