There are "special" Americans and then there are the rest of us

Much as been said about George Bush’s commutation of the sentence of Scooter Libby (not to mention his likely future pardon) and hopefully this is only the beginning. This act illustrates so much about both the constitutional problems with the power of the presidency and especially about corruption of this administration in particular. This was not merely special treatment for a special defendant that runs contrary to this administration’s position on sentencing everyone else – in other words, there are “special” Americans and then there are the rest of us – but this likely indicates Scooter Libby knew before the prosecution he would never be held accountable for any crimes committed on behalf of this administration.

Josh Marshall at Talking Points Memo sees this as what was necessary to keep Libby quiet:

There is a conceivable argument --- a very poor one but a conceivable one --- for pardoning Scooter Libby, presumably on the argument that the entire prosecution was political and thus illegitimate. But what conceivable argument does the president have for micromanaging the sentence? To decide that the conviction is appropriate, that probation is appropriate, that a substantial fine is appropriate --- just no prison sentence.

This is being treated in the press as splitting the difference, an elegant compromise. But it is the least justifiable approach. The president has decided that the sentencing guidelines and the opinion of judge don't cut it.

The only basis for this decision is that Libby is the vice president's friend, the vice president rules the president and this was the minimum necessary to keep the man silent.

Sanford Levison views this is the larger context of the abuse of the power of Presidents to pardon or commute:

…. The most obvious point is that Mr. Bush has been notably uncompassionate in his use of his pardoning power in his first six-years in office; moreover, as Governor of Texas he exhibited almost blithe disregard--enabled, to be sure, by his lawyer Alberto ("Fredo") Gonzales--of the poor wretches condemned to die under a notably slipshod system of Texas criminal justice. And, of course, one might note the silence of the President with regard to draconian enforcement of immigration policy that regularly breaks up families because a (legal) resident alien committed a quite minor crime (usually involving drugs) some years ago or because immigration officials conduct roundups of suspected illegal aliens. Mr. Bush's "compassion" for convicted felons is extraordinarily limited, so one obviously wonders what makes Mr. Libby so special.

…. Interestingly enough, if one reads the so-called "anti-Federalist" papers, collected together some years ago in a magnificent edition by Herbert J. Storing, one discovers that a number of the opponents of the Constitution were quite concerned by the power to pardon. George Mason, a distinguished Virginian who refused to sign the Constitution, noted that "the President of the United States has the unrestrained Power of granting Pardon for Treason; which may be sometimes exercised to screen from Punishment those whom he had secretly instigated to commit the Crime, and thereby prevent a Discovery of his own guilt." Luther Martin, another non-signatory, also objected to the potential "attempt [of the President] to assume to himself powers not given by the constitution, and establish himself in regal authority; in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution."

No one, of course, believes that Mr. Libby committed Treason; indeed, his most ardent defenders view him as attempting to save the Republic from the like of Joseph Wilson. But, just as obviously, Mr. Libby was convicted of perjury after an extensive trial, and the judge quite justifiably thought that Mr. Libby's actions demonstrated utter contempt for what the Constitution calls a "Republican Form of Government." Even if one agrees with President Bush that 30 months was "excessive," it is obviously a logical fallacy to assume that the alternative to 30 months is not a single day. More to the point, it is altogether tempting to put the pardon within the framework set out by Mason and Martin: The best explanation of the pardon is not compassion but, rather, fear that Mr. Libby might be tempted to provide more information about the cabal to turn the presidency (and vice-presidency) into "regal," if not out-and-out dictatorial, authorities totally independent from any scrutiny or accountability. This is simply one more illustration of the mendacity and corruption at the heart of the Bush Administration (and, therefore, of the present American system of government).

No one should doubt that we are in a constitutional crisis. And part of the crisis can be found within the Constitution itself. Perhaps it is a good idea that the President can pardon (or commute) convicted criminals. This is the notion that justice should be tempered by mercy. But it is also clear that the pardoning authority can be abused by unscrupulous presidents. Bill Clinton, of course, was roundly criticized for his last-day pardon of Marc Rich, though no one can seriously believe that high issues of the polity were involved. …. As with so much of the Clinton presidency, the act was tawdry but unthreatening to a Republican Form of Government. Mr. Bush's commutation, is such a threat, unless, of course, one defines a "Republican Form of Government" as "Government by the Republican Party." It will be interesting to see if any of those who look to the Founding Generation for wisdom about current realities will give any credence to the timely warnings of Mason and Martin (and others) about the potentially cancerous consequences of the Pardoning Power.

Andrew Sullivan sees it as part of a pattern of abuse of power:

We now have a clear and simple illustration of the arrogance of this president. Tell the American people the core narrative of this monarchical presidency: this president believes he is above the law in wiretapping citizens with no court oversight; he has innovated an explosive use of signing statements to declare himself above the law on a bewildering array of other matters, large and small; he has unilaterally declared himself above American law, international law, and U.N. Treaty obligations in secretly authorizing torture; he has claimed the right to seize anyone in the United States, detain them indefinitely without trial and torture them; his vice-president refuses to abide by the law that mandates securing classified documents; and when a court of law finds a friend of the president's guilty, he commutes the sentence.

Most Americans find this blatant abuse of power repugnant - war or no war. Many find the way in which the commentariat has been coopted in defending this lawlessness to be equally repugnant. When a governing class declares itself collectively above the rule of law, and does so with open contempt for the judicial system, it's time that elite was brought down a peg or two. I think Bush just gave the country a simple reason to rid Washington of him and all he stands for. We will now see exactly what character Americans are made of: supplicants of a feather-bedded aristocracy or self-governing citizens under the rule of law?

And, of course, there are Keith Olbermann’s thoughtful comments on how the Bush administration has again let the American people down. (The transcript can be found at Crooks & Liars.)

This administration believes it has tenure and can act in total disregard of the American people. Unless Congress is able to relieve the United States of this burden we can look forward to more of these kind of antics until January 2009.