A sweeping presidential power: on Lewis Libby and pardons.

CLAIR GEORGE knows pardons. The former chief of the CIA's clandestine operations, George was convicted in early December 1992 of two counts of lying to Congress in connection with the Iran-contra affair. Two weeks later, on Christmas Eve, outgoing president George H. W. Bush pardoned George, along with former defense secretary Caspar Weinberger, former national security adviser Robert McFarlane, and three others.

Now, George is watching the case of Lewis "Scooter" Libby, the former chief of staff to Vice President Dick Cheney, who in March was convicted of perjury and obstruction of justice in the CIA leak matter. "I think he should be pardoned," George says of Libby. "I don't quite know what it was that he lied about. But I'm not quite sure in my own trial what I lied about."

That's one similarity in two quite different cases. But not the only one: "My case was highly politicized, also," says George, who was pursued by the legendarily monomaniacal independent counsel Lawrence Walsh, who issued his most famous indictment, of Weinberger, four days before the 1992 presidential election. "Democrats decided that they wanted something to happen at that period, and I drew the short straw," George says.

The pardon ended George's legal troubles. But so far George W. Bush has not given any public signals that he intends to follow his father's example and save Libby from jail. "The president feels terribly for Scooter," White House spokeswoman Dana Perino said after a judge ruled that Libby must begin serving a 30-month sentence in the next few weeks. But Perino added that Libby "still has the right to appeal, and therefore the president will continue not to intervene in the judicial process." What is not clear is whether the president might be prepared to intervene if Libby is denied his emergency request to stay out of jail while the appeal of his conviction is considered. There are knowledgeable sources who believe the president would step in to keep Libby out of jail while that larger appeal goes on, but Bush himself has not said a word.

Why would the president not intervene? Perhaps he worries that a pardon would provoke unrelenting attacks from Democratic leaders in Congress. (It undoubtedly would.) Perhaps he worries that he would appear to be pandering to those in the Republican base who are demanding a pardon. Or perhaps he just thinks a pardon at this stage would be the wrong thing to do.

Whatever the case, the one thing a pardon would not do would be to violate the letter or the spirit of what the Founding Fathers intended when they gave the president the power to pardon, to commute sentences, and to offer mercy in other forms. A number of presidents in the past have faced problems similar to George W. Bush's. And they weren't hesitant to use the pardon power when they needed it.

'TOO SANGUINARY AND CRUEL'

Article II, Section 2 of the Constitution states that the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Other than the impeachment exception, the pardon power is absolute and unreviewable; neither Congress nor the courts can overturn a president's decision. "The power is broad and has no limits, except those that are self-imposed," says Douglas Berman, an Ohio State University law professor who has done extensive research on pardons.

Why such power? The criminal-justice system at the time the Constitution was written had considerably fewer protections for defendants than now, and the Founders believed there should be a safety valve for defendants who found themselves with no recourse to seek relief. "The criminal code of every country partakes so much of necessary severity," wrote Alexander Hamilton in Federalist 74, "that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

But the point wasn't mercy alone; the Founders also intended that the pardon power be used for distinctly political purposes. George Washington pardoned the men who had taken part in the Whiskey Rebellion. Thomas Jefferson pardoned those convicted under the Alien and Sedition Acts. Abraham Lincoln and Andrew Johnson granted amnesty to Confederate soldiers. Warren G. Harding pardoned prisoners held under World War I espionage laws. Gerald Ford and Jimmy Carter pardoned Vietnam draft dodgers.

In recent years, the pardon power has fallen into disuse--or, in the case of Bill Clinton, misuse. For his first years in office, Clinton mostly ignored his pardon power. Margaret Love, the attorney who headed the Justice Department's pardons office from 1990 to 1997, points out that for the first seven and a half years of his presidency, Clinton "pardoned less generously than any president since John Adams." Then, at the end of his time in office, Clinton got to work, issuing what was undoubtedly the worst series of pardons in history. He infamously pardoned the fugitive tax-evading financier Marc Rich (whose attorney was one Lewis Libby), a number of Puerto Rican terrorists, and Susan McDougal, his old Whitewater partner who went to jail rather than answer the question of whether Clinton testified truthfully at her fraud trial.

The ensuing controversy proved one last black mark on Clinton's record. The public didn't want to hear anything more about pardons for a while, and it is not a surprise that when George W. Bush entered office, he waited nearly two years before issuing his first pardons. Even when he began to exercise the power, the pardons he chose to give were quite minor and totally non-controversial. There was the postal worker, addicted to drugs, who had stolen $10.90 from the mail many years ago and went on to go straight and lead an exemplary life. There was the moonshiner who was convicted in 1962. And the auto mechanic who rolled back odometers on used cars ten years earlier.

Clinton aside, the decline of pardons is not a big surprise. "The opportunity for defendants to get relief from a court is greater than it was in the Founders' era, or even 50 years ago," says Berman. "The need for executive mercy in extreme cases is diminished by the fact that there are so many other opportunities for defendants to appeal a perceived wrong." A president can quite reasonably argue that a defendant has had plenty of chances in the justice system and does not require a presidential pardon.

Even when the president decides to issue a pardon in a case of some rather ordinary crime, the Justice Department establishes standards that cases must meet to merit mercy. (The president does not have to follow the department's recommendations, but he usually does.) A certain period of time must have passed since the pardon recipient served his sentence. He must convince the department that he regrets his actions. He must have engaged in good works since his case ended.

CRIMINAL DIFFERENCES

That's not the kind of pardon on the table in the Libby case. "It's beside the point for people to be talking about whether the Justice Department regulations apply or not," says Margaret Love. "If [Bush] pardoned [Libby] now, it would be a different kind of pardon from the ordinary pardon." It would be more along the lines of what George H. W. Bush chose to do during the Iran-contra matter, when the White House faced a zealous, indefatigable prosecutor pursuing a case that stemmed from profound differences of opinion about the conduct of U.S. foreign policy.

By the end of 1992, members of the first Bush administration had long felt that independent counsel Walsh had run a highly politicized investigation. Walsh's "October surprise"--the indictment of Weinberger on the Friday before the presidential election--confirmed what everyone already knew about the prosecutor. Just in case anyone had any doubts, Walsh even helpfully included in the Weinberger indictment evidence which he claimed undercut George H. W. Bush's testimony in the case.

The indictment was too much for the outgoing president. Weinberger got his pardon without ever facing trial; others were at different stages of the investigation. Clair George, for example, had already undergone one trial--it ended with a hung jury--and then a second, at which he was convicted.

When President Bush issued the pardons, he included a long and sometimes passionate message explaining his action. Weinberger was a brilliant and dedicated public servant who contributed enormously to the United States' victory in the Cold War, the president wrote. Beyond that, each of those pardoned, Bush continued, deserved clemency for other reasons as well: They were motivated by patriotism; they did not seek to profit from their actions; they had long records of service to their country; and they had already paid a heavy price in legal fees and damage to careers.

But the pardon declaration was much more than a testimonial to the men involved. The president took the opportunity to issue a full-throated condemnation not only of Walsh but of what his investigation had done to this country:

   The prosecutions of the individuals I am pardoning represent what
   I believe is a profoundly troubling development in the political
   and legal climate of our country: the criminalization of policy
   differences. These differences should be addressed in the
   political arena, without the Damocles sword of criminality
   hanging over the heads of some of the combatants. The proper
   target is the president, not his subordinates; the proper
   forum is the voting booth, not the courtroom.... It is my
   hope that the action I am taking today will begin to restore
   these disputes to the battleground where they properly belong.

Well, it was a nice thing to hope.

AT LAST, A RESPITE?

With the CIA leak affair, today's President Bush is facing a case at least as politicized as Iran-contra, and perhaps even stranger: In Libby's trial, the prosecutor never offered any evidence that the crime said to be at the heart of the matter ever actually occurred. The course of the case defied rational explanation from Day One.

Now that Libby has been sentenced, if the president were to intervene, he would have several options. He could pardon Libby entirely, which would simply wipe the case away. He could commute all or part of Libby's sentence, canceling the jail term, for example, while leaving the $250,000 fine imposed on Libby as part of the sentence. (In that case, Libby's conviction would stand, although he wouldn't have to go to jail.) Or he could choose yet another option, offering Libby what is called a "respite," which is a delay of the imposition of the jail sentence. That way, Libby, while still facing jail time, could remain free while pursuing his appeal.

Whatever he does, or doesn't, do, the president doesn't have to offer any explanation for his action. But it seems likely that if he did choose to intervene, he, like his father before him, would want to make a statement about the culture of criminal investigation that produced the CIA leak affair. "One could argue that it is a uniquely political crime, or certainly a uniquely political prosecution, so it's not inappropriate for President Bush to provide a politicized relief," says Douglas Berman. "You might make an argument to the effect of, 'Look, this whole thing is a byproduct of the undue second-guessing that goes on whenever an administration makes tough choices.'"

Although many Democrats would undoubtedly protest, such a statement would make a convincing case for the president's supporters, and maybe some on the other side as well. Like Clair George. "I'm a registered Democrat, an opponent of the war, and I'm not a happy camper under this administration," George says. "But this is ridiculous."