Scooter Libby’s unforgivable pardon

Justice is a highly variable quantity under President George W. Bush. If you’re on death row, you can forget about asking for clemency – he has been extremely reluctant to interfere to protect even mentally retarded offenders. If you’re in Guantanamo Bay, facing a trial process that the Supreme Court previously overturned and which the US refused to apply to its own citizens, then tough. But if you’re a buddy of the President’s, and get caught lying to protect your boss and Dick Cheney, then suddenly the tough guy who oversaw 152 executions in Texas – a modern record for a State Governor – is all heart.

The very idea that a political leader could interfere to protect a buddy seems astonishing in Australia, but it’s very much part of the English tradition. (The Queen recently posthumously
pardoned all British soldiers who’d been executed for cowardice in World War I, for example.) And the “royal pardon” arose for sound reasons, because it is commonly recognised that the strict application of any justice system can, on occasion, produce unjust results. And yes, sometimes sentences are too harsh, and
sometimes it seems right, after a period of time, that a criminal be deemed to have paid their debt to society and be released. (For instance, there’s this guy called David Hicks…) It’s unlikely, though, that when the legendary founding fathers who drafted the US Constitution and, in their boundless wisdom, decided to preserve this noble mechanism for clemency, they intended for George W. Bush to let off a buddy who’d gotten busted doing his dirty work.

Rather, George Bush’s decision to pardon the jail sentence of his colleague Scooter Libby revives an alternative element of the pardon tradition – the dodgy reprieve given to royal buddies. (And the Bush dynasty does bear some resemblance to a hereditary monarchy these days.) Because of a history of abuse, some anti-federalists opposed the inclusion of the pardon power in Section 2 of the Constitution, but it was ultimately successfully defended by
Alexander Hamilton.

Looking at how the pardon has been used by Presidents can’t help but make you sympathetic to the critics’ perspective. Bill Clinton’s controversial pardon of Marc Rich, a fugitive whose ex-wife had donated large amounts to the Democratic Party, was slammed in many quarters. (In an astonishing coincidence, Rich’s attorney for over a decade was none other than Scooter Libby.) And Gerald Ford’s decision to pardon his former boss, Richard Nixon, over Watergate has attracted criticism ever since because cynics presumed that Nixon was pardoned in
return for resigning the Presidency for Ford.

Lewis “Scooter” Libby was convicted for perjury, obstruction of justice and making false statements to federal investigators. He tried to frustrate the investigation into who had smeared Valerie Plame, the CIA agent whose husband had criticised the Bush Administration over Iraq. Libby was the Chief of Staff of Vice-President Dick Cheney, and a counsel to the President. And that’s what makes his pardon so galling. No judge or juror is allowed to hear a trial if they have a personal connection to the accused. Even the slightest intimation of bias on the past of former Justice Lionel Murphy was enough to end his judicial career. So really, how, after an exhaustive, independent process determines that a party is guilty, and an appeal that fails, can a President be allow to intervene because he doesn’t want his buddy to go to jail? It’s an abhorrent result, especially in a nation that is only too happy to lecture other nations about their judicial processes.

The US needs to change its pardon law so that the President cannot pardon anyone where there is a clear personal connection. Those cases should be rerouted to an independent body. Whether or not Nixon, Rich and Libby deserved pardons is too exhaustive an issue to go into any further, but even if they did, the Presidents who signed them were clearly in no position to independently assess that decision.

As one critic has pointed out, Madison himself – the chief defender of the pardon power – recommended impeachment for Presidents who pardon those who commit crimes in their service. But it’s hardly surprising that Bush signed this pardon, though, and not just because we have become accustomed to expect sickening acts of cronyism from this President. The major check on a President’s political decisions is public opinion, and that’s already long gone in the final stages of a lame-duck Presidency. At this point, Bush has little to lose..
I’m glad that George Bush is a loyal friend, even if only for John Howard’s sake, but too often this has led him into serious errors. The choice of his personal lawyer, Harriet Miers, for a Supreme Court vacancy was appalling enough, and his old Texan buddy Alberto Gonzales’ time as Attorney-General has been a disaster. That Bush simply overturn a 30 month jail sentence, though, is simply indefensible. If a President can pardon anyone who breaks the law to protect him, an administration cannot be called to account except by the lengthy and partisan process of impeachment. Unfortunately, the admirable override system that is supposed to prevent unjust outcomes has itself created one.

Photo: AP