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A Just Decision

I agree with Bush's decision to commute Libby's prison sentence. But what's interesting is that Tim Noah does as well:

President Bush's commutation of I. Lewis "Scooter" Libby's 30-month prison sentence will likely prompt many people with politics similar to my own to cry bloody murder. It will be called a cover-up. It will be called a payoff for Libby's failure to implicate Vice President Dick Cheney, and perhaps even Bush himself, more directly in the Plamegate scandal. It will be compared to President Ford's pardon of Richard Nixon, and to Bush père's pardon of former Defense Secretary Caspar Weinberger a mere 12 days before Weinberger was to go on trial for perjury in connection with the Iran-contra scandal. Both of these actions were wrong. But the comparison is a weak one. What Bush did was just and fair. It was the right thing to do...

...Judge Reggie Walton went overboard in sentencing Libby to 30 months. This was about twice as long as the prison term recommended by the court's probation office, and if Libby hadn't been a high-ranking government official, there's a decent chance he would have gotten off with probation, a stiff fine, and likely disbarment. Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby's routine request to delay the sentence while his lawyers appealed it. (Libby was duly assigned the federal prison register number 28301-016, but Libby's lawyers managed to move quickly enough to keep Libby out of the slammer until his appeal was denied on July 2, the same day Bush commuted his sentence.) The voluminous pleas for leniency from Libby's A-list friends seem to have annoyed Walton, who erred on the side of severity not in spite of Libby's high position in government but because of it. Walton wanted to make an example of him...

...What's the matter with that? Two words: Bill Clinton. No fair-minded person can deny that the previous president committed perjury about Monica Lewinsky while serving in the Oval Office. The country knew it, and it let him get away with it. Does that mean no government official should ever again be prosecuted for perjury? Of course not. But it does mean Walton should have wondered whether he was imposing a double standard in treating Libby more harshly because Libby worked in the White House. Is it really fair to treat White House aides more harshly than ordinary citizens when presidents get off scot-free?

Short answer: no.

But there's much more to the story than that.

Bill Clinton didn't merely lie under oath. He perjured himself, yes. But he also suborned perjury. He intimidated witnesses. He bribed witnesses.

Recall the Tripp tapes, when Monica said, "He's going to lie. I'm going to lie. You have to lie, too." Bill Richardson didn't have to look into getting a job for Monica at the UN because she was qualified. Vernon Jordan didn't line up a job at Revlon for her because she was an expert in makeup. The president didn't call Betty Curry into the Oval Office on a Sunday morning because he just wanted to shoot the breeze.

This, much more than anything that Scooter Libby did, was true obstruction of justice, in all its ugliness. It was done to prevent a young woman from getting a fair trial in a civil lawsuit against him, under a law that he signed with his own pen. And it was committed by the person who took an oath of office to see that the laws of the land were faithfully executed.

Now, I don't think that Bill Clinton should have gone to prison for what he did (at least in that case). But I do think that he should have been stripped of his office.

And for much less, that's essentially what happened to Scooter Libby, who had no such responsibilities, even with the commutation.

He lost his job. He lost his law license. He will be on probation for two years. He is a convicted felon, with all that entails. And he won't be picking up hundreds of thousands of dollars for speeches. At least, not any time soon.

[Wednesday morning update]

Then and now:

Back in 2001, the broadcast network evening shows weren't quite so fast to jump on President Bill Clinton's Inauguration Day morning pardon of Marc Rich, a fugitive from justice over fraud and tax evasion, who was hiding overseas and whose ex-wife was a big Democratic contributor. ABC's World News got to it a day later, but it took the NBC Nightly News another day. The CBS Evening News didn't bother reporting it until the Thursday after Clinton's Saturday morning action -- and then Dan Rather framed it as another instance of Clinton being victimized by unrelenting critics who wouldn't let go even after he left office: “Critics of former President Clinton are going beyond the very end. They're raising new questions about one of the end of term pardons President Clinton granted.”

Monday night, July 2, ABC, CBS and NBC all led with the Libby commutation.

Posted by Rand Simberg at July 03, 2007 03:49 PM

Comments

Can't we just accept that both the Bush and Clinton administrations were and are full of incompotent, lying, perjuring, obstructing, criminal idiots?

Felons should go to prison. Felonious presidents should be impeached. Equal opportunity for everyone

Posted by john stossel's ghost at July 3, 2007 04:17 PM

Bill Clinton was impeached (i.e., merely indicted). But he wasn't removed from office, as he should have been.

Posted by Rand Simberg at July 3, 2007 04:23 PM

John was quite supportive of me when I was in the White House. Funny how he now changes his stance when I am no longer in there.

Posted by Bill Clinton's Ghost at July 3, 2007 04:26 PM

I think Bush should have commuted the sentence to exactly what Sandy Berger got.

Posted by Jim Bennett at July 3, 2007 05:33 PM

++ to Jim Bennett's comment.

I've never heard a single sane reason why Sandy Berger would _smuggle_ documents out of the National Archives - other than alter or destroy physical evidence.

The whole line of argument "But they were only _copies_!" Ignores that they were only copies... that had once physically sat in front of the President. And the whole cabinet. When they had those devilish tools called 'pens' in their hands.

Why on earth would those marginalia be worth committing a felony or three?

Posted by Al at July 3, 2007 06:29 PM

One good thing about this is that Libby can stay out of prison while he appeals. And I'm willing to bet the conviction will be laughed out of the appeals court when the judges take into consideration ALL the evidence and the circumstances, i.e., Fitzgerald's pointless witch hunt.

And it's a neat trick politically, too, as a pardon would have let Libby off the hook entirely but would have also made him look like a criminal. This way, he gets to appeal, be exonerated by the process, and stick it to that dishonest bastard Fitzgerald, who KNEW who the "leaker" was from DAY ONE of his "investigation".

Posted by Hale Adams at July 3, 2007 06:57 PM

"John was quite supportive of me when I was in the White House. Funny how he now changes his stance when I am no longer in there.
Posted by Bill Clinton's Ghost at July 3, 2007 04:26 PM"

And Bill, it will be a cold day in hell when you get to be in here again. Of course, being in here is like a cold day in hell *ba doop creeshhhhh*

Posted by Hillary Clinton's Cooter at July 3, 2007 07:46 PM

Bush should also pardon Libby, and remit to Libby any fines paid AND court costs, with interest. Fitzgerald should pay a fine equal to all the expenses of his investigation after the moment on the first or second day when he ascertained that Plame was not a covert agent according to the statute AND was not outed by an Iraq war supporter in the administration. Bill Clinton should be stripped even of his office of EX-president, his name expunged from all public lists of presidents, and his pension and (most important) his Secret Service guards withdrawn, thereby forcing him to retire from the public eye altogether. Doughnuts should have no calories and should contain all the vitamins, minerals and protein needed for a healthy diet.

Posted by Mark at July 3, 2007 08:20 PM

I see Bush's decision as a gross miscarriage of justice. Libby committed and was convicted by a jury of several counts of perjury and obstruction. The only reason Bush offers for commuting the sentence is that the sentence was excessive. This is not so - it is precisely in line with sentencing guidelines, and Bush ignored the standards for commuting sentences altogether.

Bush was wrong to do this. He has not taken care that the law is well and faithfully executed.

Posted by Jane Bernstein at July 3, 2007 10:33 PM

Personally, I think Libby's conviction was a miscarriage of justice. The case came down to his remembering, or claiming to remember, certain conversations differently from how a couple of journalists remembered, or claimed to remember, them. It's beyond my ken how there was no room for reasonable doubt about the matter. Libby deserved a pardon and I expected Bush to give him one. Libby also deserves however, to be cleared of these charges. If Bush had pardoned him the matter would be settled and he would be unable to pursue his appeal and have the conviction actually overturned. With the sentence merely commuted however, the conviction stands and he has the opportunity of being vindicated in court. I hope that that eventually happens. If it does not though, before the end of Bush's term, then I hope that Bush revisits the possibility of a pardon. Otherwise I think Libby has been very ill used.

Posted by Michael at July 3, 2007 11:40 PM

Libby committed and was convicted by a jury of several counts of perjury and obstruction

The second thing you know. The first you do not. The existence of the President's ability to pardon is evidence that the Founders understood this distinction.

Posted by Carl Pham at July 4, 2007 01:20 AM

At least one juror disagrees with you, Jane. She said that she hoped that Bush would pardon him, because she thought that Libby was being made a scapegoat.

Posted by Rand Simberg at July 4, 2007 05:58 AM

If that juror had any integrity, she would have never voted to convict.

Posted by Mike Puckett at July 4, 2007 07:25 AM

Let's leave Bill Clinton out of this and examine the issue on its own merits or otherwise.

There is no reason to doubt that Libby is a very nice man (especially for a perjurer and a smear artist for the powerful). Yet the law must always count for more than mere friendship or niceness, however that is defined.

Libby BROKE the law and undermined the judicial system; and Bush's commutation of the sentence is a clear declaration that the rule of law ends at the administration's edge. Thousands of other perjured felons could get a commutation, but they're not friends with George W. Bush. And so they have no chance. The bottom line for Americans is this: George Bush's friends do not go to jail. Your friends do.

This is a very simple matter. Either Libby is subject to the rule of law or not. Bush's action is constitutionally solid but morally and politically indefensible - an act of arrogance born of permanent privilege.

Posted by Offside at July 4, 2007 07:38 AM

And this is also worth noting:

http://www.tnr.com/blog/openuniversity?pid=122246

Posted by Offside at July 4, 2007 07:52 AM

If that juror had any integrity, she would have never voted to convict.

I disagree. She did what she perceived to be her job, which was to find him guilty based on the evidence presented to her. That doesn't mean that she has to agree with the sentence, or whether or not he even should have been indicted, or that others should have as well. I might have done the same thing, assuming that the evidence was compelling enough.

Libby BROKE the law and undermined the judicial system; and Bush's commutation of the sentence is a clear declaration that the rule of law ends at the administration's edge. Thousands of other perjured felons could get a commutation, but they're not friends with George W. Bush.

This is nonsense. Bush didn't commute the sentence because of friendship. He did it because he was in part responsible for the mess, and there was a legitimate perception Libby was in fact a political scapegoat, and actually got a harsher sentence than he would have had he not been a White House employee.

And of course, you want to leave Bill Clinton aside. To have to consider him is far too inconvenient to those who righteously demand to be outraged over this "injustice."

Posted by Rand Simberg at July 4, 2007 08:06 AM

Perhaps I should have used the phrase friend of friends of Bush, or not the word friend but rather faithful lackey , noting that the sentence was commuted to curry favor with a red-in-the face base that is turning on him, again an act for friends and lackeys.

As for Clinton, his behavior needs no defense from me and is one of the reasons why many recoil at the possibility of his wife being the Democratic nominee. However, using him as a prop to defend something else only proves that the something else is weak on its own merits.

Posted by Offside at July 4, 2007 08:44 AM

Perhaps I should have used the phrase friend of friends of Bush, or not the word friend but rather faithful lackey , noting that the sentence was commuted to curry favor with a red-in-the face base that is turning on him, again an act for friends and lackeys.

No, the sentence was commuted to spare an aide a prison sentence that was viewed as unjust, and a consequence of his being a White House staffer, and a surrogate for Karl Rove, who the BDS sufferers were really after.

And Libby remains subject to the rule of law. He was tried, and convicted, and is being punished by the Justice Department, including loss of job. It was within the judge's discretion to give him exactly what he will now get--probation, a fine, and loss of his license. The judge chose to instead give him the maximum. Bush simply corrected this, utilizing one of the few Constitutional checks that the executive has over the judiciary.

Posted by Rand Simberg at July 4, 2007 08:55 AM

First, in response to Carl's comment above, I don't know of a better way to determine whether someone committed a crime than by having a jury trial. Libby claimed that he learned of Plame's identity from a journalist. The journalist said otherwise, and there was other evidence that Libby had the information from other sources beforehand. His claims of memory lapse were not credible to the jury that heard all the evidence. He lied to a grand jury. That's a crime, and sentencing guidelines for this particular crime were applied, and fairly. And the alternative to 30 months in jail is no months in jail? Remarkable.

The appeals court denied his bail because in their judgment there was no "close call" issue about Libby's conviction. They'll hear arguments but I suspect the conviction will stand.

As to Rand's arguments, while I'm sure it's satisfying to compare Libby to Clinton, and to paint the whole thing as a partisan witch hunt, and to assert that Wilson is incorrect in his assertions about the uranium from Niger or to assert that there was no prosecution for an underlying crime, none of this changes the fact that Libby was convicted in a fair trial in a Federal courtroom of perjury and obstruction.

Bush didn't correct a miscarriage of justice, he just overruled a federal judge, during a pending appeal process. He could have waited until the appeals court upholds his conviction.

Interestingly, my understanding is that if Libby were pardoned, he would face no legal consequences at all, and hence would have no fifth amendment privilege. Bush might want to think twice about taking the extra step of pardoning him in that case.

On the other hand, it's basically a no-lose situation for Bush. There's not a lot of political difference between being at 26% in the polls and 22%. You can't injure the (politically) dead.

Posted by Jane Bernstein at July 4, 2007 10:28 AM

I don't know of a better way to determine whether someone committed a crime than by having a jury trial.

Okay, Jane, simple question: Did OJ commit the murders of Nicole Brown Simpson and Ron Goldman?

NOT "What did the jury conclude," but in your, Jane's opinion, did he do it?

Posted by Lurking Observer at July 4, 2007 11:42 AM

Of course he did, Lurking. But the evidence that really proved it was only presented at the civil trial after his acquittal. If I had been on the jury I would have had to vote to acquit. I could have been, actually - I was living in that part of LA at the time during my first year of med school. The prosecution blew a winnable case and the judge lost control of his own courtroom.

In Libby's case, the prosecution won its case decisively and the judge imposed a fair sentence. Even if I grant that the 30 months was excessive, despite it being in accordance with sentencing guidelines, I'm sure that the remedy is not zero months.

Posted by Jane Bernstein at July 4, 2007 03:38 PM

If I had been on the jury I would have had to vote to acquit.

Oh, come on, Jane. You have to be joking.

My respect your intellect just dropped considerably if you're serious.

I say (as someone in exactly the same position) that if I'd been on the jury, it would have hung (assuming that I couldn't persuade them to sanity). Yes, the prosecution wasn't the best, but the evidence was overwhelming, even if you threw out that tainted.

The biggest mistake that the jury made (in addition to being racists) was that they thought that if any of the evidence was questionable, then that all of it must be, and must be excluded. That's insanity.

Posted by Rand Simberg at July 4, 2007 03:56 PM

No, the problem was the jury knew he was gulity, but they didn't care. Seriously Jane, you're not saying the pictures of the Bruno Magli shoes were
the absolute proof. With regards to the Libby trial, there were so many conflicts of interest in the jury; which was admonished not to take up the issue of Valerie Plame's status (that
Washington Post reporter who worked with Woodward, was a neighbor to Russert; who should havebeen thrown off. Russert's recollections were taken as gospel; when they should have been subject to skepticism. The Rohn INR memo which
detailed her role in the Niger mission was not introduced. And Armitage who did the original disclosure, to Woodward and Novak. Not to mention the constitutionality of the appointment authority.

Posted by narciso at July 4, 2007 06:53 PM

"I disagree. She did what she perceived to be her job, which was to find him guilty based on the evidence presented to her. That doesn't mean that she has to agree with the sentence, or whether or not he even should have been indicted, or that others should have as well. I might have done the same thing, assuming that the evidence was compelling enough."

Two words: Jury Nullification

If you think it stinks, think it is immoral, you can vote no for any reason you chose.

Posted by Mike Puckett at July 4, 2007 07:37 PM

Sorry, Mike but most jurors are unaware of the concept of jury nullification, and to declare them therefore unethical is to set an impossible standard for them. You may not like it, and I may not like it, but that's the reality, and it's unfair to criticize her for it.

Posted by Rand Simberg at July 4, 2007 07:41 PM

Libby BROKE the law and undermined the judicial system

What did he do to get there though? He committed no crime until he was on trial. He should not have lied, I'll agree, but he should not have been on trial either for he committed no crime to get there.

Posted by Mac at July 5, 2007 05:53 AM

He committed no crime until he was on trial.

No, he convicted of perjuring himself during the investigation before a grand jury. There was no trial at that point.

Posted by Rand Simberg at July 5, 2007 06:00 AM

Really? I'd forgotten that, thanks.

Posted by Mac at July 5, 2007 06:18 AM


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