The Moral Poverty of the Pardon Chorus

I've been incommunicado for most of the week, so I'm just now catching up on everything that happened while I was off the grid. I think I'll start with the Scooter Libby conviction.

As you all know, Libby was convicted this week on four out of five counts. The conservative punditry responded almost instantaneously by demanding that Libby be pardoned.

It's hard to understate just how bizarre this is. Can anyone remember a prior case where virtually every member of a major political party called for a pardon immediately after a jury verdict was handed down? A presidential pardon is an extraordinary remedy, one that everyone agrees should be used sparingly and only when the system has otherwise broken down. So where exactly did the system break down here?

Conservative heavyweights Charles Krauthammer, Rich Lowry, and Bill Kristol--among others--have already penned editorials calling on President Bush to issue an immediate and unconditional pardon to Libby, contending that his conviction somehow constitutes a monumental miscarriage of justice.

These pieces are remarkable not only because they casually call for such an extraordinary remedy, but because of something they don't do. Typically, when confronted with genuine injustice, a concerned and conscientious observer attempts to identify the broader systemic problem that led to the injustice. He asks himself: how did this injustice come about? Is the law itself unjust? If not, were the rules under which the individual was tried fair and just? Were the individual's rights to counsel and to present his own defense respected? If so, was there some corruption of the trial process itself, a corrupt or incompetent judge, a biased jury, incompetent counsel, etc.?

The reason a conscientious observer asks these questions is because he wants not only to remedy the injustice that has occurred, but to ensure that it does not happen again or has not happened already to similarly situated defendants.

Notably absent from the opinion pieces calling for Libby's pardon, however, is any attempt to explore or identity the problems in the system that resulted in this supposed injustice. And that absence speaks volumes. No one is claiming that our laws against obstruction of justice and perjury should be repealed or amended. No one is claiming the jury failed to conscientiously deliberate and consider all the evidence presented to it. Some commentators are taking issue with some of Judge Walton's evidentiary rulings, but there's a built-in way of challenging the correctness of those rulings. It's called an appeal. I've yet to hear anyone suggest that the Federal Rules of Evidence themselves need to be amended. Similarly, many conservatives have questioned Mr. Fitzgerald's use of prosecutorial discretion, but I've yet to hear anyone seriously contend that prosecutorial guidelines should be changed or that the law itself should be amended to prevent prosecutors from pursuing perjury and obstruction charges absent charges for some "underlying crime." The reason no one is suggesting this is because everyone knows how ridiculous such a rule would be and generally has no problem with this prosecutorial tactic outside of this particular case.

Legitimate calls for a pardon are almost always coupled with a call for some broader systemic change, the goal being to prevent such an injustice from reoccurring. But that's not happening here. Conservatives are essentially treating the Libby case as a one-off situation. They have no problem with the law itself or with our criminal justice system generally. They just disagree with the outcome in this particular case and want to change it. There's something almost self-evidently discrediting about that. It shows both disdain for process and a truly myopic degree of partisanship.

Let's consider what happened here. A Republican-appointed U.S. Attorney with an impeccable reputation conducted an investigation of a Republican administration. He determined that one of the subjects of the investigation, Scooter Libby, lied repeatedly to both the FBI and a federal grand jury. The prosecutor then sought and secured an indictment from a grand jury. The case then proceeded to a trial in which Libby was represented by the best attorneys money can buy. The jury, having been presented with all the relevant evidence, deliberated extensively and diligently and eventually returned a guilty verdict on four of the five counts. Subsequent interviews with jurors reveal that they had no animus towards Libby whatsoever and in fact viewed him sympathetically. Libby will now appeal his conviction with the help of the best appellate lawyers that money can buy.

So where exactly is the problem here? Where is the locus of the injustice? If conservatives are going to call for the extraordinary remedy of a pardon, it is incumbent upon them to identify just where the system broke down and why there are no adequate remedies available to Libby other than a pardon. To do anything less is unacceptable. Either the system broke down here or it did not. If it didn't, then calling for a pardon is just naked partisanship. If the system did break down here, then calling for a pardon without attempting to identify or fix the flaw that resulted in Libby's conviction is completely irresponsible and morally bankrupt. Either way, the pardon chorus is not staking out a serious position.