Scooter Libby and the Presidential Pardon

So last week I was leaving a class and a classmate and I ended up discussing the results of the Scooter Libby trial with our professor. Our professor mentioned that conservatives were calling for President Bush to immediately pardon Libby; I was surprised, but mentioned that this is hardly the right time politically for such a thing as last week was one of the worst in the Bush presidency. The political fallout from such a pardon would be disastrous for a president already beset with myriad problems that just keep mounting up; even a lame duck has to maintain some credibility if he wants any of his agenda considered in Congress, let alone passed. Still, last Friday, I read the Charles Krauthammer column in the Washington Post calling for just such a pardon and started wondering about the nature of the pardon.

The Constitution grants to the president, “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” but why do we even have a system for pardoning criminals, and how should the president use that power?

It strikes me as fundamentally important that we have a system for pardoning criminals. Our legal system makes mistakes sometimes, and though we respect those criminals who go free unjustly, we have many ways to allow those who are accused unjustly to find their way back to freedom. Similarly, I think it says something positive about any society that it is willing from time to time to forgive even those who have actually committed crimes. Some mistakes, even those that violate the laws, can be overlooked because some of those criminals transgressed society accidentally, or in a way that they will not repeat.

There is no legislation beyond the brief clause in the Constitution that gives any direction to the power of the president to grant pardons. The Justice Department has an office dedicated to the examination of pardon appeals, and strict guidelines on how they recommend appellants to the president, but once the appeal goes to the president, he or she has exclusive authority to decide how to proceed. In no other realm of the operation of the government is the decision making power of the president so complete, unchecked, and beyond question.

Appropriately, however, Alexander Hamilton addressed the issue of the pardon power in The Federalist #74.

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

I tend to agree with Hamilton that mercy, if it is to be granted, is most expeditiously and appropriately invested in a single person. Particularly when instituted within the framework of a Justice Department division that aspires to make objective (rather than political or personal) recommendations to the President, a pardon can be an important part of a criminal justice system that may occasionally lose sight of justice in favor of precedent and procedure. The President is likely best for this job also in part because the legislature has to concern itself most with political pressures, and likewise the judiciary has an institutional interest in society accepting its precedential and procedural methodology. Only the President is sufficiently removed from such concerns to be a potentially effective arbiter of mercy and forgiveness (though presidents occasionally abuse this power). It’s not perfect, but if we are to have such a power in our government, that’s the right place for it to be.

Once vested in the President, how should the pardon power be executed? The Justice Department has guidelines for pardon appeals, but I wanted to consider what I thought independently of their guidelines. I see three purposes for the pardon power, though I imagine they have been used for more than just these three.

In the first use, the pardon power is used to correct errors when it’s obvious that the jury or appellate courts got cases wrong. Usually the criminal justice system housed in the judiciary is competent for dealing with these cases, but sometimes the courts are insufficient, or just too slow. It seems pretty straightforward that in these cases the decision to pardon someone both at once loses its implication of guilt (as says the Supreme Court and serves both the criminal and society by freeing an innocent person.

The pardon power should also be used in cases where mercy seems appropriate given special circumstances. The classic case for such a pardon for me would be abused women who attack or murder their abusive husbands. Juries surely should convict people for murder, but society should be willing to accept that such situations have special implications for the equality of women. There are many other cases, though, where we as a society can easily recognize that even criminals can deserve our mercy.

Relatedly, the pardon power should be used when society forgives someone for a crime. The best-known example of this is President Ford’s pardon of President Nixon in 1974. Many believe that a protracted prosecution of President Nixon for his crimes would have divided the nation, and that in this circumstance it was best for all of us to move on after a very tumultuous period; many others disagree on this particular case, but certainly there are some rare situations where this is necessary.

Of course, many pardons actually occur after the criminal has served his sentence. This falls most directly under the forgiveness pardon, and seems appropriate in many instances. The criminal in such a case believes that the crime committed was a fluke, completely inconsistent with his character, and wants to be able to move on. In such a case, it seems that the appellant would be obligated to jump through some hoops to prove his penitence; things like proving that he has committed no other crimes, promising not to commit more crimes, apologizing for the crime, and acknowledging that what he did was wrong all come to mind.

Is all this pardoning appropriate? Many of my friends are reluctant to pardon or grant forgiveness for any criminal because they find the punishment for crimes to be a solemn part of how society has to function. Indeed, even those Christian friends who strongly believe in forgiveness both as a path to grace and a way to overcome grudges prefer not to pardon criminals except in the rarest of circumstances or where new evidence obviously exonerates them. They also doubt that any repentant criminal is likely to be so honest in pronouncing their apologies and promises.

I tend not to be as reluctant. Particularly following execution of a sentence, I see no utility in condemning people, even convicted criminals, to a lifetime of ostracism. I have to believe that people can and do learn from their mistakes. I’ve made mistakes, some of them immense, in my life. My case proves nothing by itself, but I think is one of many that shows that people can improve their lives and overcome setbacks if they really want to. Even if this entire class of people is dramatically less likely than those reading this post to overcome their mistakes, I think we need to try to move together as a society and give of ourselves to help those who err.

There are, of course, objections, and the severest of crimes cannot be easily forgiven or forgotten, and in some cases should not be. And surely there is value in trying to find ways to deter future crimes by making the punishments for those crimes unbearable.

But with society so focused on vengeance as a synonym for justice, perhaps increasing the occurrence of mercy and forgiveness in society will help us to try to seek common ground, to find ways to recognize diverse (and often awful) situations leading to mistakes, and to treat our neighbors truly as ourselves. Even a small step in this direction would make me immensely happy.

So I say we should pardon Scooter Libby. Not now, but after he has completed his sentence. People should not lie to grand juries. In situations of such a high profile particularly, we need to show as a society that our legal system is sacred and should not be subverted toward political ends. But Mr. Libby deserves to be forgiven, as do many criminals, if not most of them. I cannot permanently hold a grudge against any of them for a crime from which they will hopefully learn a valuable lesson. We can strike a balance among deterrence, punishment, and forgiving mistakes.

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7 Responses to Scooter Libby and the Presidential Pardon

  1. Brando says:

    Kevin,

    Not so sure I follow the logic which suggests “Pardon Scooter Libby.” That is, unless you mean it in the sense that ‘we’, as societies members, should ‘forgive’ all those who fulfill their sentences, and are not actually suggesting Presidential Pardon.

    I do think you mischaracterize the Nixon pardon. That was not ‘society pardoning’ anybody. That was President Ford, in a very unpopular act, getting his predecessor off the hook. At best this was a wise move to remove a focal point of national shame, partisan conflict, and political disturbance based on the promise that in a few years the population would see the wisdom of it. At worst it was a shameless parisan coverup that happened to work out for the best. Since Ford was Michigan’s only President, I am willing to grant him the first explanation. I am not willing to accept this as an example of ‘society’s forgiveness’.

    I think that Presidential ‘forgiveness pardons’ should not be used on Mr. Libby. Or, rather, I don’t see how he is more entitled than nearly every other white collar criminal. But, this would radically debase the power of the forgiveness pardon as a symbol. This is usually used as a form of apology for imprisonment that is currently deemed unjust. I certainly hope that when Libby’s sentence is up, we, as a society, don’t feel it unjust to condemn someone for lying under oath in criminal investigations dealing with possibly betrayals of the public by the executive branch. Forgiveness, I would grant him, a pardon I would not.

  2. Kevin says:

    Brandon –

    That’s exactly what I mean. Presidents shouldn’t have to pardon people who’ve served their sentences; I think we’d be better off if we actually just did that automatically. However, society has elected the president to act on its behalf in these situations, and after Libby completes whatever sentence he is given, I think he should be pardoned. Just like I think every other criminal should be pardoned at some point after their sentence is complete. We put so much energy into hatred and vengeance that I don’t really buy that it’s doing anything useful.

    I certainly don’t see Mr. Libby as any better than any white collar *or* blue collar criminal. I think he’s a partisan hack who deserves to go to jail. What I really want is for Libby to get pardoned not by the President, or even the Republicans, but by liberals like us who hold him up as some kind of example of the evils of the Bush administration. Such hatred is unproductive and serves only to detract from more important discussions of policy.

    Society as it sits now forever condemns felons to a life apart from the rest of us. We need to forgive all these criminals, and move on. If that means that the President should pardon every criminal effective two years after the completion of their punishment, since there’s not currently another mechanism for doing so, I’m in favor of that, so long as he serves his sentence first. I want society to have disincentives for political hacks to cross the line into perjury. But I don’t want to dwell on it, either personally or as a society, because I don’t think it serves a useful purpose.

    As far as Nixon goes, I think that society *did* come to forgive Nixon *because* Ford pardoned him. At the very least, I think that’s how Ford justified it right up until he died. When Nixon died, did you hear anybody saying, “damn, he should have been in jail?” I didn’t. I’m not at all convinced that we were actually better off without Nixon being punished. I think it would have been a fantastic opportunity to prove that our President isn’t an elective monarch who’s above the laws. And really, my whole point with Nixon is that conservative folk really do believe that the Nixon pardon was forgiveness, and that it went beyond just Ford. The example isn’t the Nixon pardon itself, it’s the Republican interpretation of it.

    Thanks for the comment, though; I was hoping you’d respond. I’m eventually hoping to develop more thoroughly this idea of a less combative public discourse, which I know isn’t really your style, but I like it anyway. šŸ™‚

  3. Brando says:

    Kevin,

    I think that you conflate a ‘pardon’ with ‘forgiveness’ as being completely synonymous. Maybe they are synonymous, but for me they are not. I think our culture should be more forgiving, or at the very least, acceptant that a sentence is payment for a crime that once paid absolves that individual of the guilt. I don’t think that pardons, and particularly not ‘forgiveness pardons’, should be granted to those who complete their sentence. They already have all the benefits such a pardon could provide in most cases. You want cultural change, which I doubt that formal pardons can foment.

    As for your concern about less combative public discourse, I am in complete agreement. I think that partisan combat that comes from the strategic wrangling of partisans attempting to inflame and motivate the public is poisonous to Republican life. However, I draw a sharp distinction between hatred, malice, or combat towards others on the basis of groups ascription, belief, or ideas, and combat between different ideas themselves in the form of raw debate and argumentation. I can think your characterization of my position is shitty, without thinking you are shitty too.

    I often eschew social niceties in my conversations about ideas because I think they often conceal what one truely means. Sometimes, this is done to provide an escape by which one can take their failing argument, sometimes it is done to decieve themselves into thinking they mean something other than what their argument implies, and sometimes people are just conflict averse… But I think it rarely helps those engaged in discourse accomlish what deliberation is supposed to accomplish – movement towards truth. It is difficult to move towards some sort of resolution when one party or the other constantly shifts the grounds of debate, doesn’t accept the implications of their own argument, refuses to accept the incompatibility of different arguments, or is more concerned with not making anyone upset than having the discussion in the first place.

    So, less combative public discourse is exactly by style. Less combative argumentation about ideas is not.

    Therefore, I think you confused my positions – but I don’t think you are a confused individual.

  4. Kevin says:

    Brandon –

    Thank you for the clarification. I don’t completely agree that “niceties” in the discussion of issues are necessarily bad as I think they can often keep people from rejecting that argument for specious emotional reasons, but I definitely respect your viewpoint here, and agree completely that ideas are what matters, not group identification.

    And perhaps I do consider pardons and forgiveness to be synonyms to an extent beyond that which is commonly conceived, but I do think that forgiveness is an important part of a society that is able to have substantive policy and interpersonal conversations. Not that I think that either forgiveness or pardons are likely to be used the way I want them to any time soon.

  5. Brando says:

    Kevin,

    An academic aside, I don’t know how much you have read about ‘combative publics’ before, but there is a venerable (for political science) literature on the politics of divided societies and political conflict. If you haven’t, you must read (as a political science major) E.E. Schattsneider’s short and stimulating book The Semisovereign People. I think you will dig it. For a modern incarnation of that argument (although Schattsneider is. like, never cited) read Riker’s Liberalism Against Populism. Ethncially divided societies are, of course, the most predisposed towards these combative types of politics, and in the current world where most people think these questions have the most relevance. Early work on it by Shepsle and Rabuska, Lijphart, and Donald Horowitz are all interesting reads. Most importantly though, new literature on institutional design (a la ‘new institutionalism’) might give you more ideas about reducing combative political tendencies. Reilly and Pippa Norris both have books on institutions for reducing social conflict. Lijphart’s arguments move between an explicit concern with ethnic conflict, and conflict generally. His thinking might be a good place to ground your reading on the subject in political science since he grapples onto more classic political science themes (pluralism) and grafts them onto newer themes (institutionalism) such that most other research can be related and connected through Lijphart. At least, that was my strategy for comprehensive exams.

  6. Kevin says:

    Brandon –

    You’re my hero. I’ll put both those on my “to read” list, especially the Riker, since I know he’s so extremely influential and because you’re not the first person to have mentioned Liberalism and Populism to me – the estimable Dr. Schofield had something to say about him every other class, I think.

  7. Kevin says:

    Also, further adding to the geekness – I just realized that the late Dr. William H. Riker and Commander William T. Riker of the USS Enterprise share first and last names. I have to imagine that was intentional.

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