A motion to censure the President, however, might be the right tool to cut through the clutter. It would make a simple declaration -- that even if Bush has the technical right to commute Scooter's sentence, in the view of the Congress, he has sent the most corrupting message a president can possibly send to his administration ("If you break the law while working for me, I'll make sure you never spend a day in jail"), and it was morally wrong for him to do it.
It's a message that needs to be sent for future generations, so that Dubya's pseudo-pardon isn't treated as an accepted precedent. On a practical basis, it begins to lay out a public case for a possible impeachment. And on a purely political level, it would firmly establish Bush and his apologists (including the craven supplicants campaigning for the 2008 Republican nomination) on the wrong side of a clear moral divide -- an absolutely essential step in debunking the essential GOP mythology of firm, paternal rectitude. [emphasis in orginial]
I think that in a constraint free world, George W. Bush has committed numerous high crimes and misdemeanors that we know about, most crucially the series of acts of commission and omission that led up to the invasion and occupation of Iraq. The easier to prove and far less disputable as to their rising to high crimes and misdeameanors are the warrantless/FISA-less surveillance as each violation was an indictable felony until the Republican Party kissed its own ass to cover for him. But we live in a world where constraints intrude, and the strongest constraint is a single number: 67. There are not 67 votes in the Senate to convict and there will not be 67 votes in the Senate at any point in the next eighteen months.
So the next best option is to lay down a marker to future Presidents that non-shameless Presidents will incur significant costs that will impact their ability to get their agenda passed. George W. Bush is a lame duck and he is quacking pretty damn hard already, so shame and political costs are not borne by him. He has nothing for an agenda left besides running out the clock and blaming Iraq on someone else. **
Rep. Wexler (D-FL) has introduced a motion of censure to do just this.
"This presidential intervention is an unconscionable abuse of authority by George W. Bush, and Congress must step forward and express the disgust that Americans rightfully feel toward this contemptible decision," Wexler said in a statement released by his congressional office.
Congress and the country have a significantly larger shadow of the future. Making a moral case that George W. Bush is a political aberration will be a very tough sell to a rightly skeptical world as they saw us re-elect him in 2004 with a clear and minimally disputed majority. But we must make this attempt to start laying down some clear moral, legal and political markers. Doing this will strengthen our republic, and begin the clean-up process of our image and credibility around the world.
** Jim Henley has a good third best proposal on the pardon power problem:
"Amend the President’s pardon and commutation power to exclude executive-branch employees convicted of crimes carried out in the course of their professional duties. Vest the power to pardon those people in the Congress, maybe by a super-majority of the Senate - a kind of inverse impeachment.
Although the lawyers' quip that bad cases make bad law --- do bad presidents make bad amendments --- or should our system of checks and balances assume a proportion of complete disasters as presidents and therefore seriously constrain the non-disasters. Are we a mini-max constitution? I think there is a good chunk of that, but I am way outside of my area of knowledge now.
*** UPDATE Edited the state that Congressman Wexler represents from California (I was thinking Waxman) to his actual state of Florida --- my bad