Raging Red

There’s a web exclusive column by Michael Isikoff and Mark Hosenball at Newsweek called “Scooter Libby’s Pardon Problem,” in which Isikoff and Hosenball argue that the Department of Justice’s guidelines for Presidential pardons present a “significant roadblock on the path to Libby’s salvation,” that is, his chances of being pardoned by President Bush. They seem fairly sure that because the President has been stingy in granting pardons during his tenure — granting fewer than any president in the past 100 years — and because he has strictly adhered to the DOJ’s guidelines in granting those pardons, Libby doesn’t have much of a chance.

I have to wonder whether these guys have been asleep for the past six years. Since when does the Bush administration care about rules?

Libby definitely doesn’t meet the eligibility requirements in the DOJ guidelines. He’d have to wait until five years after he is convicted or released from confinement, whichever is later, before he could petition for a pardon. He’d also have to have exhausted all other legal remedies (i.e. appeals) before he could seek a pardon. Libby could still be in the midst of his appeal when Bush’s presidency ends, and he certainly will not have finished out whatever sentence he receives (let alone be five years past it).

I don’t think I need to list every example of the Bush administration’s disregard for the law, but for starters, how about their NSA warrantless wiretapping program? Two Oregon lawyers now have the distinction of being the first Americans with documented proof that the government listened in on their phone calls without first obtaining a FISA warrant. As a poetic example of the Bush administration’s incompetence working in America’s favor for once, the Treasury Dept. inadvertently turned over a top secret log of the lawyers’ phone conversations that had been compiled via government eavesdropping.

When the Bush administration has shown a casual contempt for the Constitution, what makes Isikoff and Hosenball think that Bush feels bound by rules he’s not even required to follow?

§ 1.11 Advisory nature of regulations.The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.

President Bush is notoriously unsympathetic toward convicted criminals who are seeking pardons, so my hunch is that his publicly expressed desire to stick to the guidelines is just a convenient excuse to avoid getting into any discussions about specific cases. I don’t think he just selectively has a special reverence for this set of advisory guidelines over others, like that pesky 4th Amendment. Obviously, who knows if he’ll pardon Libby. If I had to put money on it, though, I’d guess that he’ll pardon him right before leaving office. It would be one last “fuck you” to the American public.