18 July 2007: Equal Justice & Abuse of Power

Is it ‘justice for all’ or ‘justice for some?’

“Equal justice under law is not just a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . It is fundamental that justice should be the same, in substance and availability, without regard to economic status.” — U.S. Supreme Court Justice Lewis Powell, Jr.

The final words of the Pledge of Allegiance read “with justice for all.” Unfortunately, the writer of the Pledge, Edward Bellamy, neglected to include the word “equal,” perhaps because as a socialist, he took it for granted that true justice is inherently equal. As we have learned however, there is justice, and then there is justice. Equal justice is what you and I hope for should we find ourselves before the bar of justice. Special justice is reserved for those in a special economic, social, or political class.

Recently, I had the privilege to serve on a jury. I will not be specific about the case as it may need to be re-adjudicated since it resulted in a mistrial. Therein, however, lay the frustration for the six of us chosen to render judgment, due not to the day we had invested, but to the fact we couldn’t hammer out our takes on the evidence and reach a verdict. Accordingly, there was no resolution for us, the defendant, or the prosecution.

Nevertheless, it was refreshing to note how each juror took our charge seriously. I can only imagine how the jurors in the Scooter Libby Trial, along with Judge Walton and Special Prosecutor Fitzgerald, feel having their efforts frustrated not by a technicality, but by interference from one who should be the top law enforcer of the country — the President of the United States.

Expressing his frustration at the end of his investigation into the outing of covert CIA operative Valerie Plame, Fitzgerald used a metaphor to describe what Libby had done: “He kicked sand in the umpire’s eyes.” In violation of his word that he would not interfere with the case while it remained in the courts, George W. Bush interfered with the case despite it remaining in the appellate court. In so doing, the President more than kicked sand in the ump’s eyes: he slid through him with his spikes high.

Understanding why Bush commuted Libby is easy: Commutation keeps the man out of the slammer where history shows even the hardest criminals such as Paris Hilton can snap. Of course, there are exceptions such as Martha Stewart, but then, Martha is a woman, whereas Scooter is, well, no G. Gordon Liddy — no holding Scooter’s wrist over the candle flame and smelling his flesh burn. In addition, commutation allows Libby to claim his Fifth Amendment rights when he is called to testify before Congress.

Assuredly, genteel Scooter will get his unconditional pardon before American troops are given their get-out-of-hell/Iraq cards — on Jan. 20, 2009. Knowing that, Libby keeps mum and Bush and Dick Cheney sleep better knowing they are still two steps ahead of the Senate and House Judiciary Committees.

The problem, however, goes beyond fairness and a perversion of justice to abuse of power. History shows many presidents used their constitutional authority to issue pardons and commutations to excess and not in accordance with the purpose it was established: for extraordinary situations such as what Washington faced with the Whiskey Rebellion and Lincoln with the Civil War.

In this case however, the inherent power has been particularly abused as it was exercised not only to help a team player skate, but for one who has the keys to the kingdom. Scooter Libby is no ordinary felon. Libby knows where the bodies are buried and being no Liddy and not quite as tough as Paris, he would have likely chirped like a canary shortly after donning the orange jumpsuit with his new name: 28301-016.

By commuting 28301-016, Bush directly contravened everything he claims as his guiding principles in such cases: he does not contest the jury’s finding and the punishment was in accordance with standard sentencing guidelines. Further, his history demonstrates he is no shrinking violet in refusing to commute even the insane from the death row.

George W. Bush is giving Scooter Libby cover, and in so doing he is obstructing justice. That is a high crime delineated by the Constitution and one more reason for the House of Representatives to draw up articles of impeachment against him and Dick Cheney. Only then, could the Senate investigate thoroughly all allegations against the men and show that equal justice under the law applies to every American and that we are truly a nation of laws and not of men.

Despite there being only 18 months left in the life of Bush Administration, the Republic can ill afford to have the peoples’ representatives turn a blind eye while the assault on it continues willy-nilly. It is time for Representative Mark Udall to demonstrate a profile in courage by speaking out on this and becoming a leader in drawing up the articles of impeachment.

Equal justice under the law, Justice Powell’s choice for America’s “most inspiring ideal,” means no one being above the law. The question before us: Do we mean it or not?

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