King Solomon

by publius

One of the many things annoying me about the Libby outrage is this idea that Bush split the baby, rejecting jail but keeping some “tough” parts of the sentence in place. Bush said:

“I felt like some of the punishments that the judge determined were adequate should stand,” Mr. Bush told reporters Tuesday. “But I felt like the 30-month sentencing was severe, made a judgment, a considered judgment, that I believe is the right decision to make in this case, and I stand by it.”

Please. Look, this is a full pardon. The only thing someone like Libby cares about is jail time. The $250,000 fine isn’t a problem for someone with a list of rich people paying the bill (one that includes Fred Thompson and Marty Peretz). And probation? I’m sure he’s sweating that one.

The truth is that the only part of the punishment that matters -- the one that could potentially reverse the executive’s increasing willingness to ignore the law -- is gone. The whole tortured deliberation bit (see Digby on this -- and my apologies for referring to her as “him” in the past) is intended to give the appearance that Bush is splitting the baby when he’s not.

Finally, there’s the commentary from people like the NRO editors who say Bush didn’t go far enough. Here’s the editorial:

Now, the president has acted. He didn’t go as far as we would have liked, choosing to commute Libby’s prison term while leaving his conviction, fine, and probation intact. But his action ensures that Libby will not go to jail, and that’s a good thing.

It’s really hard to know what to think about this. On the one hand, they could be so invested in unfettered (Republican) executive authority that they’re sincerely angry about this. But, the more cynical explanation is that these are crocodile tears. They’re actually very happy about the jail time being gone, and are engaging in some elaborate Kabuki to keep the Broders and Nyhans of the world securely in the middle of the two positions.

Comments

[Equal Opportunity Cynic]

But, the more cynical explanation is that these are crocodile tears. They’re actually very happy about the jail time being gone, and are engaging in some elaborate Kabuki to keep the Broders and Nyhans of the world securely in the middle of the two positions.

Astute observations like this one are why I've enjoyed reading you going back several years into the Legal Fiction days.

[Bernard Yomtov]

Requisite nit-pick: Solomon's wisdom did not lie in splitting the baby. It lay in threatening to, a bluff, in order to flush out the true mother.

In fact, some commentators argue that Solomon already knew who the mother was. His bluff was a successful attempt to establish his reputation for wisdom, and his legitimacy, in the early days of his rule.

[Gary Farber]

"Look, this is a full pardon."

It isn't. Saying it is isn't helpful.

Every single one of your points can be made without this claim. It's vastly better to make the points without undermining them all with a claim that is clearly factually false.

The distinction between commutation and pardon is real, and it's important. That fact doesn't obviate all the other relevant facts.

"The truth is that the only part of the punishment that matters -- the one that could potentially reverse the executive’s increasing willingness to ignore the law -- is gone."

That's fine, but it doesn't turn a commutation into a pardon. And it's a terrible idea to distract everyone from your important points with an irrelevant claim that's essentially defenseless.

(Rhetorically, "this is essentially a full pardon" holds an entirely different meaning than "this is a full pardon." The first is a perfectly defensible claim; the second is a blatant falsehood.)

[Jay Jerome]

Rhetorically, "this is essentially a full pardon" holds an entirely different meaning than "this is a full pardon." The first is a perfectly defensible claim; the second is a blatant falsehood

picky-picky

and it doesn't read as a blatant falsehood

at worst it may be an over-exuberant exhortation of frustration; but contextually is an example of rhetorical poetic-license: whereas the criticism you offer seems more like 'flagrant bombast' of the vociferous kind.

and in any case, everybody pretty much knows what publius was saying: that libby only got his knuckles rapped, instead of his having buttocks blistered with a good paddling, as deserved.

ah, well -- so it goes.

[Catsy]

Yes, but it wouldn't be an ObWi thread without Gary temporarily derailing the central point with a pedantic aside.

I'm in full agreement here on this being--essentially--a full pardon. So a felony conviction will keep him from practicing law? I'm sure he's weeping. It'll keep him from holding a security clearance? Worse, but irrelevant to his upcoming lucrative civilian career.

[CharleyCarp]

A pardon will restore his ability to practice law, which is a good reason to expect one, in January 2009. (If Libby hasn't won on appeal).

[hilzoy]

OT: Hunter at dKos:

" Nobody expects a mere Scooter Libby to have the ruggedness of a Martha Stewart, the toughened pastry chef and craftsperson who somehow managed to soldier through jail time on her own without requiring the intervention of two of the four known branches of constitutional government. Amidst dire pleas from conservatives, President Bush cited the excessiveness of Libby's 30-month sentence, and substituted not 15 months, or even one, or even one lazy afternoon, but instead deemed even a single hour to be excessive, for the crime of obstructing justice in an investigation into his own White House, and the office of his own Vice President. No clearer signal to future prosecutors could possibly be given, short of simply Xeroxing up clemencies on cardstock to be distributed as Christmas gifts -- and we may yet see that."

Heh.

[hilzoy]

Also, Oliver Stone, on hearing that his proposal to make a movie about Ahmedinejad has been turned down on the grounds that he is "part of the great Satan" (via AmericaBlog):

“I have been called a lot of things, but never a great satan,” Stone said in the statement. “I wish the Iranian people well, and only hope their experience with an inept, rigid ideologue president goes better than ours."

[Jay Jerome]

If you didn't catch Keith Olbermann's Special Comment on the Libby commutation, it's worth reading/seeing at the above link. I especially liked the part where he says "George W. Bush took our assent, and re-configured it, and honed it, and shaped it to a razor-sharp point and stabbed this nation in the back with it."

We're going to re-watch the video of the broadcast in a few minutes, our feet propped on the porch railing, sipping cold beer and munching hot dogs and burgers, the 1812 Overture playing on the CD as background to Keith's righteous indignation -- 4th Of July fireworks of the best kind.

[Ara]

Poll numbers.

[Adam]

Come on, Publius, you need to think this one through. The case is on appeal, meaning that it's still not a sure thing that he'll have to pay the fine -- and if he does pay it pending appeal, it's refundable.

The immediate imposition of a jail sentence, by contrast, would not have been "refundable."

Thus, Bush eliminated the jail sentence, and is waiting to see how the rest turns out before it becomes necessary for him to decide whether to pardon.

And don't forget that, absent a pardon, Libby is subject to such collateral consequences as the loss of the right to vote, as well as disbarrment.

[Ara]

The fine is being paid by his legal defense fund anyway.

As for the "the consequences to his reputation are punishment enough"-argument, just stop insulting our intelligence.

[radish]

So a felony conviction will keep him from practicing law? I'm sure he's weeping. It'll keep him from holding a security clearance? Worse, but irrelevant to his upcoming lucrative civilian career.

That's counting some awfully unhatched chickens, since a pardon is still more likely than not.

Pretend you're Irving Lewis Libby for a moment. Ready? Okay then... Based on what's happened so far are you or are you not confident that, in addition to the commutation, you will also be fully pardoned, either when GW Bush leaves office or when your last appeal fails, whichever comes first?

Alternatively, imagine you're li'l dubya or unka Dick. Is there anything -- anything you won't do to keep your good buddy Scooter happy until you leave office?

Anyway Libby's just the tip of the iceberg. The commutation has much broader implications and a very clear message for all the current and former aides who are staring down the barrel of a subpoena over the next year-and-some. Kagro X lays it out this way:

Yesterday's action also changes the post-subpoena calculus. Whereas previously it was thought that the Vice President might direct the Department of Justice to simply decline to prosecute any contempt charges referred to the U.S. Attorney (or even file suit separately to enjoin such an action), now it must be asked whether it isn't a strategically wiser choice [for the White House] to let the prosecutions go forward, in slow motion.

Why not let the prosecutions proceed, if at a snail's pace? It eats up considerably more of the time remaining on the clock, and leaves Congress holding the bag, able only to complain about the pace. And at the end of the road, if there's a conviction, simply pull out the Scooter Libby playbook. Appeal every facet of the case, and when your luck finally runs out and someone has to pay the piper, the Vice President can simply commute the sentence or pardon them. Voilà! It's almost time to escape out the back door, and everyone goes home scot free. Congress never gets the documents or testimony they've demanded, it's subpoena power is forever after in question, the Vice President's political opposition is rendered impotent, and his political loyalists are once again reminded of the special favor and power their loyalty buys.

[dbomp]

And probation? I'm sure he's sweating that one.

What does "probation" mean in this case, anyway? Usually, the penalty for violating probation is imposition of the full sentence, which in this case is zero. What's the penalty if Libby does prohibited things?

[Brett Bellmore]

I feel the need, lest my silence be read as signficant, to chime in here: People have labored under more outrageous sentences, for lesser offenses, without Bush feeling the need to pardon them. If Bush were some kind of pardoning machine, handing out commutations left and right, I might buy the excuses, but he is not, he has been rather stingy with the clemency power.

Now, for a plug: A close personal friend of mine is rotting in jail for a 7 year old misdemeanor, which anywhere outside of California would be regarded as a 1st amendment exercise. His true offense is pissing off Scientology. Won't you sign the petition to have him pardoned?

http://www.ipetitions.com/petition/freekeithhenson/

[Jesurgislac]

Brett, in the upper right of the web page you direct us to, it says "Since writing the petition, it has been brought to our attention that to request that the Governor pardon Keith Henson, one must write a letter. Here's the address: Governor Arnold Schwarzenegger, State Capitol Building, Sacramento, CA 95814"

Neither the petition, nor you, give much information about what the man in question was accused of, convicted of, or what he says he actually did. In my experience of writing letters to politicians and others, the more detailed information you can provide, the better: the petition page linked to is a model of what to avoid, as it says nothing much but takes a good deal of space to say it.

None of this is to say that the man doesn't deserve a pardon or a commutation of sentence: but this is not a good way to get people to write letters to Schwarzenegger asking for one.

[Jesurgislac]

Brett: People have labored under more outrageous sentences, for lesser offenses, without Bush feeling the need to pardon them. If Bush were some kind of pardoning machine, handing out commutations left and right, I might buy the excuses, but he is not, he has been rather stingy with the clemency power.

And: right on.

[Bernard Yomtov]

A pardon will restore his ability to practice law,

Is this necessarily the case? Does the pardon wipe out the offense even for disbarment purposes?

[Steve]

Interesting that Bernard should ask that question, because I was about to write about it anyway.

Most states automatically disbar you if you get convicted of a felony. A pardon would make the disbarment non-automatic, but it wouldn't require the state bar association to ignore the conviction; they have broad discretion to take any matters of character into account, whether or not a criminal record is involved.

Of course, by the time the hypothetical pardon gets handed down, you'd assume Libby would have already undergone the automatic disbarment process. So the question is, does he get automatically reinstated because he gets a pardon? I'm fairly certain the answer would be no.

I doubt it matters, because there's an awful lot you can do within your area of expertise even as a disbarred attorney. I knew a guy once, a former personal injury lawyer who not only had been disbarred but even did time for attempting to bribe a witness. He got hired by one of those outfits that offers cash buyouts to plaintiffs in tort actions (for example, if you've sued Wal-Mart for a million bucks, maybe they'll offer you $200,000 in cash today in exchange for whatever your ultimate recovery may be). His job? Reviewing the court records from a given case and making an assessment of what the likely result would be. Who better to make that call than a former personal injury lawyer - whether or not he has a law license today? I can only hope our friend Scooter ends up doing something equally tawdry.

[Carleton Wu]

The immediate imposition of a jail sentence, by contrast, would not have been "refundable."

Adam- this is true for every single convicted criminal in America who has a pending appeal. Why is Scooter's case different?

[MrWizard54]

Additionally I would like to point out that there is no shortage of jobs in Washington for ex-administration hacks with bruised knuckles. Wolfowitz got a job at the American Enterprise Institute almost immediatly after he left the World Bank.

I know that Wolfowitz wasn't convicted of a felony but the real world consequences of his mistakes (Iraq and the muddying of the World Bank's reputation) are quite likely more far reaching then Libby's perjury.

So when you consider that as noted above his fine is being paid by his legal defense fund, and there is no real consequences for violating his probation (not that I think someone like Libby is stupid enough to do that). He has committed a crime with no consequences. The President is trying to look like he is still tough on crime by leaving the rest of the sentence in place but it is a sham.

[Steve]

The immediate imposition of a jail sentence, by contrast, would not have been "refundable."

Bush had the power to grant a so-called "respite" if he wanted, meaning that the sentence would have been stayed pending the outcome of the appeal. So if he wanted it to be refundable, it could have been.

[tzs]

What pisses me off (and I think a lot of Americans) is that this is a blatent case of Libby getting off because of his connections and his position.

One of the ideals that has held America together has been that of Equal Justice Under the Law. We realize there are difficulties and problems, but we honestly believe that our judicial system tries to be fair.

Bush has just totally stomped on this and given the proverbial finger to us. And it seems the field of Republican candidates are perfectly fine with it as well, in a craven attempt to pander to the 28%ers. (Witness Romney's enthusiasm, while at the same time boasting about how he Never Gave A Pardon To Anyone while governer of Massachusetts.)

(Yes, and I was ticked off by Clinton's pardoning of Mark Rich as well. AND Bush Senior's pardoning of the Iran-contra crowd.)

[Jesurgislac]

tzs: (Yes, and I was ticked off by Clinton's pardoning of Mark Rich as well. AND Bush Senior's pardoning of the Iran-contra crowd.)

It's typical that those pardons get lumped together: Clinton's gotta be mentioned. Like Bush Junior's treatment of Libby, Bush Senior's pardons of his copains in the Iran-contra conspiracy was also self-preserving: Bush Sr certainly saved himself from political embarrassment, if not from indictment, by issuing those pardons.

Whether or not Marc Rich merited the pardon that Scooter Libby argued he should have, Clinton himself didn't directly benefit by pardoning Rich.

[tzs]

Yes, I've found the fact that Scooter Libby was the one arguing for the Marc Rich pardon to be the funniest thing about this whole affair. Also reinforcing my cynicism about there being one system of laws for the well-connected people and another for the rest of us....

Still, it's also amusing to watch Hillary spin and try to argue about how her husband's pardoning of Marc Rich was "different".

Once you get down to that level, all you're really doing is "haggling over the price."

[Jesurgislac]

tzs: Still, it's also amusing to watch Hillary spin and try to argue about how her husband's pardoning of Marc Rich was "different".

Well, yes, it was.

Bush Sr and Bush Jr issued self-serving pardons to save themselves from being incriminated by their co-conspirators.

Bill Clinton's pardon of Marc Rich may have been unmerited, but it wasn't issued to save Clinton himself.

[Bernard Yomtov]

Interesting that Bernard should ask that question, because I was about to write about it anyway.

How fat was she, Steve?