Pardon Libby? Maybe, but Not Alone

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That conscience belongs, at the moment, to Bush, who doesn't seem to overtax it. According to Justice Department statistics, Presidents Truman through Ford granted a quarter or more of clemency petitions. The total fell to 12 percent under President Reagan, and then into the mid-single digits under Presidents George H.W. Bush and Clinton. Now, under George W. Bush, it has dropped to less than 2 percent. Bush appears willing to grant only the most uncontroversial of pardons: to a man who stole a car way back in 1948, for example, and to a savings and loan offender who was pardoned on his deathbed after serving seven years. And he has granted only—count them—three petitions for commutation, out of more than 5,000 received. That would put McNab's odds at about one-twentieth of 1 percent. He might as well win the lottery.

What happened? Afraid of controversy and of being seen as soft on crime, presidents have increasingly turned the clemency process over to career lawyers in the Justice Department—who include, of course, the very people who bring the prosecutions. "There was an almost perfect storm of changes in the department that allowed the prosecutors to take charge, basically, and kind of strangle the pardon power in the department," says Margaret Colgate Love, who was the department's pardon attorney from 1990 to 1997 and is now in private practice. "My department didn't care," she recalls. "They trivialized the pardon power. It was not a high priority. It was no priority."

Under Clinton, the bureaucratic process all but ground to a halt. In four of his first five years as president, he granted no clemency at all—only to release a chaotic flood of pardons on his way out the door. One of those pardons, of a tax fugitive named Marc Rich, brought down an avalanche of public protests and a congressional investigation.

Along came Bush. According to an Associated Press report in March, he learned to be wary of pardons as governor of Texas, after a county official whom he pardoned for a marijuana conviction was subsequently caught stealing cocaine. "Former governors tend to pardon less," says P.S. Ruckman, a political scientist at Rock Valley College who is writing a book on pardons. "Republicans tend to pardon less. And whenever a president follows a pardon controversy, they tend to cut off use of pardons. You put it all together, and there's no reason anyone would expect him to use the pardon power with great frequency."

Clemency has always been controversial, and it should be. (The Founders counted on the "damnation of fame" as the best check on abusive pardoning.) But it was nowhere near as rare or bureaucratic as it has become. Ruckman notes that John L. Sullivan, the famous boxer, once obtained a pardon for his nephew by walking into Theodore Roosevelt's White House and asking for one. Today, a vetting process that was intended to help guide clemency has effectively shut it down.

The Founders would not have batted an eye at a Libby pardon; the use of clemency as a political tool dates back to George Washington. What would astonish them is the army of people, many at least as deserving as Libby, whom Bush has not pardoned. They might point out, if they were around today, that Bush's neglect of clemency in such cases as McNab's makes his use of it all the harder in such cases as Libby's.

Interviewed by e-mail, McNab's wife, Nessie, said their son gave up college in order to run the fishing business, not very successfully. "Keeping the business going without Henson has been an impossible mission for us," she said. "Our sales have dropped more than in half." Rising debt threatens the business's survival, she said; McNab's father and mother are both ill; McNab was not allowed to attend his brother's funeral; he knows only two of his four grandchildren. A pardon for Scooter Libby? Maybe—but not while Henson McNab rots in prison.

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Jonathan Rauch is an opinion columnist for National Journal. His most recent book is Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America. This column appears in National Journal, a weekly magazine covering politics and government published in Washington, D.C.