"The President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States."
Constitution of the United States, Article II, Section 2
"Humanity and good policy conspire to dictate, that the benign prerogative of pardoning 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 favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
Alexander Hamilton, Federalist #74
Let us stipulate--appealing to the authority of such diverse legal authorities as David Boies and Victoria Toensing--that the Scooter Libby perjury case should not have been brought in the first place. It is also true that decisions by the trial judge made it difficult for Libby's team to put its best defense forward and that a D.C. jury was going to be tough for any Bush-Cheney official. Still, the verdict of guilty on the part of the jury was, as Hamilton might put it, "unfortunate."
Now, if the jurors didn't believe--based on the evidence they were allowed to see, and the instructions they were given--that Libby's memory was honestly flawed, they presumably had little choice but to bring in the verdict they did. As William Rawle put it in 1829 in his A View of the Constitution of the United States, in the course of explaining the need for a pardon power, "If the law is plain, the duty of the tribunal is to conform to it, because the law is as compulsory on the tribunal as on the offender." But having said that, Rawle continues: "The condition of society would be miserable if the severity of the law could in no form be mitigated, and if those considerations which ought not to operate on a jury and a judge could have no influence elsewhere."
It seems clear to us that those considerations which ought not to operate on a jury do operate in this case, and operate strongly in favor of a presidential pardon. To mention only two: There was no underlying crime and Libby was not responsible for the appearance of Valerie Plame's name in Robert Novak's column. Perhaps that is why, the day after the verdict, one of the jurors--Ann Redington--allowed that while the jurors did their job well, there was an injustice in the outcome that argued for a pardon.
We agree. And now is the time for it. If the president does intend to pardon Libby, there is no reason to wait. The president will learn nothing important about the case during the appeals process that he doesn't already know. He told an interviewer Wednesday, "I'm pretty much going to stay out of it" until the case has run its course. Why? There's no good reason now for him "to stay out of it." This whole prosecution happened only because of a desire by Bush's agents--the attorney general and the deputy attorney general--to "stay out of it" in late 2003, which led to the appointment of Fitzgerald as an unaccountable special prosecutor.
The argument for continuing to stay out of it is presumably that the verdict could be overturned on appeal, and Bush wouldn't have to make a tough decision. But the core of the injustice--that the case was brought at all--was produced by a dereliction of duty by the executive branch. Bush is the head of the executive branch. He should rectify that earlier mistake--not hope some judges take him off the hook.
What's more, Bush won't be able to "stay out of it." Others will continue to place his White House at the very heart of it, as the Libby appeals move forward. After all, Libby's lawyers foolishly (or perhaps desperately) introduced at trial the notion that Libby was a "fall guy"--which would seem to legitimize the notion there was a conspiracy, of which Libby was a part, though a less important part than others. Each time a legal paper is filed, a new anti-Bush news cycle will erupt. So if the White House wants to minimize opportunities for fresh speculation about how the Libby case is part of some broader conspiracy, the president should act now.
On Wednesday, Tony Snow tried to shut off what will be an endless line of inquiry as long as the Libby case is alive: "I think there has been an attempt to try to use this as a great big wheelbarrow in which to dump a whole series of unrelated issues and say, 'Aha.' And it is what it is; it's a case involving Scooter Libby and his recollections, and we're just not going to comment further on it." But this is not going to work. If the case of Scooter Libby, fall guy, continues, the wheelbarrow will roll along with it.
Bush has an interest in being as strong an executive as possible for the remainder of his presidency. So does the country. This argues for an immediate pardon. Everyone who would be outraged by a pardon now would in any event spend the next year and a half being outraged at the prospect of a postelection pardon. But many of those who are demoralized now by Libby's conviction, and by the administration's passivity in defense of its people and policies, would be reinvigorated by a pardon.
As the Bard put it in a slightly different context, "If it were done when 'tis done, then 'twere well / It were done quickly."