The Volokh Conspiracy

The Libby Pardon, the Federal Sentencing Guidelines, and the Ashcroft Memorandum:
Articles in both the New York Times and Slate suggest that Bush's decision to commute Libby's sentence was hypocritical because of the Administration's views on sentencing law. Specifically, Bush relied on arguments about what should be relevant to a sentence that his own Justice Department has rejected in the context of legislation and litigation over the Federal Sentencing Guidelines. While I'm critical of Bush's decision, I find this particular criticism to be weak because it overlooks the vital differences between executive and judicial power. I think the better criticism would be based on the differences between Bush's commutation and DOJ's charging policies announced in the Ashcroft Memorandum of 2003.

  The problem with the comparison to sentencing law is that there are two very different branches of government at work here. On one hand, we have the politically-accountable elected Executive branch. And on the other hand, we have the life-tenured unelected Judicial branch. The criminal justice system traditionally gives those two branches very different roles. The Executive branch decides what cases it will investigate and what it will charge. The Judicial branch plays the role of umpire and adjudicates guilt and imposes sentences pursuant to Congress's statutes (checked by the Constitution).

  Given those differences, I'm not sure why a President's reasons for exercising his Executive power to commute or pardon need to mirror that President's views about what power judges should have to adjust sentences. The two branches are different and play different roles; I don't know why a President has to choose between both branches having a particular power and neither of them having it. A President's decision to commute or pardon is much more like a prosecutor's decision to charge a case in a particular way or to decline prosecution altogether than it is a judge's decision handing down a sentence.

  Now, with that said, Bush isn't off the hook. The real problem then is the inconsistency between Bush's apparent reasons for commuting Libby's sentence and DOJ policy on charging cases. Under current policy, federal prosecutors have the power to decline to charge cases altogether — a power roughly analogous to a pardon, albeit on the front end of the process rather than the back end. There are considerations that they are supposed to use as well as considerations they cannot use, but the power itself is pretty broad.

  On the other hand, there's a very different picture for the power to charge a case in a tailored way to make sure the sentence isn't excessive — a power roughly analogous to commuting a sentence, albeit on the front end of the process rather than the back end. Under the Ashcroft memorandum, DOJ's policy announced in 2003, once prosecutors agree to charge a case they have very little discretion on how to charge it. The basic notion is that prosecutors are not permitted to charge a case only part of the way out of a sense that this best reflects the interests of justice in that particular case.


godelmetric (mail):
Hoffa v. Saxbe specifically addresses the sentencing question and says in no uncertain terms that Congressional sentencing guidelines don't apply to pardons: "....Congress cannot in any way limit the President's authority to pardon. To accept the plaintiff's proposed test [based on sentencing guidelines] would in effect disregard the principle of unfettered executive discretion by imposing on the President the restrictions in penalty imposed by statute on the sentencing court. Such a result would be contrary to the essential concept of the pardoning power, whereby there is placed in the executive a special discretion to mitigate the more precise demands of the criminal law in a manner consistent with the unique requirements of the individual applicant for clemency. In order properly to carry out this function, the President must be afforded the necessary flexibility to respond adequately to the circumstances of each individual clemency request."

Also, FN61: "Plaintiff has also argued that the President has invaded the sentencing powers of the courts by attaching the challenged condition. But as has been shown above, the President's power to commute, i.e., to substitute one punishment for another, has been consistently held to be within the President's pardoning authority."

What I'd like to know is how this squares with U.S. v. Nixon. How is overruling the sentence imposed pursuant to a Special Prosecutor's investigation less invasive than refusing to produce evidence?
7.4.2007 1:28am
scote (mail):

The problem with the comparison to sentencing law is that there are two very different branches of government at work here, each with very different roles.


Except that the Administration, and conservatives in general, are among the chief proponents of mandatory sentencing guidelines, therefore they are relevant.

Because the president has absolute constitutional authority to grant clemency or pardon people, there is no question of law to consider other than that the only remedy for abuse of that authority is impeachment. So, that means any analysis can't be a "legal" one but one of ethics and morality, and on that basis, the comparison to federal sentencing guidelines is more one of moral and ethical estoppel than one of law.
7.4.2007 1:41am
OrinKerr:
Scote, I'm afraid I don't follow you.
7.4.2007 1:51am
sentencing policy:
The proper comparison is between Bush's purported justification for Scooter's guideline sentence (i.e., that is was "excessive") and every single thing this Administration has said and done with respect to federal sentencing, including: its strident advocacy of the Feeney Amendment, which sought to blacklist judges who departed below the guidelines and sharply limited judicial discretion in all cases; its longstanding push for mandatory minimum sentences (which, unlike the guidelines, give judges no discretion to depart downward in extraordinary cases) in many different contexts; the SG's opposition to Eighth Amendment relief in the area of "three strikes" laws; its rejection as "soft on crime" of any reform to the crack-powder cocaine sentencing laws, other than raising sentences for powder offenders (and not, as most experts have argued, lowering crack sentences); and, most recently, the Attorney General's proposal that, in response to the Court's decisions on the right to jury trial, nearly all federal sentences be effectively transformed into mandatory minimums. It is this policy background against which the President's judgment on Scooter's "excessive" guideline-based sentence should be assessed -- not DOJ's relatively benign (but probably still wrong) policy on prosecutorial charging as set forth in the Ashcroft memorandum.
7.4.2007 1:58am
sonicfrog (mail) (www):
Here is another inconsistency within the Bush administration. Why is the administration firing prosecutors for (supposedly) not properly enforcing immigration laws, while at the same time trying to pass legislation that would basically render those same laws mute?
7.4.2007 2:06am
scote (mail):
Well, I suppose my point is that what the President did was perfectly legal, as pretty much everyone agrees. Your point seemed to be based on aspects of the two branches of government and points of law, or so it seems to me in reading your post late at night. Such an analysis seems sort of unnecessary since there is no legal aspect of the commutation to question, only a moral one. On that basis you seem to be over analyzing the issue in a legal frame that kind of doesn't actually exist since there is no question of law.

You wrote:

Specifically, Bush relied on arguments about what should be relevant to a sentence that his own Justice Department has rejected in the context of legislation and litigation over the Federal Sentencing Guidelines. While I'm critical of Bush's decision, I find this particular criticism to be weak because it overlooks the vital differences between executive and judicial power.

If the Bush Administration thinks that rigid guidelines are the best way to fairly handout punishment then commuting a sentence based accurately on those guidelines specifically for a friend and loyal subordinate is hypocritical. No analysis of the roles of the branches of government is needed to come to such a conclusion.

I'm not sure what your specific question might be? I don't know if my point was unclear, one you disagree with or if you had an issue with my appropriation of the legal term "estoppel" as a way to describe the commutation as being being morally and ethically estopped by the Administration's hypocritical stance on mandatory sentencing?
7.4.2007 2:06am
OrinKerr:
Scote,

My argument is about evaluating claims of hypocrisy and fairness, not about the law. My point is that it's not hypocritical to recognize a power in one branch of government but to deny that a different branch should also have that power. In other words, there are two questions: First, what factors should influence sentencing, and second, which branch of government should decide what influence which factors should have. I think those are separate questions.
7.4.2007 2:16am
godelmetric (mail):
...so is anyone going to take a stab at the Nixon question, or is that too off-topic?
7.4.2007 2:39am
scote (mail):

My argument is about evaluating claims of hypocrisy and fairness, not about the law. My point is that it's not hypocritical to recognize a power in one branch of government but to deny that a different branch should also have that power. In other words, there are two questions: First, what factors should influence sentencing, and second, which branch of government should decide what influence which factors should have. I think those are separate questions.


I see where the disconnect is. You see sentencing guidelines as an issue of delineation of power to determine appropriate length of criminal punishment between the branches of government where as I see them in a more general context as mandatory inflexibility--the idea that one sentence fits all and that justice requires that all people receive the same sentence irrespective of mitigating details. Based on that perspective of mandatory sentencing guidelines, the Libby commutation was an act of the highest form of hypocrisy.

I think your analysis, while more learned and deeper than mine, is unnecessarily complicated, though I guess that Occam's Razor doesn't generally apply to law.
7.4.2007 2:44am
LM (mail):
Orin,

I think I'm more or less just agreeing with Scote, so apologies if I reiterate what you've already answered, and apologies to Scote if I've misconstrued his point. Anyway, it's my point as well: Irrespective of any formal boundaries between judicial and executive function, a President who tries to justify his clemency decision (when no justification is required) on the grounds that the sentence was excessive, makes himself accountable for consistency with the sentencing policy he has advocated.
7.4.2007 2:53am
LM (mail):
And, by the way, "excessive" doesn't explain no prison time at all. Under what standard is no months the right sentence, unless he's not disclosing his entire reasoning -- that's not possible, is it?

But I digress.
7.4.2007 2:58am
LM (mail):

though I guess that Occam's Razor doesn't generally apply to law

But Orin said he's not talking about law. He's talking about hypocricy and fairness, issues I'd think perfectly susceptible to Occam's Razor.
7.4.2007 3:02am
godelmetric (mail):
And, by the way, "excessive" doesn't explain no prison time at all. Under what standard is no months the right sentence, unless he's not disclosing his entire reasoning -- that's not possible, is it?

You're forgetting about the $250,000 fine that'll get paid out of the legal fund, the 2 years probation, and being condemned to a cushy job at a conservative think-tank for the rest of life. One shudders at the thought of a lifetime tenure at the Heritage Foundation.
7.4.2007 3:06am
Cassandrus (mail):
The issue that lies unaddressed here is that the conservatives have shown exceeding deference to judicial outcomes in many other cases. If the bush administration weren't so miserly about handing out pardons and commutations in other contexts, your point would absolutely be legitimate. However, their general unwillingness to exercise the pardon power highlights the inconsistency between the Libby pardon and their general position on sentencing guidelines.
7.4.2007 3:13am
scote (mail):

You're forgetting about the $250,000 fine that'll get paid out of the legal fund, the 2 years probation, and being condemned to a cushy job at a conservative think-tank for the rest of life. One shudders at the thought of a lifetime tenure at the Heritage Foundation.


Oh, the horror, the horror...

Indeed, I think some of the outrage is engendered by the claim that probation and a fine that other's will pay for you constitutes a harsh punishment.

White collar criminals don't fear fines, IMO. I think they do fear jail time to the extent they ever think they'll get caught, convicted and incarcerated--a thought that nobody in the Administration apparently need consider.

Bush further opened himself to critical analysis when he said Walton ignored the pre-sentence report which recommend 15-21 months rather than 2 1/2 years Walton dished out. Bush seeming finds no irony that he himself ignores the report by commuting the entire jail term, showing Bush's complete contempt for the legal process that applies to regular people.
7.4.2007 3:33am
godelmetric (mail):
Bush further opened himself to critical analysis when he said Walton ignored the pre-sentence report which recommend 15-21 months rather than 2 1/2 years Walton dished out

To be fair, it was actually the pre-sentence report that messed up the mandatory minimum, which was actually supposed to be about 30 months, which is what Walton gave. So Bush's first argument was moot.
7.4.2007 4:09am
Public_Defender (mail):
If President Bush thinks it's important for the executive branch to tailor punishments so that they fit the crime, why is he letting his Justice Department deny that same power to career prosecutors in the 99.99% of cases that President Bush never sees?

This question is a joke, right? 99.99% of cases do not involve Bush's high-level cronies.

Seriously, the more I read about it, the more I think the Libby commutation is a good thing. Besides embarrassing the President and giving the Democrats fuel for just about any battle against Bush, the commutation shows that even Bush thinks the federal system is too harsh.

The cliche that a conservative is a liberal who has been mugged has corollary. A liberal is a conservative who's had a family member go through the federal criminal system.

This won't change things overnight, but it gives defendants a little moral authority when asking for a break at sentencing. It also gives critics of the sentencing guidelines a rhetorical advantage they didn't have before. A rhetorical advantage doesn't ensure victory by any means, but it is an advantage.
7.4.2007 5:11am
steve (mail):

I'm not sure why a President's reasons for exercising his Executive power to commute or pardon need to mirror that President's views about what power judges should have to adjust sentences.


Well, most folks not blessed with a legal education look askance at the "Do as I say not as I do" position. Smacks of royalism.
7.4.2007 7:28am
paul lukasiak (mail):

Well, I suppose my point is that what the President did was perfectly legal, as pretty much everyone agrees.


Would it still be legal if the intent of the pardon was to obstruct justice? After Bush leaves office, and if it were determined that the reason Libby's jail sentence was commuted was to keep him from implicating Bush himself in the outing of Valerie Plame, could the pardon be included in an indictment as a count of obstruction?
7.4.2007 7:42am
Sam Heldman (mail):
I think that the "hypocrisy" sort of charge is stronger than you do Orin, and here's why.

The basic sentencing command - a command to sentencing judges - is 18 usc 3553, and it commands the judge to give the least sentence that is sufficient to further various broadly-stated goals such as "promote respect for the law," "provide just punishment," "deter," etc. They are the sort of goals that one would hope that the President thinks about as well - even though the statute doesn't apply to him, it would seem pretty bizarre for him to be making commutation decisions without pondering these factors.

The Bush Administration, through its AUSAs, regularly argues that below-guidelines sentences are insufficient to meet those statutory goals. This argument is so mechanized that it is fair to summarize that the administration's position is that any sentence that is substantially below the guidelines is not enough to "promote respect for the law," "provide just punishment," etc.

Now, the President of course does have the constitutional power to commute sentences below that which is necessary to "promote respect for the law," "provide just punishment," etc. But given the Libby commutation, one of the following embarrassing things must be true: either

(a) the President wasn't even trying to "promote respect for the law," "provide just punishment," etc., and did not consider it material to ponder whether probation would serve those goals; or

(b) the President did think that the revised sentence was enough to "promote respect for the law," etc., and he thereby undermined everything that his administration has said in its attempts to put other suckers in jail for longer.

Bottom line: the "hypocrisy" charge sticks even though the commutation/pardon power is different from the sentencing power, because the statutory factors that a judge is required to consider are also factors that any reasonable and good-faith President would consider.
7.4.2007 7:47am
llll:
I don't know, I think being the subject of an essentially unaccountable special counsel would qualify as "exceptional circumstances"....
7.4.2007 7:48am
Atlantic06 (mail):
Come on . . . Does anyone really think the "excessive punishment" argument is anything other than a feeble excuse? Since when has Bush been concerned about excessive sentences?

The real reason is, obviously, that Cheney is afraid that Libby will crack if forced to serve time and will make a deal with the prosecuters to spill the beans.
7.4.2007 8:35am
jpe (mail):
Now would be as good as time as ever for Congress to grant judges more discretion, perhaps in the guise of the "Lewis Libby Fairness in Sentencing Act" or some such.

Atlantic06 is obviously right, and that's all the more reason to hold the President to what he says.
7.4.2007 8:49am
jpe (mail):
Given those differences, I'm not sure why a President's reasons for exercising his Executive power to commute or pardon need to mirror that President's views about what power judges should have to adjust sentences.


The Executive branch doesn't just stay within the 4 walls of its Constitutional powers; Presidents have policies that they try to get adopted. Bush has long urged mandatory minimums, ergo the clear inconsistency at work. (see sentencing policy's excellent comment above)
7.4.2007 8:56am
Muskrat (mail):
The problem is that Bush used broad categories of problems to condemn Libby's sentence, not specifics. He cited the fact that Libby's sentence was based on facts not shown to the jury - which is true for thousands of federal defendants a year. If he had cited specific ways in which Libby's case differed from others, then it would be logical to differentiate the punishments. That's the core of the "political prosecution" theory -- that the partisan nature of these proceedings differentiates them from others -- but Bush rejected that argument when he validated the jury verdict. As it is, the justifications cited, if true, would apply to many others who didn't get any clemency. Unless service in the Executive policy apparatus is somehow more meritorious than, say, Victor Rita's military service (which is pretty indefensible, especially after six years of photo-ops where Bush draped himself in military crowds), Bush has no grounds for saying Libby was treated unfairly and Rita and others weren't.
7.4.2007 9:00am
byomtov (mail):
For a devastating analysis of the hypocrisy involved here, from a different point of view, read this.
7.4.2007 9:32am
Randy R. (mail):
Byomtov: Heady stuff. Why does anyone think that W. has even a smidgeon of concern about the little people? He's only known rich and powerful people his whole life.
7.4.2007 10:27am
Horatio (mail):
A question for the attorneys:

If, at some point, Libby is pardoned, does he lose his Fifth Amendment protections, and can he be compelled to answer questions by Fitzgerald or other prosecutors with any sanction if he refuses?
7.4.2007 10:28am
Hoosier:
One way to address the "excessive" question is to ask how much time Spiro Agnew--the VP, no a top Veep staffer--did for much more serious crimes. He plead nolo, of course. But that hardly presents us with a problem in making an assessment.

This also obviates the need to address any "they did it too" right-left disputes: Both Agnew and Libby are Republicans. It does seem excessive to me to give Libby 2 1/2 years in that context.

Again, I realize that I'm not a lawyer. I am, however, a historian, and this is the way we tend to think of these things. What has been done in the past? It doesn't mean that one has to accept Bush's decision. But to my mind it makes it rather difficult to claim that the commutation was well outside the bounds.

I'm willing to change my mind if I've not thought through this one well enough. So I'd be interested in hearing arguments on the Agnew-Libby comparison that address the question of excessive senstencing. Any takers?
7.4.2007 10:55am
DeezRightWingNutz:
What was the mandatory minimum sentence (if any) for Libby?
7.4.2007 11:09am
Anonymous Liberal (mail) (www):
Orin, respectfully, I find myself agreeing with Scote. If we had a system where there was some sort of back-end executive review of all sentences, and those deemed to be excessive were commuted or reduced, then you're 'separation of roles' analysis might make sense. But we don't have that system. For 99.999999% of people, the judge has the final say. And Bush and his fellow Republicans have been trying for years to tie judges hands and limit their ability to dole out individualized justice.

In other words, it's not that they believe this is a role that should be left to another branch; it's that they believe no one should have such a role in our system.

The pardon power is an extraordinary remedy that was never intended to be a central feature of our criminal justice system. It can't be. Executives don't have the resources. The people in our system who have traditionally played the role of considering individualized circumstances and being lenient when warranted are judges. But in the federal system, Republicans have done everything in their power to restrict and intimidate judges so as to prevent them from playing this role, because they don't want anyone to play this role. It is deeply hypocritical, therefore, for someone like Bush to invoke the exact arguments that opponents of these policies have been voicing for years in order to justify the commutation of a single person's sentence.
7.4.2007 11:35am
paul lukasiak (mail):

"Both Agnew and Libby are Republicans. It does seem excessive to me to give Libby 2 1/2 years in that context. Again, I realize that I'm not a lawyer. I am, however, a historian, and this is the way we tend to think of these things. What has been done in the past?"



the Agnew precedent is not relevant because Agnew copped a plea.

*************

What was the mandatory minimum sentence (if any) for Libby?


there was no mandatory minimum sentence...

**************


If, at some point, Libby is pardoned, does he lose his Fifth Amendment protections, and can he be compelled to answer questions by Fitzgerald or other prosecutors with any sanction if he refuses?


WHile I'm not a lawyer, I've read a lot about the subject.... acceptance of a pardon is a de facto admission of guilt, and constitutes a defacto waiver of Fifth Amendment rights. However, a pardon does not require Libby to testify truthfully, merely to admit that he was guilty of the crimes for which he was convicted. Were Fitz could put Libby in front of a grand jury, Libby could claim Fifth Amendment rights rather than testify truthfully about his involvement in the Plame outing.
7.4.2007 11:51am
HowardWasserman (mail):
Consider that the judicial branch utilizes the Guidelines only with substantial input from the Executive Branch, acting as a party to the prosecution in our party-controlled legal system. The Executive makes arguments to the court as to how the Guidelines should apply in a given case and those arguments typically carry weight with the court. So we can compare how the Bush Administration has typically argued the Guidelines should be applied (especially in similar cases) with the commutation decision here.
7.4.2007 12:05pm
AF:
The problem with the comparison to sentencing law is that there are two very different branches of government at work here. On one hand, we have the politically-accountable elected Executive branch . . . .

Which is being held politically accountable in these articles.
7.4.2007 12:08pm
Justin (mail):
"Were Fitz could put Libby in front of a grand jury, Libby could claim Fifth Amendment rights rather than testify truthfully about his involvement in the Plame outing."

Yes and no. Certainly Libby couldn't base his 5th amendment claim on concerns of previous perjury, as double jeopardy attaches. As for other claims, he could get Kastigar immunity and be forced to testify.
7.4.2007 12:09pm
Charlie (Colorado) (mail):
Guys, you're arguing that the Executive is hypocritical for using an absolute executive power in violation of the Executive Branch's regulations on when and how requests for Executive action are filed and processed by the Executive's own bureaucracy.

I's not like you're billing by the hour, guys --- this is a pretty silly argument all around.
7.4.2007 12:17pm
paul lukasiak (mail):

Certainly Libby couldn't base his 5th amendment claim on concerns of previous perjury, as double jeopardy attaches.


From my understanding, Libby could not claim fifth amendment privileges if asked if he had committed perjury and obstruction, but he could do so if asked why he committed perjury and obstruction.
7.4.2007 12:20pm
Erasmus_:
Accepting a pardon is not the same thing as admitting guilt. Some people who get pardoned are dead and others are pardoned because they are innocent.
7.4.2007 12:24pm
Anonymous Liberal (mail) (www):

Guys, you're arguing that the Executive is hypocritical for using an absolute executive power in violation of the Executive Branch's regulations on when and how requests for Executive action are filed and processed by the Executive's own bureaucracy.


No, we're pointing out that the President's stated reasons for invoking his power are deeply hypocritical. No one's questioning his power to do this, we're just pointing out that his reasons for doing so don't make a lot of sense.
7.4.2007 12:27pm
Mark Field (mail):

One way to address the "excessive" question is to ask how much time Spiro Agnew--the VP, no a top Veep staffer--did for much more serious crimes. He plead nolo, of course. But that hardly presents us with a problem in making an assessment.
***
Again, I realize that I'm not a lawyer. I am, however, a historian, and this is the way we tend to think of these things. What has been done in the past? It doesn't mean that one has to accept Bush's decision. But to my mind it makes it rather difficult to claim that the commutation was well outside the bounds.


There are, I think some important differences. First, Agnew did plead (nolo, but a plea). As a number of posts have noted in these various threads, people who take pleas tend to receive much lighter sentences than those who go to verdict. Second, sentencing standards were very different in the early '70s than they are now. There were no Sentencing Guidelines then, for example. And the "tough on crime" rhetoric which has been a staple of Republican policy since 1968 was still very early. Third, if jail time had been imposed on Agnew, I think there's very good reason to doubt that Nixon would have commuted it. The politics of the time (Agnew resigned on 10 Oct 1973, just 10 days before the Saturday Night Massacre) wouldn't have allowed that. Fourth, Bush has left open the prospect of a pardon for Libby. I assume your assessment would change if Bush were to do so. Fifth, Agnew was guilty of different crimes (money laundering and tax evasion -- crimes for which monetary penalties might be seen as appropriate). That makes it harder to compare the relative sentences.
7.4.2007 1:09pm
markm (mail):
The real power to determine sentences is now in the hands of the executive (prosecutors) rather than in the hands of judges - and charging decisions are made behind closed doors. Thar's the basic trouble with the federal criminal justice system. It's only aggravated by a policy of charging the maximum unless a supervisor approves "special circumstances."

Libby's sentence was excessive, out of line with what other white collar criminals generally receive in state courts, and even with federal perjury cases before the Bush administration. However, it does seem like the policies promulgated by the Bush administration would give a 30 month sentence as a minimum - and the only "special circumstance" that counts is that Bush knows the defendant.

That's hypocrisy - unless, having had his nose rubbed in how the system actually works, Bush now sets out to change it for everyone, not just friends of Bush.
7.4.2007 1:43pm
scote (mail):

However, it does seem like the policies promulgated by the Bush administration would give a 30 month sentence as a minimum - and the only "special circumstance" that counts is that Bush knows the defendant.


Indeed, and there is no "seems' about it. One only need look as far as the Victor A. Rita case where the Administration went all the way to the Supreme Court to argue for a 33 month sentence for perjury and obstruction of justice.
NY Times story on the Libby vs. the Rita Case

Funny that. For an ordinary guy, the Administration goes to the Supreme Court to say a 33 month sentence is reasonable but commutes the 30 month sentence for almost the exact same crimes of a a friend and co-conspirtor as "excessive." This is un-reasonable beyond any reasonable argument.
7.4.2007 2:24pm
JSinAZ:
It wasn't until scote and Sentencing Policy very nicely pointed-out the stark hypocrisy of commuting an administration officials' long jail term, received after a guilty verdict - in direct opposition to the specific philosophy of the adminstration - did I really start to wake up to the deeply offensive nature of this commutation.

I hope this will be bad for the administration, but I likewise would hate to see the current crop of feckless Democratic leadership profit from the administrations' hypocrisy.
7.4.2007 2:52pm
Smokey:
The President shall... have Power to Grant Reprieves and Pardons...


Everything else is political arm-waving and impotent second-guessing.

Fun to watch, though.
7.4.2007 3:07pm
Ranger (mail):
"Excessive" may not refer to the general punishment, but may also relate to the specifics of the case. In this situation you have two other confessed leakers (Richard Armitage and Ari Fleischer), one of who specificly obtained the information from a classified document then passed it on to reporters (Armitage) and the other who recieved at least confirmation of the information by reading it in a classified document(Fleischer). Neither of those individuals has been charged with anything.

Further, Armitage decieved investigators about his role as the first leaker for two years and attmpted to tamper with a witness (Novak), and may have attempted to tamper with a second witness (Marc Grossman).

Fleischer committed perjury on the stand in the Libby trial when he denied under oath telling Walter Pincus about Plame.

That Libby should spend a day in jail while both of these men walk free of any legal jepardy may seem "excessive" to those familure with the details of this case.
7.4.2007 3:08pm
Bob from Ohio (mail):
One reason the President does not give career prosecutors much discretion is that they are career and they are not trusted. Not unusual for conservatives to not trust bureaucrats, even if they are called Assistant US Attorneys.
7.4.2007 3:20pm
Kazinski:
I thing what is being missed here is that the pardoning power of the President is not a duty or a process, it is a perk. Thus it can't really have any sort of legal analysis applied to it. The framers knew when the enshrined it into the constitution that it would be employed on occasion by mere whim. Every year the President pardons a turkey for no good reason, nobody gets upset about that. Or starts looking up the federal sentencing guidelines for turkeys to see if there is any inconsistentcy.
7.4.2007 3:31pm
Chico's Bail Bonds (mail):
The primary reason for requiring judges to follow the Sentencing Guidelines is not that they are unaccountable unelected officials. The purpose of the guidelines is to make sure that all similarly situated defendants get similar sentences.

Bush's action is hypocritical because he is letting Libby get off with no jail time, while all other similarly situated defendants get 30 months in jail. It is hypocritical for Bush to say all the little people get sentenced by the harsh guidelines, but my friends get to go scot-free.

If you really believe in the Sentencing Guidelines, the only time you would commute a sentence is when they worked in a way that was unexpected. There has to be some unusual factor that the Sentencing Guidelines missed in a particular case that makes it appropriate to deviate from them in that one case. Bush made no attempt to show this with Libby.

By claiming he believes in the Sentencing Guidelines' goal of equal treatment and then giving special treatment to his crony, Bush acted hypocritically.
7.4.2007 3:32pm
Anderson (mail) (www):
Every year the President pardons a turkey for no good reason

But this year he was almost 5 months early.

(Bada-bing!)
7.4.2007 3:37pm
JSinAZ:

Every year the President pardons a turkey for no good reason, nobody gets upset about that. Or starts looking up the federal sentencing guidelines for turkeys to see if there is any inconsistentcy.


Then I suppose I should have felt just fine about the eleventh hour pardon of Marc Rich.
7.4.2007 3:38pm
Ranger (mail):
Chico's Bail Bonds

By claiming he believes in the Sentencing Guidelines' goal of equal treatment and then giving special treatment to his crony, Bush acted hypocritically.

One could say the same thing about Fitz. By arguing so strongly that everyone must tell the truth and then excusing Armitage's deceptions to investigators, he acted hypocritically. Fitz was even more hypocritical because he went futher to argue before the court that Armitage's identity as the first leaker should be concealed because he had "done nothing wrong."

In that light, the Libby commutation is simply a partial redress of Fitz's hypocritical conduct as a prosecutor.
7.4.2007 3:46pm
Anonymous Liberal (mail) (www):

The President shall... have Power to Grant Reprieves and Pardons...

Everything else is political arm-waving and impotent second-guessing.


The president also has the power to instigate armed conflict. That doesn't mean we can't criticize him if he uses that power in an ill-advised way, such as invading Canada. Who cares that the president has the power to do this? That's not the point. He has the power to do a lot of sleazy and hypocritical things. Commuting Libby's sentence was one such thing.
7.4.2007 4:37pm
scote (mail):

Every year the President pardons a turkey for no good reason, nobody gets upset about that. Or starts looking up the federal sentencing guidelines for turkeys to see if there is any inconsistentcy.

Well, he says it's a pardon but I suspect that it is more a temporary stay of execution. I hear they keep those turkeys in an undisclosed location...I worry that Dick Cheney may try to shoot them in the face when he's in a bad mood...

The President shall... have Power to Grant Reprieves and Pardons...

Everything else is political arm-waving and impotent second-guessing.

Pardon's by their unilateral nature are, perhaps, inherently political. However, the President's absolute power of pardon is tempered by the political consequences of intemperate use of that power, including impeachment. To dismiss legitimate objection to inappropriate pardons or commutations as mere "arm-waving" is to dismiss the constitutional separation of powers as quaint. I don't buy it and I don't think you should, either.
7.4.2007 6:11pm
whimsy:
Did anyone of the above respondents read the letters to the judge in support of clemency for Libby? I read all of them (available online) and they convinced me that the judge did impose too harsh a sentence. The writers included former officials in the Clinton administration, a professor of linguistics at Georgetown and self professed bleeding heart liberal, neighbors, and even a French student who had done an internship in the US.

Some of those writing in support of Libby are known for their probity and moral standards. I was particularly impressed that a letter of support came from Natan Sharansky who was awarded both the Congressional Gold Medal and the Presidential Medal of Freedom. These honors are rarely awarded to non-US citizens, and I believe that he may be the only non-citizen to be awarded both. (He also spent nine years as a guest of the Soviet government in an all expense paid get-away facility.)

Victor Rita did not have public figures as varied as Henry Kissinger, Natan Sharansky, and Leon Wieseltier asking for clemency on his behalf.
7.4.2007 6:35pm
byomtov (mail):
Victor Rita did not have public figures as varied as Henry Kissinger, Natan Sharansky, and Leon Wieseltier asking for clemency on his behalf.

But this is a function of fame, not merit.
7.4.2007 7:19pm
Svensker (mail):
I was particularly impressed that a letter of support came from Natan Sharansky who was awarded both the Congressional Gold Medal and the Presidential Medal of Freedom. These honors are rarely awarded to non-US citizens, and I believe that he may be the only non-citizen to be awarded both. (He also spent nine years as a guest of the Soviet government in an all expense paid get-away facility.)

Sharansky is also a neo-con friend of Libby's, not a disinterested noble guy.
7.4.2007 8:11pm
Ricardo (mail):
Victor Rita did not have public figures as varied as Henry Kissinger, Natan Sharansky, and Leon Wieseltier asking for clemency on his behalf.

In other words, certified members of the American elite ought to be subjected to a kinder gentler criminal justice system than ordinary schlubs who don't get invited to dinner parties thrown by these varied public figures.
7.4.2007 8:46pm
Freedom Lover (mail):
Orin,

I note the differences between executive and judicial power re: sentencing, and I think your comparison between the commutation and the Ashcroft memo is telling. Nonetheless, I still think that Bush's decision to commute Libby's sentence is germane to the debate re: sentencing, if only because of the reasons Bush offered.

Let me first say that I recognize that Bush was under no obligation to offer any reason for the commutation.

That said, he chose to give a reason. And the reason that he chose was that Libby's sentence was "excessive." This is the same standard that courts of appeals apply in reviewing district courts' sentences (whether they say they're reviewing for "reasonableness" or to see whether the sentence imposed is "excessive," both words mean really the same thing, when a defendant challenges his sentence).

Especially in light of the Supreme Court's opinion in Rita, it seems rather alarming that a constitutional officeholder would conclude that a within-Guidelines sentence is excessive (i.e., not reasonable), unless that determination is based upon factors that the Guidelines and 18 U.S.C. sec. 3355 do not consider. Bush emphasized the toll on Libby's reputation and the suffering of his family, and intimated that those factors were punishment enough. But these factors are considered under the Guidelines and sec. 3355. So Bush has done nothing to distinguish Libby's case from the minerun of cases under the perjury statute.

Implicit in Bush's proffered reason, then, is the conclusion that the Guideline sentence -- at least for perjury committed by a first-time offender -- is unreasonable. Although this determination is in no way binding upon courts, it certainly seems relevant to sentencing determinations.

Why am I wrong?
7.4.2007 8:55pm
Freedom Lover (mail):
In my previous comment, I meant 18 U.S.C. 3553, not 3355. My apologies.
7.4.2007 9:02pm
Smokey:
Clinton's pardons:

http://www.usdoj.gov/pardon/clintonpardon_grants.htm

There is no comparison with Bush. None. N-O-N-E.

But feel free to continue flailing away. It's fun reading.
7.4.2007 9:13pm
Wondering..:

Implicit in Bush's proffered reason, then, is the conclusion that the Guideline sentence -- at least for perjury committed by a first-time offender -- is unreasonable. Although this determination is in no way binding upon courts, it certainly seems relevant to sentencing determinations.


I guess I'm wondering if we have a very similar situation to compare Libby to? Rita keeps coming up, but it turns out Rita is not a first-time offender. Additionally, the crime wasn't really white collar (at least by how I understand what white collar implies). So not really very similar except that there were charges of perjury involved.

I did some searches, and maybe this is just my inability to use the correct search terms, but I could not find a case where a government employee who otherwise had a spotless record was brought up on these charges. I'd like to compare and contrast just for my own curiosity. Has anyone else had any luck?
7.4.2007 9:39pm
Elliot123 (mail):
If the issue is fairness, should we not be examining all 20,000 presidential pardons given in the last 100 years. That only seems fair.
7.4.2007 10:12pm
ATRGeek:
I think Orin is off on his branches of government analysis.

The President's pardon power is not an extension of the Executive Branch's prosecutorial powers (an argument I find bizarre). Rather, it is a judicial power which has nonetheless been granted to the President, just as the veto power is a legislative power which has nonetheless been granted to the President.

So, it is entirely appropriate to consider whether the President's exercise of the pardon power is consistent with his stated principles for the exercise of judicial power, because when he uses his pardon powers he is taking on a judicial function. Indeed, this is particularly clear in a commutation cases, where the President is substituting his own sentence for the sentence established by the judge, and sentencing is a core judicial function.
7.4.2007 10:37pm
LM (mail):

Clinton's pardons:

http://www.usdoj.gov/pardon/clintonpardon_grants.htm

There is no comparison with Bush. None. N-O-N-E.

But feel free to continue flailing away. It's fun reading.

Of course there's no comparison, because Bush is still in office. Until 2009, it's apples and oranges.

But if you like reading about Clinton's pardons so much, here's what he had to say about his most infamous, Marc Rich. When we do get around to that grand comparison, I certainly look forward to reading Bush's op-ed, in which he lets us in on the process and reasoning behind his Libby decision.
7.5.2007 12:01am
Hattio (mail):
Professor Kerr,
I also think your distinction between the roles of the executive branch and the judicial branch is unpersuasive. If all the Bush administration had done was argue that the Federal Judges should not have the power to deviate from the guidelines, then your point would be valid. But after the Guideline were determined not to be mandatory, they have encouraged judges still to use them, and not exercise discretion. They have essentially argued that the Guidelines always come to a just sentence.
So the hypocrisy is not that they believe there are different roles for members of the judiciary and the executive. The hypocrisy is that when the executive and the judiciary have roughly equivalent powers, the administration believes the judiciary should never use theirs.
7.5.2007 12:10am
Hattio (mail):
Ranger states;

One could say the same thing about Fitz. By arguing so strongly that everyone must tell the truth and then excusing Armitage's deceptions to investigators, he acted hypocritically. Fitz was even more hypocritical because he went futher to argue before the court that Armitage's identity as the first leaker should be concealed because he had "done nothing wrong."


But Fitz didn't argue that everyone should always tell the truth all the time. He argued that people shouldn't commit perjury ie., that they shouldn't lie in court, depositions or at any other time when they know that perjury attaches. Lying to investigators can be a crime to...but typically its a misdo.
BTW, this is the first I've heard of Armitage lying or attempting to influence witnesses, so I'm assuming what you say is accurate.
7.5.2007 12:14am
Bruce Hayden (mail) (www):
I find this whole thread asinine. Clinton took the presidential pardon power to new heights, pardoning convicted drug dealers, tax evaders, etc. for almost entirely pecuniary and venal reasons, partially funding his wife's Senatorial campaign through them.

In this case, you have someone who's major crime was protecting his boss, the VP. Somehow using the pardon power on someone for loyalty reasons is horrible, but it is just fine to sell pardons for campaign contributions (or to make his brothers-in-law rich).

And there is nothing that anyone can do about the President's actions here. He is never going to run for anything. He won't be impeached for it. And the idea that he could be prosecuted for obstruction of justice after he is out of office is almost as ludicrous as the entire thread. And, even if it weren't, all he would need to do is pardon himself before leaving office. But he won't have to, because he has pretty total immunity there.

So, as a certain young lady keeps reminding me: Deal with it.
7.5.2007 12:23am
Bruce Hayden (mail) (www):
The other reason that Bush would never be prosecuted for this, above and beyond the likelihood that this action is absolutely immune, is that no president is going to go along with it, first because it would reduce his own powers, and secondly, it would be an absolutely horrid precedent - that he might himself be prosecuted for something he did as president. And, yes, if Democrat X were the next president, and prosecuted his predecessor for obstruction of justice, and then was followed by Republican Y, Republican Y would likely return the favor.

Political hardball is one thing, but presidents do worry about their own power, and in the end, that is more important to them than proving some obscure point.
7.5.2007 12:35am
Chico's Bail Bonds (mail):
Ranger,

I have never heard anyone accuse Armitage of lying to the investigators. I just checked the Wikipedia article on PlameGate and it says Armitage credits his not being charged to his candor. He turned over his computers, his relevant documents and never hired a lawyer.

Unless you know something I don't know about Armitage, your argument against Fitz doesn't hold water.
7.5.2007 1:53am
Hoosier:
Clinton's abuse of the pardon and commutation power is blatant in the case of Raymond Phillip Weaver. (Scroll down)

http://www.usdoj.gov/pardon/clintonpardon_grants.htm

How could anyone in his right mind put a psycho like that back on the street?

Chico--I think you're right. But looking at the posts above, we have lots of anti-Bush folks who seem to be aware of "something I don't know": Bush commuted Libby's sentence, and will pardon him in January 2009, in order to protect himself, Cheney, Cardinal Richelieu, and Shoeless Joe Jackson. I don't see what benefit comes from this clairvoyance and gnosticism.
7.5.2007 2:46am
godelmetric (mail):
The other reason that Bush would never be prosecuted for this, above and beyond the likelihood that this action is absolutely immune, is that no president is going to go along with it, first because it would reduce his own powers, and secondly, it would be an absolutely horrid precedent - that he might himself be prosecuted for something he did as president. And, yes, if Democrat X were the next president, and prosecuted his predecessor for obstruction of justice, and then was followed by Republican Y, Republican Y would likely return the favor.

Political hardball is one thing, but presidents do worry about their own power, and in the end, that is more important to them than proving some obscure point.


1. If this issue were litigated, it wouldn't be by any of the prospective candidates.

2. If there is any legal objection to the pardon/commutation, it's that it was issues to the target of a Special Prosecutor's investigation, contrary to the holding of U.S. v. Nixon -- I can't imagine any other grounds on which a court would purport to limit the President's pardon power. That's a very specific instance, and a fairly unobjectionable result -- it simply means that, as in Nixon, the President's otherwise plenary powers are self-limited by delegations made under the Appointments Clause.
7.5.2007 4:53am
Ranger (mail):
Chico's Bail Bonds

I have never heard anyone accuse Armitage of lying to the investigators. I just checked the Wikipedia article on PlameGate and it says Armitage credits his not being charged to his candor. He turned over his computers, his relevant documents and never hired a lawyer.

Unless you know something I don't know about Armitage, your argument against Fitz doesn't hold water.


Well, Armitage would say that. But if he was so candid with investigators then why did he fail to disclose his role as the first leaker for almost 2 years. Armitage only came forward because Bob Woodward told him he could no longer remain silent about Armitage's leak to him in early June. After listening Fitz's press conference on the Libby indictment where Fitz flatly stated Libby was the first leaker, Woodward called Armitage and directly told him that they both knew that wasn't true because Armitage had told him about Plame 2 weeks before Libby spoke with any reporters about her. Armitage's response was something to the effect of 'Your right. I have to come forward. I have to tell the truth.'

Now, Armitage claims that he simply forgot about his conversation about Plame with Woodward (just as Libby claims he forgot about Plame for two weeks then heard it again 'as if for the first time'). It is hard to believe that, if Plame was as important as Fitz says she was at the time, Armitage would forget his conversation with Woodward about her. This raises the question of why Fitz was so forgiving of Armitage's 'forgetfulness' yet so unforgiving of Libby's.

Also, Armitage made one clear effort to influence Novak's testemony by having a friend call Novak to 'just let him know that Armitage's disclosure was inadvertant.' We also learned during the Libby trial that Armitage went to Marc Grossman's house the night before Grossman's first interview with the FBI specificly to tell Grossman that he had already confessed to being the source of Novak's article. We are left to imagine what other topics might have been discussed that night.

Yes, Armitage turned over all of his personal documents and computers to the investigators, but we do not know if that was before or after his memory improved.

Armitage's faulty memory clearly obstructed the investigation because Fitz made it clear in his press conference that his entire theory of the case up to that point was that Libby was lying to conceal the fact that he was the first leaker. Libby's statements that he was hearing about Plame from reporters had to be false because he was the first one to tell a reporter. Armitage's 'bad memory' allowed the FBI and the prosecutor to create a completely false premis and use that false premis to persue the investigation against Libby.

Armitage also had motive to lie to conceal his conversation with Woodward on two levels. His leak to Novak looked innocent because by July many reporters had already heard about Plame. But the early June leak to Woodward was the first leak and Armitage got that information only a day or two earlier by reading a Top Secret State Department memo, so it was clearly information that he had from only classified sources.

And yet, despite all this, the prosecutor actually argued that Armitage's name and actions should remain secret because he "had done nothing wrong." Last time I checked revealing information you learned from reading a classified memo is 'wrong' unless you check to see if the specific information is unclassified. I was also under the impression that contacting witnesses before they are interviewed or testify about your actions to make sure they get your side of the story right was 'wrong.' I also thought that 'forgetting' an important fact central to an investigation that might put you in a very negative light with investigators was 'wrong.' But clearly, my ideas of 'wrong' are different from Fitz's.

Hense why the Libby sentence looks "excessive" when viewed in the context of the entire investigation.
7.5.2007 10:09am
ATRGeek:
Bruce,

Excellent point. Libby committed his crimes on behalf of the Administration, so the President commuted his sentence. How on earth could anyone see anything wrong with that?
7.5.2007 10:26am
Hoosier:
A question for VCers: NB: NOT ARGUMENTATIVE! I just seem to have *missed* this.

But Ranger's post above reminded me that I wanted to ask: Why--in Fitzgerald's assessment--was Libby lying? Did he [Scooter] /think/ he was the first leaker, and thus think he was doing cya?

I'm not clear on his motive. (I know he was convicted of lying, etc.--Again, I'm not looking for an argument or trying to justify his actions. I'm just wondering what Fitzgerald concluded Libby was hiding.)
7.5.2007 10:33am
ATRGeek:
Hoosier,

To get a definitive answer to that question, Libby would have to stop lying and tell Fitzgerald the truth. Obviously, if he ever had an incentive to do that, he doesn't now.

But if it helps, keep in mind that what Libby lied about was his participation in internal discussions regarding Plame working for the CIA before he started leaking that information to the press (his most important lie was that Russert told him about Plame's CIA employment, when in fact he had already been talking about her employment with the CIA with various people inside the Administration, including the Vice President, before his conversation with Russert). So, the logical next questions to ask Libby would be about the substance of the Administration's internal discussions about Plame, such as what he and the other people in these conversations actually knew about Plame's status, and why some of them decided to leak that information.

But you obviously can't get Libby to answer such questions if Libby is still denying the very existence of those discussions. And again, now he has no incentive to start providing that information.
7.5.2007 10:48am
Constitutional Crisis (mail):
Methinks that refuting the hypocracy charge is little more than the wind blowing at a straw man. What does a charge of hypocrisy mean in this rarefied context? Where the object of the conviction is the President's own aide who obstructed an investigation into potential misconduct of the Executive Branch involving, perhaps, the President himself? It's not like the President has had a whole bunch of commutation applications of such individuals. In context, though, I'd be tempted to say that the only hypocracy would be if the President did not ignore the basic constructs of the law in this case, having demonstrated a willingness to do so for his own purposes in so many other circumstances (e.g., equal protection of the vote, torture, environmental requirements, application of intelligence, etc.)

Scote laid this one to rest early on in the thread:
You see sentencing guidelines as an issue of delineation of power to determine appropriate length of criminal punishment between the branches of government where as I see them in a more general context as mandatory inflexibility--the idea that one sentence fits all and that justice requires that all people receive the same sentence irrespective of mitigating details.
I doubt that Orin actually sees the sentencing guidelines as a delineation of power to determine the appropriate length of criminal punishment, independent of the other concern that justice requires that all people receive similar sentences. The latter was a fundamental basis of the original Sentencing Commission. Creating a polemic, even an intelligent polemic, of the variety displayed by Mr. Kerr here makes me wonder -- why the need to try to rehabilitate such an egregious decision as the President made? It reminds me of the talkingpoints response when Dick Cheney was trying to assert that he's not of the Executive Branch: "This is a dispute for legal experts to take up. People may have differing opinions."

I just don't get it. The President laid an egg. It's an egg that is, however, consistent with the loosely shrouded disdain for the law and the arrogation of power that has characterized this administration. As lawyers (as many of us are), I would think we have an obligation to defend the law. Why waste the energy trying to rationalize the President's contortions of it?
7.5.2007 10:59am
Ranger (mail):
ATRGeek,

But you obviously can't get Libby to answer such questions if Libby is still denying the very existence of those discussions.

Well, given that there is not actual written documentation to support the contention that those conversations actually took place. There are many documents covering the discussions about responding to Wilson's claims before he was specifically identified (because it was widely known who the un-named ambassador was in DC), but the only one in the VP's office from before the Novak article is Libby's own note that he turned over to the investigators. The most extensive discussion of Plame is in the State Department INR memo from early June, but that was never sent to the VP's office and only sent to the White House after Novak's article was already on the wires on 11 July.

As it was presented at trial, nobody actually remembers any significant conversations about Plame. Marc Grossman initially told the FBI he had three separate phone conversations with Libby about Plame, but when phone records failed to back up that claim, he re-remembered that it was, in fact, just one face to face conversation in-between two meetings. And Grossman's was the most precise recollection. Everyone else's was even less definitive or credible.

There is, in fact, very little if any credible evidence that these conversations you claim happened ever took place. If there was evidence of this, I think Fitz would have introduced it at trial.
7.5.2007 12:14pm
ATRGeek:
Ranger,

We've gone through all this many times before. Grossman was not the only government witness presented by Fitzgerald, and I invite you to name each witness Fitzgerald presented, give the details of their testimony, and explain exactly why you do not find their testimony "credible".

In any event, you are attempting to retry the case, not answer Hoosier's question, because Hoosier was asking about why in Fitzgerald's assessment Libby would lie. So, when you start by claiming Fitzgerald was wrong about the lies Libby told, you obviously are not answering Hoosier's question.
7.5.2007 12:30pm
Crust (mail):
Yet more evidence of how "routine" (to borrow Tony Snow's description) Libby's commutation was:
"We can't find any cases, certainly in the last half century, where the president commuted a sentence before it had even started to be served," said Margaret Colgate Love, a former pardon attorney at the Justice Department. "This is really, really unusual."
7.5.2007 12:34pm
Ranger (mail):
Hoosier,

Why--in Fitzgerald's assessment--was Libby lying? Did he [Scooter] /think/ he was the first leaker, and thus think he was doing cya?

Well, at trial Fitz claimed the motive was an effort to conceal the fact that he had violated his non-disclosure agreements regarding classified information. That would have required Fitz to prove that Libby knew the information was classified when he passed it along (which Fitz was never either willing or able to do).

Of course the same logic could be applied to explain why Armitage concealed his role as the first leaker. In fact it has more power in Armitage's case because he got the information from a clearly classified document.

This also goes to show the significant partiality of the investigation. Marc Grossman stated in his Grand Jury testemony that he told Libby around the 12th of June that 'We're hearing at State that Wilson was sent by the CIA because his wife works there.' Now, if Fitz had actually been conducting a leak investigation he would have gone to the State Department and investigated who had that information in early June and might have passed it along to reporters. If he had done that he would have discovered the Top Secret INR memo and that Armitage had read a copy of it. He also would have discovered that Armitage had a meeting with Bob Woodward just a couple of days after seeing the INR memo. That would have lead him to discover that Woodward had learned about Plame from Armitage and then asked Libby about Plame later in June (Woodward has his preperation notes for that interview which clearly show that Wilson's wife was a specific question he intended to ask). Once he had the information Libby's claim that he was hearing about Wilson's wife from reporters at the end of June or early July would not have appeared as a deliberate lie to conceal his role as the first leaker, but rather, an honest representation of what was going on at the time.

And, for good measure, we still do not know what other conversations with reporters Armitage "forgot" about between the time he learned about Plame and the time Novak's article hit the press.

But, Fitz wasn't conducting a leak investigation and he never really wanted to know who the first leaker was. The FBI was sure it was Libby and niether they nor Fitz was going to let the fact get in the way of their theory.
7.5.2007 12:36pm
jukeboxgrad (mail):
ranger: "This raises the question of why Fitz was so forgiving of Armitage's 'forgetfulness' yet so unforgiving of Libby's."

Armitage wasn't indicted because he cooperated with Fitz, instead of obstructing him. Armitage, Rove and Fleischer all ultimately cooperated with Fitz. Rove, for example, was given many chances to get his story straight. And he eventually did (at least to a reasonable level, where it could no longer be easily proven that he was sticking with a lie), so Fitz let him off the hook. Libby, on the other hand, started with a bogus tale, and stuck with that tale despite many chances to come clean. And he still hasn't come clean (it seems that this is because he had a get-out-of-jail free card in his back pocket the whole time). This is the key difference between Libby and the others.

By the way, it's fun to notice the new fashion of trying to paint Armitage as somewhere to the left of Mao. This conveniently forgets that Armitage was part of the Bush administration and was part of the neocon club: he signed the PNAC letter along with the rest of the gang. The letter was signed by people like Rumsfeld, Wolfowitz, Perle, Kristol and Kagan.

Because Armitage didn't always remain in the first rank of pro-war fanatics, certain folks want to paint him as a leftist, and claim this is why he's off the hook. But Armitage is no leftist, and that's not why he's off the hook. He's off the hook because he cooperated with Fitz, instead of obstructing him.
7.5.2007 12:38pm
ATRGeek:
Ranger,

Actually, I withdraw that invitation. On reflection, I'm not particularly interested in why you would not find the other witnesses presented by Fitzgerald credible.
7.5.2007 12:38pm
jukeboxgrad (mail):
ranger: "there is not actual written documentation to support the contention that those conversations actually took place … nobody actually remembers any significant conversations about Plame"

Reall? Libby's grand jury testimony clearly indicates that Libby and Cheney discussed Plame on multiple occasions.

"the only one [document] in the VP's office from before the Novak article is Libby's own note that he turned over to the investigators"

Really? Cheney kept a clipping of Wilson's op-ed on his desk. The clipping had Cheney's handwriting on it, saying this (pdf):

Or did his wife send him on a junket?


Why are you making things up?
7.5.2007 12:44pm
ATRGeek:
jukeboxgrad,

That, of course, is part of the absurdity of all this. Even assuming Fitzgerald is a disloyal anti-Bushie filled with hate, there is no particular reason for him to hate Libby more than any of the other leakers.

So, the "why not Armitage?" (or Rove or Ari) question is not a bad one to ask (although we would need Fitzgerald to tell us the answer), but there is no reason to believe this question leads where they would want. But logical reasoning is not a virtue among the loyal Bushies.
7.5.2007 12:49pm
jukeboxgrad (mail):
ranger: "at trial Fitz claimed the motive was an effort to conceal the fact that he had violated his non-disclosure agreements regarding classified information. That would have required Fitz to prove that Libby knew the information was classified when he passed it along"

Wrong. Proving "that Libby knew the information was classified when he passed it along" is relevant with regard to IIPA, but it's not relevant with regard to SF-312, which is much broader, and uses a different standard. The "non-disclosure agreement[s] regarding classified information" that Libby signed is here. It says this:

I understand that if I am uncertain about the classification status of information I am required to confirm from an authorized official that the information is unclassified before I may disclose it


Let us know if you're seriously claiming that Libby was 'certain' that Plame's status as a CIA employee was unclassified. As far as we can tell, no one ever gave him any solid basis to be 'certain' about this. As far as we can tell, he never bothered to ask.

It's a matter of common sense to understand that a CIA employee's employment status might be classified information. Especially if that person works in the directorate of operations. And especially if that person's work involves WMD. There's reason to understand that Libby knew all this. Trouble is, there's no reason to think that anyone told him he could be 'certain' that her employment status was not classified information. In other words, it seems abundantly clear that, at the very least, Libby violated SF-312.

Simple question: if Libby thought he was providing Miller with unclassified information, why did he insist that she hide his identity?
7.5.2007 12:56pm
Crust (mail):
I'm no Plame aficionado, but I thought Armitage was not "the first leaker" (as Ranger and others are describing him). It's just that of the four leakers, it was Armitage's leak (with Rove's confirmation) that lead to publication. But Libby's leak to Miller was actually chronologically before Armitage's leak to Novak, no?
7.5.2007 12:58pm
Ranger (mail):
jukeboxgrad,

All of those conversations were after Libby's July 10th or 11th phone conversation with Russert.

Or did his wife send him on a junket?

Which the VP says he wrote after the Novak story came out as part of a re-assessment of Wilson's story in the wake of new information.
7.5.2007 12:59pm
ATRGeek:
Ranger,

Several of those conversations were before the Russert phone call according to the witnesses presented at trial (but I know--in your world none of those witnesses are "credible").
7.5.2007 1:01pm
Anderson (mail) (www):
Which the VP says he wrote after the Novak story came out as part of a re-assessment of Wilson's story in the wake of new information.

Under oath, he said that? When and where? And if it wasn't under oath, then excuse me for not caring.
7.5.2007 1:03pm
Ranger (mail):
Crust

But Libby's leak to Miller was actually chronologically before Armitage's leak to Novak, no?

Yes, Armitage's leak to Novak was after Libby's conversations with Miller, but Armitage's leak to Woodward was two weeks before Libby's conversations with Miller. It is clear from Miller's notes and her own statements that she knew about Plame before she talked about her with Libby, and that she had at least one other source who she stayed in jail to protect, but she now "cannot remember" who that person was.

Armitage was the first leaker (telling Woodward at the end of the second week in June) he just forgot to tell the investigators that for about two years.
7.5.2007 1:04pm
ATRGeek:
Broadly: we keep getting people here stating the same misinformation over and over. We refute it once with the facts, but then a new person shows up spouting the same misinformation and the cycle repeats.

It is not hard to figure out why this is happening: there are sources of misinformation in other places that do not have any mechanism for correction. But boy is it annoying that people keep arriving here from those other places as if they had something new to contribute to the discussion.
7.5.2007 1:04pm
Crust (mail):
Ranger, I stand corrected, thanks. I'd forgotten about Armitage's leak to Woodward.
7.5.2007 1:10pm
jukeboxgrad (mail):
atr: "there is no particular reason for him [Fitz] to hate Libby more than any of the other leakers"

Exactly. But what they're trying to do is take a fact (that Armitage seems to be less of a hardcore Bushist than Libby) and invest it with all sorts of extra, inflated meaning: that Armitage is a leftist and so is Fitz. Then again, in BushWorld, any non-Bushist is a leftist.

It's all about Manicheanism. But as someone said, "Calling Bush's Views Manichean Is an Insult to the Manicheans."
7.5.2007 1:15pm
Ranger (mail):
ATRGeek:
Ranger,

Several of those conversations were before the Russert phone call according to the witnesses presented at trial (but I know--in your world none of those witnesses are "credible").


Libby claims he dose not remember those conversations, and many of the witnesses themselves either did not remember them until much later or have significantly changed their stories as time passed. Therefore Libby's memory issues are not out of the norm given the testemony provided by the government's witnesses.

Let's recap a few shall we:

Marc Grossman: Initially recalled three seperate phone conversations, but the phone records do not support that claim, so he now remember one face to face conversation.

The CIA briefer: Has no recollection of discussing Wilson or Plame with Libby before the Novak story came out. There is one page of a briefing book that has the words Joe Wilson, Valeri Wilson written on it, but he has no recollection of when he wrote that or what it refers to as there is nothing on the page ther relates to Niger or anything else the Wilson's might have been connected to.

A CIA emplyee: Who states he must have told Libby because when he read about Libby being accused of leaking Plame's name a year after the Novak story appeard he felt guilty, so that tells him he must have told Libby about Plame.

The VP office press representative: Who initially remembered all the conversatoins about Plame happening after Wilson was on Meet the Press, but a year later decided they must have taken place the second week of June because she recongnized who Joe Wilson was on Meet the Press.

Tim Russert: Who, in his initial FBI interview stated he could not rule out the possibility that the subject of Wilson's Wife came up in his phonecalls with Libby, but is not absolutly certain that it would have been impossible. The same Tim Russert that once completely forgot about two phone calls he made, going so far as to accuse the other party of lying that the phone calls ever happened, until he was presented with documentary evidence that they actually did take place.

And those are the most credible witnesses the prosecution had. The rest were even worse.
7.5.2007 1:25pm
Ranger (mail):
jukeboxgrad

Exactly. But what they're trying to do is take a fact (that Armitage seems to be less of a hardcore Bushist than Libby) and invest it with all sorts of extra, inflated meaning: that Armitage is a leftist and so is Fitz. Then again, in BushWorld, any non-Bushist is a leftist.

I've never said Armitage was a leftist. Armitage did oppose the war in Iraq, whereas Libby supported it. Which brings us to the crux of the issue here. Fitz himself said in his presser that he didn't want to find leakers, because there are "good" leaks and "bad" leaks. But that is, in itself a political distinction. Presumably "good" leaks are those that support policies you agree with or work to damage policies you disagree with. Conversly, "bad" leaks support policies disagree with or damage policies you agree with. One might even go farther and say "good" leakers are "good" because their motives are "good" where as "bad" leakers are "bad" because their motives are impure.

Fitz took it upon himself to determine who were the good leakers and who were the bad ones. Fitz persued Libby because, to him, Libby was a "bad" leaker. Whereas he gave Armitage a pass because, to him, Armitage was a "good" leaker. That can be called many things, and it is within the limits of the law (just barely), but it is not "Justice" by any means.
7.5.2007 1:35pm
Ranger (mail):
jukeboxgrad,

Simple question: if Libby thought he was providing Miller with unclassified information, why did he insist that she hide his identity?

A simple answer: political reality. The atmosphere around the issue of pre-war intel was already so divisive that if the source of the information would have been the OVP's office, then many people would have simply disregarded it. Sourcing it back to a "former hill staffer" meant the information could have come from anywhere in the government, and therefore would have to be evaluated on its own, not based on the affiliation of the source (it could have been either a Republican or a Democrat).
7.5.2007 1:41pm
jukeboxgrad (mail):
ranger: "The most extensive discussion of Plame is in the State Department INR memo from early June, but that was never sent to the VP's office and only sent to the White House after Novak's article was already on the wires on 11 July."

Wrong. First of all, it's helpful to realize that there are two "INR memo[s]." Or, it would be more correct to say that there are two slightly different versions of one memo. There is an INR memo dated 6/10/03. But this same information was repackaged, in only slightly different form, on 7/7/03.

It's also helpful to realize that these memos only existed in the first place because Cheney, even before Wilson's op-ed, was asking all sorts of questions about Wilson's trip. Various people at State (and elsewhere) were running around trying to provide answers.

Anyway, you're suggesting no one in the White House or in Cheney's office saw these memos until "after Novak's article was already on the wires on 11 July." That's pure baloney. It's been widely reported that the second memo, at least, was 'perused' by Fleischer and various other officials on a flight to Africa on 7/7/03. In fact, it seems that the 7/7 memo was prepared specifically so Powell could take it on that flight and discuss it with various people. That flight carried various senior people, including Bush and Bartlett. See here and here.

We look forward to seeing proof for your claim, that "the State Department INR memo … was never sent to the VP's office and only sent to the White House after Novak's article was already on the wires on 11 July."
7.5.2007 1:42pm
paul lukasiak (mail):

The CIA briefer: Has no recollection of discussing Wilson or Plame with Libby before the Novak story came out. There is one page of a briefing book that has the words Joe Wilson, Valeri Wilson written on it, but he has no recollection of when he wrote that or what it refers to as there is nothing on the page ther relates to Niger or anything else the Wilson's might have been connected to.


oh really?

The June 14 Schmall notes on the TofC for Libby's briefing includes the question "[Why?] was the Amb[assador] told this was a VP office question" above the names "Joe Wilson" and "Valerie Wilson."

http://www.usdoj.gov/usao/iln/osc/exhibits/0124/GX70201.PDF

ANyone who thinks "this" wasn't a reference to Wilson's trip vis a vis Niger/Uranium is simply not serious.
7.5.2007 1:54pm
jukeboxgrad (mail):
ranger: "All of those conversations [between Cheney and Libby regarding Plame] were after Libby's July 10th or 11th phone conversation with Russert."

You are responding this claim I made: "Libby's grand jury testimony clearly indicates that Libby and Cheney discussed Plame on multiple occasions."

Why do you insist on making things up? This is from Libby's grand jury testimony:

Q. Okay. And is it fair to say that he [Cheney] had told you back in June, June 12th or before, prior to the Pincus article, that his [Wilson's] wife worked in the functional office of Counterproliferation of the CIA. Correct?
A. Yes, sir.


Have you ever considered a career in fiction?
7.5.2007 1:58pm
jukeboxgrad (mail):
ranger, here's more proof:

Q. And Vice President Cheney talked about it with you for the first time that your notes reflect, he brought up that Wilson's wife worked at the CIA in the functional Office of Counterproliferation. Correct?
A. Back in June.
Q. Back in June.
A. Yes, sir.
7.5.2007 2:03pm
jukeboxgrad (mail):
ranger: "Which the VP says he wrote after the Novak story came out as part of a re-assessment of Wilson's story in the wake of new information."

You're claiming that Cheney didn't write his note (pdf) until "after the Novak story came out." Really? When did Cheney ever say that?

And what reason would there be to believe such a claim? You're suggesting that Cheney didn't get interested in Wilson until post-Novak (7/14/03, when Novak wrote his famous column). But to do that, you have to ignore Libby's testimony, which clearly indicates that Cheney was interested in Wilson even pre-Wilson (7/6/03, when Wilson wrote his famous column).

As usual, you're making things up. We'll wait patiently while you attempt to prove otherwise.
7.5.2007 2:12pm
jukeboxgrad (mail):
atr: "Several of those conversations were before the Russert phone call according to the witnesses presented at trial (but I know--in your world none of those witnesses are 'credible')."

Indeed. And, as I've explained, one of those "witnesses" (who testified that Libby was discussing Plame with various people long "before the Russert phone call") was Libby himself.

Then again, we do indeed know that Libby isn't 'credible.' But Ranger feels differently, I guess.
7.5.2007 2:16pm
jukeboxgrad (mail):
anderson: "Under oath, he said that? When and where? And if it wasn't under oath, then excuse me for not caring."

It's not just that Cheney didn't say under oath what Ranger claimed (asserting that Cheney didn't scribble on the clipping of Wilson's article until after 7/14/03). It's that Cheney never said it, period (not even through a proxy, as far as I can tell; i.e., until Ranger came along). Ranger has a vivid imagination. But we already knew that.
7.5.2007 2:21pm
jukeboxgrad (mail):
ranger: "It is clear from Miller's notes and her own statements that she knew about Plame before she talked about her with Libby"

You've already burnt your pants to a crisp, but you seem to determined to repeatedly reignite them, as best you can.

This is what Miller said:

Soon afterward Mr. Libby raised the subject of Mr. Wilson's wife for the first time. I wrote in my notes, inside parentheses, "Wife works in bureau?" I told Mr. Fitzgerald that I believed this was the first time I had been told that Mr. Wilson's wife might work for the C.I.A.


If by "knew about Plame," you mean 'knew that Wilson was marri