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Scooter Libby Commutation:

I share Orin's disapproval of this, and his reasons for the disapproval.

Related Posts (on one page):

  1. Scooter Libby Commutation:
  2. Bush Sets Libby Free:
ajftoo:
Kerr's original, pre-edit post was shameful. Are you sharing his shame too?
7.2.2007 10:15pm
ajftoo:
Kerr's original, pre-edit post was shameful. Are you sharing his shame too?
7.2.2007 10:15pm
curious:
I came late to the game, what was so objectionable to his original post?
7.2.2007 10:17pm
Bpbatista (mail):
I too am outraged — Libby is not a billionaire tax dodge who traded with our enemies and then fled to Switzerland to avoid prosecution, his wife did not donate thousands to the Bush campaign, he is not a drug dealer whose family donated tens of thousands to a presidential library, and he is not the legal client of the president's brother. Those people deserved — and received — full pardon. Even a commutation is an outrage for someone caught in a perjury trap by an unaccountable prosecutor who knew who the real bad guy was the first day of his investigation but nevertheless went on a legal jihad that would put Inspector Javert to shame. I am outraged.
7.2.2007 10:18pm
Ron Hardin (mail) (www):
Bush should have commuted the whole thing.

It's a circus prosecution, no matter how serious a face the various actors put on.

He gave the justice system time to recognize it and stepped in when it didn't.
7.2.2007 10:23pm
happylee:
Rewarding loyalty by reducing an excessive sentence is nothing to be ashamed of.
7.2.2007 10:25pm
Anderson (mail) (www):
I'm glad to see so many VC readers in favor of eliminating the federal Sentencing Guidelines.
7.2.2007 10:27pm
Crust (mail):
I came late to the game, what was so objectionable to his original post?

People had objected to Orin's description of the commutation as an effective pardon.
7.2.2007 10:33pm
A.S.:
This VC reader is in favor of Equal Justice Under Law. As between Bill Clinton's perjury and Libby's perjury, Libby is STILL being punished far more harshly.
7.2.2007 10:35pm
Crust (mail):
Bpbatista: What was the "perjury trap" that Libby got caught in?
7.2.2007 10:35pm
Martin Ammorgan (mail):
Professor, with all due respect, the time to show scorn was when it counted, but, nevertheless, I welcome you to the patio of disgust.
7.2.2007 10:36pm
Kieran (mail) (www):
It's a circus prosecution

Speaking of circus trials, Paris Hilton has now done time, but Scooter will not.
7.2.2007 10:36pm
Steve:
Libby is not a billionaire tax dodge who traded with our enemies and then fled to Switzerland to avoid prosecution

I'm puzzled by people who seek to play the hypocrisy card with respect to the Marc Rich pardon. I can't recall an example of a single person even attempting to defend the tawdry Rich pardon - well, except for Scooter Libby, I guess, but he was paid to do it.

All these outraged defenses inspire more or less an "oh, please." It's nice to see Prof. Volokh's principled stand - and here everyone always assumes that he's angling for a federal judgeship!
7.2.2007 10:37pm
Public_Defender (mail):
If I were Libby, I'd be very careful about my conditions of probation. Guess which judge will get to decide if he's violated? And guess which judge will get to decide the punishment for the violations?

Anyone who thinks that Libby was treated unduly harshly knows nothing about how harsh the federal system is.

But Libby was a loyal crony, and Bush watches out for his cronies. Maybe Democrats should start to use the "I" word. The defition of "High Crimes and Misdemeanors" is whatever half the House and two thirds of the Senate say it is, and we all know that any loyal Bushie has no problem with the exercise of raw power.
7.2.2007 10:37pm
VFBVFB (mail):
The country needs a constitutional amendment that would allow Congress to overturn a pardon, by a two-thirds vote. (Although I am not sure the two-thirds would be here in the Libby case.)

The constitution was designed with checks and balances in most areas. But in the case of pardons, a president has too much power to unilaterally decide something, with no say by any other branch of government.
7.2.2007 10:38pm
Justin (mail):
VFB, the constitutional convention considered this action, and decided that the suitable remedy would be impeachment and removal.
7.2.2007 10:43pm
Public_Defender (mail):
On second thought, the commutation is probably positive on balance. It exposed Bush cronyism for what it is--loyalty to friends over everything else, including the rule of law.

The only check against the pardon power is political, and this will tick off independents, you know, the voters who actually decide general elections. Democrats are entitled to make political hay of this, and George just gave them a gift.

So thank you George.

This case also points out how harsh the federal sentencing guidelines are, especially for people who dare exercise their right ot a jury trial. Libby is probably about 60,000th in line for a in-the-interests-of-justice commutation, but hopefully his sentence will make people think about the 60,000 people ahead of him in line.

Again, thank George.
7.2.2007 10:51pm
Thorley Winston (mail) (www):
This VC reader is in favor of Equal Justice Under Law. As between Bill Clinton's perjury and Libby's perjury, Libby is STILL being punished far more harshly.


That’s largely true but I’m curious what was the actual substance of Libby’s supposed perjury? I’ve heard that there were some differences between what he testified to and what Russert said but I’m not clear on what the facts were that he supposedly perjured himself on.
7.2.2007 10:59pm
Truth Seeker:
But others who testified before the grand jury also clearly contradicted each other's testimony. And Russert was wrong in other parts he remembered. But only Libby got prosecuted. Pure politics and Bush did the right thing.
Both the judge and prosecutor expect a Democratic president in 2009 and want to look good to the next administration. I didn't know Eugene was also looking for a federal judgeship, but well it all now makes sense... ;-)
7.2.2007 11:00pm
Thorley Winston (mail) (www):
The only check against the pardon power is political, and this will tick off independents, you know, the voters who actually decide general elections. Democrats are entitled to make political hay of this, and George just gave them a gift.

So thank you George.


No doubt President Bush probably won’t win a third term of office because of today’s actions.
7.2.2007 11:01pm
ATRGeek:
Thorley,

I suggest reading the indictment. Incidentally, in addition to Russert there were many witnesses, including several Administration officials, who contradicted Libby's grand jury testimony.
7.2.2007 11:01pm
JGalt (mail):
Eugene, I couldn't be more disappointed in you. No, Libby wasn't treated equally. Most people wouldn't have been pardoned by Bush for a similar transgression; but they also wouldn't have been tried in the first place. The inequality flows both ways, and it's an abandonment of intellectual honesty to pretend differently.

Further, had the appeal bond been granted, this decision would not have been made. I'm not suggesting the court (either district or appeals) made a bad decision, only that the limited ability of someone convicted of a crime to practically avoid a sentence before having an appeal resolved made this decision necessary. If Libby's appeal were successful, he'd still lose a year of his freedom. Bush's options were limited, and he made a reasonable decision under these circumstances.
7.2.2007 11:02pm
uh_clem (mail):
The power of executive clemency is a trump card that Bush &Libby have held since the beginning. It's existence is what emboldened Libby to lie and obstruct justice in the first place - he knew that when push came to shove his buddy in the oval office had his back.

In that sense, Bush has aided and abetted the commission of felonies. Certainly not the worst thing he's done while in office, but reprehensible nonetheless.

"
7.2.2007 11:05pm
ATRGeek:
Truth Seeker,

Fantastic point. The Republican-appointed trial judge, and the two Republican-appointed judges on the circuit panel, all with lifetime tenure, were clearly motivated by the anticipation of a Democratic victory in 2008.
7.2.2007 11:05pm
ATRGeek:
JGalt,

Outstanding point. The Republican-appointed prosecutor, Republican-appointed trial judge, and Republican-appointed appellate judges were all intellectually dishonest.
7.2.2007 11:07pm
A.S.:
Thorley, as I recall, Libby said in his GJ testimony that he talked with Russert about Plame, and Russert said they didn't. Ergo, perjury.

Well, at least we know one Democrat who will be supporting the commutation of the sentence: Hillary "Non-violent offenders should not be serving hard time in our prisons. They need to be diverted from our prison system" Clinton.
7.2.2007 11:08pm
Martin Ammorgan (mail):
Here's a chance to exercise scorn while its still fresh, Professor Volokh.

Take, e.g., this comment from JGalt supra, who expresses "personal disappointment" in you. I know you realize the idiotic sophistry behind it. Don't let it stand on your own blog!
7.2.2007 11:09pm
Crust (mail):
JGalt, your comment is incoherent. On the one hand you're "not suggesting" that the appeals court "made a bad decision". On the other hand, you think it's so terrible that Libby would be in jail pending appeal, that the extraordinary measure of commuting his entire jail term was warranted. If you believe that, doesn't that at least mean that the appeals court made a (spectacularly) bad decision in sending Libby to jail pending appeal?
7.2.2007 11:09pm
Thorley Winston (mail) (www):
Thorley, as I recall, Libby said in his GJ testimony that he talked with Russert about Plame, and Russert said they didn't. Ergo, perjury.


How reliable was Russert’s testimony on other issues?
7.2.2007 11:10pm
A.S.:
How reliable was Russert’s testimony on other issues?

Not very! Nonetheless, Libby was convicted by an impartial DC jury who certainly wouldn't have been predisposed against Republicans (hee, right). We must respect that. So, as I said above, my primary interest at this point is to see that we have Equal Justice. To my mind, that means that Libby's punishment should be roughly equivalent to Clinton's punishment for a similar crime. Seems to me that anyone who would disagree with that sentiment is simply not interested in Equal Justice - perhaps due to partisanship.
7.2.2007 11:15pm
TechieLaw (mail) (www):
Bpbatista: What makes you so sure that anybody opposed to the Libby commutation was in support of Clinton's last-minute pardons?

A.S. -- something to think about: The reasons why Clinton lied are probably because he was trying to save himself from embarrassment in both the public sphere and the private sphere (where I'm sure he was worried about his marriage). In retrospect, I agree that it was appropriate for him have his law license suspended. There was a single "injured party" as a result of what Clinton did -- Paula Jones. It would have been perfectly appropriate for the judge in the case to have taken some type of action against him (putting aside Presidential immunity for the moment). As a result of Clinton's misconduct, he was forced to settle the case for a much larger sum than she probably would have gotten otherwise. On the other hand, dragging the entire country through a show trial of impeachment that had no chance of success and which almost certainly distracted him from the security of the country was ridiculous. Seriously -- what did we gain from that exercise? What was the "message" sent to ordinary Americans?

None of this is to excuse what he did, but at least in that case, Clinton admitted his wrongdoing and suffered for it.

The Libby case, on the other hand, wasn't about a personal indiscretion. Here, you had somebody at the upper levels of government who a jury found responsible for lying in order to disrupt an investigation into a potential national security breach. Let me repeat that: a JURY found him guilty; a JUDGE imposed a sentence according to the guidelines that Bush himself supports. If there was any error by the trial court, Libby had every right to argue his case at appeal. Instead of letting the system do its work, the President decided to short-circuit the process so that his crony wouldn't have to spend a day in jail. And, in spite of all of this, Libby has never admitted any wrongdoing.

Find me a single other case where this President has commuted or pardoned a sentence of somebody prior to that person completing the appeals process. Find me a single other case where this President has stepped in to keep somebody from spending even one day in jail. Find me a single other case where this president has described a jail sentence as "excessive." Then look up the definition of "hypocrite."
7.2.2007 11:17pm
ATRGeek:
Thorley,

Either A.S. is lying, or he is ignorant of the facts of the case and the evidence presented at trial.

A.S.,

Stupendous point. I am sure the Republican-appointed prosecutor, Republican-appointed trial judge, and Republican-appointed appellate judges were all motivated by partisanship.
7.2.2007 11:19pm
JGalt (mail):
Crust, clearly you aren't an appellate lawyer and aren't familiar with the provisions of the Bail Reform Act. Unless there exists a substantial question of law or fact that is likely to lead to reversal, the courts must disallow bond pending appeal. Courts must make these decisions quickly and often get them wrong. That doesn't mean they are making "spectacularly" (overwrought?) bad decisions. But the effects of those decisions are irreversible. Now, where a person is a danger to society, perhaps the calculus is such that the price is one worth paying. But when that's not the case, there is a compelling argument that one should be allowed to finish an appeal before serving a criminal sentence. In any event, the problem isn't the courts' decisions, the problem is the statute under which those decisions are made. I don't expect a court, however, whose job it is to simply apply the law, to put their personal preferenes above the statute. And those "Republican" appointees were faithful to the LAW and should be commended.

Bush, however, has the authority to disregard this law when he believes it is being unjustly applied, and he did that in this case. If you find that incoherent, that's your problem. But there is nothing incoherent about applauding the court's decisions and recognizing that the Bail Reform Act can (and has) resulted in individuals serving time even though their convictions are later overturned on appeal. Ask any appellate lawyer and they will tell you that a motion denying bond pending appeal isn't any indication of whether you are likely to win once the case is fully briefed and argued before an appellate court.


The questions the courts must answer (e.g., is there a substantial question of law that would likely result in a reversal of the conviction) are quite different than those that the executive branch
7.2.2007 11:19pm
Dave Hardy (mail) (www):
I'm glad to see so many VC readers in favor of eliminating the federal Sentencing Guidelines.

Well, you'd have one vote here.
7.2.2007 11:19pm
VFBVFB (mail):
--- VFB, the constitutional convention considered this action, and decided that the suitable remedy would be impeachment and removal. ---

Impeachment is not a practical solution, unless there is a sufficient amount of time in a president’s term to go through the process. The Marc Rich pardon (of a fugitive) was more outrageous, but obviously there could have been no impeachment of Clinton.
7.2.2007 11:21pm
Thorley Winston (mail) (www):
Thorley,

Either A.S. is lying, or he is ignorant of the facts of the case and the evidence presented at trial.


Then perhaps you can set the record straight – what exactly were the underlying facts of which Libby was convicted of perjuring himself about?
7.2.2007 11:22pm
ATRGeek:
JGalt,

Of course, President Bush didn't argue in his commutation statement that Libby was factually innocent. His own commutation guidelines also require commutation petitioners to exhaust their judicial remedies first. But don't let me stop you from speaking on behalf of President Bush--I am sure you are doing a great job.
7.2.2007 11:23pm
uh_clem (mail):
JGalt wrote: they also wouldn't have been tried in the first place.

Excuse me? If the FBI comes calling and it takes them four hours to get you to tell them what the "I" stands for in I. Lewis Libby, when your name is I. Lewis Libby, you'd be hauled off in handcuffs PDQ.

Libby lied repeatedly and contemptuously to the FBI. That's what got him indicted.

Don't give me this crap about how he was singled out - had he cooperated (i.e. told at least plausible falsehoods instead of fronting off the investigators with an aggressive barrage of obvious BS) he wouldn't have been indicted. But he was actively hostile to the FBI, told a series of whoppers that everybody in the room knew were lies, and then improbably stood by them as they were systematically demolished one by one.

And please spare us the "abandonment of intellectual honesty" crapola - you are the one exculpating a convicted felon. If you think the federal sentencing guidelines are too harsh, then apply it to all convicted felons across the board. That would be the "intellectually honest" approach. Advocating that the guidelines should be thrown out when it's one of your buddies in the dock is shall we say a "situational" application of the law.
7.2.2007 11:23pm
A.S.:
There was a single "injured party" as a result of what Clinton did -- Paula Jones.

Well, that is one more "injured party" than exists in the Libby case, where nobody but nobody was injured by Libby's lie. Fitz already knew who the leaker was, and so Libby's lie didn't affect that at all. All in all, the effect of Libby's lie on the investigation was exactly zero.

Here, you had somebody at the upper levels of government who a jury found responsible for lying in order to disrupt an investigation into a potential national security breach.

Um, whatever gives you that idea? The jury gave a reason for Libby's lying? Really? Can you point me to a link for where the jury gave us that reason? In fact, we have no idea why Libby lied. What we do know, though, is that the effect on the investigation was zero.
7.2.2007 11:24pm
JGalt (mail):
ATR,

Judges aren't supposed to engage in second-guessing of prosecutors about which cases they bring and how they apply the discretion given to them by the law. Indeed, I dare say that at least one of the judges (if not all three) had opinions about the merits of this prosecution, but that's not their call, and they acted in a principled way by not deciding the case on that basis. That is the very definition of intellectual honesty.

But picking on the President for being selective about using clemency for a person who was prosecuted under unusual circumstances is a bit ridiculous.
7.2.2007 11:26pm
A.S.:
I too would like to know what ATRGeek thinks I am lying about.
7.2.2007 11:26pm
ATRGeek:
Thorley,

With all due respect, this is the third time I made the obvious suggestion: read the indictment.

It is easy to find, but here it is:

Libby Indictment
7.2.2007 11:27pm
A.S.:
Libby lied repeatedly and contemptuously to the FBI.

Libby lied four or five times, so "repeatedly" seems OK, but "contemptuously"? How do you get that?
7.2.2007 11:29pm
JGalt (mail):
yes, Uh, clem, the Government typically spends years and hires teams of special prosecutors to go after a person who makes false statements to the FBI, particularly where there are no other individuals charged for underlying offenses. Even in the Stewart case, other individuals were charged. Name another case where these types of resources were used for this type of offense?
7.2.2007 11:29pm
ATRGeek:
JGalt,

But the President did not pardon Libby. He commuted part of his sentence, and that sentence was set by the trial judge, not the prosecutor.

A.S.,

You said: "Thorley, as I recall, Libby said in his GJ testimony that he talked with Russert about Plame, and Russert said they didn't. Ergo, perjury."

That is not an accurate description of the charges in the indictment and there were many other witnesses besides Russert who contradicted Libby's statement to the FBI and testimony to the grand jury.
7.2.2007 11:31pm
michael (mail) (www):
I think Republicans now understand what it is to be a nonperson in the view of others with legal power. I have been shocked all along by this case and by the bizarre blunt encapsulation of the charge in Fleischer's totally contradicted story of his statements of what he said to others and heard from Libby, so uncharacteristic of any conversation reported in the trial. I wonder how he and Fitzgerald worked to that statement. Shocked that the jurors should wear gay 'I love you' Valentine shirts as they would go off to convict Libby, shocked that the Appeals court wouldn't see the lack of supervisory review of Fitz's determination of what of Libby's work could be brought into court could be a potential serious issue, shocked that denying Libby's attorneys the right to call Andrea Mitchell before the jury for examination wouldn't 'raise a substantial question.'
7.2.2007 11:31pm
Reg (mail):
What, is there some kind of requirement of right-leaning scholars to voice official disapproval of this pardon?

Where there was no underlying crime, jail time for perjury is excessive. I think Martha Stewart fell into the same category. If Libby was a nobody, no prosecutor would have brought a charge once it was determined that there was no underlying crime. (the claim that Libby covered up the crime so it couldn't be discovered is untrue.)

As for the argument that the guidelines sentence ought to be applied without departure because he is a Republican and Republicans favor guidelines, the guideline application here is not straightforward, and this is not a routine application of the guidelines. One can consistently say that for drug dealers and bank robbers, guidelines usually provide reasonable sentences, but for a case such as this, the guidelines don't take account of all the relevant factors.
7.2.2007 11:32pm
Mark Field (mail):

JGalt, your comment is incoherent.


If you think his comment was bad, you should have heard his speech.
7.2.2007 11:33pm
TCO:
I don't think that it is appropriate for Fitzgerald to comment on the President's commutation or characterization of the sentence as excessive. It is not his role, nor proper for him in his place, to make such public statements.
7.2.2007 11:33pm
ATRGeek:
JGalt,

By the way, the "unusual circumstances" in this case are that Libby committed his crimes on behalf of the Administration. Criticing the President for making an exception to his commutation rules in such a case is not what I would call "ridiculous".
7.2.2007 11:33pm
Justin (mail):
Amongst AS's other mistakes, he/she takes Hillary Clinton's quote out of context in a deceptive matter. The context makes it clear that she's talking about non-violent drug offenders. What's unclear from the context is whether she's including drug dealers or just drug abusers, but I'm pretty sure neither was alleged in the Libby indictment. Here's the full quote, in regards to

Three, we need diversion, like drug courts. Non-violent offenders should not be serving hard time in our prisons. They need to be diverted from our prison system. If that wasn't clear enough, the two commenters before her - Kucinich and Dodd - should make the context crystal that Hillary Clinton was talking about the "war" on drugs, not on crimes of national security.
7.2.2007 11:34pm
uh_clem (mail):
Bush, however, has the authority to disregard this law...


That's the problem in a nutshell. The Constitution gives the president broad authority to act with disregard for the law, and the current occupant is milking that license for all it's worth.

Meanwhile, a Greek chorus of JGalts are egging him on in his wanton disrespect for the rule of law. I hope you are being compensated well.
7.2.2007 11:34pm
JGalt (mail):
ATR,

Are you saying that the amount of resources devoted to this prosecution is typical of a crime of this magnitude? Seriously, is that your position?
7.2.2007 11:35pm
A.S.:
Sorry, ATRGeek, I thought Thorley was just asking what the Russert-related charge was about. Yes, there were a few other lies beside the lie about the Russert conversation.
7.2.2007 11:35pm
TyWebb:
A.S.

Nonetheless, Libby was convicted by an impartial DC jury who certainly wouldn't have been predisposed against Republicans (hee, right).


So, now we should discard jury verdicts because of the political makeup of a particular jurisdiction. I see. Seems like a sensible enough distinction--I mean, if we allowed for juries to be tainted by bias, we might have some pretty ridiculous results, huh?

Oh, wait.
7.2.2007 11:35pm
ATRGeek:
Reg,

Great point. Guidelines are for THOSE sorts of criminals (bank robbers and drug dealers), not good folks like Libby.
7.2.2007 11:35pm
plunge (mail):
Bush was smart. By not pardoning Libby outright, Libby retains 5th amendment excuses for not having to explain any more about this whole sordid affair, at least until all his appeals for the lesser sentences are exhausted.
7.2.2007 11:36pm
JGalt (mail):
Uh, Clem, so again, back to my question, you said this case wasn't unusual, can you cite a single, reasonably close example of a situation where executive branch resources were devoted to a false statement offense?
7.2.2007 11:37pm
ATRGeek:
JGalt,

I actually have no idea what you are asking. It isn't every day that an Administration official commits perjury and obstructs justice in an attempt to protect the Vice President of the United States, so I am not sure to what other cases you want me to compare Libby's case.

A.S.,

You have the indictment and evidence regarding the Russert issue wrong.
7.2.2007 11:39pm
AppSocRes (mail):
I'm upset only because Bush didn't give Libby a full pardon.

If Fitzgerald was capable of fulfilling his original mandate, Richard Armitage would have been indicted. Because Fitzgerald's primary mission was a failure, in a fit of prosecutorial pique he indicted Libby for perjury. Ultimately the case boiled down to he-said, she said and the jury chose to believe Russert, although any objective observer of his newscasts probably wouldn't have. Once again Bush has shown pusillanimity in dealing with his enemies and faint-heartedness in protecting his friends. Even our first sociopath president showed more loyalty (although only when leaving office).

It's interesting to compare the score of convictions for serious crimes that came out of Whitewater with the one that came out of this farce. And I seem to remember that Susan McDougal got a full presidential pardon as a reward for her successful efforts in keeping Hill out of prison and Bill from being removed from office. I don't remember an equivalent level of outrage over that full pardon.
7.2.2007 11:39pm
Randy R. (mail):
Sincde there are so many Libby defenders here, I will repost what I said earlier:

And after all this....

1. We know that Valerie Plame was working undercover as a CIA agent.
2. Her cover was blown by someone in the White House, possibly for political reasons, but certainly for no legitmate reasons.
3. Blowing her cover put her and all her contacts at risk, and certainly undermines our nation's national security.
4. Bush said repeatedly that if anyone in his administration leaked her name, he or she wouldn't be working for him anymore.
5. No one in the Bush Administration has taken any responsibility for this, and no one was fired.

And yet, we see Republicans and conservatives repeatedly and *proudly* defending all this behavior. They talk about Libby being pursued for political reasons, without any foundation, and yet when a CIA agent's cover is blown for politcal reasons, they remain silent. It's okay for US to do it, but not YOU.

It used to be that conservatives held themselves up as the ones who really represented traditional American values, unlike those foolish liberals. But now that a majority of Americans are againt this action by Bush, by about 70%, they can't even claim that.

Now I see many people here suddenly find the jury system is somehow terrible, that ordinary people are so stupid and easily manipulated that we need the gentle hand of a kind Republican president to right things when they go wrong. Their BEST argument is merely that Clinton did it too. A prosecurtor is (gasp!) unaccountable! (Actually, they aren't -- just ask Gonzales about how to fire prosecutores). Just like they defend torture (the Nazis did it too!), so there is no behavior so vile or comtemptable as long as someone else did it just as badly.

This is what conservative "values" has come to mean nowadays. I hope you are all proud of yourselves....
7.2.2007 11:41pm
ATRGeek:
AppSocRes,

Apparently you are also willing to lie or are ignorant of the evidence presented at trial.
7.2.2007 11:41pm
JGalt (mail):
Protecting the VP from what? Political embarassment? That's not a crime. Even if Libby lied to protect his boss from a political embarassment, which he likely did, that makes him different than what shady political operative in D.C. (on both sides of the aisle). Or do you actually believe that Cheney attempted to knowingly disclose Plame's status, with the knowledge of her "covert" background (covert to everyone but those residing in Metro DC).

That's what made this case unusual. There's no reason to believe that Cheney, any more than Dick Armitage (who wasn't charged), knew about Plame's status with the CIA. Even if he was trying to score political points, so what? That's not a crime. Should Libby have lied to protect his boss from political embarassment? Of course not. But investigating whether someone acted morally is not the function of the special prosecutor or the grand jury.

Most people aren't subjected to prosecutions in these circumstances. Libby was. The clemency was no more unusual than the prosecution itself.
7.2.2007 11:44pm
MarkatNonya.biz (mail):
1) How many speeches will Mr. Libby have to give, or his friends donate, in order to pay off that 6 digit fine?

2) Paris Hilton will spend more time in jail than Scooter Libby.
7.2.2007 11:44pm
Justin (mail):
Markat,

1) None, I assume the legal defense fund has already got that covered.

2) Yes.
7.2.2007 11:46pm
ATRGeek:
JGalt,

I don't know what Cheney knew or what he told Libby, and neither do you, and that is true in part because Libby lied.
7.2.2007 11:48pm
Richard Aubrey (mail):
I believe ATR undertook to let us know when Fitz got a budget bump to let him go after the one who outed Plame.
How we doin' so far?
Because, as you will recall, ATR really, really didn't like the outing of the CIA soopersekret agent. I mean, he really didn't. Wanted to get the leaker in the worst way.
So I figure he's keeping a close eye on the next steps.
And, besides, ATR believed that was what Fitz wanted, too. Still believes it.
So I'll check in from time to time to see what ATR tells us about getting that scum-sucking leaker some serious jail time.
7.2.2007 11:51pm
ATRGeek:
Aubrey,

I have no earthly idea what you are talking about.

But clearly, this was a serious blow to Fitzgerald's investigation, because Fitzgerald just lost any real leverage over a crucial witness who has demonstrated a willingness to lie. That is one of many reasons I am upset about this commutation.
7.2.2007 11:53pm
JGalt (mail):
Right, ATR, we know the different stories Libby told (even though none implicated Cheney), we know Cheney's version of events (he was interviewed), but there's still some mystery about whether he actually knew that Plame fell within the technical description of this statute and intentionally disclosed her identity (even though two other people disclosed her identity and weren't aware of her status, including one very high level official with access to the highest intelligence). Right . . .
7.2.2007 11:55pm
JGalt (mail):
Leverage for what? Another prosecution? Yes, what a compelling case that would have been. "We now call convicted perjurer Scooter Libby . . . " That's a case that was already DOA.

ATR, I disagree with most of your opinions, but some aren't unreasonable. But when you start talking about "losing leverage," you're really way out in left field (no pun intended)
7.2.2007 11:58pm
Thinker:
I simply can't reconcile the positions taken in Bush's memo. On the onehand - this is all so serious; On the other - I find the sentence excessive. Frankly - it is one of the most confused pieces of writing I've seen. Slow to make it's case and jarring in conclusion.

The should have read Eugene's academic legal writing book!!
7.3.2007 12:01am
Hattio (mail):
Reg says;

Where there was no underlying crime, jail time for perjury is excessive. I think Martha Stewart fell into the same category.


Then goes on to say that;

If Libby was a nobody, no prosecutor would have brought a charge once it was determined that there was no underlying crime.


So, I'm guessing that Martha Stewart is a nobody right? But it gets better. He goes on to say that;

One can consistently say that for drug dealers and bank robbers, guidelines usually provide reasonable sentences,


One can certainly say that, but most commentaters don't. Even conservatives are howling about the difference between powder and "crack" cocaine sentences. Up to 100 times more. But that's consistently providing reasonable sentences. Or, perhaps, Reg is a partisan who wants desperately to justify this charade.
7.3.2007 12:02am
ATRGeek:
JGalt,

I don't know if getting Libby to tell the truth to Fitzgerald would lead to enough evidence to bring another case, and neither do you. I'd like to find out, however.
7.3.2007 12:10am
Richard Aubrey (mail):
Of course you don't know, ATR. Lucky Fitz isn't grilling you on a matter of memory.
At one time in the distant past, you were weeping over an outed CIA agent.
While trying to spin Libby into being the leaker.
And Fitz doesn't need leverage for further investigations because Armitage fessed up at the beginning.

And your continued insistence that this couldn't possibly be a miscarriage because the principals are all repubs is actually projection. You know what you'd do in their position. Not everybody would. Most would be honest. Some would be feeding some other need than party loyalty.

It was, after all, the so-called repub DOJ which let Berger off.

Perhaps the career guys recall the fate of the USDAs and the White House Travel Office when an earlier Clinton got in and want to cover their bets.

But it is not necessarily the case, ATR, that they will always and inevitably act as you would.
7.3.2007 12:14am
Brian G (mail) (www):
Here's what I find most amazing (and amusing) about the commenters on these two threads. They have no problem with 5 unelected Supreme Court judges making social policy for the whole country, but when Bush pardons one guy, they go nuts. (After all, nothing is this country is truly allowed until Justice Kennedy says it is).

Patrick Fitzgerald knew from jump street that no crime was committed regarding Valerie Plame. There is no lawyer that visits this blog that could possibly make an argument that the law was broken and Plame was outed illegally. (If you are an attorney who feels otherwise, please let me know so I can put you on my "never hire or recommend this guy" list). So, Mr. Fitzgerald found somone to prosecute. That the Libby argument comes down to political lines tells you all you need to know how wronged he has been. And, the funniest thing out of all of this is that there is one proven bald-faced liar in this entire charade: Valerie Plame's husband Joseph Wilson.
7.3.2007 12:16am
ATRGeek:
Aubrey,

I have never claimed Libby is "the leaker". I invite you to prove otherwise.

As for the judges--I am simply mocking the absurdity of the common talking point that a partisan witchhunt of a Republican was carried out by a bunch of Republicans. Frankly, I feel a little sad for the people offering this talking point, given that the only relevant Democrat was just one of three appellate judges--what bad luck!
7.3.2007 12:21am
uh_clem (mail):
Uh, Clem, so again, back to my question, you said this case wasn't unusual, ...

I did not say that this case "wasn't unusual". You are putting words into my mouth. That's not very "intellectually honest" is it now?

...can you cite a single, reasonably close example of a situation where executive branch resources were devoted to a false statement offense?

Hey, no problem.

Rita v United States.

Victor Rita made two false statements to a federal grand jury. He was convicted of perjury and obstruction of Justice. Sentenced to 33 months. Conviction and sentence upheld on appeal.

Perjury and obstruction of justice charges are not exactly uncommon, because criminals lie and attempt to cover up their crimes on a fairly regular basis.

Ok, he he didn't have a cute nickname like "Scooter" and he was sentenced to 33 months not 30 months, and he has a different astrological sign than Scooter, and then there are a hundred other trivial differences. Please spare us the nit-picking. Lie to federal investigators, get caught, and you're doing time. Capice?
7.3.2007 12:23am
Mark Bahner (www):

VFB, the constitutional convention considered this action, and decided that the suitable remedy would be impeachment and removal.


Bill Clinton could also have been criminally prosecuted for either his testimony in the civil deposition or his testimony to the special prosecutor.

Personally, I would much, much rather see him prosecuted for international terrorism in the bombing of the al Shifa pharmaceutical plant in the Sudan. That was certainly a worse crime. (After all, we're at "war" with that type of crime!)
7.3.2007 12:26am
TechieLaw (mail) (www):
Brian G: I'm afraid I don't understand your point. The Constitution deliberately permits an unelected majority of justices on the USSC to decide cases. Do you disagree with this?

Regarding your claim about the USSC setting social policy: Brown v. Board of education clearly set social policy for the entire country when it came to the social policy of segregation. Do you agree or disagree with the outcome of the case? Should that court have refrained from setting aside the social policy of the South's elected governments?

Regarding the actual pardon: Give me a yardstick that I can use to measure the appropriateness of any presidential pardon or commutation. I fully realize that the Constitution vests the power within the President (in the same way that it vests power in unelected USSC justices). The Constitution also gives the President the power to order a nuclear strike against Canada at this very moment. This does not mean that it is appropriate for the President to exercise this power. What's your yardstick?
7.3.2007 12:32am
ATRGeek:
I'm amused that people are getting bored with the "Clinton did it!" talking point and are substituting "Justice Kennedy did it!". I remain convinced, though, that "Clinton did it!" is actually their best talking point (which is quite a commentary on the merits).
7.3.2007 12:35am
Anon Y. Mous:

Excuse me? If the FBI comes calling and it takes them four hours to get you to tell them what the "I" stands for in I. Lewis Libby, when your name is I. Lewis Libby, you'd be hauled off in handcuffs PDQ.
Now this sounds like an interesting story. Got a link? BTW, what does the 'I' stand for?
7.3.2007 12:36am
alkali (mail) (www):
Should Libby have lied to protect his boss from political embarassment? Of course not. But investigating whether someone acted morally is not the function of the special prosecutor or the grand jury.

There are good people who go to jail because they are afraid that if they testify truthfully regarding criminal activity, they or their families will be hurt. They don't have resources to escape their situation and they don't have powerful friends whose help they can call upon. It is terrible that they go to jail, but there is no way the justice system can work unless perjury is treated as a crime.

Mr. Libby is not entitled to be treated more generously than those people because it saddens his powerful friends to see him held to the same standard.
7.3.2007 12:39am
Dave Wangen (mail):

And after all this....

1. We know that Valerie Plame was working undercover as a CIA agent.
2. Her cover was blown by someone in the White House, possibly for political reasons, but certainly for no legitmate reasons.


Wow, really? We "Know" that "her cover was blown by someone in the White House"?

Neat. And here I thought that Armitage worked at the State Department, not the White House.

What color are the clouds in your world?
7.3.2007 12:46am
uh_clem (mail):
Now this sounds like an interesting story. Got a link? BTW, what does the 'I' stand for?

Unfortunately, I don't have anything beyond Marcy Wheeler's live blogging of the trial, but it came out in testimony from Deborah Bond, one of the FBI agents who deposed Libby. "Yes, it took us a long time to get him to tell us what his first initial stood for."

Linky

The "I" stands for Irving, and apparently Scooter's been highly secretive about it. Personally, I'd rather be known as Irv than Scooter, but by now it's obvious that my brain works differently than his. (c:
7.3.2007 12:49am
Mr. Impressive (mail):
I think Michael Dorf has a very interesting take on this case here. I tend to agree.
7.3.2007 12:50am
Randy R. (mail):
Brian G:"Patrick Fitzgerald knew from jump street that no crime was committed regarding Valerie Plame."

Really? Any proof beyond mere speculation on your part? And if true, then why didn't the judge reverse the jury's finding?

" There is no lawyer that visits this blog that could possibly make an argument that the law was broken and Plame was outed illegally."

Actually, it IS illegal to out a CIA agent.

"That the Libby argument comes down to political lines tells you all you need to know how wronged he has been."

The Libby argument comes down to political lines? Then I guess you are saying that about 70% of Americans are Democrats.

All this comes from the conservatives comes down to this: When the facts are againt, you bang on the law; when the law is against you, bang on the facts, and when both law and facts are against you (as is the case here), then bang on the table.

I would say that since the most repeated defenses of Libby come down to 1) Clinton did it too, and 2) it was all a partisan show trial, proves that they are just banging on the table.

But, by all means, keep banging. With each hit, you lose credibility for the Bush administration and Republicans in general.
7.3.2007 12:51am
Randy R. (mail):
It is interesting to note that Bush rarely gives any pardons, and as governor of Texas, he almost never pardoned or commuted the sentence of any one on death row.

In fact, he even mocked the appeal for clemency of Karla Faye Tucker, and jokingly sent her to the execution chamber. But 18 months in jail for a friend? A travesty of justice!

"Compassionate conservatism" is reserved for friends of W. This is what the Republican Party stands for.

And also torture and illegal wire tapping, of course, but that's another issue. so much for Reagan's City on the Hill!
7.3.2007 12:57am
Richard Aubrey (mail):
Randy R. We know because Armitage said so.
Why didn't the judge reverse the ruling? Ask the judge, but my guess is that the issue of the leak wasn't in front of the court. Not relevant. As Fitz said in the beginning but not at the end.
To say that Plame was not outed illegally is not to say it's legal to out a CIA agent. To be illegal about the outing requires a very strict set of tests which Armitage apparently didn't pass and Libby didn't out anybody at all, which you can tell by looking at the indictment.

So. Anybody know when Fitz is going after the leaker??
7.3.2007 1:00am
Randy R. (mail):
Dave: "Wow, really? We "Know" that "her cover was blown by someone in the White House"? "

(Sigh). You know, I really have no interest in rehashing the details of the trial. That was done in a post here at the VC sevearl months ago. Please review the actual trial transcripts and the statements of the witnesses sometime.

Those who do would find that surprising things, things that contradict the Fox News talking points memo. But when have the facts ever bothered the white house? After all, they 'create' their own reality.
7.3.2007 1:01am
Randy R. (mail):
To shed some cold light on this issue, please consider the government's own pardoning guidelines. Clearly, although these guidelines are only advistory, Bush violated Section 1.3 and he provided no explanation for such deviation.

While Article II, Section 2 of the Constitution places no limitations on the president's power to grant or deny pardons, the Justice Department's U.S. Pardon Attorney prepares a recommendation for the president on each application for presidential "clemency," including pardons, commutations of sentences, remissions of fines, and reprieves.

The Pardon Attorney is required to review each application according to the following guidelines: (The president is not obliged to follow, or even consider the recommendations of the Pardon Attorney. See: Sec. 1.10)

Title 28 - Code of Federal Regulations
Chapter I - Department of Justice
Part 1 - Executive Clemency

[Code of Federal Regulations]
[Title 28, Volume 1, Parts 0 to 42]
[Revised as of July 1, 2000]

Sec. 1.1 Submission of petition; form to be used; contents of petition.

A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition. The petition shall be addressed to the President of the United States and shall be submitted to the Pardon Attorney, Department of Justice, Washington, DC 20530, except for petitions relating to military offenses. Petitions and other required forms may be obtained from the Pardon Attorney. Petition forms for commutation of sentence also may be obtained from the wardens of federal penal institutions. A petitioner applying for executive clemency with respect to military offenses should submit his or her petition directly to the Secretary of the military department that had original jurisdiction over the court-martial trial and conviction of the petitioner. In such a case, a form furnished by the Pardon Attorney may be used but should be modified to meet the needs of the particular case. Each petition for executive clemency should include the information required in the form prescribed by the Attorney General.

Sec. 1.2 Eligibility for filing petition for pardon.

No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.

Sec. 1.3 Eligibility for filing petition for commutation of sentence.

No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances.


Petitions, reports, memoranda, and communications submitted or furnished in connection with the consideration of a petition for executive clemency generally shall be available only to the officials concerned with the consideration of the petition. However, they may be made available for inspection, in whole or in part, when in the judgment of the Attorney General their disclosure is required by law or the ends of justice.

Sec. 1.6 Consideration of petitions; recommendations to the President.

(a) Upon receipt of a petition for executive clemency, the Attorney General shall cause such investigation to be made of the matter as he/ she may deem necessary and appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government, including the Federal Bureau of Investigation.

(b) The Attorney General shall review each petition and all pertinent information developed by the investigation and shall determine whether the request for clemency is of sufficient merit to warrant favorable action by the President. The Attorney General shall report in writing his or her recommendation to the President, stating whether in his or her judgment the President should grant or deny the petition.
7.3.2007 1:09am
Reg (mail):

ATRGeek: Reg, Great point. Guidelines are for THOSE sorts of criminals (bank robbers and drug dealers), not good folks like Libby.


My point was the application of the guidelines to bank robbers and drug dealers is so routine, and the guideline policy thoroughly considered, that it is different from a case like Libby's, where the guideline sentence is not so routine or based on policy thoroughly considered by the sentencing commission.

There are very few cases were a person is indicted for perjury where there is no underlying crime, and so, the application of the guidelines has not been as developed as it has been in other more routine cases. It happens every day that for cases in which the guidelines do not take into account all the relevant circumstances, or are not specifically fitted for a specific crime, that prosecutors and judges give downward departures to defendants.

If one was somewhat familiar with the sentencing guidelines, this point would be completely beyond argument.

I'm not saying Libby's sentence was legally unreasonable, so that the law would require it be overturned on appeal. I do think that it is more reasonable that he not serve jail time for perjury when there was no underlying crime.
7.3.2007 1:09am
highcotton (mail):
I generally have the greatest respect for your judgment, Mr. Volokh. But, in this case, not so much.

Patrick Fitzgerald's appointment was clearly flawed. Comey was in Chuck Schumer's pocket. Valerie Plame was not a 'covert' agent of our government within the legal definition of that term. Tim Russert (and his NBC lawyers) should be held in contempt of court for the stunt they pulled. Andrea Mitchell is lying. Joseph Wilson should be in shackles. And Ari Fleischer? Fitz suborned perjury when he put that guy on the stand.

Y'all are arguing legal points, but you never bothered to get down from your lofty perches and examine the evidence!
Nobody could read Judge Reggie Walton's judicial pronouncements and say with a straight face that Scooter Libby got a fair trial.

George Bush has many flaws, but I salute him for having the guts to right a great wrong. Orin Kerr and Eugene Volokh, history will prove you to be gullible chumps in this instance!
7.3.2007 1:11am
Randy R. (mail):
According to SurveyUSA:

40% of all republicans thought the sentence should have remained in place, whereas 60% of all Americans thought so too.

Reg: "If one was somewhat familiar with the sentencing guidelines, this point would be completely beyond argument. "

Then please enlighten us: what *would* be the appropriate jail time for Libby's crime? And why didn't Bush just commute it to that, instread of zero jail time?
7.3.2007 1:13am
Randy R. (mail):
Aubrey: "Anybody know when Fitz is going after the leaker??"

why not ask George W. Bush. He so concerned about our national security and all, right?
7.3.2007 1:16am
Perseus (mail):
We know that Valerie Plame was working undercover as a CIA agent.

We do? All I know is that Mr. Fitzgerald made that claim in his court filing for Libby's sentencing hearing.
7.3.2007 1:16am
Henri Le Compte (mail):
Here's the bottom line-- if you are just as upset today as you were in 1999 over that fact that another perjurer didn't serve his 30 months, then (and only then!), I have no beef with you. None.

If you are more upset today about Scooter Libby than you were about President Clinton's slap on the wrist... well, I think you are a hypocrite. President Clinton perjured himself before a Federal Grand Jury. There is no disagreement about that (the blue dress... the blue dress!). His sentence should have been exactly the same. I suspect that many of you who are "outraged" today have no problem with President Clinton's treatment. Why? Really why?
7.3.2007 1:21am
Reg (mail):

Hattio wrote: Reg says "Where there was no underlying crime, jail time for perjury is excessive. I think Martha Stewart fell into the same category."

Then goes on to say that "If Libby was a nobody, no prosecutor would have brought a charge once it was determined that there was no underlying crime." So, I'm guessing that Martha Stewart is a nobody right?


My point was Martha Stewart only was indicted because she was famous; if she was a nobody she wouldn't have been indicted. (I may be misremembering, I don't think there was any crime underlying her obstruction/perjury charge.)

I think this point was obvious to anybody whose reading comprehension exceeds their partisanship.


Hattio wrote: But it gets better. He goes on to say that; "One can consistently say that for drug dealers and bank robbers, guidelines usually provide reasonable sentences,"

One can certainly say that, but most commentaters don't. Even conservatives are howling about the difference between powder and "crack" cocaine sentences. Up to 100 times more. But that's consistently providing reasonable sentences. Or, perhaps, Reg is a partisan who wants desperately to justify this charade.


You don't know what you are talking about. Crack is not punished 100 times more than cocaine; the disparity is in comparing weights of crack to weights of cocaine, and I agree, the policy behind that guideline is unjustifiable. However, my point was not that all the policies Congress and the sentencing commission have used to calculate the guidelines are reasonable, but that when applying the guidelines to bank robbers and drug dealers, the law governing the applicattion is well developed. There is no well developed law, or detailed policy guidelines, for applying the guidelines for perjury crimes without an underlying crime, as I noted above.
7.3.2007 1:25am
FC:
You share his reasons, Prof. Volokh? Are you campaigning for a judgeship from President Hillary too?
7.3.2007 1:25am
Mike Keenan:
Why should anyone outside of this little circle of insiders care about any of this?

"very troubling" That seems a bit much.
7.3.2007 1:34am
Cornellian (mail):
Anyone else find it ironic that this commutation is coming from the party that for decades has been chanting "if you can't do the time, don't do the crime" - the party that insisted on sentencing guidelines mandating harsh sentences on the grounds that judges were being too lenient?

Now we find out that those sentencing guidelines are too harsh after all, at least if you have friends in the White House. I guess prison is only for the great unwashed who don't have White House connections.
7.3.2007 1:37am
Truth Seeker:
Amen, brother highcotton, amen. Every point on point!
7.3.2007 1:39am
David Bolduc (mail):
TechieLaw writes:

"Find me a single other case where this president has described a jail sentence as "excessive.""

Clinton, when commuting the (much longer) sentences of the FALN terrorists.
7.3.2007 1:40am
Constitutional Crisis (mail):
Re: the "if Scooter was a nobody he wouldn't have been prosecuted" argument.

This is true, insofar as it goes. Because "nobodies" don't get wrapped up in investigations into breaches of national security, and thus do not have the opportunity to lie to FBI investigators or when brought to testify before a grand jury.

This reminds me of the old prosecutor's summation, in which, to bolster the cooperating witness's credibility, the pros launches into a speech beginning with "you might not like this drugdealer, and you might prefer that we brought a priest or a rabbi to bear witness to these crimes, but the truth is, priests and rabbis don't generally have knowledge about the details of organized crime killings."

To say that a "nobody" wouldn't have been prosecuted is really a meaningless statement; because by definition no "nobody" could have been involved in this investigation. Scooter Libby was convicted because he perjured and obstructed a criminal investigation at the highest levels of our government. No "nobody" would be involved in such a scenario.
7.3.2007 1:47am
A.S.:
A.S.,

You have the indictment and evidence regarding the Russert issue wrong.


No, I don't.
7.3.2007 1:57am
NY (mail):
Hey, can we all at least agree that in the next Democratic administration, when Obama pardons or commutes his Chief of Staff Sharpton for perjury and false statements for telling investigators "I told Rosie O'Donnell I had heard other reporters were saying that Wilson’s wife worked for the CIA," when in fact, Sharpton did not tell Rosie O'Donnell he had heard other reporters saying Wilson's wife worked for the CIA at all, that upon hearing of such a dastardly pardon/commutation, we will all rush here to take the exact opposite position we are all taking now? [Don't believe me that you can get a couple years for not remembering what you did or did not tell reporters one year previously? See the indictment, last paragraph on page 22 for some legal fun.]

I'm probably naive, but I for one am shocked SHOCKED that a few years ago we were vociferously calling for the head of one who would perjure before a grand jury (or zealously defend same) and are now zealously defending a grand jury perjurer (or vociferously calling for the head of same). I say we get together a petition, a wikitition if you will, swearing that we will not change our position regarding the heinousness, or not, of perjury and false statements when the political stripes are switched in the future.
7.3.2007 2:24am
Jim Hu:
In a faint hope of getting back to the substance Eugene and Orin's original posts (as opposed to rearguing everything leading up to the conviction)...

I understand the argument that a President should avoid granting clemency or pardons when members of his administration are involved. But I don't see why that would be less troubling if that President has been more liberal with other pardons and commutations than W has been.
7.3.2007 3:00am
Reg (mail):

Reg: "If one was somewhat familiar with the sentencing guidelines, this point would be completely beyond argument. "
Then please enlighten us: what *would* be the appropriate jail time for Libby's crime? And why didn't Bush just commute it to that, instread of zero jail time?


My point, which is quite simple, is that when you have someone charged with a more unusual crime, for which application of the guidelines is not clear cut and may not take into account all relevant factors, it is more reasonable to depart from the guideline sentence. In such cases, judges have more room for argument to take into account factors the guidelines don't.

I've already said that in such cases, where there is perjury but no underlying crime, no jail time should be served (assuming criminal history I, and no other bad relevant conduct).

One can compare different cases all day, but another case where guideline application had not been well developed was attorney Lynn Stewart's case, in which she was convicted of aiding al qaeda. The gov. wanted 30 years (I'd say about 20 too many), and she wanted 0, and the judge gave her 28 months. Is perjury without an underlying crime worse than aiding al qaeda?
7.3.2007 3:06am
Anon Y. Mous:

To shed some cold light on this issue, please consider the government's own pardoning guidelines. Clearly, although these guidelines are only advistory[sic], Bush violated Section 1.3 and he provided no explanation for such deviation.
He's in violation for deviating from bureaucratic advice? Sounds bad. Who does he think he is?
7.3.2007 3:27am
Grover Gardner (mail):
"He's in violation for deviating from bureaucratic advice?...Who does he think he is?"

Yeah, just a bunch of red tape and doubletalk. Who needs it?
7.3.2007 4:45am
Public_Defender (mail):
No doubt President Bush probably won’t win a third term of office because of today’s actions.

Yeah, but look at the shape he's leaving the Republican Party. Candidates in 2008 will have to run away from him like the plague.

To Bush and his cronies, it's all about George. If the world, the country, and his party all crumble as he leaves the White House, so be it. It's amazing that it has taken this long for his supporters to realized that (except for a few top cronies) they're suckers.
7.3.2007 5:56am
Rodger Lodger (mail):
There is quite a bit of punishment in being the focus of an investigation, indicted, tried and convicted, disgraced and disbarred. That's not chopped liver!
7.3.2007 6:55am
ATRGeek:
Reg,

Judge Walton went through the case law on this subject during sentencing, and you can review all that at various sources which reported on the sentencing. The bottomline is that it would be an absurdity to reward someone who successfully obstructs justice (meaning they prevent a successful prosecution of the underlying offense) with a rule requiring no jail time, and the case law supports Judge Walton.
7.3.2007 8:23am
Constitutional Crisis (mail):
I wonder if those who rushed to assist Libby in his legal defense, by say filing amici briefs and the like, are resentful of the time they wasted contributing to what amounted to a rigged game. I know I would be. Anyone care to weigh in?
7.3.2007 8:31am
Gary McGath (www):
If you're a pal of Bush, you don't have to worry about the law.

But don't expect Congress to start the long-overdue impeachment process.
7.3.2007 10:50am
Andy L.:
A.S.: This VC reader is in favor of Equal Justice Under Law. As between Bill Clinton's perjury and Libby's perjury, Libby is STILL being punished far more harshly.

This got me thinking of the differences and similarities between Scooter Libby's criminal indictment, jury trial, conviction and sentencing for various counts of perjury and obstruction of justice, vs. Bill Clinton's political impeachment by the House and acquital by the Senate (I'm not referring to the partisan side of "political", but rather the Consitutional side of "political", i.e., belonging wholely to one of the political branches and not the judicial branch) for perjury.

I don't know the underlying facts of Fitzgerald's investigation or Libby's indictment/trial well enough to speak with authority, but I get the sense that somewhere there is a colorable claim against the VP for conspiracy to out the CIA operative, or conspiracy to obstruct justice. It seems very unlikely that there would be sufficient admissible evidence to proceed with any type of criminal proceeding against the VP (Fitzgerald's decision not to go after the VP probably proves this), but as many VC commenters have pointed out, perjury (or obstruction of justice, or outing a CIA operative, or conspiracy to do any of those) would be an impeachable offense.

What is an impeachable offense? Well, the Consitutition speaks of high crimes and misdemeanors, but we know from the Clinton impeachment, that an impeachable offense is whatever a majority of the House agrees it is, and being a political question, there is no other arbiter.

So, if an impeachable offense is whatever the House says it is, and since the House and apparently many of the VC commenters agree that perjury by an officer is such an offense; and if there were evidence that the VP had engaged in some impeachable offense like conspiracy to obstruct justice or to out a CIA operative (even if not to the degree necessary to prosecute under criminal law), then those same commenters would not object in principal to the House bringing articles of impeachment against the VP, no? They may object in practice for perhaps partisan reasons, but not in princiapl, right?
7.3.2007 11:24am
A.S.:
and if there were evidence that the VP had engaged in some impeachable offense like conspiracy to obstruct justice or to out a CIA operative (even if not to the degree necessary to prosecute under criminal law), then those same commenters would not object in principal to the House bringing articles of impeachment against the VP, no?

This commenter wouldn't object in principle, but since I don't see any such evidence, I would object in fact.
7.3.2007 12:12pm
dharma (mail):
Ladies and Gentlemen:

If you have a problem with the law, that's one thing. If you believe perjury should not be a crime - or that whether it's a crime should depend on the outcome of the perjury - fine. Fight the law.

However, Libby committed a crime. And he was convicted, with due process, by a jury of his peers. While a lot of readers disagree, it is most shocking that because of his close relationship to this Administration, he will not serve a single day behind bars.

Bringing up all sorts of irrelevant things doesn't change this. The Rich pardon, the other guy who could have been charged, the prosecutor's motivations - none of this changes the fact that this man was convicted.
7.3.2007 12:38pm
Anderson (mail) (www):
FC: You share his reasons, Prof. Volokh? Are you campaigning for a judgeship from President Hillary too?

Wow. What an atrocious little comment. I hope you're ashamed of yourself, FC.
7.3.2007 12:46pm
Brian G (mail) (www):
My response to TechieLaw first:


Regarding your claim about the USSC setting social policy: Brown v. Board of education clearly set social policy for the entire country when it came to the social policy of segregation. Do you agree or disagree with the outcome of the case? Should that court have refrained from setting aside the social policy of the South's elected governments?


I feel like I am back in law school with that type of response, running right to a race issue to open me open to the racist charge if I don't give the right answer. However, in Brown, it is pretty clear that denial of access to schools on the basis of race is unconstitutional.


Regarding the actual pardon: Give me a yardstick that I can use to measure the appropriateness of any presidential pardon or commutation. I fully realize that the Constitution vests the power within the President (in the same way that it vests power in unelected USSC justices). The Constitution also gives the President the power to order a nuclear strike against Canada at this very moment. This does not mean that it is appropriate for the President to exercise this power. What's your yardstick?


Here's the yardstick for pardons: Complete and unfettered discretion. Don't like it, change the Constitution or vote him out. Or, since Bush won't be on the ballot again, punish his party at the ballot box. Exercise of the pardon power is as appropriate as he sees fit, and if it is an inappropriate exercise then I already gave you what recourse we have.
7.3.2007 1:30pm
Brian G (mail) (www):
Now my response to Randy R.


Brian G:"Patrick Fitzgerald knew from jump street that no crime was committed regarding Valerie Plame."

Really? Any proof beyond mere speculation on your part? And if true, then why didn't the judge reverse the jury's finding?


Other than the fact that everyone knows that it was Richard Armitage that "outed" (and he didn't really do that) Plame, and not Libby, I wonder where I got that idea. The jury wasn't reversed because it was a perjury trial, not a trial about the so-called outing of Plame. Didn't you know that?



" There is no lawyer that visits this blog that could possibly make an argument that the law was broken and Plame was outed illegally."

Actually, it IS illegal to out a CIA agent.



Obviously, you did not read or understand what I said. Of course it is illegal to out a CIA Agent. But Plame was not outed and the Act was in no way violated. And there is no one that can plausibly argue that the Act was violated. No one.



"That the Libby argument comes down to political lines tells you all you need to know how wronged he has been."

The Libby argument comes down to political lines? Then I guess you are saying that about 70% of Americans are Democrats.


Wow, you already know that 70% of Americans are against this? Man, the pollsters work quick. Seriously, just read the comments here and elsewhere. The Bush-haters want Libby in jail, facts be damned. The Bush supporters want him not in jail, again, facts be damned. I am confident in my point on this.

Bottom line, you prove my argument with this comment:


All this comes from the conservatives comes down to this: When the facts are againt, you bang on the law; when the law is against you, bang on the facts, and when both law and facts are against you (as is the case here), then bang on the table.

I would say that since the most repeated defenses of Libby come down to 1) Clinton did it too, and 2) it was all a partisan show trial, proves that they are just banging on the table.

But, by all means, keep banging. With each hit, you lose credibility for the Bush administration and Republicans in general.



Given your silly attempts to respond at the beginning of your post and this ending, I need not say anything more.
7.3.2007 1:38pm
Anderson (mail) (www):
But Plame was not outed

And of course, I should believe some guy on a blog, not the CIA.

Got it.
7.3.2007 1:46pm
A.S.:
While a lot of readers disagree, it is most shocking that because of his close relationship to this Administration, he will not serve a single day behind bars.

Why is that shocking? Bill Clinton committed perjury and didn't serve a single day in jail either - he had to pay a fine and lost his law license. So I don't see how anyone could be shocked that a perjurer will only have to pay a fine and lose his license... that seems to be exactly par for the course.
7.3.2007 1:47pm
courtwatcher:
Reg said:

There are very few cases were a person is indicted for perjury where there is no underlying crime, and so, the application of the guidelines has not been as developed as it has been in other more routine cases. It happens every day that for cases in which the guidelines do not take into account all the relevant circumstances, or are not specifically fitted for a specific crime, that prosecutors and judges give downward departures to defendants.

What makes you believe that there are so few such cases? I clerked in a federal district court and such cases came up. The probation reports dealt with the situation like any other.

And why do believe this distinction is relevant? The relevant guideline doesn't make the distinction. Just as one example, courts ahve held specifically that the guideline covers perjury made in the course of a civil case -- where is the "underlying crime" there? United States v Holland 22 F3d 1040 (CA11 Ga 1884) , reh, en banc, den (CA11 Ga) 33 F3d 1384 and cert den 115 S Ct 898. Another example, right on point, from U.S. v. Reilly, 33 F.3d 1396
C.A.3 (Del.),1994:

Even if it is true that [the defendant] “had nothing whatsoever to do with the underlying ocean dumping offense,” this fact alone does not establish that Dowd's false statement “differs from the norm.” See U.S. Sentencing Guidelines, Ch. 1, Pt. A, note 4(b), at 5-6 (1993). As the government points out, Application Note 3 to Guidelines § 2J1.3 specifically addresses the situation where the defendant is convicted both for perjury and the “offense with respect to which he committed perjury,” indicating that the Commission did not consider a conviction for perjury absent a conviction for an underlying offense to be *1424 “atypical.”


From U.S. v. Rita, decided by the USSC just two weeks ago, in which a 33-months sentence for perjury/obstruction of justice was affirmed, we know that a sentence within the guideline range is presumed appropriate.

It sounds like you have a policy preference to punish perjury more leniently, or not at all, where another crime has not been charged or proven. (I'm a bit unclear on exactly what you mean by "no underlying crime.") It's your right to have that opinion -- but it certainly isn't what the law says.
7.3.2007 3:46pm
Anderson (mail) (www):
A.S., let's try this in good faith:

Bill Clinton committed perjury

According to what court? What jury convicted him of perjury?

You are well aware, given your familiarity with Clintonia, that the materiality of his false statements was, and is, a matter of dispute.

By contrast, Libby was convicted of perjury.

So, "pardon" me if I distinguish between (1) "convicted of perjury" and (2) "widely said to have committed perjury."
7.3.2007 4:13pm
David M. Nieporent (www):
The Libby argument comes down to political lines? Then I guess you are saying that about 70% of Americans are Democrats.
You know, it's amazing to me how people can blindly cite statistics that clearly make no sense. Anybody who says that 70% of Americans disapprove of the Libby commutation simply doesn't understand polls or American society. The idea that 70% of Americans have an opinion about Libby at all -- one way or the other -- is something that only someone who is unfamiliar with politics could possibly believe. You can't get a number as high as 70% if you ask them to identify their own senators, let alone to discuss the Scooter Libby case.

In fact, the denominator of the poll is not "Americans," but "people who claim to be familiar with the Libby case." See SurveyUSA's data for an example of this, although it only gives 60%, not 70%. (I assume the 70% number you cite came from a different poll.)

So that's 60%, or 70%, of 55% of Americans. Even taking the higher number, that's 38% of Americans who disapprove, not 70%. Pollsters often discard the data of people who don't have an opinion to inflate their numbers.

In short, while many more people disapprove than approve, the plurality of Americans have no opinion at all. Which is something obvious to anybody who understands polling.
7.3.2007 5:31pm
Smokey:
It seems to me that since none of Fitzgerald's other political targets [Rove, et al] were indicted, the others must have all said something on the order of ''I don't recall.''

But Libby made flat statements [which were disputed by some other folks with bad recollections]. Honest people tend to make flat statements [''Yes''; ''No.'']

Furthermore, the Economist reported at the time that everyone, from the Administration, to the CIA, to the Special Prosecutor, were all somewhat stunned that Libby decided to fight it out in court. They all expected him to cave, and take the deal.

It would have been much easier for Libby to sell out to Fitzgerald, and get completely off the hook. Who in their right mind would accept the putative offer from the White House for simple commutation, and forfeiture of their law license, along with a permanently ruined reputation?

Libby could easily have demanded a full and immediate pardon. He had all the leverage at that point; the entire country would have gone wild 'n' crazy for impeachment, just exactly as it did after hearing John Dean's uncorroborated hatchet job on Nixon.

Instead, Libby fought the charges when he could have cut a deal with either side. He seems like a stand-up kind of guy, just like Labor Secretary Ray Donovan -- who asked, after a 5 year long political witch hunt ended in his vindication -- ''Where do I go to get my reputation back?''

We don't know all the facts, but this whole episode doesn't pass the smell test. It is the flip side of the OJ verdict, where the jury totally disregarded testimony that there was less than a one in six billion chance that another person could have OJ's DNA.

Juries have learned one thing from the OJ verdict: they can decide anything they want, and to hell with evidence. Now they know that they are above judges, and they can decide based on their personal world-view, instead of on the evidence.
7.3.2007 7:06pm
Karl Lembke (mail) (www):
I recall the run-up to the impeachment of President Clinton. During this period, I heard a law professor on the radio stating he believed Clinton's offenses were "impeachable, but not impeachment-worthy".

In effect, Clinton and Libby were charged with the same thing -- lying to investigators about something that should (at least arguably) never have been brought before a judge.

Maybe the problem is that special prosecutors have essentially unlimited power to dig up dirt on people, and a great deal of pressure to come up with results.

(But I'd love to see a poll on whether people who supported Clinton's impeachment also support Libby's commutation or pardon.)
7.4.2007 1:27am
M. Simon (mail) (www):
Smokey,

It is true that a match for OJ's DNA was less than one in 6 billion, if the DNA came from some one other than OJ.

That was not the question. The question was how did it get where it was detected? Commission of a crime? A recent visit? Sloppy lab work? Crime scene "enhancement" by the police (subsequently proven rampant in the Rampart district)?
7.4.2007 11:52am