Finally, a Contest Winner, and my suggestion for the Libby debacle Posted by Jerry Mayer

Sorry for the long delay in announcing a winner in the '08 Foreign Policy Slogan contest. Our team of elite messaging judges had to be gathered from the top political consulting firms to vote. After all the ballots were counted...

First Again, submitted by Lorelei Kelly, won. A close second was Dick Klaas with "Restoring America's Leadership, Resurrecting American Values." I just think that simpler is better, and Lorelei's has the added advantage of appealing to American jingoism, which is good politics for Dems. It's not as nationalistic as it sounds. Imagine Obama issuing a peroration going "First again--in human rights. First again--against torture...First again--in taking care of our veterans" etc.

I do want to say that Keith Porter's suggestion, of returning to the language of the Constitution and Declaration is a good one. In particular, I think that "We, the People" could be an overarching theme for Democrats in 2008. Just not for foreign policy.

Shameless plug--Politico just published my op-ed on how the Dems should respond to the Libby commutation. They should propose a constitutional amendment to limit future presidential pardons. At the very least, it will force Republicans to talk about the Libby debacle all the way into the election.

Comments

[Caitlyn]

The amendment process shouldn't be used as a tactical ploy. Either you beeive that the pardon power should be eliminated, you don't, or you come up with a way to prevent it from being used for officers of the US government for crimes while in office. But don't turn the process into a political game: that is what I might expect of Karl Rove, but it isn't what I expect of the party that prides itself on governance.

[Jerry Mayer]

I don't think we should tarnish the constitution with partisan concerns either. But I think you are making the argument about the amendment too binary. I like the pardon power. It has served the nation well many times. The Founders wisely saw that this king power was necessary in their new democracy. The law sometimes works injustices, even as the law works well. So a pardon is necessary.

But I think it needs to be revised, and yes, it is Bush's conduct and anticipated conduct which re-exposes this need. Yet this problem came up during the Nixon years. It has been pondered before. So like a number of amendments, which further refine the constitutional order, this one is proposed. I am not proposing it BECAUSE of its partisan advantages. I'm proposing it because it is needed, and also noting the partisan advantages that will accrue to the Dems if they go with it.

[Dan Kervick]

The Founders wisely saw that this king power was necessary in their new democracy. The law sometimes works injustices, even as the law works well. So a pardon is necessary.

This doesn't strike me as a very compelling case for the pardon power at all. Of course the law sometimes works injustices. But the question is whether investing the president with a pardon power will lead, on the whole, to more justice or more injustice. I'd have to say that the recent evidence suggests it leads to more injustice.

In any good judicial system, there must be mechanisms for appeal. But it is also evident that the appeals process must end somewhere. What is the argument for the claim that justice is advanced by having that appeals process effectively terminate with the chief executive, rather than somewhere else? Isn't there a strong case to be made that the pardon power leads more often to politically motivated interference with the judiciary's ability to do justice, and the legislature's ability to make sound law, than it leads to the correction of judicial errors and the supersession of defective law?

Anyway, I don't think the Founders' chief rationale for the pardon power was its benefits for the doing of justice. The main defenders of the pardon power were those who favored a powerful, in some cases king-like, chief executive who would use the pardon power in just the way George Bush has used it: to shield the executive branch from accountability to the legislative and judicial branches.

Hamilton, as is typical for him, is more concerned about creating a very powerful, monarchical chief executive, with the ability to defend himself and his office against "seditions", than about creating a vibrant democratic society. Bush and Cheney are acting here like Hamilton's true heirs - they have just used the pardon power to prevent the Congress and judicial branch from interfering with and second-guessing what they see as the executive's inherent war-making and national security powers. They don't believe Libby should have had to answer the questions of any damn prosecutor to begin with, and they believe this power to nullify judicial branch legal processes is their tool for enforcing the rightful, broad scope of executive power. Alas, I think this is precisely the sort of move the "wise founder" Hamilton had in mind.

Hamilton's spurious official defense of the pardon power is this:

As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

Hamilton generally had more faith in "a single man of prudence and good sense" than the institutions of democratic and republican government. But even accepting Hamilton's premise, his argument offers no support at all for the idea that the pardon power should rest with the President. If it is felt necessary that the court of final appeal should be a single individual, why not then establish an office of "chief magistrate of appeals" in the judicial branch itself?

And of course, Hamilton offers no argument at all that the President is more likely to be a man of prudence and good sense than a pol of impatient and wavering sense. Nor does he give any argument for thinking that the prudence and good sense, if they exist, are more likely to be exercised in the public interest than in the personal interest of the President himself.

[Jerry Mayer]

Dan--I think you make a case against the pardon power residing with the executive in the modern era. But it is simply not true to state:
Anyway, I don't think the Founders' chief rationale for the pardon power was its benefits for the doing of justice. The main defenders of the pardon power were those who favored a powerful, in some cases king-like, chief executive who would use the pardon power in just the way George Bush has used it: to shield the executive branch from accountability to the legislative and judicial branches

The "main defenders" made no such arguments in the debates.

Also "the pardon power leads more often to politically motivated interference with the judiciary's ability to do justice, and the legislature's ability to make sound law, than it leads to the correction of judicial errors and the supersession of defective law?"

I doubt very much you would find this to be the case if you looked at most pardons. Most are just what it was intended to be. My fave was a cocaine pardon by Clinton. In a cocaine investigation, the ones who talk get lighter sentences. A drug dealer's girlfriend was arrested, and refused to talk, because she LOVED her man. The man and all his accomplices talked. So she, a minor figure who was only involved because of her boyfriend, received 20 years, while they all got less than 3. They were experienced, they knew the system...Had the courts removed her sentence, it would have created precedents, etc. Only the executive could step in. He did so.

Also, you didn't address the obvious need for pardon power after things like domestic rebellion or Vietnam draft dodging. Those are inherently political decisions, ones that in the former case must be made with the speed for which legislatures are not known.

As for a chief magistrate of appeals--would that be over the Supreme Court? It's an interesting idea.

[Allen]

I want a recount!

[Greg Sanders]

I tend to agree with the gist of your argument. I'll just note two possible problems with your amendment.

1) There may be times when a pardon for a member of the administration is legitimate. A variant proposal (I forget by who) allowed for the President to pardon a member of his or her administration when 2/3s of Congress also supported the pardon (same basic mechanism as overcoming a veto).
2) You may also want to extend it to political appointees from when the current President was Vice President (or a cabinet member). See Bush's pardons for people in Reagan era scandals.

[Jerry Mayer]

I think you are thinking of the Mondale amendment, which had a 2/3 override proposal back during the Nixon pardon days. I'm not necessarily opposed to that, as I think it will be VERY rare for a 2/3 majority to be gathered except when the president is really in the wrong.

The second proposal seems like too much tweaking for an occurrence unlikely to happen again. But then, who knows?

[Greg Sanders]

Sorry, I think my first proposal was unclear. The 2/3s would be necessary to *uphold* not reject a pardon for Administration officials. That way an administration pardon could still happen if the president was obviously in the right, otherwise they couldn't do it.

You might be right about unnecessary tweaking on the second proposal. I'm not a big fan of either Ford's pardon of Nixon or the Iran-Contra pardons, but tweaking in that regard might be an overreach.

[Jerry Mayer]

Yeah, everyone treats Ford's pardon of Nixon like it was the greatest act of statesmanship, but I remain unconvinced. I think it would have been a salutary lesson in democracy for Nixon to go to jail. Not a lesson for him--a lesson for the people and for future presidents.

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