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June 7, 2007

More Libby lessons as pardons and clemency are considered

There are so many insights and lessons one can draw from the sentencing of Lewis Libby.  Prior posts here and here focused on some guideline lessons, and this fine new Los Angeles Times piece focuses on lessons about the sentencing judge.  And, of course, the focal point for future insights and lessons will center on the Presideny's pardon and clemency power.

This New York Times piece provides a good overview of some pardon issues in the Libby case, and Margaret Love says so much in this short LA Times op-ed entitled "Begging Bush's pardon."  Here is the start of Love's very strong commentary:

As speculation grows about whether President Bush will pardon I. Lewis "Scooter" Libby, or at least commute his prison sentence, it's important to remember the hundreds of ordinary people who have been patiently standing in line, some for many years, waiting for presidential forgiveness.  In a sense, it is these largely anonymous applicants for executive clemency (of which pardon and commutation are subsets) who hold the key to the president's ability to help the well-connected Mr. Libby.

This is not so much a matter of fairness as it is of political common sense.  Many of those with pending applications for clemency were convicted long ago of garden-variety crimes and have fully served their time; many others are still serving lengthy mandatory prison terms from which there is no hope of parole (parole having been eliminated from federal sentencing).

One such applicant is my client, Willie Mays Aikens, whose addiction to crack cocaine ruined a brilliant major league baseball career and who is now in the 13th year of a 20-year prison term for selling drugs to an undercover policewoman — an extraordinarily harsh sentence for a relatively minor, nonviolent drug offense.  There are countless others in similar positions.  If the president is unwilling to look favorably on deserving applicants for clemency like Aikens, how can he justify helping Libby? ...

Bush has been more sparing in his exercise of the constitutional pardon power than any president in the last 100 years, including his father. He has pardoned only 113 people in more than six years in office and denied more than 1,000 pardon applications.  He has granted only three of more than 5,000 requests for sentence reduction from federal prisoners.  Many hundreds of applications remain to be acted on....

For a president who has been willing to stretch his other constitutional powers to the limit and beyond, Bush has proved strangely hesitant to exercise the one power that is unquestionably his alone.... The federal pardon power has a proud history, yet in recent years it has been trivialized and allowed to atrophy.  The Libby case presents Bush with an opportunity to change that.

If he begins now to exercise his pardon power with more intention and greater liberality, with more sympathy for human error and less aversion to controversy, there is at least a chance that the public will regard with equanimity any relief he ultimately chooses to grant to Scooter Libby.

Some related posts:

June 7, 2007 at 12:04 PM | Permalink

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Comments

I'm afraid the Times piece misses the point. Whether Bush had pardoned 100 people or 100,000, a Libby pardon would be perceived as doing a favor for a crony. There is just no way to avoid that perception. If Bush is at all sensitive to the political reality, Scooter will have to wait till after the November 2008 election, when I suspect he'll receive a pardon (or a commutation) during the waning hours of the Bush presidency. At that point, he'll have served around 18 months in prison, which is pretty close to what his sentence should have been in the first place.

Posted by: Marc Shepherd | Jun 7, 2007 12:58:18 PM

I am Criminal Defense Attorney from Fort Worth, Texas.

Given the fact Scooter's activities giving rise to his conviction were so close to the White House (inside actually) and the Vice President; most any President that is the least bit concerned with the public's opinion concerning their integrity would have to be a blitering idiot to grant a pardon in this case. With this President, I am expecting one just any day.

David Sloane
www.sloanelaw.com

Posted by: David Sloane | Jun 7, 2007 2:39:45 PM

David: exactly right. Of course it will look like a crony helping a crony. But Bush doesn't care for two important reasons: 1) the GOP base will back him up and attack anyone who says the pardon was given for any reason less than admirable; and 2) the American people don't recognize or care about hypocrisy, cronyism, or unethical government. If, on the odd chance more than a few people start to make some noise (extremely unlikely), all Bush has to do is say "9-11, 9-11, terrorists, your children, danger." Boom, all is forgotten. People get the government they deserve. Bush is too good for the average american who cares more about Brittney Spears' haircut than their own future.

Posted by: BruceM | Jun 7, 2007 2:46:44 PM

The New York Times was the worst Nifong enabler in the media. They continued trying to prop up his non-existent case long after it was obvious that the whole thing was a charade. As a result, it has lost all credibility on criminal law issues.

Posted by: William Jockusch | Jun 7, 2007 5:58:41 PM

Bush can't pardon Libby. If he does, he'll be handing his own head to the Senate. Bruce, I'd agree with you that Bush doesn't care about preserving appearances, but I'd like to remind you of two things: 1. in this crowd, loyalty is a one-way street. Libby f'ed up, so Bush has to cut him loose. Wouldn't want to tarnish the brand, you know. 2. Look out for #1. John Dean made a persuasive argument last week that there is precedent for impeaching a President for even TALKING ABOUT a pardon for co-conspirators. Right now, Bush has plausible (heh, not really, but arguendo) deniability that he didn't know what Libby and Big Time were up to when they were plotting their treason. If Bush pardons Libby, he's admitting that he was in on the whole scheme- and poor little folks like me hope that he might spend the rest of his life in prison for a crime like that.

So IMHO a pardon is just too risky.

Posted by: tekel | Jun 8, 2007 11:43:46 AM

Yeah, John Dean, now there's an authority . . . . .

I do agree that Bush should be using his pardon power more. There are lots of people in the federal system--I am sure that some should be released. Governor Ehrlich had a model approach to pardons--I think a lot of executives could learn from his example.

And people who read my posts here know that I am no softie when it comes to criminals. I am basically pitiless.

Posted by: federalist | Jun 8, 2007 9:43:35 PM

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