The Libby End Game

Let my people go! ~ President George W. Bush

As you are surely aware, President Bush commuted the prison sentence of convicted felon I. Lewis “Scooter” Libby, former Chief of Staff to Vice President Cheney and Advisor to the President. This means that while Libby’s felony conviction stands, with his fine and probation still in tact, he will serve no time in prison. To support he action, Bush issued a statement calling the sentence imposed by a federal judge that he himself appointed to the bench “excessive” in its term. Note that the President also indicated that the prosecution was legitimate and that its resulting verdict was legitimate. He simply had a problem with Libby’s prison sentence.

Make no mistake, with this action Bush once again has made a mockery of the Constitution and our system of law and order under it. He has unequivocally lent his support to the notion of differing legal standards applying to different bodies of people, something the Constitution prohibits in letter and spirit. To dissect just how reprehensible the President’s action actually was, we need to look at several factors.

First and foremost is the fabrication that the prison sentence imposed was excessive. It was not. This was the sentence for conviction on four felony counts. It was well within the sentencing guidelines for conviction of such crimes. Indeed, it is almost exactly the length of prison term suggested by the guidelines for such convictions. And the question must be asked. If Libby’s sentence was excessive, what would the President have considered appropriate? One year? Six months? Twenty-four hours? This man lied under oath in a federal court. He did so to block a federal investigation into high crimes committed by the Bush Administration. Paris Hilton served more time for her crimes. It is worth taking a look at the statement issued by the federal investigator in this matter, Patrick Fitzgerald.

We fully recognize that the Constitution provides that commutation decisions are a matter of presidential prerogative and we do not comment on the exercise of that prerogative.

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.” The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process.

Second, the timing of the commutation was in opposition to the guidelines for considering the request for commutation as outlined in the Department of Justice Manual on commutations.

Section 1-2.113 Standards for Considering Commutation Petitions

A commutation of sentence reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed. Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding. [My bold.]

Libby had yet to serve any prison time under his sentence. Furthermore, he was still appealing his conviction in Federal court. There is no doubt that Bush had the power to do as he did. He violated no law about which I know in issuing the commutation, nor did he technically violate the guidelines noted above. He did, however, most certainly violate the spirit of the guidelines set out by his own Justice Department, guidelines that are meant to insure the fair application of law to all citizens.

Third, commuting the sentence was actually worse than a full pardon, whatever you may be hearing in the media. Before I explain, let’s look at the press already surrounding this issue. The right wing media has launched a very sophisticated and well-orchestrated campaign in relation to the commutation. Some of its members are “blasting” Bush for not pardoning Libby, saying that it is an “affront to a patriot,” that anything less than a full pardon is scandalous. This sets the hard line in the public’s mind. Other members of the far right are saying commutation is appropriate, that it is a “reasonable” splitting of the possible outcomes. This sets out the “acceptable” line in the public’s mind. People are encourage by this to say, “Well, he is still a convicted felon, so who cares if he’s not in prison?” Indeed, the mainstream press – though the press that is going more Conservative (big “C”) all the time – is going down this route, buying the right’s effort at rationalizing this “Solomon-like” outcome. Saying something often enough often gets quite a few folks to believe it. Don’t think so? Have you seen how many Americans still believe that Iraq had anything to do with 9/11?

Okay, back to why the commutation was actually worse than a full pardon. Basically, it has made the truth that much harder to reveal. Had Libby’s sentence stood altogether, federal investigators could have used a reduction of his sentence through their efforts as a stick to force his cooperation – his testimony – in their continuing pursuit of the truth. Yes, the investigation of the White House goes on. Commuting the prison time removed any leverage that the federal investigators could wield. So why, since a pardon would also remove the prison time, would a full pardon not be equal to or worse than commutation? The answer lies in the Fifth Amendment to the Constitution. If Libby had been pardoned, his right to invoke the Fifth Amendment against self incrimination would have disappeared. He could thus have been forced to testify under oath about anything and everything involved in his original case. Commutation, therefore, insured that Libby could remain silent on the underlying issues of the federal case and wield the Constitution in defense of his silence. The sad reality is that the Bush Administration will use rights held under the Constitution to defend their own actions while taking actions to undermine, even to destroy, this same Constitution.

What is interesting is that today, the Bush Administration indicated that a possible full pardon isn’t being ruled out for Libby at some future point. I doubt that it will come until the President is leaving office and all parties who have committed crimes – and here I most certainly include the President and especially the Vice President – feel that they are beyond the need for Libby’s silence. Still, I’ll be interested to see if it comes at all. Libby’s sentence was commuted not because he’s a patriot or because he has a family or because of his loyalty to his masters. No, it was commuted to insure the safety of those masters and further compel his loyalty going forward.

Although I may write more on this topic going forward, I wanted to leave you with statements issued by some politicians in reaction to the commutation. I’ll leave it to you to decide their worth, though I’ll note that Fred Thompson’s support of Libby and his view of this outcome should disqualify him from the presidency if nothing else does.

Hillary Clinton:

"Today's decision is yet another example that this Administration simply considers itself above the law. This case arose from the Administration's politicization of national security intelligence and its efforts to punish those who spoke out against its policies. Four years into the Iraq war, Americans are still living with the consequences of this White House's efforts to quell dissent. This commutation sends the clear signal that in this Administration, cronyism and ideology trump competence and justice."

John McCain:

No comment.

Joe Biden:

Hours after a federal appeals court ruled that I. Lewis "Scooter" Libby would to have to begin serving his prison sentence while appealing his conviction for crimes of perjury, obstruction of justice and lying to investigators, President Bush commuted his sentence.

Last week Vice President Cheney asserted that he was beyond the reach of the law. Today, President Bush demonstrated the lengths he would go to, ensuring that even aides to Dick Cheney are beyond the judgment of the law.

It is time for the American people to be heard.

I call for all Americans to flood the White House with phone calls tomorrow expressing their outrage over this blatant disregard for the rule of law.

Patrick Leahy:

“The President’s muted words and deeds in the aftermath of this conviction pale in comparison to what he said before the investigation was launched.

"The President has the constitutional power to do this. But accountability has been in short supply in the Bush Administration, and this commutation fits that pattern. It is emblematic of a White House that sees itself as being above the law."

Nancy Pelosi:

The President’s commutation of Scooter Libby’s prison sentence does not serve justice, condones criminal conduct, and is a betrayal of trust of the American people.

The President said he would hold accountable anyone involved in the Valerie Plame leak case. By his action today, the President shows his word is not to be believed. He has abandoned all sense of fairness when it comes to justice, he has failed to uphold the rule of law, and he has failed to hold his Administration accountable.

Harry Reid:

"The President's decision to commute Mr. Libby's sentence is disgraceful. Libby's conviction was the one faint glimmer of accountability for White House efforts to manipulate intelligence and silence critics of the Iraq War. Now, even that small bit of justice has been undone. Judge Walton correctly determined that Libby deserved to be imprisoned for lying about a matter of national security. The Constitution gives President Bush the power to commute sentences, but history will judge him harshly for using that power to benefit his own Vice President's Chief of Staff who was convicted of such a serious violation of law."

Fred Thompson:

"I am very happy for Scooter Libby. I know that this is a great relief to him, his wife and children. While for a long time I have urged a pardon for Scooter, I respect the President's decision. This will allow a good American, who has done a lot for his country, to resume his life."

Barack Obama:

"This decision to commute the sentence of a man who compromised our national security cements the legacy of an Administration characterized by a politics of cynicism and division, one that has consistently placed itself and its ideology above the law. This is exactly the kind of politics we must change so we can begin restoring the American people’s faith in a government that puts the country’s progress ahead of the bitter partisanship of recent years."

John Edwards:

"Only a president clinically incapable of understanding that mistakes have consequences could take the action he did today. President Bush has just sent exactly the wrong signal to the country and the world. In George Bush's America, it is apparently okay to misuse intelligence for political gain, mislead prosecutors and lie to the FBI. George Bush and his cronies think they are above the law and the rest of us live with the consequences. The cause of equal justice in America took a serious blow today."

Yesterday was not a good day for America… and not just because I was forced to include Paris Hilton in this post, something I’d vowed never to do on this blog. Damn, now I’ve done it twice. /sigh

3 July 2007