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July 2, 2007

What President Bush's commutation of Libby says: "I'm the sentencer ... for my pal"

Distilled to its essence, President Bush's decision to commute the imprisonment portion of Lewis Libby's sentence is a sentencing decision.  The President has not formally excused Libby or changed his status as a convicted felon, and the President's statement indicates "respect" for a federal jury's determination that Libby committed numerous federal crimes.  What the President apparently does not respect is the within-guideline prison term that Judge Reggie Walton concluded was "sufficient, but not greater than necessary" under federal law for Libby's numerous federal crimes.

As I noted here, many federal defendants and their attorneys have argued in many fora that guideline imprisonment levels should not be shown undue respect, but Bush's Justice Department has argued in many fora that the guidelines merit faithful allegience.  It will be interesting to see if, after the President has made clear that he views the guidelines are "excessive" for one of his pals, others with sentencing power begin to give less respect to the guidelines when the fates of less connected defendants are in the balance.

A collection of today's Libby commutation posts:

July 2, 2007 at 10:26 PM | Permalink

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» On the Libby Commutation from A Stitch in Haste
I have only one hasty stitch on the Scooter Libby commutation. I will leave the political commentary to others. As you may know, there has been a lengthy jurisprudential ordeal over the so-called federal "Sentencing Guidelines" -- see [Read More]

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According to The Washington Post, Bush is now considering a full pardon for Libby. See there; I said that my fellow liberals weren't going to give him any credit for maintaining a (wafer-thin) veneer of respect for a jury verdict in the Libby case. Poo... [Read More]

Tracked on Jul 3, 2007 7:48:33 PM

Comments

"It will be interesting to see if, after the President has made clear that he views the guidelines are "excessive" for one of his pals, others with sentencing power begin to give less respect to the guidelines when the fates of less connected defendants are in the balance."

Our professional judiciary has too much respect for the law than to allow Bush's contemptuous and renegade declarations to seriously affect their sentencing decisions.

Posted by: David | Jul 3, 2007 1:10:09 AM

Gee, the President commutes the sentence of a guy in a politically motivated investigation, and everyone's atwitter. Spare me the faux outrage. Berger gets a slap. I didn't see the KozKidz whining about that.

Fitz abused his position. Bush should have pardoned Libby.

Posted by: federalist | Jul 3, 2007 1:22:59 AM

Bush is absolutely correct that Libby's sentence was too harsh. His decision to commute it was correct. This is not the problem.

The problem is that he does not commute other sentences which are equally unfair, or more so. Let this decision shine some light on those cases.

Posted by: William Jockusch | Jul 3, 2007 6:03:06 AM

The same people who screamed for the pardon of LIbby were also yelling for the impeachment of President Clinton...do you see the hypocrisy? Wasn't the whole argument in the dark days of impeachment "the law is the law?"

Libby was found guilty by a jury of his peers (isn't the right of the jury the big
thing in conservatism nowadays, aka Scalia and Thomas?) and sentenced within the
guidelines that conservatives believe should be the law of the land (see many Gonzalez speeches)...but when these things are used against one of their own instead of a crack dealer from South Central...well, it's excessive! If you can't see the hypocrisy in all of this, well, your name must be President George Bush!

Posted by: Chelsea | Jul 3, 2007 6:51:50 AM

Federalist, Just wondering: what prosecutions are NOT politically motivated?

Anyway, I think Bush’s decision was wrong for two reasons:

1) America’s prison population is about 15% too low. If it were higher I would feel safer. Bush’s actions make us all less safe.

2) The courts are overburned by about 25%. By refusing to pardon him, the courts continue to be burned with legal arguments, which you and I should not be heard regardless of their merits, but rather on the political appeal of the person making them.


Posted by: S.cotus | Jul 3, 2007 7:05:44 AM

The Washington Post editoral page, certainly no friend of the Bush Administration, notes that mitigating factors were certainly present, notably that Fitz continued his investigation after it was clear no underlying crime occurred. Thus, Libby was subjected to an intrusive investigation that continued after it should have. And it's funny how people who usually hate the heavy hand of government are willing to look the other way over an abusive investigation that, by the way, wound up putting journalists in jail for sticking to their professional ethics. Now it's one thing to demand that journalists hand over evidence with respect to a crime, quite another to do this when a crime is not being investigated.

Fitz has done a lot of good, but this prosecution is disgusting.

Posted by: federalist | Jul 3, 2007 7:12:12 AM

I would agree with Federalist, but for one problem. In his posts to this blog, Federalist is virtually always in favor of harsh sentences. It's curious that the one time he argues for leniency is when the criminal is a Bush crony.

Indeed, Federalist is in good company. Bush himself has used his pardon power less than almost any modern president. Obviously, Bush agrees with Federalist that harsh punishment is the way to go, except when a good friend is on the receiving end of it.

In the Federal system, defendants every day receive sentences just as harsh, or indeed more harsh, than Lewis Libby received, for crimes that are just as picayune, or more so, than the one Libby committed. Victor Rita, whose 33-month sentence was just upheld by the Supreme Court, is an excellent example.

Bush's own justice department conceded that the president had never before given a commutation to someone who had not yet served a day of his prison sentence. Does anyone here seriously believe that Libby's was the one and only excessively harsh sentence meted out during the last 6½ years?

Posted by: Marc Shepherd | Jul 3, 2007 8:03:06 AM

Okay, look, of course Federalist is a hypocrite. I am the only person that is not a hypocrite, since I have explained that I want more people in jail, because that makes me feel safer. (I am not sure that no underlying crime was committed.) But, that isn’t the point.

Now, we have executive recognition that judicially-found facts are harsh. Will this be appearing in supplemental authority in briefs soon? Will the courts start quoting it?

Posted by: S.cotus | Jul 3, 2007 8:22:24 AM

It's probably true that there are equally deserving or even more deserving defendants than Libby, but that doesn't mean that Bush's action is somehow "unfair." And just because the Supreme Court screwed up Rita doesn't mean that this commutation wasn't appropriate.

Posted by: Steve | Jul 3, 2007 8:34:16 AM

But what about the fact that there will be less people in jail, and therefore criminals will see the possibility of a reprieve as an "incentive" to kill -- just like they see LWOP after Roper v. Simmons as an "incentive" to commit illegal acts?

Posted by: S.cotus | Jul 3, 2007 9:02:10 AM

The formerly liberal Washington Post editorial page, now under the direction of Donald Graham and Fred Hiatt, has been very friendly to Mr. Libby in the past few years.
So it's surprising that the WaPo says, today:
http://www.washingtonpost.com/wp-dyn/content/article/2007/07/02/AR2007070201611.html

The probation office, as the president noted, recommended less time -- 15 to 21 months. But Mr. Bush, while claiming to "respect the jury's verdict," failed to explain why he moved from "excessive" to zero. It's true that the felony conviction that remains in place, the $250,000 fine and the reputational damage are far from trivial. But so is lying to a grand jury. To commute the entire prison sentence sends the wrong message about the seriousness of that offense.
- - Washington Post editorial; page A14

Posted by: Goober | Jul 3, 2007 9:06:43 AM

"Distilled to its essence, President Bush's decision to commute the imprisonment portion of Lewis Libby's sentence is a sentencing decision."
That's only true if you believe Bush's statement that said it was a sentencing decision. Just because Bush said that the decision was related to an "excessive" sentence doesn't mean that Bush actually believes that.
More likely, the commutation was the result of Grand Vizier Cheney saying, "Option A is do nothing. Option C is a full pardon. But if you take option B, m'lord, and sort of pardon Libby, but not really, then history will praise your prudence and moderation."

Posted by: Goober | Jul 3, 2007 10:24:04 AM

Looking at this in political terms is silly. There are reasons why the Democrats would want to be kind to Libby, and perhaps good ones: namely that he might be a scapegoat, and it does not serve any political purpose to pardon him. Likewise, there are good reasons that Republicans would want to treat him harshly: that all of the administration’s problems can be blamed on him.

Bush seems to have steered a middle ground. The irony of this is that he calls into question a lot of the administration’s positions on sentencing.

Posted by: S.cotus | Jul 3, 2007 10:31:32 AM

It's probably true that there are equally deserving or even more deserving defendants than Libby, but that doesn't mean that Bush's action is somehow "unfair."

I beg to differ. The pardon power is one of the few presidential powers not subject to the checks and balances of the other branches of government. Yet, he has been more stingy with it than any other president in modern times. Moreover, his own Justice Department has consistently pressed for stiffer sentences and "topless guidelines." His own appointees were on the losing side in Booker (mandatory guidelines found unconstitutional), but on the winning side in Rita (guidelines may be presumed reasonable on appeal).

Until now, there is no evidence that President Bush ever met a stiff sentence he did not like. There is no evidence that he ever thought that the Federal code criminalized too much innocent conduct, or that it encouraged sentences that were too harsh. There is no evidence that he ever had a problem with sentences enhanced by judge-found facts.

Let us charitably assume that he was unaware of all this, until now. What is he going to do with his newly-minted knowledge? Is there any evidence that the president is suddenly energized to "do something" about harsh sentences? Of course not. Next Term, his Justice Department will be back in the Supreme Court, defending guidelines-based sentences as if nothing had happened.

Posted by: Marc Shepherd | Jul 3, 2007 10:52:56 AM

That's right, I am a hypocrite. Actually, if you read my posts, you will see that my push is for harsh sentences against violent criminals and for crimes which impact the public. Moreover, I have praised governors like Robert Ehrlich, who exercised his pardon power often, but with great judiciousness. And I have noted that prison beds are scarce resources.

So where is the hypocrisy?

Posted by: federalist | Jul 3, 2007 11:39:55 AM

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