Pardon Me?

Q: What gives the President the right to commute Scooter Libby’s sentence?

A: Last week, the big news was the President George W. Bush “commuted” the sentence of one Lewis “Scooter” Libby, a former aide to the Vice-President. For those of you fresh from hiding under your rock for the last two years, here’s a brief review of the facts.

Joe Wilson and Valerie Plame were husband and wife. Plame was the type of Federal agent whose secret identity as a Federal agent is not supposed to be revealed to anyone. She was the person who’s identity they disavowed any knowledge of at Mission Impossible headquarters. At some point, Wilson got involved in some political stuff, took a trip overseas that he probably should not have taken and, when he got back, said some things that made the current administration none too happy. Somehow, his wife’s name came up in the whole thing, a Washington Post journalist began sniffing around for a story, winding up at the desk of Lewis Libby, whose nickname has been “Scooter” since scooting about his crib. In the midst of that conversation he, allegedly, revealed Plame’s secret identity.

Scooter was brought in front of a grand jury, asked to testify, and put under the gun by Independent Prosecutor Patrick Fitzgerald who managed to keep Scooter busy running through enough circles that he eventually contradicted himself and, intentionally or not, committed perjury. Hence, he was brought up on charges of perjury and obstructing justice and some other counts. Interestingly, Scooter was not convicted of revealing the secret identity of a covert agent, which was how this whole thing started. And, as of today, no one has been prosecuted for that crime, vis-à-vis Plame. Scooter was then convicted of perjury, obstruction, and making false statements to a federal investigator.

Sidebar: If you told a federal investigator that his mullet was “a nice haircut,” could you be charged with making false statements to a federal investigator? Sorry. Bad lawyer humor. End sidebar.

So, under the Federal Sentencing Guidelines, which allow for about as much spontaneity as the Robert’s Rules of Order, Scooter was sentenced to thirty months in jail. All appeals, thus far, have failed. But, on Monday of last week, President Bush “commuted” Scooter’s sentence, leaving him with no jail time, a felony conviction, a $250,000 fine, and probation. How so?

Well, according to Article II, Section 2, the President has the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” A commutation, meaning literally “to change altogether,” falls under the category of a “Reprieve.” Thus, POTUS has the hyperbolic, “get out of jail free card” that you probably thought only belonged to Milton Bradley. Still, Scooter has not passed go and will not collect $200. He’s still a felon, subject to the terms of probation, and has to pay a hefty fine.

Presidents throughout history have wielded the gracious sword of pardons and reprieves. Clinton pardoned some 140 persons on his last day in office, H.W. Bush pardoned Reagan-era Iran-Contra officials, Carter granted amnesty to all draft dodgers, and George Washington even pardoned the leaders of the Whiskey Rebellion.

Is it a political weapon or a tool for the equalization of social justice? Is it used for high-paying former guests of the Lincoln Bedroom, or notorious felons wrongly convicted? No one is really sure. But, what is certain is that it is a unique tool given only to the President. It is one of very few areas in which there are no checks and balances. Reprieves and Pardons are, quite simply, the unique perks of Presidential power.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Who Pulls the Trigger on War Power?

Q: President Bush wants to send more troops to Iraq. The Democrats majority in Congress does not want more troops sent. What branch of government holds the power of war?

A: Power is all the rage lately. The out-of-shape, take “power walks.” The sleep-deprived take “power naps.” The leisurely lunch, has been replaced with “power lunches,” where “power bars” are the main course. Even, or perhaps especially, in politics, the grab for power often leaves those who matter most in a lurch. Such seems to be the state of this week’s affairs.

On Wednesday, President Bush announced his plan to send more troops to Iraq. The day before, Sen. Ted Kennedy gave a “pre-buttal” to the President’s speech. The day after the presidential prime time address, Congressmen and Senators were wagging their tongues in a flurry of speeches that say only enough to get them airtime on the major news networks. All the hullabaloo is about who has the power over the troops.

The President has laid out a plan to increase troop presence and action in Baghdad. The Democratic halls of Congress, still full of vim and vigor from November, are making empty threats to prevent such a malefaction. Sen. Harry Reid is proposing a “non-binding” Senate resolution that expresses disapproval of the President’s newest plan. Speaker Pelosi will no doubt follow suit. But who wins the power war? More importantly, who loses?

I am not going to argue the merits or detractions of the President’s plan. But, in order to sift through the rhetoric of both sides of the aisle, let me give you some power of your own; a “separation of powers,” to be precise.

The President is the Commander-in-Chief of the Armed Forces, according to Article II, Section 2 of our U.S. Constitution. Thus, he has the authority to position – without any branch of government’s approval or permission – the finest military in the world. As one of his chief duties as President, it falls to him to organize, prepare, and strategically place our military so as “to provide for the common defense.”

That brings us to Article I, Section 8 of our Constitution, which bestows the power to fund such a common defense upon the Legislative branch. What is more, if there is war to be declared, that too falls to the Legislature, as does the very raising, supporting, equipping, and regulating of the army, navy, and militia.

Hence the two seemed locked in an un-ending struggle. While the President sets the course, turns the wheel, and aims the barrel, it is the Congress that buys the gas and turns the key of the military machine that drives us into battle. Unless the two work in concert, war is not possible. Unless the two ends of Pennsylvania Avenue act in complementarity, military actions will fail before they begin.

As you listen to Senators and Congressmen huff and puff as they try to blow the White House down, remember that the side you disagree with must also be complicit in that with which you lodge your agreement. That is, if you like the idea of more troops, then you need the Legislature to adequately fund them. If you prefer fewer boots on the ground in the Green Zone, only the Executive can order them home. They may be bitter bedfellows, but for the American military to be at its most powerful, the power we often refer to as separate, must work in tandem.

In the final analysis, the most powerful weapons in our current conflict are the grunts, flyboys, leathernecks, and mates of the U.S. Armed Forces. May God bless their mission and bring them home safely. And soon.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.