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July 02, 2007

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And to preempt objections, this is a pardon. The money and "public shame" - boo-hoo. Not going to jail = pardon

Marcy Wheeler points out that commutation means that Libby can still take the Fifth if questioned further - different from a pardon in that respect.

But whatever, jeez, what a contemptuous, rotten thing to do.

Paris Hilton -- 23 days in jail.

Scooter Libby -- 0 days in jail!

Once again our brave Administration demonstrates that it's not willing to settle for second-best.

Oops: shoulda checked. I wrote on the same thing ;(

publius: the one thing that makes this not a pardon is that he will still be a convicted felon. Unlike all the Iran/Contra folks, who got their security clearances back.

If I had any confidence that Bush wouldn't pardon Libby in the fulness of time, I'd call that the one silver lining, but I don't.

I'm thinking the full pardon will come in January of 2009. This is complete bullshit.

That the commutation preserves Libby's 5th Amendment rights is very interesting. Fitzgerald's not going to re-open the investigation, after all. I wonder if Bush-Cheney are worried that Congress might.

Uh, Publius, it isn't a pardon. The guy still has a criminal record, gets probation for two years, has to pay a substantial fine ($250,000), and will almost certainly have his law license revoked. I think that is a sufficient penalty for lying under oath (which I agree is a very serious matter). Indeed, your boy Clinton never faced a jail sentence for lying under oath, and unless you're willing to say he should have served time, then I am not sure why you care about President Bush commuting his setence. Were you this upset when Clinton pardoned all of those n'er do wells at the Eleventh hour of his presidency? I suspect that you could have cared less.

has to pay a substantial fine

yeah, right. Libby won't pay a cent himself - he's got a nice defense fund all lined up. and in a year or so, he'll get a nice cushy spot in the wingnut welfare circuit and sit out his days writing occasional op-eds for the National Review, or Townhall.

Indeed, your boy Clinton never faced a jail sentence for lying under oath, and unless you're willing to say he should have served time

but mommmmmmmm!! Clinton said it first!!!

regardless, Clinton was acquitted. and that's pretty much the opposite of convicted - you know, "convicted" as in "convicted on multiple felonies".

remember when the GOP used to chant "Rule Of Law! Rule Of Law!" every night? for like two years, that's all they could say. oh well. i didn't believe them then, either.

A jury convicted Libby. A jury; not Fitzgerald, not Walton, not the Democratic Party.

A judge sentenced him. A judge; not Fitzgerald, not Walton, not the Democratic Party. Whereupon the Right pronounced itself convinced that Walton would be reversed by an appellate review, because he had been originally appointed by - *gasp* - Clinton!

An appellate judge denied Libby's request to be set free pending appeal. An appellate judge; not Fitzgerald, not Walton, not the Democratic Party. Whereupon the Right pronounced itself convinced that that judge, too, was somehow a secret Democratic operative; and surely his decision would be reversed when the entire appellate court reviewed it.

The entire appellate court also denied Libby's request to be set free pending appeal. The entire appellate court; not Fitzgerald, not Walton, not the Democratic Party. Whereupon the Right pronounced itself convinced that the entire appellate court was somehow a clutch of secret Democratic operatives, and clamored for Bush to pardon Libby.

All the judges now join the long and ever-growing list of Republicans and conservatives (from Richard Clarke to Richard Lugar) - and entire Federal agencies (from the EPA to the CIA) - who, by opposing Bush-Cheney, or even just criticizing them, the Right has pronounced itself convinced are part of a cabal of liberal Democrats.


Um. Obviously, I shouldn't have listed Walton in that second paragraph. Careless copy-n-paste job by me.

Walton: http://www.dcd.uscourts.gov/walton-bio.html>not appointed by Clinton.

Well, the only thing to do, is reference this...

"I suspect that you could have cared less."

Maybe Steve Dillard knows publius. If not: I, for one, am really tired of people assuming they know what I think, and if my stupid ear infection gets any worse, I am going to be very tired of people assuming they know what anyone else thinks, too.

I have this strange conceit that we are all, you know, individuals whose views cannot be read off their party affiliation. Call me naive.

Cleek-

So what if people donate money to his legal-defense fund? Did you care when dems did that for Clinton?

And there is a big difference between being acquited in a political context, and being acquited in a criminal context. Criminal charges were never brought against President Clinton for perjury. He was disbarred, however, as he should have been, and as Libby should be. Perjury is a serious matter, and nobody I know is suggesting otherwise. The question is whether Libby should go to jail for 2 1/2 years for perjury. That strikes me as excessive, and I suspect many dems would feel the same way if the shoe was on the other foot (say with Sandy Berger serving time for his little incident). Btw, were charges ever brought against him?

CaseyL-

A jury also let O.J. go. Sometimes a jury gets it right, sometimes it doesn't. From what I can tell, the jury got it right here, but arguing that a jury's opinion must be respected merely because it was made by a jury is not very convincing. Appellate courts gets cases wrong all the time. Just take a look at the Ninth Circuit's reversal rate before the Supremes. In sum, you want to point the evidence to support your argument, rather than simply saying that Libby lost in court.

Hilzoy-

Fwiw, I know him well.

Ugh, make that "get cases"

Perjury is a serious matter, and nobody I know is suggesting otherwise. The question is whether Libby should go to jail for 2 1/2 years for perjury. That strikes me as excessive,

Why?

Well, for one thing, Fitzgerald never charged him with the "crime" that prompted his investigation. Moreover, from what I understand, most of the Libby trial concerned the VP and the degree of influence he had over Libby (i.e., that Libby was taking his marching order from Cheney). If that was indeed the case, then why not go after Cheney? Why target his boy? At the risk of being a mind reader, it seems to me that this is what the left is pissed about, and instead of complaining about Fitzgerald for being a coward, y'all are taking it out on Libby. But Libby is a real person, with a real family, and he has paid an enormous price (which I've already noted) for having perjured himself. I don't see why he needs to serve jail time.

Now, why don't you think the sentence was excessive? And if you are answer is that Libby was a high-ranking official, and therefore his perjury is worse than normal perjury, do you believe Bill Cinton should have served jail time for lying under oath? And if not, why not?

Steve D: sorry. I think I'm cranky, and I shouldn't have taken it out on you.

Does anyone know how long ear infections usually last, after you start the stupid antiobiotic eardrops?

Hilzoy-

No problem. I completely understood where you were coming from. I used to have a blog of my own with comments. :)

Fwiw, I am on record as saying that Clinton should have faced trial. I do not think this is excessive for four counts of perjury and obstruction of justice. I would think the same about anyone, given the existing federal guidelines. (I mean, it would matter to me if the normal sentence were ten days, but Scooter Libby got 30 months. Likewise if the usual sentence were ten years.)

I think the 'no underlying crime' thing is weak. For one thing, the fact that no one was charged with the underlying crime doesn't mean one doesn't exist. For another, the reason no underlying crime was charged might be because justice was obstructed. Most importantly, though, the lack of charges in no way affects the seriousness of the perjury and obstruction. The last time I made this point I said: suppose a cop tries to pull me over, and I step on the gas and run over pedestrians before crashing my car into a lightpost; and suppose further that the cop had made a mistake and I fled because I was in my pajamas and got embarrassed. I still ran people down caused property damage, evaded arrest, etc., and should be tried for those things.

Hilzoy-

Fair points, and at least you're consistent. I, for one, thought Clinton should have been impeached and disbarred, but I was not in favor of him being tried criminally for perjury.

Do you think I am right though that the level of hostility coming from the left re: the Libby commutation is really about Cheney?

"I think the 'no underlying crime' thing is weak."

I disagree. If it were the case that every detected violation of the letter of the law led to penalty, and there was some degree of reasonableness in the way that was done, perhaps I would feel differently, but in the actual (only possible) universe, where legal justice and plain justice are divergent, it's an easy call.

steve (if that really is your name) -- the whole "not charged with an underlying crime" is just not an acceptable argument. they are analytically distinct crimes. if a cop pulls you over for driving drunk, and you're not drunk, but you (1) lie; or (2) run off ; or commit any other crime, the punishment has nothing to do with the fact that the cop wrongfully pulled you over.

the cause for the anger (indeed, i'm so angry that i'm purposely not writing anymore tonight b/c i'll just say something i'll regret) is that libby is covering up for cheney (and bush). more broadly, cheney's office is covering information concerning its conscious lies about WMDs, etc. THe pardon of Libby is pure obstruction of justice.

Even more broadly, it's a sign of a rotting political structure. The executive branch has absolutely no incentives to follow the law. People can lie to protect Bush and he'll be pardoned. There is no rule of law. Commit a war crime? Redefine the statute and immunize yourself. Lie to a grand jury. Bush will pardon you.

Ok, vented more than i wanted to. And i'm not saying you're a bush fan or approve. i'm just saying.

you'll also be happy to know that i am listenign to your fellow georgians (the B-52s), first album and their post-punk grooviness is the only thing checking my bubbling anger right now.

Steve Dillard: "Do you think I am right though that the level of hostility coming from the left re: the Libby commutation is really about Cheney?"

First off we're hostile because the career of a person working to defend our country against our enemies was ruined for political gain, reportedly compromising important assets in the process. That the political gain involved lying the country into a war that has cost us thousands of lives and tens of thousands of horrible injuries, to say nothing of over a trillion dollars and our standing in the world, is also a cause of our hostility. That this crime was a manifestation of an underreported power-grab by Cheney, done in large part to avoid constraints and laws developed over years and enabled by a deeply dysfunctional president and a Republican party that abandoned its principles for dross - well, that's a part of our hostility too.

Well, for one thing, Fitzgerald never charged him with the "crime" that prompted his investigation.

That's beyond weak. That's just not thinking.

You lie in a criminal investigation, YOU'VE COMMITTED a crime, even if the investigation into the original incident uncovered no crime.

That goes double if your lie prevents an investigation from even determining if there's a crime.

Steve Dillard: I think that the anger comes from the manifest fact that Bush, Cheney, et al seem to believe that they are above the law, and outside the control of any other power, including the laws and the Constitution. Do they want to use warrantless wiretaps? They just don't bother to tell anyone, despite the fact that they are, at that very moment, negotiating the PATRIOT Act, and could have asked for whatever they wanted. Instead they rely on a plainly stupid legal theory and just plain break the law.

Does Congress ask for information in order to conduct oversight, which is part of its job? The administration basically says: screw you. It invokes executive privilege in a matter (the USAttorneys) that the President claims he wasn't briefed about, and where no question of his receiving confidential advice can be in question; members of the administration go up to Congress and just plain lie and stonewall (I'm assuming here that non-dishonest explanations of the massive, rampant memory failure in the administration, explanations like evil mind rays that destroy neurons, are not true), etc.

Do they decide to out a CIA agent working on WMD, of all things, for political spite? Tough. The President can get up and say with a straight face that he wants to get to the bottom of it all, and yet, oddly, never call people in to his office to ask who leaked, never -- well, never anything, and the one person whose crimes cannot e obstructed away gets pardoned.

Plus, I don't find it the least hard to imagine that either Bush or Cheney ordered the leak of Plame's name, in which case the commutation is arguably itself an obstruction of justice.

They have contempt for the law. This is just the most visible instance of it. Its not about Cheney per se, it's about their entire attitude to the laws and the Constitution.

"explanations like evil mind rays that destroy neurons, are not true"

Umm, actually, I doubt they have access to the right kind of particle accelerator, but ...

Umm, actually, I doubt they have access to the right kind of particle accelerator, but ..

Oh, sure they do...but they don't trust the scientists that run them. Just can't trust those independent thinkers...

"You lie in a criminal investigation, YOU'VE COMMITTED a crime, even if the investigation into the original incident uncovered no crime."

Ok, in this instance I think Libby almost certainly lied about an actual crime and that his perjury should indeed have drawn a prison sentence. But I do want to note for the record that I'm super uncomfortable with this idea as a general proposition. It seems to me to be extremely fraught with peril in unscrupulous hands--which is to say just enough prosecutors to make me really nervous.

"It seems to me to be extremely fraught with peril in unscrupulous hands"

Isn't it the case that a large percentage of non-expert witnesses in criminal cases contradict each other, hence half of that large percentage are committing perjury?

Incidentally, can one technically be convicted of perjury over testimony in one's own behalf?

Hmm. yes....but this then becomes a question of appropriate punishment, which a less scrupulous prosecutor would abuse and a more scrupulous one would find it hard to (at least in my book). Otherwise, I would find it incredibly easy to bury criminal acts in a blizzard of lies...

Sebastian: Ok, in this instance I think Libby almost certainly lied about an actual crime and that his perjury should indeed have drawn a prison sentence. But I do want to note for the record that I'm super uncomfortable with this idea as a general proposition. It seems to me to be extremely fraught with peril in unscrupulous hands--which is to say just enough prosecutors to make me really nervous.

Lying in order to obstruct justice will always remain a crime, even if the person who lies has themselves not committed a crime, because most lawyers and judges hate this like poison. You're literally the first lawyer I ever met who thought that lying to obstruct justice ought not always to be considered a crime.

Example: in 1987, Jeffrey Archer lied about whether or not he'd had sex with Monica Coghlan. No underlying crime was committed. But Archer went to jail anyway, even if it was 14 years later that his perjury was proved.

Lying to obstruct justice is a crime, even if the person who lies has themselves not committed a crime. I agree. That isn't what gwangung said (or at least not how I read it). Gwangung seemed to say that lying in the course of an investigation is a crime even if there is *no one* had commited the crime being investigated.

Sebastian: Gwangung seemed to say that lying in the course of an investigation is a crime even if there is *no one* had commited the crime being investigated.

So if the liar is unsuccessful in obstructing justice with their lies, and despite their lies it is established definitely that no one committed the crime under investigation, those lies shouldn't be considered criminal?

Lying to obscure the fact that no one committed a crime is still lying to obstruct justice.

Telling an irrelevant lie which in no way obstructs the investigation into the crime (for example, if Archer had been under investigation for financial crimes and had in course of that investigation lied about having sex with Coghlan) may not be criminal. But it could be fairly said that he might have had to establish that his lie about Coghlan was irrelevant.

I know nothing whatsoever about the case you are talking about so I don't know if there was an underlying crime. I also think that lying (or having them make it look like you misled them) to investigators isn't the same as sworn-under-oath perjury. But as a general principle, I'm not thrilled with the idea that the police could investigate non-crimes and charge you with obstructing their investigation.

How would they know for sure whether a crime had been committed until they investigated?

And if you successfully obstruct the investigation, how would they know then whether a crime had been committed?

Did you care when dems did that for Clinton?

but mommmmmm!!! Clinton did it tooo!!!!

Perjury is a serious matter, and nobody I know is suggesting otherwise.

really? then you should try harder to make it sound like what Bush did for Libby was right and proper, in light of what someone else did, years ago. otherwise, people will get the idea that you're trying to find ways to make it all seem like No Big Deal.

That strikes me as excessive

the obvious remedy for "excessive" is not none. Bush could've reduced the sentence to 45 days, for example, to achieve parity with Paris Hilton - can we agree that obstruction of justice in a case involving national security which touches nearly every member of the President's cabinet who works on security issues deserves at least as much punishment as a DUI from a spoiled celebrity ? yes, no ?

and please, before you mention Clinton again, find a way to make it relevant.

RF, it's only perjury if they don't believe the opinions that they are giving in testimony. IME, more people are wrong than dishonest.

I'm kind of tired of the 'no underlying crime' thing. Just because the people conspiring to release the name of a CIA agent for political purposes (a) turn out to have lame but sufficient alibis and (b) seem to have been beaten to the punch by a guy not part of the conspiracy (who therefore leaked the name, given to him by conspirators, unwittingly), doesn't mean there wasn't something worth investigating.

And in national security matters, we don't confine investigations to crimes, but are also concerned about safety issues.

It would be very difficult to prove that I drove over 55 on the Beltway yesterday. No policeman saw me, and the witnesses that did see me were either speeding themselves, or are very unlikely to be able to recall having seen me particularly. So I'm not going to be charged. That doesn't mean that driving 80 (if indeed I did so, and I'm not confessing to anything) on the Beltway is OK, or that there was no crime in doing so.

Are the people who can't get this wrong or dishonest?

Sebastian: But as a general principle, I'm not thrilled with the idea that the police could investigate non-crimes and charge you with obstructing their investigation.

What on earth do you mean by "non-crimes"? And given that this is wholly irrelevant to the Libby discussion, where a crime was known to have been committed since July 2003, well before Libby started telling lies about who had done it and why and how, why don't you start your own front page post to discuss non-crimes that the police shouldn't investigate?

s/then you should try harder/then you shouldn't try so hard/

sheesh.

instead of complaining about Fitzgerald for being a coward, y'all are taking it out on Libby. But Libby is a real person, with a real family, and he has paid an enormous price (which I've already noted) for having perjured himself. I don't see why he needs to serve jail time.

I may have missed it on this blog, but I've heard almost no one complain that Fitzgerald is a 'coward' for not having indicted Cheney (or Rove).

And, sorry, I have no pity for Libby. Lots of 'real people' pay bigger prices for smaller transgressions. Libby obstructed justice and now Bush has too.

I wonder how many of those who are against any mercy for immigrants are in favor of this "mercy" for Scooter?

Gwangung seemed to say that lying in the course of an investigation is a crime even if there is *no one* had commited the crime being investigated.

Not quite. It's more like...if you lie, that's going to invite more investigation, and don't be surprised if that investigation unearths things that show that you broke the law.

But it's clear enough that we all agree that if you lie to obstruct justice, you should get nailed, and you should serve the time.

Steve Dillard asks: But Libby is a real person, with a real family, and he has paid an enormous price (which I've already noted) for having perjured himself. I don't see why he needs to serve jail time.

Because 30 months jail time is what the judge determined, and the court of appeals concurred, his crime deserved.

And as George W. Bush used to say, when declining to commute other sentences, of people who had paid an enormous price for what they'd done, he felt it was not his job to replace the verdict of a jury unless there are new facts or evidence of which a jury was unaware, or evidence that the trial was somehow unfair".

But he'll make an exception when the felon is someone who was convicted for lying to save Dick Cheney from being indicted for treason.

Actually, Jes, since the jury did not impose the penalty, he is still in a technical sense, not replacing the verdict of the jury.

Apparently 60% of Americans and 40% of Republicans disagree with Bush's actions.

Don't know how many think he was too lenient or not lenient enough.

Anyone who's serious about sparing Libby on compassionate grounds had really better be on record as opposing the Supreme Court decisions like Bowles v. Russell and its ruling that a court error in instructing a prisoner as to deadlines is not grounds for an appeal. I await evidence.

I could go further and say something like "I'd expect to see interest in compassion for those who didn't have the good fortune to be the lawyer for last administration's most notorious pardonee and to enjoy the enthusiastic support of the Washington pundit corps, complete with offers to cover his expenses", but that would be pushing it.

John: Actually, Jes, since the jury did not impose the penalty, he is still in a technical sense, not replacing the verdict of the jury.

As a side note to this, at least one juror is on the record stating she hoped he got a pardon and that she did not want him to serve prison time. It seemed to me that the jury did their duty as directed, but had a fair amount of sympathy for him. It will be interesting to see if any other jurors now go on the record as opposing this. In general I tend to disagree with the jury having no input into the penalty phase – this isn’t in support of Bush or Libby.

Via MY, David Boaz notes some commute-worthy cases.

Appellate courts gets cases wrong all the time. Just take a look at the Ninth Circuit's reversal rate before the Supremes.

Nitpick- just bc the USSC overturns a decision doesn't make it a wrong decision. The appellate courts should apply precedent, but they aren't asked to be mindreaders of the USSC- when presented with novel situations they should apply precedent as they see fit & let the SC take it if they choose to (thus creating a new controlling precedent).
[And, while the USSC precedents may be correct as a matter of law, outside of that venue it is not 'wrong' to point out when the USSC incorrectly interprets the law and the Constitution. So, even after a decision is overturned one can say that the appellate court was correct.]

(say with Sandy Berger serving time for his little incident). Btw, were charges ever brought against him?

You seem to suggest that they weren't. But they were, in fact. This took about two seconds to uncover:
"Berger eventually pled guilty to a misdemeanor charge of unauthorized removal and retention of classified material on April 1, 2005. Under a plea agreement, U.S. attorneys recommended a fine of $10,000 and a loss of security clearance for three years. However, on September 8, U.S. Magistrate Judge Deborah Robinson increased the fine to $50,000 at Berger's sentencing."

at least one juror is on the record stating she hoped he got a pardon and that she did not want him to serve prison time

and another said he thought Libby was the "fall guy" for Cheney.

OCSteve: As a side note to this, at least one juror is on the record stating she hoped he got a pardon and that she did not want him to serve prison time. It seemed to me that the jury did their duty as directed, but had a fair amount of sympathy for him.

Possibly (according to what another juror said) because it was very clear he was taking the fall for Dick Cheney.

It occurred to me, rather sardonically, that the one thing you can say in favor of Bush's decision to grant Libby an amnesty for lying to keep Cheney safe, is that Bush is loyal to his own. It's the virtue of a Mafia don, but you could argue at least it's a virtue. Though what's a virtue in a mob boss may be considered a vice in the President of the United States.

may be considered a vice in the President of the United States

Oh, so that's why they call Cheney the Vice-President...

Jes and cleek: No argument there. (Mark your calendar!) He was the fall guy. Instead of Bush bringing him salami, cheese and wine in the big house, he gets to stay with his family. Overtones of the Mafia are quite appropriate in my mind – it proved to be a good way to run a large organization…

I have no doubt that is why the jury felt sympathetic. Wife, kids, protecting the Boss (and His Boss)… Loyalty. If you go away for a few years and keep your trap shut you have it made in the mob – hero status almost.

Instead of Bush bringing him salami, cheese and wine in the big house, he gets to stay with his family.

Not "instead of". Libby may not be able to get his job at the White House back until 2009, but doubtless Bush will pardon him in January 2009 and President Thompson will re-hire him. As you say, he's a made man now.

As you say, he's a made man now.

He'll never want for work, I'm sure. It will be boring compared to what he used to do, but it will pay well. I should have went into government. Working for a living is too damned hard some days...


Jes, John Cole agrees with you about Bush's "virtue".

Oh yeah – Omerta was the word I was looking for. I’ll credit John with getting there first – he runs about a year or so ahead of me. I’m slow – what can I say.

I read John Cole's post after I thought of the comparison, but yeah.

I'm gobsmacked about this.

For Bush to pardon Libby, or commute his sentence (I hadn't thought of the latter option, but I'm not surprised Bush chose it if it means Libby can still take the fifth if called on to testify) seemed to me to be such an obvious proof of Bush's complicity in the cover-up, if not the crime, of outing a covert CIA agent, that I assumed he wouldn't do it: that he and Cheney would count on Libby's omerta.

As Hilzoy points out, Bush's glurge about a 30-month sentence for four felony convictions being "excessive" is neither true (mid-range of the sentencing guidelines) nor meant to be taken seriously.

Bush is that certain that all the Republicans in the Senate will vote, if it comes to impeachment, in party lockstep, no matter what Bush does. A compliant media helps, obviously.

I mean, it still startles me that Bush bragged of committing multiple felonies to the media and got away with it: but waving "we did it because of the terrorists!" around is an argument that works with a lot of people who would otherwise examine criminal behavior by the government more closely and demand an accounting.

But Plame wasn't outed "because of the terrorists". Libby wasn't given an amnesty for committing multiple felonies "because of the terrorists". That convenient, useful flag just isn't wavable. Whichever way Libby's amnesty is explained away, it says that George W. Bush is guilty.

And presumably, any political advisers with the savvy to see that this is so (I wouldn't expect Bush to realize it) are people (Rove, Cheney, et al) who want Libby saved from jail because Libby could incriminate them, too.

But just the same: I'm gobsmacked. And I really didn't think that there was anything Bush could do, any more, that would make me feel like this. It's just so... naked.

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