Senior Legal Analyst?

On the June 14, 2007, broadcast of Wolf Blitzer’s The Situation Room, Jeffrey Toobin, identified as CNN’s “senior legal analyst” provided “analysis” of the pardon power which was typical, humorous and bizarre all at once.

Toobin began by pointing out what we all know,

The pardon power is one of the few absolute powers that the president has. He can pardon someone before they're indicted [You] can be pardoned long after you've served your sentence [so] the pardon power is absolute. It can't be appealed. It can't be overturned.

Blitzer then asked if there wasn't "normally" a "pardon review process" that goes on in the Justice Department? Toobin accepted this invitation to the well-worn "procedural-rules-and-guidelines" routine, already performed well enough by the folks as Newsweek here. As I have discussed here, none of those "rules" and "guidelines" apply to the president.

Then, it got interesting, Blitzer asked about "something sort of a pardon" that might suspend the sentence allowing Libby "to stay out on bail while his appeals process goes forward? Could the president, if he wanted to, undertake those kinds of steps? Toobin went into la la land:

Well, I have to say, maybe there are some constitutional experts out there who will contradict me, but I don't think the president has that authority. I think it's an all or nothing proposition. He can pardon "Scooter" Libby and end the case against him today. But other than that, he has no authority, as I understand it, to get involved in the process at all.

Now that is embarrassing. A CNN senior legal analyst has never heard of a commutation of sentence, a respite or a reprieve. And they sent that poor fellow in to chat about the Libby case! If Toobin meant to say that lawyers are adept at finding ways to argue about just about everything, I am with him. But the respite power is no "constitutional" issue. It is a fact of law and history. The complication for Toobin's bizarre position is not "some constitutional experts." The problem is the King of England, common law, numerous opinions of the U.S. Supreme Court and the practice of most presidents for 200 plus years!

There followed a clip featuring the outgoing counselor to the president, Dan Bartlett. Bartlett, when asked about the possibility of a presidential pardon, said this:

And as long as there is an appeals process, as he is still outside of the custody of the criminal justice system, my understanding is that it would be some time before that would actually take place. And in the meantime, there is an appeals process -- an emergency appeals process -- that is being filed.

You would think there would have been enough red flags in that clip for Blitzer and the senior legal analyst, but, they still fumbled the ball. The only thing Blitzer saw was that Bartlett was "non-committal." Then Toobin did the big spin, crash and burn. It was so gorey, I just have to comment on it one ghastly piece at a time:

Toobin: Well, Wolf, he actually said two very different things. He says there is an appeals process underway. And that appeals process will continue whether "Scooter" Libby is in jail or not.

* Wow. Can you really make money saying things that brilliant?

Tobbin: So if that's the rule, then President Bush will let "Scooter" Libby begin serving his sentence and wait until the appeal plays out.

* There is nothing in Bartlett's comment which suggests anything like a "rule." That topic has already been covered in the conversation. There are no "rules" for presidents.

Toobin:But the other thing Dan Bartlett said was he's not in custody yet, which would suggest that that would be the moment when President Bush gets involved.

* Duh! That is exactly what everyone has been saying for four weeks! What they have been missing, and what Toobin does not understand is that, at the point where custody becomes an issue, a full and unconditional pardon is not the only option.

Toobin: Clearly, I think, there is a struggle going on at the White House.

* Dear CNN, your senior legal analyst is uninformed and a bore. Here is my resume. Contact me immediately! You and your viewers are getting ripped off!

Blitzer, benefitting from the uninformed commentary of the senior legal analyst, said this later in the program:

Within six or eight weeks, [Libby] could be in prison, unless -- unless the court of appeals, the higher court, does something about the decision from the federal judge earlier today, which most experts think is unlikely, or if the president decides to do something, and step in and give him a pardon.

Clueless. That is just about all you can really say. Or, as I have said elsewhere, "Wrong. Wrong. Wrong."

Amy Holmes, identified as a Republican strategist, tried her best to educate Blitzer:

Well, [there's] actually a third way. And "National Review Online" has published a piece today about that he could give Scooter Libby a respite. And I think, today, the judge's decision to throw him in jail while his case is still pending appeal is extreme enough that the president and Republican candidates for the presidency can come forward and say, we have a compassionate compromise. Libby does not need to be in jail while his case is pending appeal. He's not violent. He's not a flight risk. Let him stay out of jail. Previous presidents have done that. Even President Clinton gave a reprieve -- not a reprieve, but a respite to two felons that were on -- on death row until that there was more look at their cases.

Blitzer, stubbornly hanging onto the incorrect trends in reporting of the last month responded that the senior legal analyst he had just spoken to was "not so sure there is this option." But, on their face, Holmes' comments differed from Toobin's in one critical respect: she gave a specific example of an act of clemency, short of a pardon, to delay the execution of a sentence. That shoved Toobin, Blitzer and everyone like them into the darkness of the corner where they clearly sit, in ignorance and error with respect to the pardon power.