Pardon my questioning
The folks at Peach Pundit are talking about President Bush commuting Scooter Libby's sentence. While one could argue that having the name 'Scooter' is punishment enough, the guy did deserve some jail time for, you know, obstructing justice on an investigation regarding a breach of national security. Seriously, we're not talking interns in the Oval Office here folks, this is outing an undercover agent during a time of war.
But, whatever. I don't really have the effort to get into why or why not Libby was wrong. Bush has the power to do that kind of thing, and it's his choice to do so. I disagree with it, but I ain't the president.
The bigger question I'll put out there is this ... why do members of the executive branch (federal and state) have the power to pardon or commute sentences? Why go through the painstaking process of setting up an independent judicial branch when a member of the executive branch can undo months, even years, of work with one pen stroke and based on, at times, personal whims?
Forgive me, but this has always seemed to be something which is absolutely impossible to keep in check.
But, whatever. I don't really have the effort to get into why or why not Libby was wrong. Bush has the power to do that kind of thing, and it's his choice to do so. I disagree with it, but I ain't the president.
The bigger question I'll put out there is this ... why do members of the executive branch (federal and state) have the power to pardon or commute sentences? Why go through the painstaking process of setting up an independent judicial branch when a member of the executive branch can undo months, even years, of work with one pen stroke and based on, at times, personal whims?
Forgive me, but this has always seemed to be something which is absolutely impossible to keep in check.
posted by Jmac at 5:49 PM
6 Comments:
One, I'm sure you didn't complain when Bill "Tricky Dick" Clinton did it on his last day in offce?
Secondly, one of the reasons we have executive clemency is to put a CHECK on the power of the judiciary. The judiciary should not be an all-powerful branch of government with no checks and balances at all.
Finally, it is because the Executive Branch has the power of enforcing the laws. If it does not choose, for whatever reason, to fully enforce the law against someone, that is its discretion. It's kind of the same thing as prosecutorial discretion - a prosecutor (member of the Executive Branch) does not HAVE to prosecute every case he gets.
The power and the authority of the sovereign always rests in the ability of the sovereign to go beyond the rule of law, to annul or suspend law. It is precisely in the ability of the sovereign to extend charity that the sovereign demonstrates why one is such. That's the paradox of the contemporary state: the rule of law is never so apparent as when it is broken from within, when charity and mercy rest in its heart.
It's the difference between David in the night and Saul on the battlefield.
I knew that if I didn't put my Bill Clinton disclaimer in, someone would find fault ... so here it is - I had a problem with Clinton's pardons and commutes, as I had with Bush I's pardons and commutes and Reagan's and Carter's and so forth.
Of course, this makes your entire argument moot since you can't argue for the justification of using the power of the pardon and then criticize those actually using, but nonetheless ...
Still, I'm just posing a question. I'm all for an appropriate system of checks and balances, but this seems to be granting more power to one branch, particularly if the individual from one branch of government can overrule the whole of another branch.
To say this is the only check is a little misleading too. There's the power of impeachment, as well as the ability of the legislative branch to pass new laws and legislation in the wake of particular rulings (see Genarlow Wilson ... or the attempt of the Georgia General Assembly thereof).
Johnathan, to be sure, Chuck never wrote here that this was the only check, just that it is a check.
I don't think it is all that problematic for an individual to override the whole. This constitutional form of government we have has a strong President, the One, as a neutralizing force against the demos, the Many. In this sense, there's supposed to be tension and intrigue between the branches, not cooperation.
But, a coworker posed a question that lawyers are probably better able to answer: didn't the Bush administration recently create sentencing guidelines to counteract the effects of activist judges, guidelines which Libby's judge followed in arriving at the so-called "harsh sentence"?
I dunno.
Libby's crime was federal, and you always get roasted when that's the case. The fed system is the one where people have gotten thousand-year sentences and such...
What's interesting and appalling about Scooter Libby is that he hadn't served any time at all. Mark Rich and Susan McDougal at least got to spend some time in the pokey, though they didn't spend as much as they deserved to spend in the pokey.
At end here, Paris Hilton served more time than Scooter Libby did. And that's just plain %$#@ed up.
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