Today House Judiciary Committee chairman John Conyers convenes a hearing he calls “The Use and Misuse of Presidential Clemency Power for Executive Branch Officials.” The committee will hear from a number of experts, including Roger Adams from the Justice Department Pardon Office, Ohio State University sentencing expert Douglas Berman, and our own David Rivkin. But the best-known witness, former ambassador Joseph Wilson, is not known for his expertise on the subject. Chairman Conyers wouldn’t have invited him just to score political points against the Bush administration, would he? Forgive us our cynicism.
Let’s take look at the hearing’s title. Does “Executive Branch Officials” mean that the chairman will focus only on clemency extended to executive-branch officials — someone such as, say, Lewis Libby — while forbidding talk of clemency given to people who weren’t executive-branch officials, such as Marc Rich and Susan McDougal and FALN terrorists and a number of others who received clemency from Bill Clinton? It appears so. In a July 6 letter to President Bush, Conyers said the hearing would “explore the grave questions that arise when the presidential clemency power is used to erase criminal penalties for high-ranking executive-branch employees whose offenses relate to their work for the president.”
So it appears the chairman is not interested in trying to determine how the commutation of Lewis Libby’s 30-month jail sentence compared with uses of the pardon power in the past. And he has also tried to structure the hearing to mostly steer clear of the Democrats’ Bill Clinton problem when it comes to pardons. But we think it would be useful to examine the Libby commutation in light of past clemency. Here’s what we think Chairman Conyers should hear:
Clinton’s end-of-term pardons fell into three categories. First, there were pardons for relatively minor crimes in which people had served a sentence, expressed remorse, and successfully rejoined society. Then there were the political pardons, cases in which the president determined that there was a political motivation involved in the prosecution — for example, Clinton’s pardons and commutations of people who had been convicted or pleaded guilty in the independent-counsel investigations of former agriculture secretary Mike Espy and former housing secretary Henry Cisneros. And then there were the special cases, in which Clinton pardoned contributors to his campaign, or contributors to his wife, or friends, or his brother, or his wife’s brothers’ friends.
What’s important to remember is that not all of Clinton’s pardons sparked outrage. In fact, most of them didn’t. There was no controversy about the first category and very little about the second. Do you remember Clinton’s receiving much flak for the Espy-case pardons, or for the pardons of Cisneros and his former girlfriend, Linda Medlar, even though, according to Justice Department records, Medlar had been sentenced just two years earlier for:
Conspiracy to commit bank fraud, to make a false statement to a bank, to launder monetary instruments, and to engage in monetary transactions in property derived from specific unlawful activity; aiding and abetting bank fraud; aiding and abetting false statements to a bank; aiding and abetting laundering monetary instruments; aiding and abetting engaging in monetary transactions in property derived from specific unlawful activity; obstruction of justice; falsifying, concealing, and covering up a material fact by trick, scheme, or device; making a false statement; 18 U.S.C. §§ 2, 371, 1001, 1014, 1344(1) and (2), 1503, 1956(a)(1)(A)(i) and (B)(i), and 1957.
No, it was only the most controversial Clinton pardon, of Marc Rich, that raised suspicions that the president traded favors for campaign contributions. Other pardons that seemed dangerously irresponsible received markedly less criticism, such as the FALN clemency, or those in which associates of Hillary Rodham Clinton’s brothers received pardons after giving money to the brothers.
Even the pardon of Susan McDougal, the president’s former partner in the Whitewater real-estate venture, didn’t receive widespread criticism. McDougal not only was convicted of and served time for fraud, but later went to jail for 18 months rather than answer the question of whether the president testified truthfully at her trial. In one of those details you can’t make up, McDougal was held in contempt by federal judge Susan Webber Wright, who would also hold Clinton himself in contempt in the Paula Jones case. “So what happened,” Whitewater prosecutor Hickman Ewing told National Review in 2001, “is a person who was found in contempt pardoned another person who was found in contempt by the same judge for refusing to answer questions about the person who pardoned her. A contemnor pardoned a fellow contemnor.” They didn’t call Bill Clinton “slick” for nothing.
Now, how does the Libby commutation stack up against the Clinton record? Well, it clearly falls into the category of clemency given by the president to correct the excesses of what he believed to be a politically motivated investigation. A striking contrast to the tawdry misdeeds that sometimes surrounded the Clintons, Libby was convicted of perjury in a case that sprung from deep disagreements over policy concerning the war in Iraq. As George H. W. Bush wrote in pardoning Caspar Weinberger and several other participants in the Iran-contra affair, “These differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants. The proper target is the president, not his subordinates; the proper forum is the voting booth, not the courtroom.” We believed then, and we believe now, that that is a legitimate use of the clemency power. Come to think of it, Caspar Weinberger was an executive-branch official. Perhaps Chairman Conyers will allow discussion of his case.
One last note. There’s a notion on the left that the president commuted Libby’s sentence, rather than give him a pardon, in order to keep him quiet; with his appeal going forward, Libby can decline to appear before congressional committees because his case is still in court. Perhaps that argument would make sense if Libby had kept quiet. But he appeared twice before CIA-leak prosecutor Patrick Fitzgerald’s grand jury. That testimony was, of course, secret, but later all eight hours of it were played at Libby’s trial. Anyone who wants to can read it today. Given the aggressiveness with which Fitzgerald pursued his investigation — does anyone believe a congressional committee would send reporters to jail if they refused to testify? — it’s hard to imagine that Congress would find key facts that Fitzgerald didn’t.
No, the reason Democrats want to question Libby, and the reason Chairman Conyers invited Joseph Wilson to testify today, is that this hearing is a political exercise, pure and simple.