The End: Part Nine

As the Google alerts on "Scooter Libby" and "presidential pardon" slowly fade into the comments sections of bloggers and the Letters to the Editor sections of backwoods newspapers recently introduced to the internet, it is perhaps worthwhile to consider 1) what President Bush's commutation was 2) what is was not and 3) why there should be any further interest in the matter at all.

A Los Angeles Times reporter discussed presidential pardons with me this afternoon and said: "Who cares about this topic? Scooter Libby is gone. It is over? Why should anyone even bother with this topic any more?" I emphasize that he contacted me. I did not contact him! But these are legitimate questions, I suppose, as well as the ones I have raised above.

Here is what I have to say on the matter:

What the Commutation Was: President Bush's commutation of Lewis Libby's sentence was unusual primarily in the sense that 1) Bush has rarely exercise the clemency power and 2) in recent years, commutations of sentence are rarely granted at all. As carefully explained here, there was no reason in the world for any reasonably informed person to have expected Bush to use the clemency power often, and there were plenty of reasons to have expected otherwise. The fact that Libby's case was "high profile," or that he was a "high-ranking official," or that he had "influence" and "connections" will not distinguish his case one bit through the lenses of history. Such factors are a dime a dozen in the world of federal executive clemency. Likewise, the fact that the commutation was granted before Libby actually began serving his prison sentence will be of little influence. Such decision making is certainly constitutional and not "unprecedented." Nor should it have been unexpected (see commentary here and here). So much of the "news" in this matter has been the by-product of ignorance and intellectual laziness.

What the Commutation Was Not: The reaction to Libby's commutation was as standard as standard can be, especially in situations where there are clearly no constitutional issues present. Public opinion polls appeared to suggest that, after considerable coaching by pollsters, a majority of the largely uninformed and non-caring public opposed a pardon for Libby (see commentary here and here). It will, of course, be a long time before any poll shows most Americans are in favor of a pardon for any recently convicted politico. But, even if one assumes the validity of such polling, scientific polling is a fairly recent invention and it would be no great task to recall instances of pardons which, at the time of the granting, were probably opposed by most Americans. More specifically, critics of Bush spewed out standard rhetoric suggesting the commutation showed "contempt" for the law, "undermined" our judicial system and violated the standard of "equal treatment" under the law. While some where were attempting to paint the President's action as incomparable, others missed the memo. They made the preposterous claim that, suddenly, "Libby Motions" would be popping up everywhere in the chambers of the federal judiciary because, of course, there are a zillion people similarly circumstanced in the nation's prisons. Some took it further and suggested Bush's commutation was, in some way, related to federal sentencing policy (see commentary here). While "Libby Motion" had a cute, sound bite quality to it, the strategy does not seem to have taken a primary place in the strategy books of defense attorneys (see commentary here and here and here). Nor is there any serious reason to expect that it will or - if it does - that it will have any appreciable impact.

Why it Matters Now: OK. With all of that said, who cares? Why does it (or should it) matter to anyone now? First, for whatever it is worth, one can be certain that every attempt will be made to make political hay out of the Libby commutation in the upcoming election (see commentary here and here). Second, Libby has not been pardoned and there are plenty of reasons to expect that he will be, either by Bush, or a Republican successor. Commutations are commonly followed by full, unconditional pardons, especially in high profile cases, or cases involving "prominent" persons (persons who might be more concerned about maintaining/rehabilitating their reputations). Third, as presidential administrations come to an end, efforts to obtain executive clemency increase (see comments here) and presidents generally respond (see comments here). If you are betting person, you expect Bush to use the clemency power more in the coming months. A Clintonian splurge ahead? Maybe not. Probably not. But, still, there is good reason to stay in touch with matters related to the pardon power.