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Vail Law: Presidential pardons

Let’s try and forget, for a moment, that there’s a 56- year old man who goes by the name Scooter. With a name like “Rohn,” I guess I should give some thought to glass houses and the like before heaving any stones.

Anyway, Scooter Libby has recently found himself in a heap of trouble. Legal trouble, to be precise.

Libby was Vice President Dick Cheney’s Chief of Staff and national security adviser. In the last several days, Libby was tried and convicted of four felonies relating to the Valerie Plame affair. He was convicted of two counts of perjury, one of obstruction of justice and one of making false statements to federal investigators. He faces, potentially, up to 20 years in prison.

Because of Libby’s close association with the Bush administration and because, at least in some quarters, the perception is that Libby was railroaded as a protest of Bush’s unpopular policies, particularly in Iraq, there have been calls for a presidential pardon.

“Perjury” is the act of lying or making false statements under oath. Perjury is considered a serious crime that could undermine the courts and our very system of jurisprudence, which relies heavily on the assumption that a witness under oath will tell the truth.

“Obstruction of justice” refers to the crime of interfering with the work of investigators, regulatory agencies, prosecutors or other governmental officials. It is, in essence, intentionally attempting to pervert the course of justice. Obstruction of justice is what snared Martha Stewart in her insider trading scandal.

“Making false statements” seems, intuitively, much like perjury, and it is.

On now to the main theme: Presidential pardons and presidential commutation. Let’s first define our terms and then delve into the historic basis of the powers.

A pardon means, in the real world and at law, to forgive. The individual upon whom it is bestowed is exempt from punishment for a crime for which he or she has been convicted.

A pardon is distinguished from the “commutation” of a sentence for a crime. A commutation does not forgive or obliterate guilt. While a pardon forgives the crime, a commutation merely remits part of the punishment.

With a pardon, the crime goes away and the punishment is avoided. With a commutation, the crime occurred and a price is paid, but a lesser price than was originally imposed. A pardon must be accepted by the person convicted of a crime. A commutation may be bestowed without the person’s acquiescence.

From whence, then, does the President’s power to pardon arise? It arises from the United States Constitution, specifically Article II, Section 2. That section provides that “The President shall… have the Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.” The President’s power to pardon is absolute. Pardons cannot be blocked or equivocated by Congress or the courts.

The origin of the Presidential power to grant pardons lies with the framers of the Constitution, who envisioned the power as having a narrow purpose, largely in times of war or rebellion. A pardon might be offered, for example, as an inducement for rebels to lay down their arms.

In large part, the presidential power to pardon has been used as the framers intended: Washington pardoned the leaders of the Whiskey Rebellion, Andrew Johnson pardoned Confederate soldiers when he inherited the aftermath of the Civil War from the slain Abraham Lincoln; Ford pardoned Nixon for the intrigue of Watergate affair, Jimmy Carter pardoned those who evaded service in the Viet Nam War. In recent years, however, the power has been exercised more broadly.

The recent tradition has been for presidents to pardon people in the waning hours of their terms when the political repercussions may be blunted. If pardoned, Scooter Libby’s best hope lies in January, 2009 just before the oath of office is administered to the next President of United States. Until then, the process of appeal may keep him warm and dry and out of lock up in some dingy federal cell.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus”. Robbins may be reached at 970/926.4461 or at his e-mail address: robbins@colorado.net.


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