President Bush has made a totally legal decision in commuting the prison time of former White House aide I. Lewis Libby. The president's power to issue commutations and pardons is unquestioned and unreviewable. It's right in the Constitution (Article 2, Section 2), with no ifs, ands or buts.
Well, maybe: If, of course, we could only believe that justice was paramount in this decision. Since his days as governor of Texas, Bush has been well known for ignoring the Shakespearian advice about the quality of mercy, rubber-stamping death warrants and declining to lessen the sentences of many others whose long imprisonments for, say, minor drug charges certainly strike most of the civilized world as excessive. The suffering of those unconnected people and their equally loving families seemed quite starkly to matter less to the president than the suffering of a loyal aide and his family . . .
And, it should be said, there is a crassly political calculus here. It's likely Bush is trying to appease his party's conservative base by sparing Libby prison time, while hoping to limit the political damage by not yet delivering a full pardon -- although he pointedly has not ruled out doing that eventually.
But, it must be added, there is an even more politically crass possibility, one voiced this weekend by House Judiciary Committee Chairman John Conyers and Senate Judiciary Committee Chairman Patrick J. Leahy -- that Libby likely still has some secrets he could reveal, either to special prosecutor Patrick Fitzgerald or to the newly energized investigative functions of Congress. The root of this case was a suspicion -- never resulting in any charges, much less convictions -- that the administration has been manipulating the truth and punishing dissent in furtherance of its hot desire to go to war in Iraq. It is possible Bush simply is limiting that sort of political damage by extending presidential protection to Scooter Libby just after a judge ruled he must serve time.
The pardoning power is placed in the hands of the president to take the edge off of excessive or misplaced sentences, to show mercy and curb the clout the federal government has over even highly placed people such as Libby. It is not designed to protect the administration itself from the threat of a former loyalist starting to sing to prosecutors, Congress and the public at large when real time in real prison was imminent, as it was for Libby.
That's simply a plausible suspicion, but even that possibility is hurtful to respect for the reach of the law. Bush couches his decision in terms of balancing the scales of justice. He accepted the jury's verdict of guilt for Libby's lying under oath during a probe into the leaked identity of a CIA operative. Libby's $250,000 fine and his career-ending status as a convicted felon remain -- for now. Bush quibbled only with the 30-month prison sentence, sought by prosecutors and imposed by a judge but longer than the 15- to 21-month term recommended by federal probation officers.
Not explained is the decision to wipe away the entire prison term, rather than simply shorten it, if excessive is all it was. The harshness of the penalty for lying without any court action proving an underlying crime in the CIA leak case -- nobody is yet on the hook for the actual offense of outing Valerie Plame -- led this page to express sympathy with the idea of an eventual, but not immediate, reprieve. Letting Scooter scoot scot-free simply condones his perjury, and is a step too far.
Bush is not the first president to use the power of clemency questionably -- President Clinton's last-minute pardon of rogue financier Marc Rich, who was married to a key Democratic donor, springs to mind -- and it would be futile to hope Bush will be the last. But, all in all, this is a disquieting turn in a sordid saga. Presidents ought to be far more careful, in intervening in the work of justice.