Our Faux Constitutional Crisis

Rich Lowry
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Posted: Jul 05, 2007 4:49 PM
Our Faux Constitutional Crisis

Practically everything else in American life has been dumbed down, so why not constitutional crises? The braying over President Bush's commutation of Vice President Dick Cheney's former chief of staff Lewis "Scooter" Libby's prison sentence is that Bush has undermined the rule of law and the Constitution.

The Founders would be bemused at this, since -- inconveniently for the Scooter-must-hang left -- they included the pardon power in the Constitution. There it is in Article II, Section 2: The president "shall have the power to grant reprieves and pardons." They didn't include a proviso that the power shall not extend to persons vilified by left-wing bloggers as the personification of "the case for war."
Bush can hardly create a constitutional crisis by exercising a plenary constitutional power, and doing it in a way that has become almost routine. The first President Bush pardoned former CIA official Clair George (convicted of lying to Congress), former Defense Secretary Caspar Weinberger (indicted for perjury) and former National Security Adviser Robert McFarlane (pled guilty to withholding information from Congress). Like the current Bush's commutation, these Iran-Contra pardons violated the Justice department guidelines. And somehow, the republic survived.

President Clinton pardoned or commuted the sentences of former Arkansas operator Susan McDougal (jailed for myriad offenses); former Housing and Urban Development Secretary Henry Cisneros (caught up in an interminable independent-counsel investigation about whether he lied to the FBI); former CIA Director John Deutch (in the midst of a plea bargain over his mishandling of classified material); and eight people connected to the scandal around former Agriculture Secretary Mike Espy (all of whom had been convicted of or pled guilty to illegal acts).

This leaves aside Clinton's truly egregious pardons and commutations: sixteen Puerto Rican terrorists over the opposition of the FBI and the Federal Bureau of Prisons; the international fugitive Marc Rich; one man convicted of mail fraud and perjury and another convicted of cocaine trafficking, each of whom had paid $200,000 to Hillary Clinton's brother Hugh Rodman to represent them..

Bush's commutation is nothing like those outrageous acts of clemency. It is perfectly in the mainstream of pardons throughout the past 20 years in cases that are considered politicized prosecutions by the aggrieved administrations. The Founders created the pardon power to grant relief from a justice system that might, in the words of Alexander Hamilton, be "too sanguinary and cruel." It doesn't serve that function so much anymore, but has turned out to be a safety valve in an era when each party criminalizes political disputes when it suits its purposes.

This creates a perpetual argument over whose perjury is worse. Liberals say that Libby's perjury is more serious than Clinton's because Libby lied about the war and Clinton lied only about sex. Actually, Libby's case wasn't about the war, but about whether or not he had misremembered when and from whom he first had heard that Joe Wilson's wife, Valerie Plame, worked at the CIA. There also is an ambiguity to Libby's case, with its complex assortment of conflicting memories, that didn't exist in that of Bill Clinton, who admitted to testifying falsely under oath.

Regardless, except for the most blatant crimes, the political arena is the best forum for politically controversial charges of wrongdoing. Rather than commuting Libby's sentence on grounds that it was excessive, Bush should have pardoned him altogether on grounds that the case had become a way to make one man pay for the alleged sins of the administration regarding the war. Our system of government provides a straightforward method to punish an administration without resorting to special prosecutors and criminal charges, which is to vote against the president or his party.

Just wait: The same people hyperventilating about Libby now will have exactly the opposite attitude about the criminalization of politics when a Democrat is back in the White House. Then, they will grow fond of Article II, Section 2 all over again.