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This post, written by Jeralyn Merritt, originally appeared on The Huffington Post
UPDATE: Bush says he hasn't ruled out a full pardon for Libby. For footage of the Decider scroll down and click "read the rest of this post on the flip side" at the end.
President Bush's commutation of I. Lewis "Scooter" Libby's sentence is simply stunning, both in its hypocrisy and its arrogance.
His spokespersons had assured the public he would not interfere in the judicial process until the appeals court had decided the merits of his appeal.
"Scooter Libby still has the right to appeal, and therefore the president will continue not to intervene in the judicial process," said White House spokeswoman Dana M. Perino. "The president feels terribly for Scooter, his wife and their young children, and all that they're going through."
Here's Tony Snow, asked about a pardon at his press briefing yesterday: "What the President has said is 'Let the legal process work itself out.' We're just not engaging in that right now."
Yet, hours after the D.C. Court of Appeals denied an appeal bond for Libby, the President acted, not by granting Libby a pardon, but by commuting his jail sentence.
His stated reason for the commutation reeks of disingenuity.
Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.
I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.
Bush didn't just reduce Libby's prison term to a lesser amount that was not, in his view, excessive. He eliminated it altogether.
While the Probation Report itself is not public, my review of the pleadings referencing it and the sentencing hearing transcript in the case indicates the Probation Department didn't recommend that Libby spend no time in jail. It found his sentencing guideline range to be 15 to 21 months (instead of 30 to 37 months) and it found the presence of factors that warranted the Judge considering departing below the guidelines. It stated that if the Judge agreed those factors were present and warranted a lesser sentence, the final sentencing range could (not should) drop to a level allowing for either a split sentence of prison and home detention or straight probation.
Judge Walton, in sentencing Libby, carefully considered the grounds for departure before concluding they didn't negate the need for a prison sentence. He's the Judge, that's his call. His decision was subject to review by the Court of Appeals. Bush's decision to short-circuit the process rendered both the Judge's sentencing decision and appellate review of it meaningless.
What changed between the time Dana Perrino and Tony Snow made their pronouncements and today? It wasn't Scooter's sentence. It was only that the Court of Appeals decided Libby would have to serve it before the legal process finished playing out.
At the same time Bush has his Attorney General calling upon Congress to make every federal crime subject to a mandatory minimum sentence, thereby preventing judges from imposing an individually tailored sentence based on their view of the offender's character and mitigating factors, he has no qualms making an exception for a single member of his Administration.
The proposed Sentencing Reform Act will:
* Restore the binding nature of the guidelines by making the bottom of the guideline range for each offense a minimum sentence that must be imposed when the elements of the offense are proven;
Hypocrisy, thy name is Bush.
Bush's arrogance is apparent from the extent to which Scooter's clemency decision departs from Justice Department guidelines on pardons and clemency.
Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding.
Patrick Fitzgerald, in a carefully worded statement (pdf), disputes that Libby's sentence was excessive. Was he consulted on the commutation? He should have been. The DOJ Manual provides:
The Pardon Attorney routinely requests the United States Attorney in the district of conviction to provide comments and recommendations on clemency cases....The views of the United States Attorney are given considerable weight in determining what recommendations the Department should make to the President.
....The Pardon Attorney also routinely requests the United States Attorney to solicit the views and recommendation of the sentencing judge.
It's all part of a well-delineated process.
The Pardon Attorney, under the direction of the Deputy Attorney General, receives and reviews all petitions for executive clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case.
If the requisite investigation was conducted with a chance for the prosecutor and judge to weigh in, followed by a report and recommendation, the process took some time. Rome wasn't built in a day.
Inquiring minds want to know, was protocol and Justice Department policy followed or did Bush unilaterally make this decision, perhaps with his beleaguered Attorney General or the Vice President, without moving through the proper channels?
Does anyone doubt that Dick Cheney, whose fingerprints were all over the investigation into the leak of Valerie Plame's identity, called in a chit to spare Libby?
Finally, amidst all the protests and cheers that Scooter Libby dodged the warden with a get of out jail free card, will anyone remember, as Bob Dylan might say, that the Vice President of the United States didn't have to stand naked?
UPDATE: Bush won't rule out full Libby pardon
Spokesman says president's satisfied for now with commutation of jail term
The Associated Press
Updated: 1:04 p.m. ET July 3, 2007
WASHINGTON - President Bush on Tuesday refused to rule out an eventual pardon for former White House aide I. Lewis "Scooter" Libby.
"As to the future, I rule nothing in and nothing out," the president said a day after commuting Libby's 2 1/2-year prison term in the CIA leak case.
Bush said he had weighed his decision carefully to erase Libby's prison time. He said the jury's conviction of Libby should stand but that the 30-month prison term was too severe.
"I made a judgment, a considered judgment, that I believe was the right decision to make in this case," the president said. "And I stand by it." At the same time, he left the door open for the possibility of a pardon later.
Bush spoke to reporters Tuesday after visiting wounded soldiers at Walter Reed Army Medical Center. His decision was roundly criticized by Democrats; Republicans were more subdued, with some welcoming the decision and but some conservatives saying he should have gone further.
Earlier Tuesday, chief Bush spokesman Tony Snow had declined to rule out the possibility of an eventual pardon and called the president satisfied with his decision to commute Libby's 2 1/2-year prison sentence.
"He thought any jail time was excessive. He did not see fit to have Scooter Libby taken to jail," Snow said.
The spokesman told reporters at a White House briefing that even with Bush's decision, Libby remains with a felony conviction on his record, two years' probation, a $250,000 fine and probable loss of his legal career. "So this is hardly a slap on the wrist," Snow said. "It is a very severe penalty.
U.S. District Judge Reggie Walton, who sentenced Libby to prison, declined Tuesday to discuss the case or his views on sentencing. "To now say anything about sentencing on the heels of yesterday's events will inevitably be construed as comments on the president's commutation decision, which would be inappropriate," the judge said in an e-mail.
Clemency granted
With prison seeming all but certain for Libby, Bush on Monday suddenly spared the former chief of staff to Vice President Dick Cheney. His move came just five hours after a federal appeals court panel ruled that Libby could not delay his prison term. The Bureau of Prisons had already assigned Libby a prison identification number.
Snow was pressed several times on whether the president might eventually grant a full pardon to Libby, who had been convicted of lying and conspiracy in the CIA leak investigation. The press secretary declined to say anything categorically.
"The reason I will say I'm not going to close a door on a pardon is simply this: that Scooter Libby may petition for one," Snow said. "But the president has done what he thinks is appropriate to resolve this case."
"There is always a possibility - or there's an avenue open - for anybody to petition for consideration of a pardon," he added.
Snow did suggest that Bush was "getting pounding on the right for not granting a full pardon."
Asked whether Cheney - who calls Libby a friend and who has enormous influence within the White house - had pressed for Bush to commute Libby's sentence, Snow said, "I don't have direct knowledge. But on the other hand, the president did consult with most senior officials, and I'm sure that everybody had an opportunity to share their views."
"I'm sure that the vice president may have expressed an opinion ... he may of recused himself. I honestly don't know," Snow said.
However, the president made the decision without seeking any advice from the Office of the Pardon Attorney at the Justice Department, the White House had previously acknowledged.
Snow defended Bush's decision to not follow the usual course of running the matter past the Justice Department, saying details of the case were still fresh in everybody's mind, and that the president did not need to be brought up to date on details of the case.
A White House apology
Democrats have charged cronyism in sparing Libby jail time. But Snow said, "The president does not look upon this as granting a favor to anyone, and to do that is to misconstrue the nature of the deliberations."
"He spent a lot of time trying to figure out how to maintain the faith in the jury system, and he did that by keeping intact the conviction and some of the punishments," Snow said.
Snow was asked by a reporter if anyone in the administration would ever apologize for what prompted the entire investigation - public disclosure that Valerie Plame, the wife of sharp anti-war critic Joseph Wilson, was an undercover CIA officer.
"Yeah, it's improper to be leaking those names," Snow said. Pressed on whether someone in the administration owed the American public an apology, Snow said, "I'll apologize. Done."
Wilson, meanwhile, suggested the president's decision was a cover-up attempt to protect Cheney and perhaps his own office. He said Congress should investigate whether the president and Cheney were obstructing justice. "It's about them," Wilson told MSNBC from Santa Fe, New Mexico. Wilson, Plame and their children moved to Santa Fe earlier this year.
In an interview with APTN, Wilson called Bush's action "a continuation of the cover up for which Scooter Libby was originally convicted."
Special Prosecutor Patrick Fitzgerald disputed Bush's assertion that the prison term was excessive. Libby was sentenced under the same laws as other criminals, Fitzgerald said. "It is fundamental to the rule of law that all citizens stand before the bar of justice as equals."
Libby's attorney, Theodore Wells, said in a statement that the Libby family was grateful for Bush's action and continued to believe in his innocence.
Because he was not pardoned, Libby remains the highest-ranking White House official convicted of a crime since the Iran-Contra affair.
That didn't stop an avalanche of criticism from Democrats.
"Libby's conviction was the one faint glimmer of accountability for White House efforts to manipulate intelligence and silence critics of the Iraq war," said Senate Majority Leader Harry Reid. "Now, even that small bit of justice has been undone."
House Speaker Nancy Pelosi, D-Calif., said Bush's decision showed the president "condones criminal conduct."
Tagged as: libby, justice department, bush, gonzales, cheney
Jeralyn Merritt is a criminal defense attorney in Denver. She served as one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City Bombing trial. She has been a television legal analyst since 1996, most frequently appearing on MSNBC and Fox News, and is the creator and principal author of the weblog, TalkLeft: The Politics of Crime.)
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