Will President Bush pardon I. Lewis (Scooter) Libby? Everyone is wondering. But it is the wrong question. The right question is: Will he pardon anyone else?
It seems doubtful that Libby's recent, four-count felony conviction will be overturned on appeal. Unless he receives presidential clemency, Vice President Cheney's former chief of staff is likely to do prison time for lying to federal investigators. His case for clemency is not without its strengths, but its rightful place in the queue is far, far behind that of David Henson McNab.
McNab has been doing time in a federal prison in Arkansas since August 23, 2001. Despite the Scottish name (and ancestry), he is Honduran. Until he went to prison, he owned and operated Caribbean Fisheries, a sizable company that harvested lobster and shrimp in Honduran waters.
In 1999, agents of the National Marine Fisheries Service, acting on a tip, seized one of McNab's shipments in Alabama. They found that about 4 percent of the lobsters were undersized, 7 percent were egg-bearing, and all were packaged in plastic bags rather than boxes. In consultation with the Honduran Ministry of Agriculture and Livestock, the federal agents determined that the shipment was in violation of Honduran (not American) law.
Presumably angling for a plea bargain, and wielding a U.S. statute that bars the importation of "any fish or wildlife taken, possessed, transported, or sold in violation" of foreign law, the feds threw the book at McNab. They charged him with smuggling and money laundering, the latter because he had received payment for the shipment.
Facing this draconian charge, McNab voluntarily submitted himself to U.S. legal proceedings. Because Honduras has no extradition for its citizens, McNab could have sat tight, out of reach of the American authorities. Instead, "he came here to clear the charges," says his attorney, Miguel Estrada of Gibson, Dunn & Crutcher. "He was a businessman. He said, 'You've got to be kidding.' "
It was no joke. At trial, he was found guilty and sentenced to more than eight years, plus forfeiture of nearly $1 million.
The conviction got the attention of higher-ups in the Honduran government, who were dumbfounded. They attested that the Honduran statute on whose basis McNab was convicted had, in fact, been repealed—in 1995. They protested that authority to rule on Honduran law resided with the attorney general, not with the agriculture ministry bureaucrats who had incorrectly testified in McNab's case.
In a November 2004 letter to President Bush requesting clemency for McNab, Ricardo Maduro, then the Honduran president, wrote: "Mr. McNab did not break any law of Honduras." Moreover, even if the law had been broken, the Honduran penalty would have been only a small fine.
Armed with those attestations, McNab appealed his conviction. And lost. In a 2-1 decision, a U.S. appeals court said that the trial court's reading of Honduran law was definitive for U.S. judicial purposes. He then appealed to the Supreme Court. It hears only a handful of the thousands of appeal petitions it receives every year, and McNab's was not among the lucky few.
In December 2004, McNab petitioned Bush for a commutation of his sentence. That would simply free him, not pardon him. Asked the status of McNab's petition, a Justice Department spokesman said, "The case is still pending and we cannot predict when a final decision will be reached; however, Mr. McNab's lawyer will be informed when final action has been taken in his client's case."
That lawyer, Estrada, notes that McNab's sentence will end in November 2008, or perhaps a few months earlier. "If he doesn't get it [commutation] from this president, he ain't never going to get it from nobody," Estrada says. But the months drag on. "I find the delay inexplicable," Estrada adds. "The only thing that occurs to me is that the prosecutors at main Justice are trying to run out the clock to have him serve out his whole sentence."
Here is a fact that historians may note with puzzlement: Bush, who is obsessively protective of unilateral executive power in every other sphere, has all but abandoned the most unequivocally unilateral power that the Constitution gives him. Presidents can grant pardons and commutations to anyone they please, for any reason or for no reason at all. That's because the Founders understood the excesses of bureaucratic justice. "The criminal code of every country partakes so much of necessary severity," Alexander Hamilton wrote, "that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
Prosecutors are paid to be relentless. Courts are bound to go by the book. The Supreme Court cannot reach down and undo a single sentence without potentially overturning a whole branch of law. Thus the Founders ultimately wanted justice to be acceptable and accountable not to a system but to an actual human being, a solitary conscience.
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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