The Libby Pardon, the Federal Sentencing Guidelines, and the Ashcroft Memorandum:

By Orin Kerr on July 4, 2007 1:12 am

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.

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Rather, with the exception of “rare” and “exceptional” circumstances, they have to charge everything they can to try to max out the prison term the defendant will receive. Here’s the key passage:

It is the policy of the Department of Justice that, in all federal criminal cases, federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case, except as authorized by an Assistant Attorney General, United States Attorney, or designated supervisory attorney in the limited circumstances described below. The most serious offense or offenses are those that generate the most substantial sentence under the Sentencing Guidelines, unless a mandatory minimum sentence or count requiring a consecutive sentence would generate a longer sentence.

While there is an exception for “exceptional circumstances” cases, the memo warns that those circumstances must be “rare” so that “the goals of fairness and equity will [not] be jeopardized.” The basic rule is that prosecutors should charge everything they can prove in a way that will maximize the punishment imposed.

It seems to me that from the standpoint of equal treatment between Libby’s case and other criminal cases, the question is whether Bush’s reasons for commuting a sentence would have justified charging Libby with only a relatively minor offense if the case had been brought by a typical Assistant U.S. Attorney. Put another way, would the arguments the President considered in support of commuting Libby’s sentence be sufficient to constitute “exceptional circumstances” that would have allowed for different charging under the Ashcroft memo?

They don’t seem that way to me. The circumstances mostly seem like pretty routine facts in white collar crime cases generally (first time offender, etc.) and perjury/obstruction cases more specifically (no underlying crime, the government shouldn’t have asked in the first place, etc.). Whether you agree with the President’s arguments or not as an abstract matter, I don’t think an AUSA would get very far arguing that the the facts amount to “exceptional circumstances” under the Ashcroft memo.

If I’m right about that, I think it raises an important question: 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?

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