PRESIDENT BUSH'S carefully calibrated decision to commute the prison sentence of I. Lewis "Scooter" Libby without granting a pardon may prove politically wise. But it epitomizes the moral obtuseness that has so handicapped his administration.
Bush is correct that Libby's sentence of 30 months in prison for perjury and obstruction of justice was harsh; a shorter sentence ordinarily would have been appropriate for a first offender and an unlikely recidivist. Yet a federal appeals judge let the harsh sentence stand for the same reasons that Martha Stewart spent five months in prison for similar but lesser offenses: No meaningful investigation is possible if high-placed people can get away with lying to investigators. And prison time is the only meaningful deterrent to perjury by the rich and powerful.
Bush's presidential statement brushes aside the enormity of the offenses that merited such a sentence: perjury in an attempt to obstruct a national security investigation. In order to convict Libby, the jury had to conclude not only that he knowingly and repeatedly lied to the FBI and to a grand jury, but that he leaked classified information about a CIA operative to reporters on orders from Vice President Dick Cheney. Such obstruction and obfuscation are particularly heinous offenses when committed by a senior government official — and a lawyer, no less — to serve or protect his boss.
The larger problem in commuting Libby's sentence is the message it sends to his unfortunately unindicted co-conspirator, Cheney. The message isn't precisely, as the Democrats claim, that the administration in general, and the vice president and his office in particular, are above the law. It is that the laws can always be finagled so as not to apply unfavorably to them.
This administration has a dismal record of abrogating legal and congressional authority — in its shocking repudiation of habeas corpus, its withholding of information from Congress, its overreaching presidential signing statements — while asserting, in its incessant claims of executive privilege, the broadest possible authority for itself. Yet in the Libby case, it lessens the standard of accountability for senior officials who wield that authority. That Cheney and his backers managed to obtain a presidential commutation before Libby served even a Paris Hilton-sized stint behind bars reinforces the perception of favoritism. Bush's refusal to rule out a pardon for Libby makes things worse.
Presidential pardons can correct miscarriages of justice; they can even serve political goals if those goals coincide with a broader national interest. This was President Ford's justification for his pardon of President Nixon. But the national interest is damaged when pardons are used to spare erring political loyalists. The Fourth of July language in the presidential statement did not disguise the corruption of a fundamental American value: that all must be equal before the law.