When my friend Bill Otis argued in the Washington Post that President Bush should commute Scooter Libby’s sentence, his position struck me as sound. It still does.
The law gives the president the right to pardon and to commute sentences. Thus, when he does these things, he’s clearly not disregarding the rule of law, as some critics are claiming. Nonetheless, citizens should carefully scrutinize instances where the president exercises these powers in the hope of preventing or minimizing abuse.
The problem is that there are no formal or informally agreed upon standards with which to evaluate a president’s decision in these cases. One can look at the practices of past presidents, but it’s a very imperfect guide. For example, we wouldn’t want our presidents to emulate President Clinton’s practice of pardoning those whose family members contributed to his presidential library.
In the Libby case, there are several factors that militated in favor of commuting the sentence (and made out an arguable, though less compelling, case for a pardon). The two most important factors are Libby’s public service and the fact that, at the time Libby made the false statements in question, the prosecutor already knew the answer to the question he had come to Washington to investigate. Indeed, it seems likely that but for the high profile and political context of the investigation, the prosecutor would not have asked Libby these questions. In addition, it may also be relevenat that Bill Clinton was never prosecuted for committing perjury with respect to matters where, unlike here, the facts were not yet known.
Standardless though the matter of issuing pardons and commuting sentences may be, we should expect presidents to exercise these powers in an even-handed way. While a president cannot review every conviction and sentence, it would be disappointing to see him treat similar cases differently. Orin Kerr thinks Bush fails this test because he hasn’t commuted other sentences. But this argument is not persuasive because, so far as appears, there is no one in jail under anything like the circumstances (as described in the paragraph above) that obtain here.
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