Scooting On Justice: Bush Lets Loyal Crook Walk

Random Lengths News | July 12, 2007
President Bush's commutation of I. Lewis "Scooter" Libby Jr.'s 30-month prison sentence for perjury, obstruction of justice and lying to the FBI drew sharp criticisms from across the political spectrum. House Speaker Nancy Pelosi called it "a betrayal of trust of the American people." Senate Majority Leader Harry Reid called it "disgraceful." And while many Bush loyalists and Beltway insiders continued to portray the convicted felon as a noble victim, even the right-wing Washington Times said the commutation was "neither wise nor just."

"Perjury in defense of wartime deception is now okay, as far as the President is concerned," wrote libertarian conservative author Andrew Sullivan (The Conservative Soul), who soured on Bush some time ago. "I retained some minimal respect. No longer. We now know full well what his beliefs are: the law is for other people, not himself, his friends or his apparatchiks."

It was Bush's first clemency action (pardon, commutation or remission of fine) for a sentence passed after 2000. He justified his action by calling the sentence "excessive," despite the fact it fell within federal sentencing guidelines -- guidelines the Bush Administration has vigorously defended, most recently in a Supreme Court case, Rita v. U.S., decided 6-3 in their favor on June 21. Highly-decorated 24-year Marine veteran Victor Rita (who served in Vietnam and Gulf War I) was sentenced to 33 months for crimes similar to Libby's. In his first term, Bush took fewer clemency actions than any president since Thomas Jefferson, except for two who died in office early in their terms. As Texas governor, he took fewer clemency actions than any governor since the 1940s.

While some Democrats either pulled their punches, or resorted to abstractions, the New York Times put in bluntly: "Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell." And former Time, Inc. editor-in-chief Norman Pearlstine concurred, calling it "a cover-up, pure and simple."

Bush's father similarly pardoned six individuals involved in the Iran-Contra Affair (selling arms to Iran for release of hostages, and using the proceeds to support Nicaraguan terrorists), including former Defense Secretary Caspar Weinberger, who had yet to stand trial and conceivably could have implicated Bush Sr., who previously claimed to have been "out of the loop."

The investigation Libby torpedoed did reveal that Vice President Cheney was actively involved in the chain of events that exposed the identity of covert CIA Agent Valerie Plame. Plame is the wife of Ambassador Joseph Wilson, who was targeted for retaliation after writing an op-ed revealing that Iraq had not sought to purchase uranium from Niger -- a key Bush Administration claim leading to the invasion of Iraq.

"The president's actions send the message that leaking classified information for political purposes is acceptable," Wilson said. "Mr. Libby not only endangered Valerie and our family, but also our country's national security."

"Bush's rationale might have had some merit had Libby been convicted solely of perjury," Pearlstine wrote at "But that isn't what happened. In addition to perjury, Libby was convicted of obstruction of justice. That was the most important charge against him. Patrick Fitzgerald's summation to the jury and his sentencing recommendation made it clear that Libby's obstruction precluded him from ever determining whether his boss, Vice President Dick Cheney had broken the law and what role the White House had played in outing Plame. 'There is a cloud over the Vice President,' Fitzgerald said in his closing argument. 'That cloud is there because the defendant obstructed justice.'"

Bush commuted Libby's sentence just hours after an appeals court panel turned down Libby's request to remain free on bond pending his appeal, meaning Libby would have had to report to prison within days.

"The President chose to bypass long-established Department of Justice [DoJ] guidelines," former federal prosecutor Edward Lazarus wrote at "These guidelines recommend and anticipate that the Administration will consult with the lead prosecutor on the case, and even with the sentencing judge, before deciding on a commutation."

Furthermore, the guidelines state, "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."

Strong statements were issued almost immediately by Democratic presidential candidates.

"Today's decision is yet another example that this Administration simply considers itself above the law," said front-runner Senator Hillary Clinton (D-NY). "This case arose from the Administration's politicization of national security intelligence and its efforts to punish those who spoke out against its policies. Four years into the Iraq war, Americans are still living with the consequences of this White House's efforts to quell dissent. This commutation sends the clear signal that in this Administration, cronyism and ideology trump competence and justice."

"This decision to commute the sentence of a man who compromised our national security cements the legacy of an Administration characterized by a politics of cynicism and division, one that has consistently placed itself and its ideology above the law," said Senator Barack Obama (D-IL). "This is exactly the kind of politics we must change so we can begin restoring the American people’s faith in a government that puts the country’s progress ahead of the bitter partisanship of recent years."

"Only a president clinically incapable of understanding that mistakes have consequences could take the action he did today," added former Senator John Edwards (D-NC). "President Bush has just sent exactly the wrong signal to the country and the world. In George Bush's America, it is apparently okay to misuse intelligence for political gain, mislead prosecutors and lie to the FBI. George Bush and his cronies think they are above the law and the rest of us live with the consequences. The cause of equal justice in America took a serious blow today."

In addition to the DOJ guidelines, Bush apparently violated his own administrative policies, according to Timothy W. Floyd, Professor of Law at Mercer University in Macon, Georgia.

In an email posted online at the Statutory Construction Blog, part of the respected Law Professor Blogs Network, Floyd described a March 2003 meeting with then-White House Counsel Alberto Gonzales, who described “three things about President Bush's policy in considering requests for commutation. First, that President Bush would not consider commutation if he believed that the case had already received full and fair consideration by the jury and the courts who heard the case. Second, that the President would not consider the request until he had a recommendation from the Department of Justice. Finally, he said that the President would not act on any request for commutation until all judicial avenues in the case had been exhausted."

A vigorous discussion has erupted in legal circles over the effect that the commutation could have on federal sentencing.

"In commuting I. Lewis Libby Jr.'s 30-month prison sentence on Monday, President Bush drew on the same array of arguments about the federal sentencing system often made by defense lawyers -- and routinely and strenuously opposed by his own Justice Department," reporter Adam Liptak wrote in the New York Times.

Douglas A. Berman, a law professor at Ohio State University, called the commutation "hypocritical and appalling," considering the Administration's hard-line stance on sentencing guidelines, while Ellen S. Podgor, law professor at Stetson University in Florida predicted "a new motion called 'the Libby motion.'" She explained, "It will basically say, 'My client should have got what Libby got, and here’s why.'"

While Libby apologists still rail against a partisan witch-hunt, no Democrats controlled any part of the process -- except possibly on the jury. The investigation was instigated at the request of Bush's CIA. Bush's first Attorney General, John Ashcroft (a former GOP Senator) appointed the special prosecutor Patrick Fitzgerald (a registered independent, appointed US Attorney under Bush). The federal trial judge, Reggie B. Walton, was appointed by Bush, following previous appointments to the D.C. Superior Court by Reagan (1981) and Bush Sr. (1991). The three-judge Appeals panel that unanimously turned down Libby's bond appeal had a two-to-one majority of Republican-appointed judges.

Still, some passionate Libby supporters were angry with Bush for abandoning the "partisan witch-hunt" fantasy and instead commuting the sentence as "excessive."

"For many conservatives, it was exactly the wrong way to approach the problem," conservative author Byron York wrote in the Washington Post. "If Bush had pardoned Libby because the CIA leak probe never should have happened, fine. But don't play judge, Mr. President -- that's not your branch."

On the other hand, Bush defenders sought to deflect heat from him by shifting attention to Bill Clinton, whose pardon of fugitive financier Marc Rich was a favorite topic for the first few months of Bush's first term.

Scooter Libby was Rich's attorney for 15 years.

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