Honor Among Thieves

Bush commutes Scooter Libby's sentence. I didn't think he would do it, but it's really the only honorable course of action available to him. It would be silly for Bush to pretend to believe that people deserve to be punished for breaking the law to help cover up his administration's crimes when he clearly believes no such thing. Now it's out there in the open.

This is, however, an opportunity to raise a point from Sandy Levinson's book -- is the pardon power really a good idea? It seems to be an open invitation to abuse.

Comments

Of course, he only commuted the sentence rather than giving Libby a pardon, so it's an admission of what we knew all along - the guy was properly convicted and deserves to have a felony conviction on his record.

As for the pardon power, it's a traditional power of the sovereign from time immemorial, and I'm pretty sure this case wouldn't be in the top 100 abuses of all time. I don't think it's worse than Clinton's pardons, and certainly not GHWB's pardons of the Iran-Contra crooks. That's the way it goes.

Posted by Steve | July 2, 2007 6:04 PM

1. I have no idea if the public will be disgusted with this is not: is there any polling?

2. Chalk up another victory for the mighty Peretz, part of the vast Libby defence coalition.

Posted by otto | July 2, 2007 6:07 PM

I'd be hesitant to get rid of pardon power for executives. The combined effect of dumb mandatory sentencing laws, technicalities in the justice system, and dipshit DAs can combine to really crush people under the wheels of "justice" (The case of the Georgia teen who got 10 years for a blowjob comes to mind).

Of course, executives seem rarely to use this power toward this good, but I like knowing it's there, nonetheless.

Posted by JH | July 2, 2007 6:08 PM

Too funny.

We're in Marx Brothers/Monty Python territory now.

Or we're finding out just how dangerous a cornered rat can really be.

Posted by alphie | July 2, 2007 6:08 PM

"to help cover up his administration's crimes"

Which crime did Libby cover up? I am not saying Libby didn't commit one, but even you have to admit there was no underlying crime.

Too bad he wasn't caught stealing and destroying highly classified documents from the National Archives, then he would only have gotten a $50,000 fine.

Posted by Dave | July 2, 2007 6:09 PM

What JH said. If you look at a lot of the habeas corpus jurisprudence, which places all kinds of procedural hurdles to overturning convictions in the name of "finality," one thing that the courts always fall back on is saying that there's executive clemency to handle the true injustice. If you get rid of that, you better find something to replace it with.

Posted by Glenn | July 2, 2007 6:11 PM

I suspected that the fix was in when the Libby defense suddenly shifted tactics - stopping the attacks on the White House and failing to have Libby and Cheney testify - in fact failing to present much of a defense at all.

Posted by GPS | July 2, 2007 6:17 PM

I do not believe that the congress could take away the power of the pardon, short of an amendment.

But I wonder - could the congress define the process involved in pardoning somebody? Could they say, for instance, that for the president to pardon a criminal, there must first be a conviction by a jury? Ie, you can't pardon a crime unless a crime has been committed?

In that case, a prosecutor could intentionally delay prosecution until after Bush left office, in order to avoid the possibility of a conflict-of-interest pardon.

I know, this wouldn't do anything in the Libby case. But it would make it so that presidents can't just issue blanket pardons for everything that occurred during their terms. That, in turn, would make it so that they might fear the law --- anything prosecuted after they leave office is fair game.

Posted by Josh Yelon | July 2, 2007 6:19 PM

Yglesias really sucks. I used to think him smart but this is the 3rd thing I've read today that shows his Harvard education has amounted to squat.

First, his failure to appreciate the difference between Roberts/Alito and Thomas/Scalia -- or even to know that, ya know, judicial opinions are important things. Maybe he shoulda gone to law school.

Second, his idiotic ruminations about Israel "romanticism" and the various reasons Israel doesn't have a "realist" school of foreign policy -- as if Oslo and decade long dealings with Arafat never happened.

now this -- plenty of reasons to be upset by this but since there was no underlying crime committed, a coverup of Bush's "crimes" is not one of them.

If this stuff gets you hired by the Atlantic I should quit my day job and start blogging.

Posted by ILP | July 2, 2007 6:21 PM

I see the "no underlying crime" mantra has reached a fever pitch. Here's a tip, guys, the reason no one can prove an underlying crime was committed was that Libby obstructed justice. Claiming to know with a certainty that there was no underlying crime is just a lie.

Posted by Steve | July 2, 2007 6:25 PM

As others have pointed out, prison was potentially leverage for getting Libby to flip on Cheney or Rove. There may have been nothing for him to flip on, and he may not have flipped anyway, but there it is.

I do like the bit in Bush's statements about leaving the fines in after Libby has garnered millions in financial support.

Posted by Sam Penrose | July 2, 2007 6:26 PM

plenty of reasons to be upset by this but since there was no underlying crime committed

WTF is this stupid shit? Yeah, Libby was just a senile old man with amnesia and dementia, entrapped by a liberal conspiracy.

Posted by Barbar | July 2, 2007 6:28 PM

Which crime did Libby cover up? I am not saying Libby didn't commit one, but even you have to admit there was no underlying crime.

Sigh. Conservatives love to pretend they don't understand why obstruction of justice is a crime. Libby lied when he said that he couldn't remember what role Dick Cheney played in the leak (the circumstantial evidence strongly suggests Cheney ordered the leak himself). This was an intentional lie (perjury) that Libby engaged in with the purpose of derailing Fitzgerald's investigation (obstruction of justice). Because of Libby's lies, Fitzgerald's investigation ground to a hault. Hence, Fitzgerald's inability to prove an underlying crime. There was no "underlying crime"? Of course not! Libby's lies guaranteed just that outcome!

When a key witness obstructs justice, it becomes impossible to establish the underlying crime. Why? Because the prosecutor has no evidence. Why? Because the witness lied about the evidence.

Pointing to the "lack of an underlying crime" as justification for letting someone off for obstruction of justice is either (a) stupid or (b) dishonest. Not sure which camp you fall in. Maybe both.

Posted by owenz | July 2, 2007 6:30 PM

"is the pardon power really a good idea?"

Yes.

Is electing an amoral moron President a good idea?

No.

Posted by Bruce Wilder | July 2, 2007 6:31 PM

How about we keep the Constitution just the way it is, and give Bush a good swift kick in the balls?

He's a man whose world is defined by nothing besides power and pain. By flouting the rule of law, he evades all limits on his power. Spare him physical pain, but I'd love to see the guy experience a good and thorough-going publication humiliation.

Deep breath.

Call the Red Sox, and ask them to invite him to throw out the first ball at their next home game. Tell him, 'yeah, everyone in the city would love to see you...'

Posted by lampwick | July 2, 2007 6:39 PM

Paris Hilton will now serve more time in jail than Scooter Libby.

Posted by Mark | July 2, 2007 6:39 PM

Very good, Mark.

Posted by otto | July 2, 2007 6:42 PM

Here are three rules of thumb that let you know the author of the comment is a right wing troll who is best ignored:

If the subject if Health Care and they bring up hip replacements in Canada.

If the subject is the US Attorney firings and they bring up the "but Clinton fired them all" nonesense.

If the subject is Libby and they say "but there was no underlying crime"

There may be a very rare exception, but I think this is a pretty safe set of assumptions:-)

Posted by Eric | July 2, 2007 6:44 PM

Hence, Fitzgerald's inability to prove an underlying crime. There was no "underlying crime"? Of course not! Libby's lies guaranteed just that outcome!

Exactly! Libby's crime was lying so that no "underlying crime" can be discovered! Why the hell is this so hard for wingnuts to understand? Actually I am positive they do understand it (you have to be an idiot not to, and obstruction of justice/perjury gets prosecuted every day in this country), they are just being good loyal team players.

I bet the next talking point is how Libby got a raw deal from the GWB-appointed judge and the Republican prosecutor.

Posted by Joshua | July 2, 2007 6:49 PM

This is how absolute the power of Presidential pardon is:

The current president could kill his successor and the incoming vice president (that would be a federal crime, not murder in a state jurisdiction; do it in DC, then totally federal). Do is on January 19th. Let's say his party is control of the House. Current president resigns; current VP becomes president for a day. Murderous ex-president is pardoned by 1 day president. Next day, the Speaker of the House becomes president.

The murderous president is then above justice, will have gotten away with murder.

Posted by hopeless pedant | July 2, 2007 6:50 PM

Scooter Libby risked jail by lying to cover up something that wasn't a crime. What a good guy! If only he could have found a lawyer to advise him! *sob* [/wingnuttery]

Posted by calling all toasters | July 2, 2007 6:53 PM

I didn't think he would do it,

Chump.

Posted by ed | July 2, 2007 7:00 PM

Al Capone wasn't a mobster, he just filled out a few tax forms incorrectly. Just in the same way Scooter didn't compromise national security secrets. He just lied with no motivation.

For the first time ever, I'm actually curious if Paris Hilton has any comment.

Posted by Jim E. | July 2, 2007 7:07 PM

Bigger fish will fry anyway... if the Democrats grow some backbone and time things correctly.

When we ever get to the bottom of the detainee torture scandle, Cheney and Rumsfeld will hopefully be brought up on war crimes... but long after Bush is out of the Whitehouse and America goes about trying to restore a little honor lost in the last 6 years.

Posted by Splinter | July 2, 2007 7:11 PM

Did any of you really expect Bush to do otherwise? The important thing now is how to respond to this -- and I notice Obama has already beat everyone else to the punch with a pretty good statement on it. (Hillary is still silent, probably because she's waiting for Mark Penn to do a poll on the subject.)

Meanwhile, keep in mind:
(1) Bush once again tried to split the difference, with the likely result that neither side will like him very much -- he officially agreed with the jury that there was a crime, but then argued that there should be no punishment at all for it! This doesn’t make any difference to him or Cheney -— they don’t give a damn what happens to the GOP after they leave office, as Chency has already publicly said —- but it should be hung around the neck of every 2008 GOP Presidential candidate.

(2) It CAN be hung around their necks; a landslide majority even of Republicans (51-34, according to Gallup in March) didn’t want Scooter to get off.

(3) Time for yet another major amendment to our now-ridiculously dysfunctional Constitution: one allowing Presidents to rescind all their predecesors pardons and commutations.

The only positive thing that might come out of the last 8 years would be belated recognition by the voters, and by Congress, that our supposedly splendid Constitution actually provides absolutely no legal protection aginst one-party dictatorship, because the Founders idiotically failed to see the rise of political parties at all -- and that the only thing that’s shielded us from this during the last 2 centuries is a combination of reluctance by either party to take that final step, with sheer lucky historical accidents (the radical policy split between Northern and Southern members of the Democratic “Party”; the fact that the Dems controlled Congress under Nixon, etc.) Somebody -- maybe Gingrich, but I suspect Addington -- noticed this, and pointed out to this administration that if you possess enough sheer gall, there is simply no legal way under the current Constitution to keep you from rapidly racking up authoritarian powers. Unfortunately, both the voters and Congress still seem determined to blindly worship the Golden Calf of our current Constitution -- until the next Administration does the same thing, that is. At that point, they may catch on.

Posted by Bruce Moomaw | July 2, 2007 7:39 PM

Hey, be a little imaginative. If you have to keep the pardon power, amend it so the governr/president can't pardon his own appointees.

Posted by David Weman | July 2, 2007 7:44 PM

Hooooold on, everybody saying "Fitzgerald couldn't establish an underlying crime because Libby obstructed"...I need to know how exactly does that jive with Fitzgerald reaching the conclusion that there was no underlying crime. Did he say "I think there's an underlying crime but I can't prove it" or did he decide there wasn't an underlying crime independently of Scooter Libby?

Posted by Bill | July 2, 2007 7:48 PM

Bill, were you literally born yesterday? If so, I'm sure someone will be happy to answer your question.

Posted by grh | July 2, 2007 7:52 PM

Did he say "I think there's an underlying crime but I can't prove it" or did he decide there wasn't an underlying crime independently of Scooter Libby?

The former, although he framed it in more neutral terms. To prove a violation of the IIPA, you have to show that the defendant had actual knowledge that the CIA agent's employment status was classified. Because of Libby's lies regarding how he found out about Plame, it wasn't possible for the prosecution to prove beyond a reasonable doubt that anyone actually knew Plame was covert. And when I say "anyone," I mean Cheney.

The argument that there was no underlying crime rests on the claim that Plame wasn't covert under the IIPA, because she supposedly hadn't been outside the country in the last 5 years and so on and so forth. Fitzgerald quite clearly said in his court filings that he had no problem whatsoever determining that Plame was covert; you'd expect a prosecutor to cover these technical issues on day one, and you'd be right in this case. If Fitzgerald had been able to establish the missing element of knowledge, which he might have been able to do if there had been no obstruction, he apparently would have had no hesitation about bringing charges under the IIPA.

Posted by Steve | July 2, 2007 7:55 PM

Please note:

Bush will now continue to claim that he can't comment on the leak as Libby keeps appeals going.

Posted by GPS | July 2, 2007 8:00 PM

Marty Peretz must be happy.

Posted by Jon John | July 2, 2007 8:25 PM

I had no doubt Bush would pardon Libby, because like a good soldier Libby fell on his sword for his king and kept his mouth shut.

It's like in Goodfellas when Ray Liotta & Joe Pesci get caught selling black market smokes. They keep their mouths shut, do their time, and then get taken care of by their mafia pals when they get of jail.

Except this is real, and the mafia controls the presidency. Nobody squeals, and nobody goes to jail.

Posted by The CarpetMuncher | July 2, 2007 8:26 PM

The greater context of this Libby thing is how it affects the presidential race. Most importantly how it affects Senator Clinton, who has the impossible task of needing to address this issue.

There is simply too much of the Mark Rich-type baggage with Clinton. She cannot attack the corruption, because she herself was part of that same corruption.

This is Hillary's achilles' heal, her inability to fight with a full arsenal. And it's why smart Democrats will be looking for a better option, no matter how personally impressive she may be.

It is simply not a reasonable option to continue this Bush/Clinton stuff, the entire country is OVER it, we just want it to go away, and we want a clean go at it.

Posted by The CarpetMuncher | July 2, 2007 8:41 PM

It was always my belief that the pardon or commmutation power came from the curious fact that the executive, - whether president or king - ran the prisions and police and was therefore boss of the guards.

Obviously the guards let a prisioner out when the boss tells them to.

And since crime is an offence to the state the top executive can surely decide he is no longer offended. Or even that he was never offended at all.

I think civil judgements cannot be altered by the executive anywhere. But I don't know that.

I prefer to not go beyond the evidence. Libby lied or several witnesses did. I think Libby. The rest is speculation. IMO he simply didn't think very clearly of consequences. His lies did nothing that simple evasions wouldn't have done just as well with less risk.

Bush should have let him marinate for a few months before commutation. I think three years is too much and nothing is too little.

Posted by K | July 2, 2007 8:53 PM

Bruce,

Split the difference my ass. They commuted the sentence to preserve Scooter's ability to plead the fifth should he be called before Congress. This was another Addington special. Bush had nothing to do with it, other than signing his name at the bottom.

Oh and Matt said nothing about "underlying crimes." He said that Scooter covered up the administrations crimes, and Cheney basically admitted as much when he started having his tantrums about how Scooter got indicted and Rove didn't. It's obvious from his "oh, I got it from a reporter" lie that at least part of Libby's motivation was protecting the other leakers who participated in the smear. So, if you'd like, the administration's crime can refer to Rove's own obstruction of justice and/or perjury that Libby and Cheney could have given Fitz on a silver platter but for this bullshit today.

Posted by MSB | July 2, 2007 8:55 PM

Look the founders anticipated this and their remedy was explicit!

IMPEACH

From Madison, Federalist 65:

"[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty..."

cit: http://findarticles.com/p/articles/mi_qa3805/is_199807/ai_n8801616/pg_54

Posted by Evan | July 2, 2007 8:55 PM

The Founder's "explicit remedy" was based entirely -- as they themselves said -- on their weird assumption that political parties would never come into existence. Any political party can easily hold 1/3 of the Senate, and forever prevent any crook of its own party from being removed from office that way. Except in extremely rare cases like Nixon, their concept of impeachment -- like a lot of the rest of the system of government they developed as a first-draft attempt at desigining a democracy -- is totally useless.

Posted by Bruce Moomaw | July 2, 2007 9:03 PM

"Sigh. Conservatives love to pretend they don't understand why obstruction of justice is a crime."

What makes you think the conservatives who have trolled here in this thread are pretending not to understand? I'm perfectly willing to believe their fox-watching ignoramuses myself.

Posted by huh | July 2, 2007 9:09 PM

For myself I have no problem with amending the Constitution to revoke the president's power to pardon someone from said president's administration when convicted of committing a crime in the course of carrying out their official duties (ie., while doing something like what Shrub just did for Libby).

No one should ever have the power to interfere with justice in that fashion.

Posted by oddjob | July 2, 2007 9:26 PM

It would be silly for Bush to pretend to believe that people deserve to be punished for breaking the law to help cover up his administration's crimes when he clearly believes no such thing.

Maybe you've forgotten the 7 soldiers convicted and currently serving long sentences for the abuse at Abu Ghraib?

Posted by jinchi | July 2, 2007 10:23 PM

Matt,
Calm down

Lots of worse stuff to worry about--Darfur, SriLanka, Colombia, etc.

Posted by rob | July 3, 2007 12:22 AM

I do think that the power of pardon has its place in a democratic constitutional order. But I also think that this power should not be vested in the hands of the chief executive. Instead, it should be in the hand of someone detached from day-to-day politics who has a considerable degree of independence from the ruling coalition, party etc. This, I think, is the advantage of parliamentary systems where the role of chief executive is seperated from the role of head of state (may the letter be a president or a monarch).

Posted by Patrick | July 3, 2007 2:46 AM

Leahy and Schumer shd now take the position that Libby's commutation in effect "immunizes" Libby. He shd be subpoenaed by the Judiciary Comittee and compelled to testify w/o recourse to his 5th Amendment right.

Posted by helmling | July 3, 2007 10:31 AM

Leahy and Schumer tend to say anything. But the "immunizes" idea seems off target.

A conviction for obstruction and/or perjury does not prevent trial for another crime. If the Judiciary Committee or others undercover evidence of such a crime then Libby can be tried for it.

Libby has lost no fifth amendment right.

The commmittee can now offer Libby immunity in return for truthful testimony related to the inquiry. That is undisputed. A process must be followed and it is not done by statements to the media.

Libby does not lose his fifth amendment rights if he is immune. In fact he gains a right he does not yet have - he can reveal his crimes, if any, w/o being prosecuted.

Posted by K | July 3, 2007 12:18 PM