In baseball, if you're a runner caught between bases, you're said to be in a "pickle." You've sprinted towards third base, and all of a sudden there's the third baseman standing in front of you with the ball in his glove. Bummer. You know that if you go forward, you'll be easily tagged out. But if you pull up, reverse direction, and head back to second, you'll likely also be tagged out by a quick throw to the shortstop. In other words, you're in a lose-lose situation.
President Bush, one-time owner of a major league baseball team, will most likely find himself in just such a pickle next week. Because that's when (by all accounts) Scooter Libby's judge is going to rule that Scooter can't stay free while his appeals process grinds on; and hence must begin serving (within 60 days) his 30-month jail sentence. That's right -- Scooter is soon going to be behind bars.
Which leaves Bush with only two options: "To pardon, or not to pardon?" It's a lose-lose situation for him, because whichever way he goes, he's going to lose significant political support.
It must be admitted that the presidential power to pardon is pretty close to absolute. Here's the Constitution on the matter (Article II, Section 2):
"...[the President] shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."
It's one of those almost-unrestricted "checks and balances" things. The theory goes: the President can pardon anyone the Judiciary convicts, as a check on the Judiciary itself. The only challenge to this sweeping presidential power is Congress' own power of impeachment... which is, incidentally, why he can't pardon someone in an impeachment case.
Many commentators will point out that "Justice Department regulations" have a whole process outlined for applying for a presidential pardon, and that two key provisions of such regulations are that you admit guilt and show remorse. Libby has done neither, and shows no sign of doing so at any time in the near future. But while this will seem to be a powerful argument, it is ultimately meaningless. The Justice Department may have some rules for who normally gets forwarded to the president's desk for consideration, but this is anything but a "normal" case. And the Justice Department, remember, is directly controlled by the Executive Branch -- in other words, the President. He can ignore his own regulations if he wants -- since they aren't actually laws, merely conventions. The only law that matters is the Constitution, and the only restriction placed on the ability of the president to pardon someone is that it not be an impeachment case. So Bush would be well within the law to do so.
But, politically, if he pardons Libby right away, there's going to be an outcry. It's going to be loud and angry -- but in the end, ineffective. Remember Bill Clinton? I didn't approve of all the pardons he granted on his way out the door ... but I also supported his absolute right to pardon anyone he wished.
But also remember that, with Clinton (as with most presidents), he waited until he had one foot out the door to sign such politically volatile pardons. The modern tradition is to pardon a whole slew of people (including anyone with any political implications) on your very last day in office. Which is, after all, three months after the election for your successor. This way (so the political calculation goes), only the outgoing president's "legacy" pays any political price for such pardons.
President Bush really and truly wanted to exercise this option with Libby -- and he's still probably hoping mightily that the judge lets Scooter stay out of jail for another year and a half (while his appeal is being heard) -- so that Bush can pardon him after the 2008 election. But, unfortunately, the judge involved has gained the reputation of being a "long ball" judge (another baseball metaphor pops up!), consistently ruling "by the book," and thereby bucking the modern trend of letting white-collar criminals stay free on appeal. If all predictions are accurate and the judge orders Scooter to jail before the end of the summer, Bush is going to be forced to make this decision a lot more quickly than he would have liked.
On the one hand, if he pardons Libby, he'll keep his base happy. But he will further harm his standing among the rest of the country (now, it should be noted, 65% to 70% of the American public), which may doom his chances of ever seeing an approval rating above 40% -- for the rest of his term.
If, on the other hand, he does not pardon Libby (or even if he waits too long to do so), he's going to lose even more of his base. And that could send his approval ratings down to the low twenties, or even (gasp!) into the teens. Not exactly a "legacy" to be proud of. His base is already pretty miffed with him over the whole immigration issue. For the first time ever, a recent poll put Bush below a 50% approval rating among Republicans. That's right, only 45% of Republicans approve of Bush's handling of immigration. To be fair, he's above 50% support with them on every other issue, but it still shows a mighty big crack in his base support.
Up until now, no matter what Bush did, no matter what he said, no matter how bad the incompetence, no matter what lies were exposed, no matter who got indicted nor who quit in disgrace; around 30-35% of Americans have supported him. If the rabble-rousers on immigration keep up the pressure throughout the summer, however, that base support is going to start slipping -- possibly never to return. Add to this grim outlook (for Bush) the refusal to pardon Libby, and the right wing may suddenly and savagely turn on him, just like they did to his dear old dad.
This will have far-reaching implications for Bush's overall political strength. Which could be crucial at the end of the summer (and on into the fall) in considering his relative influence on Capitol Hill. On the most critical issue, Bush held Republicans together during the last round of Iraq war financing -- but the next round is approaching like a freight train, and congressional Republicans are going to feel a whole lot better about deserting a president with a 19% or 22% approval rating than they would if Bush is still at 30 or 35%. Since Republican defections (especially on veto override votes) are going to be the key to ending the war, this is an important distinction both for them politically, and for the effort to end the war.
It will also send ripples across the Republican presidential nomination race. Fred Thompson, who has all-but-officially announced his candidacy, is the one who will have the most at risk. Behind the scenes, he has been heavily involved in the Scooter Libby defense operation. He had a big hand in getting all those letters written on Scooter's behalf, for instance. It will indeed be interesting to see how the other Republican candidates handle the issue. Do they agree with Fred Thompson, and throw their lot in with the "Scooter was framed" crowd (which will help them in the Republican primaries, no doubt); or do they stand on the sidelines, with a cautious eye to the general election (where staying out of the fracas may help them)?
No matter what happens, Bush is going to find himself in a pickle. Either he pardons Libby right away, and confirms what two-thirds of the country already thinks about his attitude towards lying; or he doesn't pardon Libby (or stalls such a pardon for too long) and thereby loses half the support of the dwindling one-third of the public who still back him -- and in the process, weakens his congressional political support to stay in Iraq.
It looks like a long, hot summer indeed for Bush.
[This should be seen as a companion piece to what I wrote about this issue yesterday, specifically James Carville's signature at the bottom of one of the letters to Libby's judge urging leniency in sentencing. I'm still waiting for Carville's public apology for this shameful act -- or, at the very least, his public accusation that his wife Mary Matalin faked his signature -- but, understand, I'm not holding my breath.]
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