Transterrestrial Musings

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"Then there is Sen. Hillary Clinton, D-N.Y., who saw in Bush’s Libby commutation “a clear signal that in this administration, cronyism and ideology trump competence and justice.” "

Could one pack more Gall and Hypocracy in fewer words? I think, no, I know not.

I heard that on the top of the hour news on the radio the other day during a trail break and doubled over laughing.

Posted by Mike Puckett at July 4, 2007 07:28 PM

In this regard, here is a quote that seems to be accurate, especially since there is no such equivalence possible with anything Clinton was involved in, sordid thogh it was at the time:

But this belief in intrinsic legal immunity extends to the entire Bush movement (which has become virtually synonymous with "neoconservatism"). That is what explains the literally endless defense not merely of individual acts of illegality, but of the claimed power to break the law in general. They are an authoritarian movement which believes only in its own power. By definition, none of its Leaders can ever be guilty of anything because to be a Leader of that movement means, by definition, that their actions are always for the Good and that anything which impedes those actions -- whether it be ethics, political principles or the law -- are unjust.

The whole thing is worth reading:

http://www.salon.com/opinion/greenwald/2007/07/03/libby/index.html

Essentially, this administration and its various supporters truly believe that they are above the law, reminescent of the aristocracy of old.

Posted by Toast_n_Tea at July 4, 2007 07:29 PM

That's hilarious, T'n'T.

It that's the criteria, the Clinton administration was the most "Neoconservative" in recorded American history.

Posted by Rand Simberg at July 4, 2007 07:38 PM

I'm probably going to draw a storm of criticism, but I think President Bush is completely wrong for commuting the sentence. Legally, he can obviously do this, but morally I think he's made an error.

Was the trial a witch-hunt? Yes, and lying under oath is illegal in this country, witch hunt or not.

Did the Clinton administration do far worse? Yes, and that matters not at all. Both sides of the aisle will argue about this decision for years to come, and the Republicans have just given a reason for the Democrats to do something similar in the future. Which party has the internal fortitude to take the first difficult step? neither. Even my children know that 2 wrongs don't make a right.

Mr. Libby was tried and convicted, and should stand full punishment for his crimes. If the judge was overly harsh, that's his perogative, and his responsibility. The problem is not with the judge, or the people who caused the ridiculous trial, but with the convicted criminal who lied under oath. Come on! Shouldn't he take full responsibility for his actions? Shouldn't we be outraged that he is dodging responsibility?

I think this was nothing but a political move, and I'm embarassed for the Republicans and disappointed in the President. I'd hoped he was more honorable. Like Rand said, the President is responsible for seeing that the laws of the land are faithfully executed. President Bush has failed this responsibility.

Posted by Stephen Kohls at July 4, 2007 08:31 PM

TnT:
"Essentially, this administration and its various supporters truly believe that they are above the law, reminescent of the aristocracy of old."

I didn't think TnT was infected with BDS but I stand corrected.

Posted by Bill Maron at July 4, 2007 09:15 PM

Hillary is certainly standing in a glass house when she casts stones at the Libby pardon. But I guess that merely reinforces certain parallels between the Bush way of doing things and the Clinton way of doing things.

Also of note: Lewis Libby was a long time lawyer for one "Mr. Marc Rich" -- funny how things circle back upon themselves.

Anyway, Hillary will not be getting my primary vote AND the commutation of Libby's sentence is shameful.

Posted by Bill White at July 4, 2007 09:59 PM

The thing that's bugging me is, we can talk about obstruction of justice all we want, but the person who committed the offense the special prosecutor was appointed to investigate was not prosecuted, and nothing Libby did materially affected that one way or another.

Posted by Phil Fraering at July 4, 2007 10:34 PM

And there's the little matter that half the journalists involved appeared to be at least as guilty of misleading (intentionally or not) the special prosecutor as the convicted was.

I'm not sure how I feel about the quasi-pardon. But I definitely don't feel good about the railroading or deliberate ignorance of all other actors.

Posted by Big D at July 4, 2007 10:54 PM

I think this was nothing but a political move, and I'm embarassed for the Republicans and disappointed in the President. I'd hoped he was more honorable.

Funny thing about honor. Since Libby did nothing that could be labeled a crime, but lied during the trial, the commutation balances the scales of honorable actions. The punishment handed down was for lying, but also for the crime he didn't commit and everyone knows he didn't commit the crime he was on trial for. He still has a conviction on his record, which is more than enough punishment for lying under oath.

As for the Clinton deal. He lied under oath, but more importantly, he was guilty of the crime he was accused of. Therefore, honorably, he was punished for his actions. Personally, I think he deserved more, because as POTUS, honor extends to a whole new level and he besmirched the honor of the United States far more with his actions.

Posted by Mac at July 5, 2007 05:30 AM

Mr. Kohls, I could agree with you until this:

the Republicans have just given a reason for the Democrats to do something similar in the future.

Maybe Chicken and Egg, but why the future? President Clinton pardoned plenty of his "cronies". Go read the article.

Mr. Libby was tried and convicted, and should stand full punishment for his crimes.

Yes, but...

Shouldn't he take full responsibility for his actions? Shouldn't we be outraged that he is dodging responsibility?

I have more outrage for what Phil Fraering noted; "the person who committed the offense the special prosecutor was appointed to investigate was not prosecuted, and nothing Libby did materially affected that one way or another." That's outrageous in my book.

The government spent millions of dollars to find out who leaked the name of a "secret agent", and although we know who committed the "crime", that person's name was never put before a grand jury for indictment. Why? Because there was no crime, because there was no secret agent. With that in mind, why should Libby go to jail? He lost his job and he's on probation. He's not pardoned, but his sentence was commutted, which speaks to: If the judge was overly harsh, that's his perogative, and his responsibility.

No... it is not the judge's perogative alone. Alas, final say is the President, and it his responsibility. After all, he appointed the special prosecutor that created this mess.

Posted by Leland at July 5, 2007 07:24 AM

If Libby had gotten a full pardon, resolving this would have become more likely:

because then Lewis Libby could not refuse to answer further questions by claiming the Fifth Amendment.

It appears Libby's willingness to fall on his sword rather than implicate others would have been threatened by actual jail time and had the prison sentence not been commuted, Libby could have gone to Fitz looking for the prosecutor to ask a reduced sentence in exchange for new testimony against others in the Administration which is a very common practice in federal investigations.

If that were a real possibility, Bush could not allow that. Therefore commute the sentence but do not pardon which allows Libby to plead the Fifth Amendment so long as his appeal is pending.

A very clever lawyer-like move by Dubya. And that points to far more White House complicity in the entire matter than has been admitted.

Posted by Bill White at July 5, 2007 07:47 AM

Uh, Bill?

Not to harsh your buzz on your fascinating theory, but there was no one else to implicate, because no crime was committed in which to implicate anyone despite the continuing fantasies of those who still want their Fitzmas, and Rove frog march.

Unless, of course, you subscribe to the loony theory that discrediting liar Joe Wilson is a crime. If so, he should be doing a life term himself.

But I should also point out one other fact that's been lost in all the outrage. Fitzgerald asked, and the judge provided, a harsh sentence based on the notion that Libby was lying to cover up a crime, when Fitzgerald never charged anyone with it, or proved that it even occurred. One more reason for a sentence reduction (and one of several reasons that Libby's appeal may be successful).

Posted by Rand Simberg at July 5, 2007 07:57 AM

Lewis Libby could not refuse to answer further questions by claiming the Fifth Amendment.

How does that work, Bill? How does receiving a Pardon strip someone of basic rights outlined by the bill of rights?

Posted by Leland at July 5, 2007 08:44 AM

Among other things, Bill is confused by the difference between immunity and a pardon. But what do you expect? He's only a lawyer. Or so he says.

Posted by Rand Simberg at July 5, 2007 08:50 AM

Once pardoned, he is no longer in legal jeopardy for whatever crime he has been pardoned for. therefore he cannot claim the Fifth Amendment without asserting there is yet another crime he has not gotten a pardon for.

Posted by Bill White at July 5, 2007 09:23 AM

This statement remains unproven, either way:

Not to harsh your buzz on your fascinating theory, but there was no one else to implicate, because no crime was committed in which to implicate anyone despite the continuing fantasies of those who still want their Fitzmas, and Rove frog march.

Adding insults doesn't change that, either. :-)

Fitzgerald (a GOP guy appointed by Bush) continues to assert that Libby tossed sand in his eyes and prevented him from finding answers to this underlying question.

Call Fitzgerald a liar if you wish, but he remains the US Attorney for Chicago, and if he were lying about Libby, why would Bush allow him to remain in that job?

Posted by Bill White at July 5, 2007 09:27 AM

> therefore he cannot claim the Fifth Amendment without asserting there is yet another crime he has not gotten a pardon for.

Interestingly enough, that's not what pleading the 5th actually means.

In other news, refusing to testify isn't an admission of guilt.

Posted by Andy Freeman at July 5, 2007 09:29 AM

Once pardoned, he is no longer in legal jeopardy for whatever crime he has been pardoned for.

Yes, which was a specific case of perjury. The pardon would not give him immunity for anything else.

therefore he cannot claim the Fifth Amendment without asserting there is yet another crime he has not gotten a pardon for.

In other words, the pardon is irrelevant. And claiming the fifth is not an implication that there's a crime for which he hasn't been pardoned for, any more than it is for a person who hasn't been pardoned at all. He has just as much right to do so as any other citizen.

And you claim to be a lawyer? I certainly wouldn't hire you to be my defense attorney. Unless I liked jail. But then, I could do that as my own attorney. Though perhaps not as effectively.

Posted by Rand Simberg at July 5, 2007 09:29 AM

Yes, which was a specific case of perjury. The pardon would not give him immunity for anything else.

Ah, so there is something else . . .

Thought so.

Posted by Bill White at July 5, 2007 09:32 AM

Fitzgerald (a GOP guy appointed by Bush) continues to assert that Libby tossed sand in his eyes and prevented him from finding answers to this underlying question.

Fitzgerald asserted a lot of things. He provided no evidence to support many of them.

He already knew the answer to the underlying question. Richard Armitage was the "leaker," and no crime was committed, because she wasn't covered under the statute. Nothing Libby could have told him would have changed those facts.

if he were lying about Libby, why would Bush allow him to remain in that job?

Oh, please. You think that wouldn't create a political firestorm? I think that the administration wants to see how the appeals play out before deciding whether or not to pardon. They'd prefer for him to win on appeal, as would he.

Posted by Rand Simberg at July 5, 2007 09:33 AM

Ah, so there is something else...

I didn't say that.

I said that if there was something else, he is not obliged to testify about it. I have no reason to believe that there is anything else. That's just your whacked-out conspiracy theory. Not mine.

Posted by Rand Simberg at July 5, 2007 09:36 AM

Bill, you have failed to explain how a pardon nullifies a person's right to assert the fifth amendment. Instead, you have basterdized the fifth amendment into something suggesting such a right is an admission of guilt. I hope you don't claim yourself to be a liberal, Bill?

Posted by Leland at July 5, 2007 10:43 AM

Leland, I do not follow your point.

No one can plead the Fifth Amendment except by asserting that giving testimony has real potential to incriminate the speaker. If Libby is pardoned for all pending charges, Libby cannot plead the Fifth Amendment unless he believes there are other potential charges out there.

If there is no pending criminal case (a pardon on all charges would terminate the case against Libby) THEN he cannot plead the Fifth Amendment unless he believed there was a strong possibility that new charges could arise from his testimony.

Yes, I am a lawyer and I have recently filed a motion (still pending) on this exact point to stay (postpone) a civil proceeding against my client until the criminal case is resolved. And yes, I need to prove to the judge that giving testimony will harm my client in a real criminal case against him, not merely a hypothetical one, although pending charges makes that easy to do.

If a Presidential pardon wiped away all of the pending charges against Libby, he could not take the Fifth except by making the affirmative asserting that compelled testimony would be incriminating against Libby in a different case.

Thus, a commutation rather than a pardon, is well crafted to obscure the discovery of the truth in this matter.

Posted by Bill White at July 5, 2007 11:03 AM

If Libby is pardoned for all pending charges, Libby cannot plead the Fifth Amendment unless he believes there are other potential charges out there.

No, it is only necessary that he have no knowledge of whether there are or not. He doesn't know what the prosecutor knows, but he has a right to refuse to testify, regardless.

In any event, with Libby's conviction (and despite your hopeful fantasy that Libby actually was obstructing justice in an actual crime, for which there remains zero evidence) Fitzgerald has declared the entire matter closed, so I don't know to whom you think that Libby will be forced to testify, about anything.

You continue to spin a conspiracy fantasy, supported by your own (milder than some) Bush derangement.

Posted by Rand Simberg at July 5, 2007 11:14 AM

As for negative inferences drawn from a person "taking the Fifth" the Securities and Exchange Commission routinely does so in non-criminal proceedings:

Counsel must also consider the adverse effects that invocation of the Fifth Amendment may have on an individual or company that is regulated or licensed by the SEC, such as a broker-dealer or an investment adviser. The SEC has long held that it "has historically drawn . . . [an] adverse inference [from the invocation of the Fifth Amendment] in broker-dealer administrative disciplinary cases." In the Matter of Prudential Bache Securities Inc. If the client is a professional who practices or may practice before the SEC, the assertion of the Fifth Amendment could be used with other facts by the SEC to institute a Rule 102(e) proceeding.

Link

By NOT giving Libby a pardon, Bush gives Libby an air-tight basis on which to refuse to testify about the issues presented at his trial.

As I said, very clever.

Posted by Bill White at July 5, 2007 11:14 AM

If Libby is pardoned for all pending charges, Libby cannot plead the Fifth Amendment unless he believes there are other potential charges out there.

No, it is only necessary that he have no knowledge of whether there are or not. He doesn't know what the prosecutor knows, but he has a right to refuse to testify, regardless.

You continue to spin a conspiracy fantasy, supported by your own (milder than some) Bush derangement.

Posted by Rand Simberg at July 5, 2007 11:16 AM

Rand, this is simply untrue as a matter of law, depending upon the forum:

No, it is only necessary that he have no knowledge of whether there are or not. He doesn't know what the prosecutor knows, but he has a right to refuse to testify, regardless.

If this occurs in a civil trial, the judge can order the party asserting the privilege to lose by default (unless the judge is given evidence of a real possibility of criminal jeopardy).

As for political fantasies, a pardon would do far more to shut those down than a commutation.

Posted by Bill White at July 5, 2007 11:23 AM

Bill W is obfuscating. A Bush pardon would not relieve him of jeopardy for crimes undiscovered. 5th amendment protection in criminal proceedings has to do with self-incrimination helping the state convict a person. Invoking the 5th in a civil action carries no criminal penalty so summary judgement or civil penalties by the state are not affected because they are not criminal proceedings. So a pardon for his conviction would not preclude him from invoking his rights under the 5th amendment.

Posted by Bill Maron at July 5, 2007 11:43 AM

If this occurs in a civil trial, the judge can order the party asserting the privilege to lose by default (unless the judge is given evidence of a real possibility of criminal jeopardy).

So? What's your point? What civil trial is he going to testify in? Plame's? That's a laugh.

As for political fantasies, a pardon would do far more to shut those down than a commutation.

It has been explained to you why there hasn't (yet) been a pardon. Libby wants to clear his name on appeal. The commutation occurred now because it was the only to way to keep him from having to do time.

But continue on in your fantasies. You still haven't explained what "crime" you think is being covered up, or why Fitzgerald is no longer pursuing it.

Posted by Rand Simberg at July 5, 2007 11:45 AM

Bill, before I confuse you anymore, my point is clear... a pardon does not strip anyone of their right to exercise the fifth amendment. Others here have argued the same point. Your arguement presents special clauses which really don't even bring the pardon/clemency into play. The President cannot provide pardon for civil cases.

Leland, I do not follow your point.
I can see that by reading this:

If Libby is pardoned for all pending charges, Libby cannot plead the Fifth Amendment unless he believes there are other potential charges out there.

President Bush didn't pardon Libby, he commutted his sentence to a lesser penalty. The conviction on perjury holds. But lets say the President pardoned Libby in the obstruction of justice charge, then Libby is still a person of suspicion related to charges of leaking classified information. So I granted this to you, and said your story about not using the fifth is plausible only if President Bush gave a full pardon on all potential charges. Only then would Libby have no reason (regardless of right) to invoke the fifth.

You, Bill, may have points of merit that President Bush has put Libby in a box that prevents him from pointing fingers. As Rand noted several times, that issue is moot since no one is cross examining Libby. Indeed, the only legal activity that is ongoing is Libby's appeal which, because the President provided no pardon at all, is still ongoing. It seems if President Bush was conviving and clever as you make him out to be, Bill, then a pardon on the obstruction charge would make the most sense.

Posted by Leland at July 5, 2007 12:25 PM

I agree with this:

Bill, before I confuse you anymore, my point is clear... a pardon does not strip anyone of their right to exercise the fifth amendment.

Libby's rights remain exactly as they did before however this language also applies:

The fifth amendment to the United States Constitution, and all state constitutions, e.g., Virginia Constitution art. I, 8, provide that no person can be compelled to give evidence against himself. The purpose of the privilege is to protect a witness from being forced to give testimony leading to the infliction of penalties affixed to the criminal acts upon himself. 81 Am. Jur. 2d Witnesses 83, 90 (1992).
This privilege attaches to a witness not only in a criminal proceeding wherein the witness is the defendant, but also to any witness in any judicial proceeding, either civil or criminal. Lefkowitz v. Cunningham, 431 U.S. 810 (1977). In a civil action, in order to invoke the privilege against self-incrimination, the witness must be faced with a risk of criminal prosecution that is substantial and real, and not merely trifling or imaginary. Hoffman v. United States, 341 U.S. 479 (1951); Zicarelli v. Investigation Commission, 406 U.S. 472 (1972); United States v. Whittington, 786 F.2d 644 (5th Cir.), cert. denied, 479 U.S. 882 (1986); see Note, Use of the Privilege Against Self-Incrimination in Civil Litigation, 52 Va. L. Rev. 322 (1966).

If Libby were fully pardoned for every charge Fitz brought, he would not be at risk for further prosecution and therefore could not claim the Fifth Amendment at say a Senate subcommittee hearing UNLESS he feared prosecution on different charges.

Therefore, by giving commutation and not a pardon, Bush precludes Libby from being called by Congress to testify in an investigation of the matter, at least until the appeal is decided several years from now. If pardons on all charges were given, and the Judiciary Committee sent Libby a subpoena, and Libby later pleaded the Fifth, that would suggest that further crimes were committed.

(Of note: If a man pleads the Fifth when asked about adultery, his wife knows the truth whether its admissible in court or not.)

Posted by Bill White at July 5, 2007 02:38 PM

...the Clinton administration was the most "Neoconservative" in recorded American history.

Rand, that's good, now I know who you'll vote for in 2008, provided she makes it to that point... ;-)

Posted by Toast_n_Tea at July 5, 2007 04:27 PM

"...the Clinton administration was the most "Neoconservative" in recorded American history."

Rand, that's good, now I know who you'll vote for in 2008, provided she makes it to that point... ;-)

I'll take that in the spirit in which I assume it's offered, given the smiley (i.e., it's ludicrous to think that I would ever vote for Hillary, or any other Clinton). And of course I note, for bystanders, that the joke is that I'm a "neoconservative," when such labels are as useless as any other to describe me.

Posted by Rand Simberg at July 5, 2007 04:47 PM

If Libby were fully pardoned for every charge Fitz brought, he would not be at risk for further prosecution and therefore could not claim the Fifth Amendment at say a Senate subcommittee hearing UNLESS he feared prosecution on different charges.

I thought that's where you might be going. Now, under what grounds would a Senate subcommittee have to hold a hearing? Congress has no power to overturn the decision of a judge, unless they amend the US Constitution. Same with overturning a Presidential pardon. So what grounds would the Senate have for holding a hearing in the matter and forcing Libby to testify?

Are you suggesting Impeachment hearings? If so, again under what grounds? This case is about a potential leak of a CIA operative's status. That status is granted at the pleasure of the President. Exactly what law would President Bush have violated if he personally came out and told the world that Valerie Plame use to be covert secret agent? After all, it is his perogative to say just that.

So Bill, where are you going with this line of thought?

(Of note: If a man pleads the Fifth when asked about adultery, his wife knows the truth whether its admissible in court or not.)

I object your honor:
I don't see how Bill can logically be certain of the above statement. Without evidence, the wife's belief is based on hearsay. She may no more know the truth than anyone else. Besides, the whole point for pleading the fifth in this situation is that the wife could be lying about the alledged adultery for her own benefits and attempting to use incidental situations in which her husband was with other women in a plutonic meeting as examples of adultery.

Posted by Leland at July 5, 2007 05:01 PM

We are still waiting for Bill to explain what crime Libby is "covering up," and what "accomplices" he would have to name if not having recourse to the Fifth Amendment.

I think we're going to have to wait a long, long time.

I (not being stupid) am certainly not withholding respiration while I wait.

Posted by Rand Simberg at July 5, 2007 05:06 PM

Rand, that is not my challenge. My point has been that commutation is either: (a) incoherent or (b) a cynical effort to continue to stonewall and to keep all the facts from getting out.

Rich Lowry of the NRO Corner (a closet moonbat perhaps?) does a nice job with this:

"At first I thought that commuting Libby's sentence was a reasonable compromise—keeping him from serving prison time, but letting the jury verdict stand. But now I don't think it makes any sense. There's an incoherence at the heart of the administration's case. It says that Libby's sentence was excessive. But technically, it's not. It's only excessive if you think it was a politicized prosecution and never should have happened in the first place. But if you believe that, then Libby deserves an outright pardon. The administration's middle ground can't hold," - Rich Lowry, NRO.

Posted by Bill White at July 5, 2007 08:56 PM

To follow up, Rand, if your last post is correct then it would seem that the president is letting Lewis Libby languish with a felony conviction and the anguish of the trial and the appeal, all to save himself some political capital.

Do you believe the President is truly willing to sacrifice the life and career of a loyal staffer for political points?

Posted by Bill White at July 5, 2007 09:02 PM

Do you believe the President is truly willing to sacrifice the life and career of a loyal staffer for political points?

I would certainly hope so, if those political points are needed in order to continue to prosecute the war, which is the most important thing that he should be doing right now.

Not that I agree with Rich that that's what's going on. But at least his theory, unlike yours, is plausible.

Posted by Rand Simberg at July 6, 2007 04:35 AM

I didn't know this:

... Nothing new. After all, one recalls that the attorney who rustled up a pardon for Marc Rich from Bill Clinton was also a Beltway hustler by the name of Scooter Libby. The insiders take care of their own.

From Buchanan's column. He also theorizes that this may have been done to keep Scooter from Scooting Off with a best-seller.

Posted by Toast_n_Tea at July 6, 2007 10:24 AM

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