Jim VandeHei's article today in the Politico underscored a point I made a few weeks ago about President Bush. In the wake of the immigration bill's defeat, I argued that this was the end of Bush's informal presidential powers. I wrote:

The failure for Bush on the immigration issue is, I think, fairly telling. He failed not because he lacked power [to set the agenda]. He was indeed able to induce Congress to take up an issue that he wanted it to take up. His failure was really due to an inability to induce legislators to alter current policy as he wants it altered. He no longer can put the "squeeze" on legislators and directly induce them to do what they would not otherwise do, at least when it comes to changing the status quo.

I also indicated that I thought that the immigration bill's failure would be Bush's last attempt to exercise this kind of power. He lost something of his presidency in that bill's demise.

However, this does not mean that he is a lame duck. His formal powers are - thanks to today's political circumstances - still vast.

If you look at Article II of the Constitution, you will see that the formal powers of the president are actually quite few in number. The president always has those powers - but what makes him the force in American politics that he can be is his set of informal powers. Richard Neustadt once summarized these as the ability that the president has to influence people to do what they would not otherwise do. It is clear to me that President Bush has not read Neustadt's classic treatise on presidential power - for he has not done any of the tasks Neustadt thinks the modern president must do to protect his informal powers. And so, they're all gone now.

But, the president still has his set of formal powers, thanks to Article II. These essentially amount to his capacity to protect the status quo as regards current public policy, his executive authority over the military, his authority to negotiate treaties, and appoint officers of the executive and judicial branches. In certain times, these powers imply very little influence. If, for instance, the nation is in a time of peace - the president's military authority means very little. If, for instance, the president wishes to change the status quo, his veto pen means very little.

This, then, is how lame ducks are produced. Lame ducks are presidents whose formal authorities give them very little influence in light of the political circumstances of the day.

Even though his informal powers are now essentially gone, Bush is not to be counted among these lame duck presidents. Reports VandeHei:

Yet there are very good reasons to believe the prevailing conventional wisdom on Iraq might turn out to be wrong once again.

The reasons are simple: the power of the presidency, the anguished feelings of many congressional Republicans and math. In short, Bush is in no mood to yield.

House and Senate Republicans still don't appear prepared to force him to. And a loyal group of GOP senators are prepared to back a Bush veto if Democrats ever succeed in limiting or ending the U.S. mission in Iraq.

"At the end of the day, all of this hand-wringing needs to be understood (in the context) of how Congress works: There will always be 33 of us, as long as there is not a complete meltdown, to support a military strategy that is aggressive and is not based on needs of the next election," said Sen. Lindsey Graham (R-S.C.).

This is why Bush is not to be trifled with - even if nobody outside the White House is taking his calls regarding domestic policy initiatives. As commander in chief, Bush has the power to use whatever tactics he wishes to use in Iraq. Democrats can pass legislation to change those tactics. However, they require his signature, which of course will not be forthcoming. They can then try to override his veto - but it should be clear from VandeHei's piece why legislative vetoes are so hard to override. On any controversial position, the minority-plus-the-president is usually large enough to block the majority. Bush will probably have 33% of at least one chamber on his side from now until the end of his term.

This is why I stop short of calling Bush a lame duck. The political circumstances of the day mean that his formal powers are very influential. The nation is at war, so Bush as commander in chief has final say over how that war is conducted. Meanwhile, he supports the status quo on the war while a majority in the legislature opposes it. His veto pen is what is keeping the status quo in place - it will continue to. The powers of Article II mean a great deal in today's politics - which is why Bush is still a powerful president.

Posted by Jay Cost at 11:37 AM | Permalink

Michael Barone made an interesting observation on his blog last Friday that I wanted to note (and, of course, toss in my two cents).

He writes:

Gerard Baker in the Times of London makes a point that I have made myself on occasion: The way we pick vice presidents is crazy. We spend lots of time and money and psychic energy on picking our presidents, with millions of people in one way or the other involved. But we let one man (or, quite possibly this time, one woman) select the vice presidential nominee. And this is considered by just about everyone as the way it should be. Yet, as Baker points out, vice presidents have a tremendous advantage when it comes to running for president. So the decision of Ronald Reagan at something like 3 in the morning in a Detroit hotel room to pick George H.W. Bush as his running mate leads directly to Bush's election as president in 1988 and his son's election as president in 2000 and 2004. Had Reagan picked someone else, it is extremely unlikely that either Bush would have been president.

This is a great point.

Why might this be the case? I can't help but think that it is due to the fact that we really do not have a maximally efficient scheme for electing vice presidents. Simply stated - the scheme is an 19th century scheme, but the office is now a 21st century office.

The 12th amendment governs the election of presidents and vice presidents. It was enacted to avoid a repetition of the election of 1800. Originally, the Constitution required electors to vote for two persons for president. The person with the greatest number of votes would become president. The person with the second greatest would be vice president. In the election of 1800, Aaron Burr - who was Thomas Jefferson's vice presidential candidate - received as many votes as Jefferson. It was up to the lame duck (and Federalist controlled) House of Representatives to settle the contest. With the institution of the 12th Amendment, electors came to cast one vote for president and one vote for vice president.

One can appreciate the intention of the original design, even though it was obviously flawed from the get-go. The candidate with the second most electoral votes would be the nation's second choice, and it stands to reason that - should the nation's first choice no longer be able to serve - the second choice should be there to fill in. However, this scheme never fulfilled this intention. In the first presidential election, in 1788, some electors voted for somebody other than John Adams so that he would not get as many votes as George Washington. So, having the unanimously preferred person become president required some strategic maneuvering on the part of the electors - already a bad sign!

By the time of the first contested presidential election - in 1796 - political parties had begun to emerge. And parties, of course, offer slates of candidates. This is what made 1800 so problematic. Republican electors voted for Jefferson and Burr. The latter, who was not even running for the office, nevertheless received as many votes as the top-of-the-ticket candidate. And the election had to be decided by Congress.

The 12th Amendment solved this problem by effectively making the vice presidency an unelected position. Electors still vote for vice president, and in theory they could vote for whomever they prefer. But in practice, the 12th Amendment has meant that whichever party wins the presidency also wins the vice presidency. So, it is effectively a nominated position.

What is interesting is that Messrs Barone and Baker are absolutely correct. It is a purely nominated position that nevertheless carries with it a great deal of importance. But this has been the case only in the age of television. The vice presidency was useless (a "bucket of warm spit" as FDR's first veep, James Garner, called it) until Richard Nixon was selected as Ike's nominee in 1952. Prior to that, the vice presidency was little more than a way for a party to mollify a regional faction relatively unhappy with the nominee for president. Television changed all of this. In the age of television, a vice president has at least four years to make himself known, and loved, by the public. Thanks to television, the office is now a great way to develop name recognition and positive feelings from the public.

Many vice presidential candidates have used the opportunity to great effect, which has increased the importance of the position. It is now much more important than it was when the Constitution and the 12th Amendment were written. The strange disconnection between the importance of the position and the manner in which it is filled is a sign that our Constitution is a document from an era long-since gone.

We have all kinds of strange, antiquated practices in this country for essentially the same reason. It is a price we pay for having a written and stable document as the basis of our government. If our goal is to write things down and make it really hard for future, crass politicians to erase them - we are going to retain some provisions that will eventually become outdated.

The selection of the vice president, then, is certainly an inefficiency. But it is not one borne for no reason. After all, if we could easily rewrite the Constitution when it comes to selecting the veep, we might also, under the spell of the kinds of bewitchments to which we as a public have occasionally fallen prey, rewrite more precious parts of our founding document!

Posted by Jay Cost at 12:00 AM | Permalink

The presidential power to pardon or commute is a feature of our system that rarely receives media coverage. It is now in the news, thanks to the Libby commutation. It seems to me that more than a few commentators are unaware of the function that it was intended to serve, and I think that some of their rhetoric has been a bit careless. Accordingly, I thought it might be worthwhile to outline why the Founders saw fit to include it in Article II of the Constitution.

In The Federalist #74, Alexander Hamilton writes:

[The President is] to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. 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. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

What is Hamilton on about here? His argument is that some entity should have the power to carve out exceptions to the rulings of the judiciary. Otherwise "justice would wear a countenance too sanguinary and cruel." The best entity for this, argues Hamilton, is a single person. A single person will be more attuned to the sympathetic concerns that the Framers want to inject into the judicial process. Furthermore, a single person will be solely responsible, and thus feel compelled to be as judicious as possible.

This is a theme that the great American jurist, Justice Joseph Story, expands upon in his Commentaries on the Constitution. He writes:

The common argument is, that where punishments are mild, they ought to be certain; and that the clemency of the chief magistrate is a tacit disapprobation of the laws. But surely no man in his senses will contend, that any system of laws can provide for every possible shade of guilt, a proportionate degree of punishment. The most, that ever has been, and ever can be done, is to provide for the punishment of crimes by some general rules, and within some general limitations. The total exclusion of all power of pardon would necessarily introduce a very dangerous power in judges and juries, of following the spirit, rather than the letter of the laws; or, out of humanity, of suffering real offenders wholly to escape punishment; or else, it must be holden, (what no man will seriously avow,) that the situation and circumstances of the offender, though they alter not the essence of the offence, ought to make no distinction in the punishment. There are...various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition.

Story, like Hamilton, identifies an inherent limitation to the rule of law. It is necessarily a set of general maxims - but life admits of subtleties and "gradations" that the law itself cannot capture. Thus, his fear is that judges and juries will either be too harsh or too lenient. The power of the pardon is therefore necessary. Indeed, it allows the rule of law to be of maximum benefit to society.

Note the exception that the Framers inserted into the provision: "except in cases of impeachment." (The ever-so-subtle Hamilton wants you to note this - which is why he saw fit to emphasize it with capital letters) This is a sign that they were conscious of questions about the breadth of the power's scope. They intentionally chose to limit it to this extent, but no further. Indeed, in The Federalist #74, Hamilton considers, and rejects, the argument that the President should not have the power to pardon in cases of treason. In drafting the Constitution, the Framers considered, and rejected, a provision to have pardons for treasons reviewed by the Senate. [Interestingly, George Washington, on his way out of office, actually pardoned the perpetrators of the Whiskey Rebellion.] Clearly, this was not a haphazard and careless grant of executive power. They chose one - but only one - exception to it.

Without commenting on whether the Libby commutation should or should not have happened (Prior to the commutation, I had only argued that it would be bad politics, an opinion I still hold) - I will say that more than a few commentators have been a little careless with their rhetoric. A lot of people seem to me to be offering objections that, if taken to their logical conclusions, are actually objections to the power of the pardon itself.

For instance, the Seattle Post-Intelligencer opined:

President Bush's commutation of a pal's prison sentence counts as a most shocking act of disrespect for the U.S. justice system. It's the latest sign of the huge repairs to American concepts of the rule of law that await the next president.

Well - technically, all pardons could be counted as "disrespect for the U.S. justice system" and (obviously) "the rule of law." A pardon is an exception; the justice system does not allow for exceptions. The Framers thought exceptions were appropriate, and so they included the pardon provision.

Similarly, the Chicago Tribune made the following argument:

[I]n nixing the prison term, Bush sent a terrible message to citizens and to government officials who are expected to serve the public with integrity. The way for a president to discourage the breaking of federal laws is by letting fairly rendered consequences play out, however uncomfortably for everyone involved. The message to a Scooter Libby ought to be the same as it is for other convicts: You do the crime, you do the time.

This objection is an objection to the power itself. By this logic, the President should only pardon when there has been a miscarriage of justice. Note that the Framers did not carve out an exception to the power that limits its use to instances where justice has been misapplied. No - it is a wide-ranging power that allows the President to make any exception (other than impeachment) he likes, not just exceptions that involve the miscarriage of justice. The Framers thought it wise to soften the hard edges of the judicial system by giving a single human being the power to free another in almost any circumstance.

Personally, I think that Hamilton's logic is sound and his intuitions are accurate. Critics of this commutation should, I think, be more careful to distinguish between the constitutional power and this particular use of it.

Without commenting upon the validity of its critique, I think that the New York Times hits what may be called the "Hamiltonian note:"

[The demands of Bush's conservative base] put immense pressure on the president to do something before Mr. Libby went to jail. But none of it was justification for the baldly political act of commuting his sentence...

Presidents have the power to grant clemency and pardons. But in this case, Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell.

This critique is one that differentiates between the power and the act. It is surprising to me that so many other commentators have not been able to make the distinction. After all, part of Hamilton's rationale for putting the power in the hands of the President is that objectionable pardons can be directly linked to a single man. The pardoner is an easy target in our system. So, why can't the rest of the critics do as the Times has done: go after Bush, and leave the power itself alone?

Posted by Jay Cost at 12:00 AM | Permalink

This is merely impressionistic, but it seems to me that the writers over at Newsweek really enjoy psycho-analyzing President Bush. The latest comes from Howard Fineman.

Though I've never heard him use the term, my guess is that George W. Bush sees himself as a hacendado, an estate owner in Old Mexico.

That would give him a sense of Southwestern noblesse, duty-bound not just to work "his" people, but to protect them as well.

His advisor, Carlo Rove, has explained that a system called "democracy" now gives peasants something called "the vote." It would be shrewd, Rove said, for hacendados to grant their workers' citizenship.

That's the best explanation I have for why Bush is in the midst of what may be a suicide mission on immigration policy--embarrassing for him and ruinous for his party.

This reminds me of one of my favorite scenes in Arrested Development. Lucille and Oscar are arguing over whether Buster is going to be shipped off to Iraq. Lucille shouts, "You're high!" Oscar responds, "Well - you can win every argument that way, but that doesn't make you right!"

I feel vaguely the same way about Fineman's piece. What good does this kind of armchair psychoanalysis do us? What have we learned from this, beyond what Howard Fineman thinks? Fineman is not - so far as I know - a professionally trained mental health worker. Nor, for that matter, does he have the kind of access to the President to make such psychoanalytic judgments. It makes for good rhetoric - but really, does an assertion like this explicate, clarify, or elucidate anything at all? If not, why is this worth our while?

Amateur psychoanalytical argument is, I think, the second worst explanation for human behavior. If you are a professional mental health worker, then it is a different story. But if you are not, it is just a weak basis for inference. The weakest is, of course, recourse to ill intentions. Q: Why did he do something that puzzles you? A: He is evil. That is the weakest answer I think you can give. The second weakest answer is essentially what Fineman argues. A: He is crazy.

You can win any argument by using either of these answers. But, really, how much do you actually explain?

Posted by Jay Cost at 01:32 PM | Permalink

Government, as we all know, is about power, which is a multi-faceted and sometimes subtle concept. I have found that many people have a working defintion of power that is not entirely sufficient to yield a full understanding of American politics. Bringing a broader definition of power to bear on recent events in Washington can help us tease out some insights about our current political environment that, I think, have gone largely unnoticed.

A good way to think about power is to imagine two politicians, Bob and Barbara, at a negotiating table. If Bob tells Barbara that she had better agree to the proposal, or else he will refuse to endorse her in the next election - Bob is exercising power over Barbara. Bob has something she wants, and for Barbara to get that, she must give him something he wants.

This is the way most people think about power. But there are other modes in which one can exercise power. For instance, what if Bob decides, before the meeting begins, that he is simply not going to bring up certain disagreements he has with Barbara, and that he is going to bring up other disagreements instead. In this case Bob would have the power to set the agenda. This is a power that is different than the power outlined in the last paragraph, where Bob flat out threatened Barbara. This is a more subtle exercise of power. If flat out threats might be understood as the "first mode" of power, the power to set the agenda might be understood as the "second mode."

Many people do not think of power being exercised in this way, though I am sure the same people - when the subject of setting the agenda is brought up - would recognize that agenda-setting is indeed a powerful activity. It is just it is not on their radars.

It's on my radar, though. As a matter of fact, the second mode of power tends to creep into my thoughts whenever I think about Bush and Congress. For instance, I looked at this immigration debate, and I asked: why was this issue brought up now? I find the answer that many might give - "Well - it is an important, pressing concern." - to be insufficient. After all, there are literally dozens of "important, pressing" concerns, all of which are just as worthy of the public's attention as others. Why this issue?

The answer is...politics! Who chooses to raise some issues and not others? Politicians! Of course, in some instances - for example, 9/11 - issues are raised for politicians, and not by them. But, in most cases, politicians choose to bring certain issues up and not to bring certain other issues up. Politicians set the agenda. Democrats and Republicans alike will know what I am talking about. In 1993, Republicans objected mightily to the "manufactured" crisis in health care that the Clintons had supposedly created. Just last fall, Democrats objected mightily to the "crass politicization" of the issue of Guantanamo that the Republicans undertook after Labor Day. Both sides were coming from the same direction at different points in time - both recognized that the other had acted to set the agenda in a way that was beneficial to the other's interests, and that they could do nothing about it but complain.

Why is the power to set the agenda so important? The parties disagree on most every issue that we discuss in politics. On some issues, the Republicans have the voters with them. On other issues, the Democrats do. The power to set the agenda gives a party the power to allow discussion only on issues that favor their side. Republicans like to talk about taxes and terrorism. Why? They know that, by and large, the public supports Republican ideas on these issues. Democrats, meanwhile, like to talk about education and health care. Why? They know that, by and large, the public supports Democratic ideas on these issues.

This is one reason why political campaigns are not so much discussions between two candidates who disagree, but rather talking-past-one-another sessions. Republicans know better than to engage Democrats on health care because the more health care is discussed, the more the party loses the support of the electorate. So, what do Republicans do? They talk about taxes. Democrats know better than to engage Republicans on taxes for the same reason. So what do they do? They talk about health care.

Ideally speaking, if you have the power to set the agenda, what kind of issue should you raise? The answer is pretty clear. The best kind of issue is one where your allies are united and your opponents are divided, and the public likes your idea and hates your opponents' idea. That makes for the best politics. You can make yourself look like the action-oriented, unified party of the people, and you can make your opponents look like the feckless, divided defenders of the special interests. It is the gift that keeps on giving: you get the policy initiative you want, and you help yourself in advance of the next election.

As evidence of the truth of what I write here, I would point to two news items that crossed through my field of vision in the last few weeks. The first is from Paul Kane and his Capitol Blog on the Washington Post's website on June 1. Kane writes:

House Democrats are voting with such unity that, if continued throughout the 110th Congress, their cohesion would be unparalleled in recent congressional history.

Through the first five months of the year, the average House Democrat has voted with a majority of his/her caucus colleagues on 94 percent of the 425 roll calls. Enjoying their honeymoon period, 110 Democrats -- nearly half of the 232 Democrats -- have sided with a majority of the caucus on at least 98 percent of the votes cast this year.

Now, consider this from the Washington Post from the same day:

On legislation, Republicans have at times shown remarkable disunity.

Last week, Boehner denounced a Democratic bill against energy price gouging as pointless political pandering, only to see it receive 56 Republican votes, including McCotter's. For months, Republican leaders had denounced Democrats for loading an Iraq war spending bill with nonmilitary spending that they called wasteful pork. Then last week, when Democrats separated that spending into another measure, 123 Republicans voted for it -- including House Minority Whip Roy Blunt (R-Mo.), who had been expected to hold his party off the bill.

Why are these levels of unity and disunity so historic? My guess is that the biggest reason is that the Democrats have been out of legislative power in the House for 12 years. As the GOP controlled the agenda-setting power, the Democrats collected a series of popular, Democrat-unifying, Republican-dividing issues over this period of time - issues that the Republican agenda-setters avoided because they were bad for the GOP. Now that the Democrats have the agenda-setting power, they can finally hold votes on these proposals. A good parallel might be made to George Harrison, whose first post-Beatles effort, All Things Must Pass, is arguably the best of any post-Beatles effort by any of them, even Ringo. George had been smothered by the group dynamic, being limited to only two songs per record. By the time the group split, George had a backlog of songs that was so great that he could fill two full records with some of the best music of the time. So it goes now with the Democrats. They have a backlog of issues that resonate with the public, unify their side, and divide the other side. With the majority in both chambers, they can now set the agenda. And they are using that power to their maximum advantage.

What about immigration reform? This is really an inefficient issue for both sides in Congress. The reason is that it divides everybody (Republicans more than Democrats), and nothing that is comprehensive seems to resonate with the public, which makes it unlikely to pass (and thus more damaging to Democrats than Republicans). If your business is politics, this kind of issue is just bad for business. Nothing gets accomplished, and pundits like Bob Franken and Dan Balz write you off as useless. Who needs that?

So, who brought immigration reform to the table? President Bush, of course. He retains some power in the second mode, even though his party's caucus really does not. It was by his encouragement that the 109th and 110th Congresses undertook this subject. He placed on the agenda an issue that relatively few desired to have placed on the agenda. This is a sign that, at least as of last week, he was not yet a lame duck. He still had some power left to wield. This was power in the second mode.

From the recent Iraq debate, we can also see that Bush still has some power in the first mode left to wield: he was able to induce the Democrats to do what they did not really want to do. Of course, his power in this mode is very limited. The reason Bush was able to wield power on the Iraq issue is because he is protecting the status quo, and our system has a strong status quo bias. We should not expect him to be able to wield such power when he seeks to change the status quo (more on this presently). So, while Bush has some power in the first mode left, it is on the wane.

So also is his power in the second mode. For the only issue that he could place on the table is one that divided his own party. It was also an issue on which there was never anything but a slim chance of legislative success. This is not the sort of issue he ideally wants to place on the table, but he had no other choice. Democrats wouldn't hear any talk of extending his tax cuts, of reforming social security, of reforming the tax code, of generally creating an ownership society. Nuts to all of that, as far as they are concerned. And rightly so, from a political perspective. Why should they allow the President to place issues on the table that might divide them and resonate with the public? The only issues on which they will indulge the President are issues that divide his own party. This is a sign that his power in the second mode, his agenda-setting power, has been on the wane for quite some time.

The failure for Bush on the immigration issue is, I think, fairly telling. He failed not because he lacked power in the second mode. He was indeed able to induce Congress to take up an issue that he wanted it to take up. His failure was really due to an inability to induce legislators to alter current policy as he wants it altered. He no longer can put the "squeeze" on legislators and directly induce them to do what they would not otherwise do, at least when it comes to changing the status quo. Indeed, this was so much the case that - so far as I know - the White House played no significant role in the kind of politicking that Senators Kennedy and Lott did. They did not even make a serious effort to arm twist. His failure on immigration indicates that whatever first mode power he has left, it is really limited to protecting the current course of government.

What's more, I would wager that this was Bush's last exercise of power in the second mode. I cannot think of another issue that he might be able to place upon the table for consideration. He and Democrats disagree too vehemently on essentially every other issue of any importance, and his standing with the public is so low that Democrats will be better off by rejecting his suggestions for the legislative agenda than accepting them.

So - where does that leave the President? Thanks to the Constitution, he still possesses some measure of power in the first mode. Indeed, I think that all the power that is left for Bush to wield is the set of formal authorities granted to him by our founding document. These powers enable him to do little more than stop Congress from altering the status quo. No longer can he use his prestige and authority to place issues on the table for consideration. No longer, further, can he induce legislators to alter the status quo as he prefers to see it altered. I think those days are finished. I think that the failure of immigration reform marks the final stop in Bush's long descent into - to borrow a phrase from presidential scholar Richard Neustadt - a "constitutional clerk." Barring some sort of phenomenal occurrence, I think that Bush is now a president who can do little more than wield the formal powers granted him by Article II to protect the choices he made when he wielded what - I think we can all admit - was a uniquely vast amount of political power. This will make him more than a lame duck, but not by much.

Posted by Jay Cost at 12:00 AM | Permalink

Will he? I honestly do not know. The actions of this White House are becoming increasingly difficult for me to predict.

But I would say that, as a purely political matter, Bush should not pardon Libby. The reason is that pardoning Libby would not bring Bush any benefits, and it would reinforce the perception among many that this White House is insular and inept. This could be costly for him.

If this were the end of the Bush term, a pardon would be politically costless. However, this is not the end of the term. Bush is not even a lame duck, despite his low poll numbers. He still has a major political battle forthcoming in the Fall, i.e. the issue of funding the Iraq War. Bush needs to position himself as well as he is able to induce the Congress to adopt his preferred course of action. It will not just be a matter of General Petraeus reporting good news (if he indeed reports good news). Bush will also have to sell this news. Pardoning Libby would, I think anyway, diminish his capacity to do this. After all, the Libby affair is part-and-parcel of the national Iraq debate; his political opponents argue that it is a metaphor for how this administration initiated and prosecuted this war. Pardoning Libby would give them a fresh way to rephrase their argument - just in time for the next fight over the war. Thus, it would diminish his capacity to market his policy preferences on Iraq.

Well - one might say - this does not matter. The people who are convinced that Bush is hopelessly mired in cronyism will oppose him, anyway. This is true, but it does not mean that there are not moderate Democrats and Republicans who are on the fence about Iraq, who are indeed troubled by the run-up to and the prosecution of this war, but who could be persuaded to come along in the Fall. These are the legislators who can see the difference between the war in itself and Bush's prosecution of it.

This differentiation is difficult for many to make, and so the "equlibirum" of these legislators is not incredibly stable. It seems to me that it is possible that they could become so disenchanted with Bush that they abandon the war effort altogether. This is what has happened already with a large number of legislators, mostly in the Democratic caucus. But - as we have seen in this session of Congress - there are still enough legislators left who can see a difference, and who can therefore be induced to support the President. Pardoning Libby runs the risk of alienating this group of legislators. These legislators are deeply disappointed with Bush's prosecution of the war; if he gives them more reasons to be disappointed, that may tip them to Bush's opponents, regardless of what Petraeus reports.

I am not saying that this is what will happen if Bush pardons Libby. I am not saying that pardoning Libby will dissolve Bush's coalition. I am saying that it could damage the fragile, and shrinking, congressional bloc that Bush has left. And so, my point: why risk it? Because I. Scooter Libby may have been dealt an injustice that may eventually be identified and corrected by the courts? Is that worth the risk?

Posted by Jay Cost at 12:08 PM | Permalink