Wednesday, July 04, 2007


A Pardon on the Installment Plan; An Investigation Sabotaged

by Hunter

It should be noted, for future record, that the President of the United States has just used his power of clemency to sabotage an active criminal investigation into the office of his own Vice President. In some parallel universes, I have heard tell that such a thing was once itself considered corruption, or obstruction. It seems at minimum useful to put a footnote in the history books, somewhere, that such a remarkable thing could happen and still receive not merely praise, but unsheepish celebration among people who pretend nightly to be serious about such things.

I think almost everyone involved sees this as what it almost certainly is: Scooter Libby, loyal to the last, is getting his pardon on the installment plan. There is little advantage -- and distinct disadvantage -- for Bush to pardon the charges entirely, at the moment, but Bush indeed came through with an impeccably timed effort to ensure Libby faced no actual material consequences from his actions. Facing immediate jail time? Then kill the jail time. All of it, from day one onward. If Libby was in any actual danger of having to pay his $250,000 fine, there seems little doubt he would have seen that part of his sentence commuted as well.

But now Libby is in no imminent danger: problem solved. Bush has neatly and in one action removed any impetus for Libby -- or anyone else -- to cooperate with government investigators. There is no leverage a prosecutor can use against Libby, in order to gain a plea deal in exchange for information that he has so far refused to provide. Conservative backers have contributed more than five million dollars in a slush fund for Libby's defense, and are eager to help him in his hour of need; it seems hard to believe that Libby himself will ever have to contribute even one thin dime towards his own fine. He will be, presuming his appeal runs its course in the next year and a half without still more intervention, a convicted felon, but one whose sole substantive punishment will be the well-financed adulation of his supporters as a true martyr.

We should note here, for the record, the magnificent-if-selective cowardice of Scooter Libby. He allowed Judith Miller to go to jail for three months on his behalf, keeping his silence until the pressure had built to intolerable levels. His willingness to sacrifice others -- at least in direct proportion to their access to power -- for his own freedom has at this point been well established. He relied on the sacrifices of others for his own self-preservation, sacrificing himself in turn only to one thin premise: that lying to investigators was an acceptable thing, in exchange for... what? He lied to investigators, repeatedly and provably, rather than cooperate in a case that threatened to implicate his own more powerful friends. Seldom is justice in a single case so transparently stratified, each layer of establishment Washington valiantly wounding itself in obsequious service to the one above it.

But after it all, the consequences of the law were considered too much. Nobody expects a mere Scooter Libby to have the ruggedness of a Martha Stewart, the toughened pastry chef and craftsperson who somehow managed to soldier through jail time on her own without requiring the intervention of two of the four known branches of constitutional government. Amidst dire pleas from conservatives, President Bush cited the excessiveness of Libby's 30-month sentence, and substituted not 15 months, or even one, or even one lazy afternoon, but instead deemed even a single hour to be excessive, for the crime of obstructing justice in an investigation into his own White House, and the office of his own Vice President. No clearer signal to future prosecutors could possibly be given, short of simply Xeroxing up clemencies on cardstock to be distributed as Christmas gifts -- and we may yet see that.

Let me reemphasize: George W. Bush claimed repeatedly that the sentence in this case was excessive. But when it came time to decide what punishment would not be excessive, Bush chose zero. Not a month, a week, or even a single summer day in jail would be appropriate in this case of obstruction, the President asserted. Even the prospect of a single hour behind bars, for this particular most senior of senior members of the Vice President's staff, required immediate neutralizing action.

Eighteen months from now, on some mid-January day, Libby will of course be lauded for his great service to the nation -- that service in no way being the remarkable ability to keep his mouth tightly shut in face of a criminal investigation into activities at the White House, perish the thought -- and fully pardoned. Bush's statement about respecting jury opinions will be recast once again, this time to the effect of "I respect the jury opinions, but Scooter has had quite the rough time of it lately, what with all these investigations and indictments and whatnot, and has suffered enough. Let the healing begin!" This will be lauded by administration members, administration friends, other indicted members of the Republican party, and by "centrist" pundits eager to ply all of them for quotes and insights. The mere premise that a member of his administration would be held accountable for criminal actions as others would be is not just unthinkable, but has been a matter of great contention throughout Bush's presidency, requiring elaborate fictions of legalese to defend even the transparently illegal, such as domestic espionage and torture, and even more tortured justifications for reasons why no such justifications need be given in the first place.

This case is, and has been, a touchstone. Scooter Libby was indicted and convicted for obstruction of justice in a criminal investigation that reached into the office of the Vice President himself, and that obstruction of justice is still ongoing. It has not gone away. It has not been resolved. The only change is that, now, the President of the United States has interrupted the trial process, the appeal process, the prospects for plea and negotiation, and the ongoing White House investigation itself in order to preemptively inoculate the most key witness in the case from further investigation, testimony, or punishment.

There is no rationale that justifies such an act, and merely being used to such levels of corruption on the part of the Bush administration and the rest of the conservative movement in service of the quest for unitary power does not excuse that corruption. Bush may have never been willing to discuss an "ongoing case" inside his White House, but he was more than willing to use his Constitutional powers to shut it down at the precise moment judgment suddenly became a material, tactile thing.

When seeking clemency for a criminal obstruction of justice, it is always considered a stroke of luck to have committed the obstruction on behalf of individuals with the power to grant such clemency. And when predicting actions on the part of George W. Bush, it's always best to presume he would take the exact same actions a crime boss would take, if a crime boss were in a position to take them. With each passing day, Bush becomes a little less presidential, and a little more like Al Capone with an Air Force.

George W. Bush could at any point in the last three years have used his position to demand that others come forward, either exonerating Libby or condemning him as the evidence warranted. We are asked to believe that he had no such power: that, in spite of testimony that at least two other administration officials had leaked the identity of the American covert agent to the press, merely because her husband had the audacity to anger the perpetually crabby and apparently uncontrollable Richard Cheney, Bush himself was completely incapable of putting two leakers plus one perjurer plus one Vice President together, or of demanding answers of his own staff, or even seeking them. For an administration so famous for discipline and order, it was a remarkable failure of will. If the President and Vice President consciously set out to intentionally obstruct the investigation into their own administration, they would have made each decision exactly as they did. Upon the hour when, like Nixon firing Cox, the President finally reaches into the wheels of American justice themselves to extract his loyal servant, it is no longer credible to assume all of it was merely three years of coincidence.

There are of course theoretical remedies that could be taken, if a President was constantly abusing his power in order to satisfy the daily demands of cronyism, or even to help support -- as seems unambiguous -- the continued obstruction of justice by convicted members of his own staff. The Constitution could in theory be amended to allow some oversight of clemency decisions, or a caveat added pertaining to the ability or inability of a President to use the pardon process to block investigation into members of his own administration. At the end, however, it seems a bridge too far to have to amend the very Constitution itself in order to protect against the depredations of a single corruption-riddled White House. If Bush cannot competently execute his abilities as President of all these United States, and instead chooses to continue to use the office as vehicle for cronyism, political sabotage, domestic espionage, unconstitutional acts and flagrant self-protection, he should be removed. The Constitution allows for such a contingency, when an administration engages in one cover up too many, one scandal too many, or one bout of self interested corruption too many.

Unfortunately, it does not allow for any such relief when one political party is determined, from the top down, that all such obstructions, crimes, or constitutional subversions merit a throaty defense if done in service of their own party, or when a small but bafflingly influential subset of the national gatekeepers to power continue to genuflect and seek a sniffling "unity" rather than have the country suffer the shabby fate of -- terror of terrors! -- politicians facing the consequences of their own created scandals. Nixon was finally sent to pasture, in primary part, by the offended conscience and basic ethics of members of his own party. Bush in his own era, however, has not been inconvenienced with any such bouts of unfortunate integrity on the part of others; his party remains firmly united around all administration crimes and incompetencies, whether large or small.

With every passing scandal, from Watergate to Iran-Contra to the Justice Department scandals to this, the demands for investigation get fainter, the calls for justice, more tepid, and the punishments, more nebulous. Requests for even the most basic kind of patriotism -- that of simple decency and integrity -- now seem quaint in the current climate, and almost morbid. Perhaps finally, after all these years, it can be reduced to a single moment, when Bill Kristol and other apologists for Republican crimes large and small lost the last public shreds of their honor, and patriotism, and even of notions of crime and consequence.

At present, when Republican presidential candidates such as Fred Thompson, Giuliani, Romney and others seemingly attempt to one-up each other in their declarations of praise for Republican-backed felonies and criminals -- Thompson has been especially keen on letting voters know, in this episode, that he finds the entire notion of prosecuting a member of power for crimes they committed to be a scandalous thing, and the other candidates have lavished their debate-podium endorsements on all matter of other unconstitutional acts in the "War on Terror", believing the rule of law to be an obsolete and pedantic luxury of a past era -- it is impossible to believe that any will step back from that brink and commit themselves to simple decency, or even simple legality. At present, when members of the punditry are more rattled by the terrible partisanship of denouncing abominable and illegal acts than they are by the acts themselves, it seems impossible to suppose that they could be roused from their impeccably groomed and nourished apathy. They are more vexed by an insulting barrage of criticism than they are by anything else; it seems wisest to leave them where they are, defending their own tiny ink-and-paper fiefdoms.

And so it goes. Yet another transparent corruption, yet another investigation sabotaged, yet another enabling felon praised as martyr to the cause. America may at this rate find both its laws and its honor dismantled from within. From the broadcasting tower to the Senate floor, and from the opinion pages to the Department of Justice, there seem to be too few left with an interest in defending either one.

But it should be noted, for the record, that the President of the United States has just used his power of clemency to sabotage an active criminal investigation into the office of his own Vice President. I have heard tell that such things used to be considered scandalous.

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