Open University

A Constitutional Crisis


by Sanford Levinson
I cannot restrain myself from offering some comment on the President's commutation of I. Lewis ("Scooter") Libby's prison sentence. There are so many things that one might say: 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.

As it happens, the commutation also connects with my general theme in most of my Open University postings, which involves criticisms of various aspects of our Constitution. 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. Some attributed it to campaign contributions; others, to the possibility of a "relationship" between the President and Rich's former wife, Denise. 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.

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