Still Guilty
I suppose that I could argue I was correct in my prediction that the Prez would probably not pardon Scooter. Even now, Scooter remains unpardoned. Instead, Bush commuted his sentence. That's an odd decision. Scooter remains a convicted felon. He's still guilty as charged. The Prez is saying, "Yes, he lied to a jury. Yes, he obstructed justice. But those aren't crimes that deserve prison time."
This is an interesting turn. There's no obstruction of justice if there was no crime to be covered up. By respecting the jury's guilty verdict, Bush tacitly acknowledges that Scooter lied to keep a crime from being uncovered. We can speculate as to what that crime was, but Bush effectively admits that, yes, Scooter was dirty.
The Washington Post can't pin down exactly what part Cheney had in the decision. Somehow I get the feeling that he was doing more than just sitting in the corner keeping his fingers crossed. According to the Post, the Prez kept this one pretty close to the vest. He didn't consult the Justice Department, and he certainly didn't check with Patrick Fitzgerald to get his opinion.
Will Bush have some sort of price to pay for all this? That same Post story says he doesn't think he will. The Dems will be mad anyway, and at least this way, he was able to make some of his base happy. It's not clear if he'll get off scott free, though. Joe Wilson accused the Prez of actively joining the obstruction of justice. Back in March when Scooter received his guilty verdict, CNN found that 69 percent of Americans opposed a pardon, while only 18 percent supported one. Will the public respond to Scooter getting off with less time than he deserves in a manner similar to how they took on Paris Hilton? Somehow, I doubt it, but I can dream, can't I?
posted by Doug @ 1:47 AM
6 comments
6 Comments:
America's memory is way shorter than this. Who was Scooter Libby again?
The commutation allows Libby to continue to pursue his appeals. If he's successful, Bush gets to say "See! I was right to keep this poor, put-upon fellow out of jail. Justice has prevailed." If the conviction is upheld .... well, there's no reaosn Libby can't be pardoned at that point.
Damn, my legal argument is totally derailed by someone who actually went to law school. So despite the arguments that Bush is usurping the justice system, Jason, do you see this as his attempt to keep justice on track but save Scooter from a little unpleasant jail time?
Given how much grief he's getting from the right for not going all the way to pardon him, I'd imagine that any question of whether he'd be pardoned or not has pretty much fallen by the wayside.
In order for Mr. Libby to accept a pardon, he would have to admit his guilt (you can't be pardoned for a crime you didn't commit). Mr. Libby would also no longer have a Fifth Amendment right to avoid testifying about what he did, and could therefore be hauled back before a grand jury by Mr. Fitzgerald (extremely unlikely) or before a Congressional committee (extremely likely). Finally, since the commutation preserves Mr. Libby's right to appeal -- an appeal that he is pursuing -- the administration can stick to their existing position on Plamegate: "We can't comment on this because it's an ongoing matter for the courts."
Call me a cynic, but I don't think "keeping justice on track" is a particular concern of the president's in this matter.
(On the other hand, I'm not so cynical that I didn't add "in this matter" to my last sentence.)
On rereading the "keep justice on track" line, I realized that it was a much more loaded phrasing than I'd intended. I'd actually meant to ask if it seemed to you that Bush wanted to appear as if he wasn't interfering with actual "justice" in the case, which would allow him to argue that he wasn't preventing the courts from examining the legal issues. As it's been pointed out elsewhere, though, this certainly lowers the incentive Scooter might've had to change his story and deal with the prosecutor at a later date.
As a complete aside, though, how did the requirement to admit guilt in order to accept a pardon work in the case of Richard Nixon? As I recall, Ford gave him a "blanket pardon" for any crimes he committed or "may have committed." We still don't know the precise details of Nixon's criminal activity.
I'm not sure how it worked with President Nixon. Pardon law is relatively undeveloped. The key case is called Burdick v. United States, 236 U.S. 79 (1915).
Burdick was a reporter for the New York Tribune investigating customs fraud. He was put before a grand jury by the U.S. Attorney, who wanted to prosecute the Treasury officials who were committing the fraud, but Burdick refused to reveal his sources -- and doesn't that sound a little familiar? Burdick asserted his right against self-incrimination under the Fifth Amendment.
In order to get around this, President Wilson simply pardoned Burdick for any crimes he may have committed in the course of his investigation. Burdick was hauled back before the grand jury, where he refused to accept the pardon and continued to refuse to testify. He was found in contempt and fined $500.
The case made itws way to the Supreme Court, which upheld Burdick's right to refuse to testify under the Fifth Amendment. It wrote that "[a pardon] carries an imputation of guilt; acceptance a confession of it."
So I think the answer is that if some enterprising prosecutor had indicted Presidnet Nixon, he would have had to assert the pardon as against the particular crime for which he was indicted, and that assertion would have served as an admission of guilt.
That said, in 1999, President Clinton issued the first posthumous pardon on the federal level -- he pardoned Lt. Henry Ossian Flipper, who was the first African American graduate of West Point and was court martialed for conduct unbecoming an officer in 1880. The Flipper pardon called into question the whole Burdick framework -- how can a dead man accept a pardon? -- but Burdick has not been overturned, and can probably still be considered good law if you consider the Flipper pardon as being symbolic.
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