March 7, 2007
The Growing Libby Pardon Debate
The ink on the jury's verdict in the I. Lewis Libby prosecution was hardly dry before the issue of whether President Bush should issue a pardon came to the forefront. The Wall Street Journal's print edition for March 7 has only two news stories on the Libby case, one primarily devoted to the pardon issue and another on the lesson to be taken from the trial about asserting the Fifth Amendment rather than testifying or speaking with investigators. There was hardly any direct coverage of the verdict of the type seen in other major newspapers like the Washington Post or New York Times. Interestingly, the Journal has as many editorials calling for the issuance of a pardon, one called "The Libby Travesty" and the other an op-ed by Professor Ronald Rotunda arguing "The Case for a Libby Pardon." Professor Rotunda writes, "Among the unhappy precedents if the Libby verdict stands: Executive branch officials will hide from the press, which is unfortunate because "leaks" can be an important check on all three branches of government. And even innocent officials will not be forthcoming when it comes to cooperation with future prosecutors. ('I don't recall . . .') Perhaps the worst precedent would be normalizing the criminalization of policy differences. Many of those who loudly demanded Mr. Fitzgerald's appointment -- and who applauded yesterday's verdict -- offered no more compelling reason than that somebody should pay for the Bush administration's decision to go to war in Iraq." It is interesting that the Journal's coverage seems to be so heavily slanted toward the pardon issue, at least in the print edition, and I suspect the editorials were written well in advance of the jury's verdict.
The usual procedure for a pardon is to file a request through the Department of Justice's Office of the Pardon Attorney. Under the Rules Governing Petitions for Executive Clemency § 1.2, "No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release." Under this provision, Libby would not be eligible to go through the DOJ's normal pardon process at this point because he hasn't even been sentenced, much less served any punishment imposed for the conviction (assuming it is upheld).
Of course, Libby is not limited to the Pardon Attorney process, and the Rules note that they are only an internal procedure and do not "restrict the authority granted to the President under Article II, Section 2 of the Constitution." Presidents have granted pardons outside the normal channels, particularly in cases involving senior officials such as those involved in the Iran-Contra affair pardoned in 1993. President Clinton's pardon of Marc Rich in 2001, which was also outside the usual DOJ procedure, even triggered a brief grand jury investigation regarding whether it was obtained improperly.
One of the benefits of using the Department of Justice to vet an application is that it provides a President with some cover because the decision to grant (or deny) a pardon is done by an objective review procedure. For President Bush to pardon Libby, it will require him to take full, direct responsibility for a decision that will be made outside the normal process. To this point, the Administration has granted a relatively small number of pardons, and all of those have been done through the Pardon Attorney procedure. An interesting question is whether a pardon at this point would serve Libby's interests so long as the appeal process for his conviction remains open. While Libby and his attorneys have proclaimed his innocence, would a pardon now be viewed as some type of acknowledgment that he is guilty of the crime and is simply spared any punishment? (ph)
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