Excerpts: House Hearings on the Commutation of Scooter Libby's Prison Sentence

In the aftermath of President Bush’s commutation of I. Lewis Libby’s 30-month prison sentence, the U.S. House Judiciary Committee conducted a hearing in which some testimony invoked references associated with the history of the presidential clemency.  Excerpts follow.

Roger C. Adams, Pardon Attorney, Department of Justice
 
I am here today at the Committee’s request to describe the process of the Office of the Pardon Attorney follows in carrying out the Department of Justice’s responsibility to assist the President in the exercise of his clemency power.  I might note initially that this is something the Department has done for over 100 years.  Since at least the administration of William McKinley, the White House has usually relied on the Department, and specifically the Office of the Pardon Attorney, to receive, investigate, and make recommendations on clemency requests, and to prepare the documents the President signs when granting a pardon or a commutation of sentence.  I say “usually,” because the President is always free to grant clemency without the involvement of the Office of the Pardon Attorney or anyone else in the Department of Justice. …

Professor Douglas A. Berman, William B. Saxbe Designated Professor of Law, Moritz College of Law, Ohio State University
 
There is a sad personal irony to my criticism of President Bush’s decision to commute Mr. Libby’s entire prison sentence. Almost exactly a decade ago, I was critical of then-Governor Bush’s decision not to commute the death sentence of one of my clients, Terry Washington. Mr. Washington was a poor, African-American man who suffered from mental retardation and was sentenced to death in Texas after his conviction for killing a co-worker. Along with other lawyers at a large law firm, I served as Mr. Washington’s pro bono appellate lawyer, and I drafted a clemency petition on Mr. Washington’s behalf. In addition to noting the mistakes of Mr. Washington’s appointed trial lawyer, the clemency petition stressed the severe abuse that Mr. Washington suffered as a child and his significantly diminished mental capacities. In May 1997, then-Governor Bush denied our request to commute Mr. Washington’s sentence to life in prison, and the state of Texas executed Mr. Washington. …
 
Executive clemency power has a rich and distinguished history. The Framers of our Constitution robustly championed executive clemency power. At the time of founding, Alexander Hamilton stressed the importance of clemency in the Federalist Papers, emphasizing that “[t]he 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.” Similarly, James Iredell of North Carolina championed the crucial nature of the executive clemency power, explaining that “there may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice.”
 
Of course, one need not look back hundreds of years to find praise for the executive power of clemency. The late Chief Justice William Rehnquist, writing for the Supreme Court, spotlighted that executive clemency power is “deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice.”  Such a power is essential, continued Chief Justice Rehnquist, because “[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible” and thus executive clemency provides “the ‘fail safe’ in our criminal justice system.”
 
Unfortunately, in modern times, the “fail safe” of executive clemency has been failing to effectively serve the ends of justice that the Framers emphasized. Perhaps because only the most troublesome grants of clemency generate media attention and legislative hearings, executive officials often sensibly conclude that they will never face serious criticisms for failing ever to exercise their historic clemency powers, but will always face scrutiny for exercising this power. These political realities have led a Supreme Court Justice and leading scholars to lament that the clemency process has “been drained of its moral force” and that the important concept of mercy has lost its resonance in modern times. The diminished state and perception of executive clemency is quite unfortunate, especially because I believe the Framers would view an executive’s record of denying all clemency requests to be a matter of embarrassment rather than a point of pride.
 
For these reasons, I sincerely hope that his hearing and the work of this Committee will not begin any effort to limit or diminish executive clemency power, but rather will result in efforts to revive and restore this power to its historically important and respected status. …
 
David B. Rivkin Jr., Partner, BakerHostetler, LLP.

Second is the criticism that the commutation of Mr. Libby’s sentence, imposed after the jury found him guilty of perjury and obstruction of justice, somehow evinces disregard for the rule of law or, at the very least, trivializes what are properly considered to be serious violations of federal law.  Let me stipulate that perjury and obstruction of justice are indeed major transgressions and ought to be taken seriously.  By the same token, the very nature of the pardon power presupposes the President’s ability to pardon individuals convicted of serious violations of federal law; there is no suggestion in the Constitution that only minor offenses ought to be a proper subject for the exercise of the pardon power.

More fundamentally, I believe that the pardon power, when properly deployed, advances the cause of justice. The Framer’s understood that justice under the law, the justice of rules, procedures and “due process”, while important to our system of “ordered” liberty, is not the only conceivable form of justice. They wanted the political branches to render a different kind of justice, driven by the considerations of equity and not by rules. It is the closest we come today to what the Founders would have called the natural law-driven justice. The President’s pardon power is one example of such justice; the ability of Congress to pass private bills, which sidestep the rules governing immigration or land acquisition, is another.

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