The Libby Commutation: Presidential Lese Majeste

President Bush’s commutation of Scooter Libby’s prison sentence was not so much an act of beneficence to a loyal member of his Administration than it was a rare opportunity for an increasingly beleaguered President to strike back against his political and personal enemies. The commutation must be seen in that context; with the War in Iraq increasingly becoming America’s greatest foreign policy fiasco since Vietnam; with the defection of a handful of Republican Senators (with more to follow) who now denounce the President’s policies on Iraq; with the potential legal challenges in the Federal Courts towards the Bush’s Administration’s domestic spying policies and the holding of detainees at Guantanamo Bay the commutation (and future pardoning) of Libby was the only way for President Bush to strike back without having to be held accountable for his actions.

The Constitutionally mandated presidential power to grant pardons and reprieves is one of the few aspects of absolute monarchy present in American jurisprudence. Bush’s commutation of Libby is the third notable Presidential commutation in American history. (The others were Richard Nixon’s commutation of Lieutenant Calley’s prison sentence for committing the My Lai massacre in Vietnam in 1971 and President Harry Truman’s commutation of the death sentences to life imprisonment for two Puerto Rican nationalists who tried to assassinate him in 1950). The President’s power to grant pardons or reprieves is limitless. (The late President Ford provided an excellent explication on this issue in his memoirs A Time to Heal when he was explaining his motives for pardoning Richard Nixon in the aftermath of the Watergate scandal).

Despite the President’s actions those who argue for limitations on the Presidential power to grant pardons or reprieves err. The problem lies not with the power to pardon but with the individual misusing that power—which, of course, was what happened here. Such misuse is not new but has emerged only recently in American history. Actually President George W. Bush had ample precedent to draw from when he commuted Libby’s sentence. His father George H.W. Bush (in 1993, during the waning days of his Presidency) pardoned all Reagan-Bush Administration officials who had been convicted for crimes committed during the Iran Contra scandal. Bill Clinton pardoned a convicted fugitive millionaire who contributed money to his political campaigns in the waning hours of his Presidency. No, what President George W. Bush did was not the last time we will see this pathetic display of Presidential lese majeste.

No other Presidential action demonstrates Bush’s contempt for the Constitution he swore twice to uphold than this. Indeed the commutation of Libby was the penultimate blow the Bush Administration has thrown against Valerie Plame (the coup de grace will come when President pardons Libby after the 2008 Presidential Election) and it came from the person who orchestrated the illegal outing of her status as an active CIA operative—George W. Bush.