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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, March 07, 2007 ::
    So, you all want to know what I think of the Libby verdicts?

    Well for one thing, it's typical Indepedent Counsel/Special Prosecutor work: if you can't nail anyone for the crime you were appointed to investigate, just use the grand jury process to manufacture one. No two people ever remember the same phone call the same way. Just get your man to tell the grand jury how he remembers it -- and in the difference between that recollection and those of others will be found your career-making perjury and/or obstruction verdict.

    A pardon? It's a crucial weapon of self-defense for the executive branch. What makes this case something other than a perfect example of the "pardon power as separation of powers defense mechanism" theory is that here, the aggressor was not Congress (as in Ted Olson's case) but a rogue branch of the executive: the CIA, in making that referral to the Justice Department.

    The pardon power is not the executive's only defense mechanism. The execrable "Independent Counsel Statute" no longer being in force, the AG had complete freedom to refuse the CIA's request for a Special Prosecutor. (Under the IC statute, he would have been obliged either to appoint an IC or explain publicly that there was no -- no -- grounds for investigating further. Of AGs who served during the IC regime, only Janet Reno had the cojones to do that, in re Al Gore and the dialing-for-dollars inquiry.)

    So, what I'm getting at here is, based on what I can see (which of course is not the whole picture), the executive branch should have repelled this attack at its first defense perimeter -- the AG -- rather than its last, the pardon power. This is the only reproach I can offer to my esteemed faculty colleague John Ashcroft, to be set against his manifold virtues and many acts of courage and wisdom.

    For further sound reading on this issue, see today's Wall Street Journal editorial, yesterday's National Review Online editorial. Today's Journal also has a pro-pardon op-ed by Ron Rotunda, not yet on-line.

    :: David M. Wagner 5:21 PM [+] ::

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