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FindLaw's Writ - Lazarus: President Bush's Decision to Commute Scooter Libby's Sentence Why It's Indefensible, Even if One Agree with Republican Critiques of the Sentence

President Bush's Decision to Commute Scooter Libby's Sentence: Why It's Indefensible, Even if One Agrees with Republican Critiques of the Sentence

By EDWARD LAZARUS
Thursday, Jul. 05, 2007

Most of what people are saying about President Bush's decision to commute Scooter Libby's sentence is colored by their views of the Iraq war, and of the Bush Administration's national security policies.

For liberals, the commutation perpetuates the Administration's cover-up of the lies it used to take the nation to war, as well as the campaign it conducted to silence its critics. From this perspective, Scooter is a man who knows where all the skeletons are buried - including those implicating his former boss Vice-President Cheney -- and the commutation is a quid pro quo for his silence.

For some conservatives, in contrast, the commutation is the bare minimum required to end the unwarranted persecution of a loyal public servant. For others, even if Scooter committed the crime for which he was convicted, the commutation represents rough justice for his peripheral role in what was always a manufactured scandal arising from the unimportant outing of Valerie Plame as a CIA employee.

I won't pretend that one can create an "objective" view of the commutation. This hits the rawest nerve in a body politic already wracked with pain.

But there is an obligation to make some assessment. We are living through perilous political times. In the wake of the Clinton impeachment, scandals galore, and stunning claims of Executive power and governmental secrecy, the commutation raises yet further concern that a paralyzing partisanship has swallowed our ability to engage in reasoned politics and that, at the risk of being alarmist, the vitality of our democracy is threatened.

The Decisionmaking Process: Flouting Established Department of Justice Guidelines

A reasonable starting point is to look at the way the President went about making his decision, and the reasons he and the White House staff have advanced to justify it. Looking at the issue this way raises deep concerns.

As a procedural matter, the President chose to bypass long-established Department of Justice guidelines for exercising his pardon and commutation power.

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. The idea, of course, is to get a full perspective on the individual under consideration before exempting that person from the usual operation of the law.

In Scooter's case, one can understand, to some extent, the President's decision to bypass this process. After all, the facts and circumstances of the case are no mystery.

The DOJ guidelines, however, also contain a substantive component: They describe the factors ordinarily to be considered when assessing whether to commute a sentence - that is, they describe the very unusual circumstances under which the President can justifiably single out one person for special treatment, in a way that does not undermine public confidence in the bedrock concept that all persons should stand equal before the law.

To begin with, the guidelines admonish that commutations ordinarily should not be given until the individual under consideration has served some period of time in jail, and has either exhausted or given up his or her appeals. Furthermore, the guidelines emphasize that commutations should be reserved for individuals who have accepted responsibility and expressed remorse for their criminal conduct.

The reason for these limitations is clear and inarguable. Because a commutation does not call into question the underlying conviction, it is expected that commutations will be reserved for people who are genuinely remorseful - as opposed to those who continue to deny guilt, through the legal process or otherwise. In addition, because the individual has committed a felony, there is an expectation that he or she will serve at least some jail time before being given a break.

Scooter, of course, does not come within a country mile of qualifying for these preconditions set forth under the guidelines. Let's suppose, following some Republicans' arguments, that we were to exempt him from the jail-time requirement on the theory that any incarceration would be too much given that the offense is purportedly so minor. It is still clear beyond a shadow of a doubt that Libby has shown no acceptance of responsibility at all, much less any remorse, for his criminal conduct. Under the DOJ guidelines, this omission would be the end of the story.

But let's pretend, too, that these threshold problems could somehow be overcome. The DOJ guidelines go on to describe the kinds of situations in which commutation makes sense. These include defendants' critical illness or old age, or extraordinary conduct post-conviction, or extraordinary service to the government, such as active cooperation with government prosecutors.

Obviously, Scooter does not meet the first or second criteria and, as for the third, far from cooperating with the government, he has stonewalled prosecutors. It is no secret that Special Prosecutor Fitzgerald believes Vice President Cheney was culpable here; Libby in no way cooperated in the effort to go after Cheney, and indeed, may have used his perjury to make going after Cheney impossible. Whether or not one agrees with Fitzgerald that Cheney likely bore responsibility here, it cannot be argued that Libby failed to cooperate with the Special Prosecutor's effort to determine whether this was, in fact, the case.

Finally, the guidelines do recognize that "disparity or undue severity of sentence" is a recognized basis for commutation. And this brings us to the President's express justification for his action. In his view, Scooter's sentence was "excessive."

The Dubiousness of the President's Claim that the Sentence Imposed Here Was "Excessive"

But the President's statement is question-begging: Excessive, in relation to what? Criminal sentences cannot be excessive in the abstract. There has to be some frame of reference - a baseline against which to measure what is excessive and what is not. This is why the DOJ guidelines speak in terms of "disparity" and "undue severity" - rather than plain old length.

Seen in this light, it is very difficult to establish that Scooter's sentence was excessive.

First, let's set aside the now much-discussed fact that from his time as both Governor of Texas and as President, Bush enjoys an unblemished record of refusing to find excessiveness in criminal sentences -- including the 57 death sentences that he saw through to execution. This suggests an element of hypocrisy, but does not really answer whether Scooter's sentence was out of whack.

The real problem with the excessiveness justification is that it does not fit the facts. As I explained in a previous column, Scooter's sentence was reasonably justified under the U.S. Sentencing Guidelines. These guidelines are designed precisely to avoid sentencing disparity (either excessive severity or excessive leniency).

It's awfully hard to argue that a sentence falling within the sentencing guidelines (and, incidentally, one imposed by a Republican appointee - indeed, an appointee of President George W. Bush) is somehow "excessive." Moreover, the 30-month sentence Scooter received is comfortably in line with other sentences handed down for perjury and obstruction of justice, including sentences that the Administration has aggressively defended in court. For this reason, the prosecutor has issued a remarkable statement publicly disagreeing with President Bush's assessment of Scooter's sentence.

As the President noted, the U.S. Probation Office came up with a different guideline calculation than the prosecutor. According to the President, this showed the excessiveness of Scooter's sentence.

Even If One Agrees the Sentence Was Excessive, It Should Have Been Reduced, Not Eliminated

But even if one were to decide that the Probation Office got it right (notwithstanding the judge's contrary ruling), and even if one were to further decide that the difference between the Probation Office recommendation and the sentence meted out was sufficiently extraordinary as to create an "excessive" sentence, this would still provide no reason to commute Scooter's entire jail sentence. After all, the Probation Office calculated the guidelines as requiring significant jail time - more than a year in fact.

By the President's own logic, then, he should have merely reduced Scooter's sentence to that amount, not eliminated it entirely. Indeed, by wiping out Scooter's entire jail sentence, Bush has created the very kind of sentencing disparity that the commutation power, under the DOJ guidelines, is designed to eliminate.

Other White House justifications are equally porous. These include, most prominently, the somewhat hackneyed "he and his family have suffered enough" rationale.

It is certainly true that Scooter's family has suffered grievously through this ordeal and that, as a former top government official, Scooter's own downfall has been particularly steep. But these aspects of the situation provide no basis for a commutation. It is routinely true that criminal prosecutions wreck havoc on families. The suffering here has been more public, but no different in kind. And as for Scooter's fall from exalted status, it cannot be that someone who breaches a high public trust is more deserving of a commutation than someone who never held high office. What happened to claims that with great power, comes great responsibility?

Press Secretary Tony Snow also tried to suggest that somehow the commutation was designed to maintain confidence in the jury system. How it would do this, is anyone's guess. The sentence, even if excessive, cast no doubt on the jury system. The sentencing was done by the judge - and had no effect one way or the other on the integrity of the jury system. (Nor did the verdict itself cast doubt on the jury system - as the trial judge recognized when he endorsed the jury's verdict as supported by overwhelming evidence of guilt.

An Indefensible Commutation Suggests an Administration Arrogantly Above the Law

Bush's failure of justification is damning. Commutation, especially in a high-profile and politically-charged case, is a serious undertaking. It is an unreviewable act that has the extraordinary effect of exempting a single individual from the usual application of the law.

Here, the presiding judge, a Republican, deemed the evidence of Scooter's guilt to be overwhelming. Moreover, a three-judge panel of the Court of Appeals, including two Republicans, has concluded that Scooter has no substantial issues on which to base an appeal.

Against this backdrop, Bush bears the burden of showing that his act of commutation served an aspect of fairness and justice that would be otherwise slighted in Scooter's case. Absent such a rationale, the commutation must be seen as one of three things (or some combination of any of three): a decision simply to substitute Bush's sense of justice for that of the court's; an act of political and personal loyalty; or, more nefariously, an attempt to insure Scooter's silence.

To varying degrees, all three possibilities point to an Administration that considers itself above customary legal constraint - a consistent and dangerous theme for this Administration. Since I write this on July 4, it seems only fitting to describe this as un-American - or at least hostile to the America we desire to be.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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