A Pardon for Libby?

For anyone still paying attention to the Bush administration, that is the big question. Time is running out for President Bush to grant “Scooter” Libby a full pardon. Recall that the President commuted Libby’s 30-month prison sentence to zero time in July 2007. Speculation has continued that Bush might clear Libby completely on his way out the door before noon on January 20.

A Libby pardon, however wrong it might be, would not be the first time that a lame duck president pardoned an executive branch official who was implicated in serious wrongdoing. Indeed, this kind of action has become increasingly prevalent in the modern era.

Prior to Watergate, presidents had generally avoided using clemency to forgive aides or allies caught up in investigations into the executive branch. A brief look at a few key scandals bears out the point.

The Whiskey Ring was a Grant-era scandal that swept up the President’s close aide and personal secretary, Orville Babcock. Convinced of Babcock’s innocence, Grant vouched for him in a deposition at Babcock’s trial which, historians agree, saved the defendant from conviction. Grant later pardoned several major Whiskey Ring figures. Had Babcock been found guilty, it is reasonable to guess that Grant might have pardoned him, too.

Grant’s behavior in the Whiskey Ring – the first scandal in which an outside prosecutor investigated the executive branch – became the exception that proved the rule that was to follow: later pre-Watergate presidents did not interfere with outside investigations by pardoning scandal-tainted figures.

Decades later, President Theodore Roosevelt assumed a “hands off” approach and allowed a special prosecutor to thoroughly investigate the Oregon Land Frauds. Roosevelt kept his powder dry even while fellow Republicans Oregon Senator John H. Mitchell and U.S. Attorney John H. Hall were prosecuted – in the end, Roosevelt did not pardon them.

The Teapot Dome oil lease scandal of the Harding administration broke during the Coolidge years and snared Albert Fall, the Interior Secretary who became the first Cabinet member convicted of a felony committed while in office. Presidents Coolidge and Herbert Hoover (Hoover had been lobbied by friends of Fall) passed on pardoning him.

Harry Truman’s appointments secretary joined another Truman friend, an Internal Revenue collector, as subjects of the Income Tax Scandal of the 1950’s. Truman did not pardon any of the major figures himself, but took special pains to persuade Presidents John Kennedy and Lyndon Johnson to pardon these two allies.

Perhaps the most famous clemency decision ever made, Gerald Ford’s pre-indictment pardon of Richard Nixon, seemed at the time to be cronyism run amok: a president pardoning his predecessor before any legal process had begun. Still, the public eventually saw things Ford’s way: under the circumstances, it was viewed as the right thing to do.

One legacy of Watergate, the independent counsel statute, created an opening for presidents to cry foul when investigated by an outside prosecutor. By claiming to be victims of politically motivated witch-hunts, post-Watergate presidents have enjoyed political cover to use clemency to end investigations into executive branch wrongdoing.

Both Jimmy Carter and Ronald Reagan resisted the temptation to abuse clemency to protect their friends or associates. President George H.W. Bush did not. He pardoned six Iran-contra defendants, one of whom (former Defense Secretary Caspar Weinberger) was about to stand trial. The pardon essentially ended the Iran-contra investigation and virtually assured that Bush himself would never have to testify about the scandal.

Bill Clinton pardoned Puerto Rican Nationalists apparently to earn his wife and vice president votes in New York, and pardoned his half-brother, Roger, as well as fugitive financier Marc Rich, whose ex-wife had donated almost a half million dollars to the Clinton Library. Still, credit where credit is due: he did not use clemency to end an investigation into executive branch malfeasance.

All of which brings us to Scooter Libby. Here, Bush did not need to claim mistreatment by special prosecutor Patrick Fitzgerald or bias by Reggie Walton, the judge in Libby’s trial (both Bush appointees). All Bush had to do was characterize Libby’s sentence as “excessive,” hide behind conservative complaints about criminalizing political differences, and then use clemency to spare his vice president’s former chief of staff a prison stay.

If Libby receives a full pardon, as many expect he will, it only provides more evidence that post-Watergate, presidents are less afraid to abuse the clemency power than in the past. Unless the American public takes a stand against this behavior, we will likely be adding to this list of injustices four (or eight) years hence.