Bush's Clemency

It has been said by the marquis Beccaria, that the power of pardon does not exist under a perfect administration of the laws; and that the admission of the power is a tacit acknowledgment of the infirmity of the course of justice. But if this be a defect at all, it arises from the infirmity of human nature generally; and in this view, is no more objectionable, than any other power of government; for every such power, in some sort, arises from human infirmity.… The power to pardon, then, being a fit one to be entrusted to all governments, humanity and sound policy dictate, that this benign prerogative 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 favour of unfortunate guilt, justice would assume an aspect too sanguinary and cruel.

— Joseph Story, Commentaries on the Constitution

The press and even his colleagues in Congress may have written President Bush off as a lame duck, but with the decision to grant clemency to I. Lewis "Scooter" Libby Jr., Mr. Bush demonstrated yesterday that he understands the nature of the attack on his administration and the politics of the war. Libby may have preferred a full-scale pardon, but there is yet time for that once Libby's legal appeals are exhausted. The decision to grant clemency rather than a pardon now holds out the possibility that a court may rule the special prosecutor illegal, thus sparing not only Libby but public servants in future administrations of any political party from having their boldness affected, in the words of Justice Scalia's great dissent in Morrison v. Olson.

The decision to spare Libby time in prison is not only humane but also just, for the underlying leak of Valerie Plame's identity was committed not by Libby but by Richard Armitage, and once that was known, the investigation should have stopped. Clemency is one of the presidency's least fettered constitutional powers, and in exercising it yesterday, Mr. Bush made clear that he understands the office he holds.

Mr. Bush's nuanced statement paid heed both to the decision of the judge and jury in the case and also to the facts as they are. Not so the intemperate response by the special counsel, Patrick Fitzgerald, who, in an extraordinary statement for an employee of the executive branch, challenged Mr. Bush's judgment that the 30-month prison sentence imposed on Mr. Libby was "excessive." As Story realized and as Mr. Bush realizes, it was precisely to deal with failures of judgment such as Mr. Fitzgerald's and the sentencing judge's that the Founders of America inserted the powers of pardon and clemency into the Constitution.