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July 02, 2007

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This is wrong in so many ways. I'm assuming we won't get much disagreement, and we already have a thread running so I hope you won't mind...

When was the last time there was a really, honestly, good Presidential pardon? One that almost everyone of good faith can look at and say "Yes, that pardon was a good idea"? I'm conservative in the sense that I hate changing things without reason, but if our overwhelming experience is that pardons are bad, would it be so awful to get rid of the Presidential Pardon power?

or even better, the modern executive

i'm serious about this -- not that we don't need an executive, but that the executive-as-structured is simply too powerful, too unaccountable, and has too much potential to screw things up.

we need to scale back executive powers rather drastically. who knows, maybe a parliamentary system. regardless, this isn't working.

on to tehran - nothing can stop us. certainly not law or the will of hte public

Seb: I was thinking of that, but it does seem to me that there are appalling miscarriages of justice for which pardons are a really good thing. (Genarlow Wilson.) (I mean, he's already done two years for consensual oral sex -- ??)

I wonder whether one might not have some system like: the President gets to nominate people for pardons, but -- insert here some august body of people with no further ambitions, maybe the collection of living ex-Presidents, or the living ex-SCOTUS justices -- would have to approve it.

SH: "When was the last time there was a really, honestly, good Presidential pardon?"

Ok, I asked you a similar question on the other (err, one of the other ...) thread.

Hilzoy correctly acknowledges in her first footnote that the President cannot pardon state criminal offenses, only federal.

But she gives back the brownie point in her second footnote, since Charles Manson is in STATE prison! (You might recall that Manson comes up for parole periodically, which tends to make the news; there is no parole in the federal system any more).

Steve:

Oh.

(Forgot.)

From the Corner:

"Thompson, who is on the advisory committee for Libby's defense fund, says he respects the president's decision to not pardon and is "happy" for Libby that he's not going to jail thanks to the president."

Ladies and gentlemen, your Republican establishment.

Sebastion: I suspect that the pardons the president issues which are, in fact, "good presidential pardons", simply don't make the news.

Clinton issued many, many, MANY pardons. The only one I clearly recall is the Mark Rich one -- because it was controversial. Apparently Bush himself has issued something like 100+ -- but I don't really recall any of them.

I think before ditching the power of the pardon, we should look at the data rather than relying on what amounts to a highly selective bias. We only hear about controversial pardons -- but that doesn't mean all pardons are controversial.

Me? I'd probably be happy with an amendment that restricted the power of pardons to criminals who were convicted prior to the date of his election to his first term. I might, if I was feeling generous, allow pardons for convictions after his election with a majority vote in the Senate to confirm it.

It would limit the power substantially, without making it totally non-responsive. True miscarriages of justice could be addressed swiftly with a joint agreement between the President and the Senate, and the conviction requirement AND the timing requirement would make it harder to use the pardon to cover up his (or his staffs) wrongdoing.

"I think before ditching the power of the pardon, we should look at the data rather than relying on what amounts to a highly selective bias."

I agree, but that is why I would love to see some good appropriate pardon stories. I actually looked at a lot of the Clinton pardons after the Rich one, I saw lots of ones that looked like personal or political favors. From my perspective, legitimate pardons should be spectacular in their own right--gross miscarriages of justice etc.

Once upon a time, I was in charge of processing pardon applications for our state parole board. It was a glamorous job, which largely consisted of sending letters to people like the sentencing judge and prosecutor asking if they had any comment on the pardon application. Sometimes I'd get back responses expressing outrage that we would even consider pardoning this awful individual; they didn't understand I was required by statute to solicit their opinion regardless of the application's merit. Other times I'd get a response saying that Judge so-and-so died 30 years ago, and that as the successor judge they didn't really have much to add. At the end of the day all these materials end up on the governor's desk and one of his attorneys makes a recommendation as to whether the pardon should be granted.

Adding to the surreal nature of my job was the fact that the governor was a Democrat who was so eager to appear "tough on crime" that he never pardoned or commuted a single person during his entire term in office. So it was a pretty futile process, but I kept on going through the motions like a good little functionary.

Maybe this wasn't the most interesting story, but I so rarely get the chance to talk about pardons.

"we need to scale back executive powers rather drastically. who knows, maybe a parliamentary system. regardless, this isn't working."

I think that a lot could be dealt with if Congress stood up for itself more. And impeachments of both the executive and judicial branches could be a lot more common than they are now.

Isn't that a pretty boat he's fishing from? Did you know those big ol' outboard motors cost $20,000? Each. God forbid that any of his friends should do a little time, like a criminal.

What a maggot.

His words mean nothing. He wouldn't recognize honor or dignity if they sat down next to him on the bus. He's a narcissistic child with the intellectual curiosity of a limpet, a heart the size of a pea, and a hollow empty void where his character ought to be.

Careful Hilzoy – they’ll ask you to front-page at FDL. ;)

OTOH your chosen photo is interesting. There’s something about needing 825 horsepower to go bass fishing that ain’t quite right.

OCS, the Secret Service's howitzer is kinda massive.

I'd restrict the pardon power so the President can only pardon people for offenses committed *before* his/her term(s) in office. That doesn't solve everything (Bush I still could pardon Iran/Contra folks, for instance), but it stops a President from letting people break the law for him/her and getting them off the hook.

If worded correctly, the law or amendment could restrict the President from pardoning any crime that was committed in his/her term as either President or Vice-President...

I'd set a time limit so that the President couldn't pardon anyone after, say, October 1 of an election year, through the date of the next inauguration. That would ensure that there's a chance for a pardon to have political ramifications, either against the President or against his party.

My proposal wouldn't change anything about the Libby pardon, of course, but it would avoid tawdry spectacles like the Clinton pardons. Recall that the entire reason we have a pardon power is that the Founders considered it a traditional prerogative of the sovereign; obviously kings, unlike presidents, never have occasion to pardon a bunch of people on their last day in office. (I don't think of kings as being particularly accountable, either, but I understand why the Founders might have taken a different view of that.)

The Editors compare and contrast with an even more appropriate Bush blast from the past:

I don’t believe my role [as governor] is to replace the verdict of a jury with my own, unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair.

The only one I clearly recall is the Mark Rich one

and Rich's lawyer in the case was... anyone? anyone?

cleek -- I know the answer. Someone who wrote a dreadful novel involving a bear...

I'm not sure I've ever seen a more brazenly unprincipled act by a president. To commute Libby's sentence but not his conviction is to acknowledge that you are giving special treatment to a properly convicted felon.

So what we have here is a case of one-off justice, Republican style. Libby, apparently, doesn't deserve to be treated the way the law demands that others be treated. He's special.

If the President thinks 30 months is too stiff a sentence for the crimes Libby was convicted of (and for which he showed no contrition), then he has a moral obligation to take the steps necessary to correct similar injustices that have occurred or will occur in the future. He should start reviewing all the sentences of people convicted of similar crimes and pushing for legislation to reduce the relevant sentencing guidelines. He won't, though. Apparently it's only unjust if it happens to Scooter.

Come to think of it, I wonder if there is any historical precedent at all for commuting the sentence (but not pardoning) of someone who has shown no contritition at all for committing the crimes of which he's been convicted. In the typical commutation case, the person admits to the crime and is sorry, but complains that the sentence was grossly excessive. Libby isn't that person. He still claims he's innocent.

No, it's only unjust if it's happening to someone who can rat you out. I doubt if Bush volunteered to do this.

The Editors compare and contrast with an even more appropriate Bush blast from the past:

I don’t believe my role [as governor] is to replace the verdict of a jury with my own, unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair.

I think that answers the micromanaging approach actually. Bush didn't replace the verdict of the jury with his own here. In fact, in his statement he's clear to say he respects the jury's decision. He saw this critique coming.

The best part about the Rich pardon is the partisan hit job the Republican congress did on Clinton after the fact - IIRC the report was none too kind to Scooter.

so, when does he "commute" the open-ended detention without charge of the dozens of people being held by the US ?

convicted felon: go free, no time served. fine paid by your rich friends.
uncharged nobody: tortured and held till the stars fall from the sky.

Orin Kerr:

...I find Bush's action very troubling because of the obvious special treatment Libby received. President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail. His handful of pardons have been almost all symbolic gestures involving cases decades old, sometimes for people who are long dead. Come to think of it, I don't know if Bush has ever actually used his powers to get one single person out of jail even one day early. If there are such cases, they are certainly few and far between. So Libby's treatment was very special indeed.

(Via Volokh comments - Investor's Business Daily is ecstatic:

We've suggested before that it would be a good idea to give Libby a full pardon. After all, he was found guilty only after what was clearly a politically motivated trial during which he was charged with covering up a non-crime.

Libby's life and career have been exemplary. Yet, for misremembering some comments he made to journalists, he got 30 months in prison — a grave miscarriage of justice if ever there was one.

[...]

Bush's political advisers no doubt told him any kind of leniency would have heavy political costs. So we congratulate him for commuting Libby's sentence, and hope he'll step up to the plate again when he leaves office and issue a full pardon.)

The problem isn't the Presidential power of pardons. The problem is, and has been, this particular President.

I know the GOP/Right has convinced itself there was "no underlying crime." But that's a talking point: everyone knows what Fitzgerald was investigating, and everyone knows the reason he wasn't able to find out who outed Plame was precisely because of Libby's obstruction of justice and perjury.

Let's put Libby in context, shall we?

Outing Plame wasn't in the same category as questionable finances, or personal favors, or rewarding convicts who happened to be political allies.

Plame wasn't "just" an NOC operative. She was an NOC investigating WMD capabilities and production. She was gathering information that is at least arguably vital to American security - and doing so in the context of the Bush Administration's neglecting the Non-Proliferation Treaty by not funding it, not following through on agreements to acquire nuclear materials from Russia and other former Soviet Bloc countries.

She had a network of informants, the fate of whom is unknown. She had information, the validity and fate of which is unknown.

Consider what Bush's foreign policy has wrought. He's alienated all of our Arab allies. He's done nothing to discourage, and much to encourage, Putin from re-launching Russia's nuclear programs. He (or Cheney, which amounts to the same thing) is pushing for confrontation and even military action against Iran for it's nuclear development program - a program about which we know very little, and what information is released is bound to be cherry-picked. He disavowed Clinton's treaty with North Korea, spent years being alternately indecisive and confrontational to North Korea, and wound up getting pretty much the same deal that Clinton got - but only after NK had already developed at least 3 nuclear warheads. He pushed for A Q Khan to be arrested while Pakistan's intelligence services were still trying to turn Khan so they would know how far his network extended - and now A Q Khan is back in business, with we-don't-know-who.

There is, in other words, scarsely a nuclear-capable or wanna-be capable country that is not more dangerous now than it was when Bush took office.

And the one intelligence operation that we know was monitoring such things the Bush Administration rendered useless, and ruined, deliberately and with malice aforethought.

That is what Fitzgerald was investigating; that is what he couldn't find the answers to because of Libby; and that is what Bush has just given the finger to.

When I look at the larger picture, I'm not at all sure outing Plame was merely to punish Wilson and to intimidate anyone else who effectively opposed Bush-Cheney. I have a sneaking suspicion that Plame herself was the actual target as well. I have a sneaking suspicion that Bush-Cheney, for any number of reasons, have wanted to effectively re-create a global struggle of some kind - and that actual, good information from networks such as Plame's were considered expendable.

If you want to know why the Libby case in general, and the commutation in particular, have riled people...that's why.

"The problem isn't the Presidential power of pardons. The problem is, and has been, this particular President."

I'm not going to argue for a second that there isn't a HUGE problem with this particular President. But I don't agree with the statement. The Rich pardon was deeply troubling. Since he never stood trial, it appeared to be special indulgence (parallel with the Reformation intentional) purchased by the very wealthy. The FALN pardons had the ugly appearance of a political gesture to get his wife elected. The pardon of Clinton looked like a personal favor. The pardons of Edgar and Vonna Jo Gregory and the separate Braswell and Carlos Vignali pardons look a lot like outright bribery. The Melvin Reynolds pardon looked weird. The McDougal pardon has at least the odor of personal payback that is very similar to the Scooter case.

At least at first glance, the pardon power looks bad even from a widely admired President.

Seb, none of the pardons you list involved blowing a national security asset, destroying an intelligence network, and - for all we know - getting people killed or imprisoned.

It also bears mentioning that Bush has issued far fewer other pardons than his predecessors, and has refused to issue pardons (or commutations) for egregious miscarriages of justice. There are hundreds of requests he has either refused or not even looked at... yet there he was, johnny on the spot, for Libby.

CaseyL: That doesn't mean those pardons were OK. Let's be evenhanded about this: Clinton seems to have issued some pardons he shouldn't have, even if arguably none of them were as bad as the Libby commutation. Liberals gain no credibility by trying to claim that Clinton was perfect, and the fact that Clinton had flaws doesn't redeem Bush's moral standing one iota.

I'm not saying Clinton's pardons were terrific, or that Clinton was perfect.

My point is that, while other Presidential pardons may have been infuriating, they didn't reward behavior that actively undermined our national security. There's a qualititative difference, here.

I would not change the President's power of pardon merely because some Presidents' choices infuriated me. But what Bush did is a whole other category of badness.

The original purpose of the pardon power was to enable the chief executive to overrule miscarriages of justice, and to reward the few who overcome their prior bad acts by demonstrating an extended commitment to responsible conduct and promoting the good of others.

In commuting Mr. Libby's prison sentence (for now, wait for a full pardon later), however, Mr. Bush shows his disdain for the rule of law and the process through which its failings are fairly corrected. George Bush used his power to protect his friend - despite his demonstrable bad acts - thereby perpetuating injustice rather than correcting it. He also has made it virtually impossible for a US Attorney to stand in federal court and demand a fair sentence for a convicted criminal.

Mr. Bush's action would be all too familiar to Idi Amin, Chairman Mao, Joe Stalin or Augusto Pinochet. He exercised power because he could, not because it was the right thing to do.

Well, would you look at that? The President does something utterly shameful and disgusting, and very slowly, Seb manages to shift the discussion onto how awful the Clenis is. I, for one, am shocked. I could not have predicted that Seb would do such a thing in a million years.

I know enough about at least two of the Clenis pardons to realize that Seb's characterization is...not one I would use if I were trying to be honest. If Seb plays his cards right, he can mix just enough truth with innuendo to necessitate a long argument about particular details from the 90s. We'll have a nice long thread, and, mysteriously, we'll stop discussing the fact that the current President is an immoral idiot, that he has, and continues to have, substantial support from other republicans, and that most rightwing publications continue to support him, no matter what he does.

Please forgive me for not jumping up to play this round of the game. I've watched republicans spend years just making up stuff about the Clenis and now Seb is regurgitating accusations from that same group of moral lepers.

Common Sense: "If Seb plays his cards right, he can mix just enough truth with innuendo"

Yo, back off. Your whole comment is way past the line.

Rilkefan, you are clearly right that Common's attack on Sebastian was over the line.

Sebastian, are you infuriated by this action by Bush?

If not, why not?

By talking about Clinton, are you arguing that presidential pardons often have something so bad about them that the constitution should be amended to correct the problem? If so, what change do you think is appropriate?

Is there some other reason that switching the conversation to Clinton seems appropriate to you now? If so, what is it?

Seb said he was outraged in the first comment on this thread. And common sense was over the line.

kid gloves... as a lurker, I don't see the same line, I see false equivocation and a devotion to a philosophy that has been failed by the events of reality. if that cannot be said, in whatever manner, then the discussion has favored decorum over substance. loves me some decorum.

I'm not defending Bush AT ALL. I think it should be obvious to just about everyone that this pseudo-pardon is awful. My point was, and is, that the pardon power seems to have attracted LOTS AND LOTS OF MISUSE. Not quite as awful as this particular case, but still lots of misuse.

"By talking about Clinton, are you arguing that presidential pardons often have something so bad about them that the constitution should be amended to correct the problem?"

Honestly do you people just not read my comments before you go off on me? In my very first comment I said: "I'm conservative in the sense that I hate changing things without reason, but if our overwhelming experience is that pardons are bad, would it be so awful to get rid of the Presidential Pardon power?"

Sheesh, I just can't catch a break around here. I thought that was pretty clear yet both Common Sense and J Thomas didn't get it. I think there is potentially something wrong with the way the pardon power in general works--beyond just how Bush uses it. In order to talk about that, you have to talk about more than just how Bush used it. I don't see how arguing that the pardon power has been often misused and that it should maybe be abolished can be spun into a defense of Bush.

I mean we could just have a ritualized Bush-hating thread if you want. But maybe in this particular instance we could do that plus other stuff.

Seb: Catch!

Ah. Using pointy brackets makes things vanish.

To repeat:

Seb: [throws break]: catch!

Thanks hilzoy. Sorry for generalized frustration on my part.

Seb: I'll trade you your frustration for my earache...

Seb,

We can certainly have a general discussion on whether to scrap the pardon power. I think you even started one. But then, for some reason, the only claims you made were that 1. Bush did something bad here and 2. The Clenis made hundreds of pardons based on bribery and all manner of crimes.

I'm sorry, but I can't give you much credit for 1. At this point, anyone who is paying attention has to stipulate to 1 in order to be taken seriously.

As for 2, I believe you have deliberately presented information about the Clenis' pardons in a prejudicial manner not warranted by the facts. You no doubt disagree. I've watched you argue about Clinton's pardons on other threads, and, to be honest, you failed to convince me then.

In any event, you began today by having an abstract discussion about the pardon power and then quickly switched to Clinton bashing. You didn't make any claims about Bush's other pardons (and there's useful information out there, starting with Kerr's comments). You didn't make any claims about any other President besides Clinton. Nothing about Iran Contra; nothing about Nixon or Ford. Only Clinton. And I don't believe your claims about Clinton are true. You can make any argument you want of course; I'm not saying that you had to discuss Nixon. But if a poster with your specific history regardind the Clenis chooses to ignore many cases to focus on the Clinton cases, then it looks like a clear case of misdirection to me.


I never accused you of defending Bush. Really, there's nothing you can do there anyway. But you can misdirect. You can push the conversation away from the vast moral sinkhole that is the modern republican party. And you did do that. You reissued a number of accusations were originally made by incredibly immoral people.

FTR, I don't think you were acting in bad faith (although obviously I can't speak to what goes on in your head). I do think that you like to repeat lots of Clenis claims regardless of their veracity. Reviewing my original comment, I can see how one might think I was accusing you of bad faith. I regret that; it was not my intent. I'm going to assume that imputing bad faith was what was "over the line", mostly because neither you nor hilzoy actually said. If I'm mistaken there, please let me know.

Hilzoy-

A couple years ago, when the FISA scandal first broke, you suggested that it was sufficient for impeachment and I disagreed. As of today, I've officially changed my mind on whether a cost-benefit analysis favors impeachment.

Sorry, unclosed link.

Sebastian, thank you! I had forgotten what you said at the beginning and didn't look through the thread to find it.

Putting aside specific issues about Bush and Clinton, what changes in the law would be best? I've seen suggestions that pardons only be allowed for victims who predate the particular president's tenure. That's one solid way to deal with the problem of protecting a criminal president's henchmen. But sometimes pardons have a good effect. Someone who truly needs a pardon who starts needing it on a president's second day in office might have to wait 8 full years for the next president, with a miscarriage of justice that everybody can see. (But then, he has 8 years to appeal.)

We could find a way to restrict pardons to people who clearly aren't henchmen. But that wouldn't help with presidents who accept bribes or whatever to pardon people who don't deserve it.

Of course, if we could prove the bribe we could impeach a president for it, couldn't we? Isn't bribery an impeachable offense? Yes. "treason, bribery, or other high crimes and misdemeanors." But it would have to be proven, which can be very hard. Our legislators do a lot of things with a system of informal "favors".

Would it be OK to allow the president to pardon random criminals if he wants to, but not people who might somehow implicate him? How to word that? He can't pardon government employees? But it isn't just official government employees who're his henchmen.

Also, government officials may sometimes be the ones most in need of pardon. Say you catch a terrorist who's about to nuke LA, and you torture him into revealing the bomb, and then you go to jail for the torture. The president ought to be able to pardon you, as a special case, when you broke the law and saved millions of lives.

I dunno. Maybe it's best to just get rid of the pardon altogether. But if we could find a limitation that worked that still let some of the good pardons go through that would be better.

On another forum I proposed this:

The constitution of the United States shall thus be amended:

1. The president may pardon only specific persons for specific crimes that they have been convicted of.
1a. Preemptive pardons and/or pardons that do not exactly specify the crime they apply to are nil and void.

2. Pardons shall not be given for crimes comitted by or on behalf of members of the executive branch without the consent of the US senate expressed by a majority of 60% + 1 vote.

Bush: I am the commuter! ;-)

I finally was shown an example of the proper use of a pardon (from a CrookedTimber thread): "Gerald Ford pardoned Iva Toguri D’Aquino, the woman convicted (on the basis of perjured testimony) for treason as Tokyo Rose."

Hartmut -- I like that.

This has me so cheesed off right now. I just had a client go down for 6 months on a shoplift (admittedly he did have a few shoplift priors). Yet this rich [explative deleted], who will have his fines paid by other rich [explative deleted], not to mention that Libby's position on the wingnut welfare rolls is assured for life, skates with no jail on 4 federal felonies.

And Bush can spare me the [explative deleted] about unjust sentence. At the same time those GOP bastards want manditory jail for everyone (except Libby and, presumably other rich [explative deleted] like him). I'm not going to hold my [explative deleted] breath for Bush to revisit the sentnecing guidelines.

And the most galling thing about this is that the clueless, pampered, cocktail weenie-eating, martini slurping useless [explative deleted] idiots of the DC courtier class will go on endlessly saying how Bush, sigh did the right thing and found the middle ground between a pardon and following the [explative deleted] law. Where's my [explative deleted] pitchfork?

Personally, I'm not willing to rewrite the Constitution to exclude Presidential pardons because particular Presidents abuse it. In general, when they do abuse it, they do so to repay personal favors. I'm just not going to lose sleep over that one.

It's crappy that Bush has commuted Libby's sentence. It's crappy because his perjury deserved something more than probation and a fine, it's crappy because it removes any levers Fitzgerald or others may have been able to apply to Libby to move whatever tiny shred of an investigation remains forward, and it's crappy because it's one more example of a guy who foisted this crappy war on us based on lies getting a pass.

All of that said:

In the big picture, Bush's commutation of Libby's sentence is small beer. It's also no suprise.

There are far bigger fish to fry. Eyes on the prize, everyone.

Thanks -

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