Bush Libby Commute Argument Contradicts His Own Justice Department’s Arguments
In the world of 21st century America where long-held principles are long held until for political reasons they need to be thrown away ASAP, this should not come as much of a surprise:
According to the New York Times, President George Bush’s arguments in favor of commuting Scooter Libby’s prison sentence contradict the arguments of his own Justice Department.
And lawyers across the country are rubbing their hands with glee, since they will start using some of the same arguments to try and get their own clients off:
In commuting I. Lewis Libby Jr.’s 30-month prison sentence on Monday, President Bush drew on the same array of arguments about the federal sentencing system often made by defense lawyers — and routinely and strenuously opposed by his own Justice Department.
But, then, the other cases didn’t involve a White House aide who worked for Vice President Dick Cheney. MORE:
Critics of the system have a long list of complaints. Sentences, they say, are too harsh. Judges are allowed to take account of facts not proven to the jury. The defendant’s positive contributions are ignored, as is the collateral damage that imprisonment causes the families involved.
On Monday, Mr. Bush made use of every element of that critique in a detailed statement setting out his reasons for commuting Mr. Libby’s sentence — handing an unexpected gift to defense lawyers around the country, who scrambled to make use of the president’s arguments in their own cases.
Given the administration’s tough stand on sentencing, the president’s arguments left experts in sentencing law scratching their heads.
“The Bush administration, in some sense following the leads of three previous administrations, has repeatedly supported a federal sentencing system that is distinctly disrespectful of the very arguments that Bush has put forward in cutting Libby a break,†said Douglas A. Berman, a law professor at Ohio State University who writes the blog Sentencing Law and Policy.
Perhaps inadvertently, Mr. Bush’s decision to grant a commutation rather than an outright pardon has started a national conversation about sentencing generally.
“By saying that the sentence was excessive, I wonder if he understood the ramifications of saying that,†said Ellen S. Podgor, who teaches criminal law at Stetson University in St. Petersburg, Fla. “This is opening up a can of worms about federal sentencing.â€
And now, the Times reports, the Libby clemency is going to be used by many lawyers as a legal basis to seek to get their clients off the hook for the same reasons.
Note this quote from Alabama lawyer Susan James, who represents former governor Don E. Siegelman in appealing a sentence he received for 88 months for obstruction of justice and other offenses:
“It’s far more important than if he’d just pardoned Libby,†Ms. James said, as forgiving a given offense as an act of executive grace would have had only political repercussions. “What you’re going to see is people like me quoting President Bush in every pleading that comes across every federal judge’s desk.â€
The key question becomes: if the Bush stance contradicted the Bush Justice Department, then presumably it would contradict the stance of many Republican lawyers and Republicans in general. If this was truly a legal matter — and not a political move — Republicans would be coming out in droves and denouncing Bush’s argument.
But what is happening is that the Bush move is accepted due to the political “sports team” mentality where whatever your team does you defend and accept, and whatever the other side wants or does you oppose. You do what you can to advance the ball — and in this case the clamor to advance the ball by negating Libby’s sentence came from his party’s conservative base.
By that logic, anything that removes an issue from Bush’s opponents is a master stroke. All’s fair in love, war, and retaining power.
Sidney Blumenthal, writing in Salon, puts the issue within the context of the 4th of July:
The pardon is the one monarchical power that the framers of the Constitution assigned the presidency. But they placed one restriction, that it could not be exercised for impeachment. In other words, the president could not use his power to pardon himself. Bush is entirely within his narrow right to use the pardon power in the Libby case. But it violates the spirit, if not the letter, of the law governing that power because it is a consummate gesture of self-exoneration, at least if the vice president is an “entity within the executive branch.” Bush rewards Libby’s cover-up, thwarting the investigation into Cheney’s and perhaps his culpability. Bush’s commutation is the successful culmination of the obstruction of justice.
Since 1776, on every July Fourth, the Declaration of Independence has been posted in public places, published in newspapers and read aloud. Its bill of particulars contains these two passages defining royal tyranny and justifying revolution:
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers. … For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments.
Happy Fourth.
Indeed…
11 Responses to “Bush Libby Commute Argument Contradicts His Own Justice Department’s Arguments”
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I for one can find no good argument to commute or pardon Libby.
Other then this was an apparant vain attempt to appease the base of the GOP but I have to wonder which base that is. The RR or Christian Coalition certainly does not stand by the concept of pardoning prisoners or for that matter engaging in criminal activity.
Therefore as a conservative Christian I am at a loss as to what the president is trying to do and I also am at a loss as to who this “BASE” is of the GOP.
At one time I thought I knew. But I know nothing about the GOP right now. They are not a reconizable party at this moment in time.
I think Libby’s supporters include many powerful Republicans inside the beltway and many in the conservative media, who feel that it is actually Bush’s fault that the case got to an independent prosecutor in the first place. They are responsible for raising 5 million for Libby’s defense fund and for lobbying for the pardon. They include Mary Matalin, Fred Thompson, Bob Novak, Bill Kristol, and many others.
The general public probably doesn’t get how powerful a few conservative insiders are, but living in the Washington area, I have been conscious of a concerted campaign by them to nullify Scooter’s crime by insisting it was memory loss (the tactic unsuccessfully used at his trial) attacking the special prosecutor (who as far as I could tell just did his job too well) and blaming Bush for letting the controversy get out of hand in the first place.
The same efforts surrounded those caught up in legal jeopardy during Iran-Contra. Bob Dole led the effort to attack Lawrence Walsh and make his investigation look like a partisan witchhunt. He also pressured Bush 41 to pardon Weinberger, Abrams and 4 others. Walsh encountered a firewall when he tried to ascertain how much Reagan and Bush (then VP) knew about the scandal.
The more things change the more they stay the same.
This reminds me of the reaction after Spiro Agnew made the Nolo contendere plea in a deal that [at least initially] allowed him to only pay the interest on the bribe money he received, no prison time, no further penalties. Juries at Federal trials started to find defendants completely innocent or guilty of only the minor offenses brought against them as a way of expressing outrage that Spiro could walk away a with such a sweetheart deal.
There is much talking about presidential legacies these days, usually in terms of grand progams, policies or wars. The legacy of setting precedents in less obvious ways is just as important, precisely because they are less abvious; they sneak, rather than barge, into the nation’s character.
Nixon’s downfall was a morality lesson in one sense,
However, the exposure of his dirty tricks politics led others to wonder how those methods could be expointed, only without getting caught.
Raegan’s Iran-Contra scandal had exactly the same dual effect. Some tale it as showing what not to do, while others ponder how to do it better.
Once a precedent is set, there is no limit to how it will be expoited.
It’s this part of their lagacies that few presidents seem to worry about, much to the detrment of the
nation.
The sheer number of dubious precedents set by our current president iworries me as much, if not more, than anything else when I try to see into our difficult future. Instead of paying attention to how his precedents will affect the next administration and the ones after that, not to mention our national characer, this president seems blithely serene.
Thinking about Libby’s young children, I wish there was some way to avoid his going to prison. Thinking about the families of other prison inmates, I tealize the importance of NOT setting a precedent in this matter.
I wouldn’t have minded Bush shortening Libby’s sentence to 15 months or whatever the parole board recommended. But to get off pretty much scot-free- with the prospect of a full pardon as Bush leaves office- that’s a little hard to swallow-especially given Bush ‘s tough stance towards everyone else in the criminal justice system.
As Governor he mocked one condemned criminals pleas for mercy and flippantly denied another- for a mentally retarded man.
grognard is correct about the talk of Presidential legacies. Another post on TMV linked to and quoted from an article about how Bush is just fine with the criticism he’s receiving, apparently confident that history will vindicate him. However I read an article that said that defense attorneys are already gleeful at the idea of quoting the President about sentences that fall within federal sentencing guidelines as being excessive. Now that’s a legacy.
Its hard to see why the president found the sentence excessive. The average perjurer serves 5 years in jail. Should they all offer to pay a fine, seeing as they and their families have already suffered enough from the public humiliation?
Does a high position in public service mean that a penalty should be less severe- or should public servants with a lot of power be held to a higher standard than the rest of us?