No Comment — July 4, 2007, 8:22 am

A Constitutional Crisis?

We can sum up George Bush’s notion of justice by looking at how he has dispensed it over the last six years. There are basically two flavors of justice: one for those who are “with us,” and the other for those who are “against us.” The “us” in this case is the first person plural form used by monarchs of yore – not the United States, nor even the Republican Party (as we learn from the operations of Brad Schlozman in the Justice Department, it’s not enough to be a Republican, because you may have voted for John McCain), but those who manifest personal absolute fidelity to George W. Bush. If you’re “against us,” you can be seized, brutalized and held in a prison where the conditions are worse that the notorious Château d’If described in such menacing detail by Alexandre Dumas. You may never come before a judge to plead your case, because Bush has decided you are an “unlawful enemy combatant,” and Bush’s judgment can’t be questioned (and of course, this is all a fiction: Bush has no idea who you are and doesn’t care either – these unreviewable powers have been passed down to some third-tier bureaucratic flunky). If you’re an American citizen, and you’re “against us,” then the Bush approach may be roughly the same, as in the case of Capt. James Yee, or Jose Padilla, or you may get the benefit of some semblance of the criminal justice system. Mind you, of course, it will be rigged – as several teams of conscientious military prosecutors have now attested the military justice system is rigged. On the civilian side, prosecution will have been directed by Karl Rove and his implementers in the Department of Justice’s curiously named Public Integrity Section, and while it may have the outer trappings of a normal trial, in fact it will be rigged from the outset. Ask two persons convicted in these sham proceedings, Georgia Thompson in Wisconsin and Don Siegelman in Alabama. Both committed the same crime, namely being Democrats in states in which a good pseudo-prosecution could help the GOP election efforts.

And then of course we have justice for those who are “with us,” like Scooter Libby, who blew the cover of a covert CIA agent and then committed perjury in front of a grand jury. Because he’s “with us,” he gets to walk – no jail time, and indeed he may yet be the beneficiary of a total pardon, we learn yesterday. Why? Because his sentence of 30 months is “too severe” in the view of President Bush. Moreover, he’s entitled to a break because of his “faithful government service.” Of course, the basis of the prosecution and conviction of Libby was that his service was faithless.

Both Sandy Levinson (my old professor) and Dan Froomkin take all of these developments as a launching point for some Constitutional history. What, exactly, does our Constitution propose as a remedy for gross misconduct of the sort that Bush gives us such copious examples?

Professor Levinson writes:

George Mason, a distinguished Virginian who refused to sign the Constitution because of its lack of a bill of rights, noted that “the President of the United States has the unrestrained Power of granting Pardon for Treason; which may be sometimes exercised to screen from Punishment those whom he had secretly instigated to commit the Crime, and thereby prevent a Discovery of his own guilt.” Luther Martin, a somewhat less distinguished but extremely interesting non-signatory from Maryland (who also raised questions about the collaboration with slavery), also objected to the potential “attempt [of the President] to assume to himself powers not given by the constitution, and establish himself in regal authority; in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution.”

So how does one assess the pardon of I. Lewis (“Scooter”) Libby against these fears expressed by Mason and Martin (and other anti-federalists). If one could be confident that Bush were being truly “compassionate” in not wishing to take Libby from his family, that might be one thing, but, of course, there’s not a scintilla of evidence that Bush possesses a compassionate disposition in general. Consider his conduct both as Governor and as President with regard to his use of the pardoning or commutation power, especially in capital cases; this is not a man who cares one whit about the consequences for actual human beings and their families caught up in the Texas or US legal systems. More plausible is the view that Libby was indeed part of a cabal engaged, not in “treason,” but in “attempts to subvert the constitution” in a number of insidious ways, including character assassination of anyone so bold to suggest that the Administration was less than trustworthy in its arguments for going to war. What “Scotter” knows, and is most certainly not talking about, is who were his confederates in this cabal besides the Vice President of the United States. We have good reason to believe that Karl Rove was also involved, and by that point we’re getting very, very close to the Oval Office.

I really don’t advocate doing away with the pardoning power, because it is important to retain the ability to temper justice with mercy. But the Libby pardon is ample proof that nothing comes for free, and that we might be well advised to listen to those like Mason and Martin, who did indeed have little faith that our leaders would necessarily exemplify the kind of civic virtue necessary to maintaining a constitutional republic. For Bush, the “Republican Form of Government” is equivalent to “Government by the Republican Party.” I don’t think the Framers would have agreed.

And the Washington Post’s Dan Froomkin quotes a Watergate-era report that examined the constitutional solution for a president who wields the pardon and clemency power improperly, which also starts with George Mason’s concerns:

“In the [Constitutional] convention George Mason argued that the President might use his pardoning power to ‘pardon crimes which were advised by himself’ or, before indictment or conviction, ‘to stop inquiry and prevent detection.’ James Madison responded:

“[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty. . . Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected.”

Certainly the Constitution vests the president with plenary power to pardon, so the wielding of that power is Constitutionally protected. The exception perhaps is quite narrow: what about the case when the power is invoked to protect the president himself from a criminal investigation or potential prosecution. Is it absurd to suspect that this is what’s going on here? It’s premature to draw conclusions, but certainly there are grounds for this suspicion. But to be more precise, the suspicion is that the president is using the pardon power to protect the vice president from a criminal prosecution.

Special prosecutor Patrick Fitzgerald has twice made statements – including his opening argument in the Libby trial – to the effect that he thinks that Vice President Cheney is the man behind all the mischief that is the subject of his investigation. Indeed, the documentary evidence, including some of Cheney’s scribbled notes, reflect that he was the driving force behind the outing of Valerie Plame. Fitzpatrick could not build a case against Cheney because of a stonewall named Scooter Libby. Is it reasonable to think that Libby going to jail would have changed things? Yes. That was a distinct prospect. And if so, then the commutation of Libby’s sentence was done for a corrupt purpose – to protect Cheney from potential prosecution.

And to this the Mason-Madison dialogue makes clear that the Constitution provides only one remedy: impeachment. The voting of a bill of charges in the House, and then trial to the Senate, with a two-thirds vote being needed to remove the president. That’s it.

Levinson has been making eloquent arguments for some time about the “weakness” of our Constitution. I’m impressed with his scholarship, but reluctant to embrace his view of the Constitution’s weaknesses. But on this point, he seems dead on target.

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