Has the Scooter Libby pre-pardon tipped Bush's hand with respect to the subpoena drama we can expect to play out later this month?
Well, perhaps not fully.
But given how brazen an act it was, it demonstrates that Bush would almost certainly be willing to contemplate more such acts. Why he feels emboldened to do so is something we might spend a fair amount of time debating, but let's get right to the larger question: Will George W. Bush also pardon and/or commute the sentences of anyone held in contempt of Congress for defying the recently issued and still-to-be issued subpoenas from the committees investigating his "administration's" varied and widespread wrongdoing?
The subpoenas we all have our eyes on at the moment are those issued by the Senate Judiciary Committee. Remember those subpoenas were themselves issued because the "administration" has become so thoroughly corrupted that the Department of Justice has been directed to prosecute or decline to prosecute federal criminal cases based on partisan political considerations. And yet, the power on which the Congress currently relies to enforce their subpoenas is the threat of having that same Department of Justice bringing charges of statutory contempt of Congress against anyone who defies them.
Senator Leahy posits that it would be very difficult, politically, for the U.S. Attorney for the District of Columbia -- at whose discretion the decision to prosecute will be made -- not to proceed if directed to do so by Congress. Under ordinary circumstances, this is true.
But yesterday, George W. Bush has shown us that he will go to extraordinary lengths to protect members of his "administration" who find themselves in trouble with the law for carrying out his instructions and policies. So we must now ask whether he might not very well do the same for anyone who finds themselves facing contempt of Congress charges for asserting his position, insisting that they will not comply (for whatever reason) with Congressional subpoenas?
Yesterday's action also changes the post-subpoena calculus. Whereas previously it was thought that the
Vice President might direct the Department of Justice to simply decline to prosecute any contempt charges referred to the U.S. Attorney (or even file suit separately to enjoin such an action), now it must be asked whether it isn't a strategically wiser choice to let the prosecutions go forward, in slow motion.
Why not let the prosecutions proceed, if at a snail's pace? It eats up considerably more of the time remaining on the clock, and leaves Congress holding the bag, able only to complain about the pace. And at the end of the road, if there's a conviction, simply pull out the Scooter Libby playbook. Appeal every facet of the case, and when your luck finally runs out and someone has to pay the piper, the
Vice President can simply commute the sentence or pardon them. Voilà! It's almost time to escape out the back door, and everyone goes home scot free. Congress never gets the documents or testimony they've demanded, it's subpoena power is forever after in question, the Vice President's political opposition is rendered impotent, and his political loyalists are once again reminded of the special favor and power their loyalty buys.
What would you do?