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.
My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.
The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.
In other words, for political reasons the remaining pardon will have to wait until the closing weeks of the Bush presidency.
For the record, I continue to believe that the Libby prosecution was little more that raw partisan politics by other means. For that matter, I agree with Bush that the sentence was harsh. More to the point, I am inclined to think Libby should have been permitted to remain free on bail pending his appeal.
No, that isn't exactly par for the course, but damned little about this trial has been, anyway. Bush's decision will immediately be judged either as yet more arrogant abuse of power or as an act of courageous and politically dangerous loyalty. I should think by now it is well understood that any support I ever gave, however grudgingly, to Bush has long since vanished. However, I can't help but think that, on balance, he's done the right thing here.
UPDATE: Well, I never thought I'd live to see the day, but here's a post by Alan Dershowitz with which I agree almost entirely.
I'll also cross-post some (slightly edited) remarks I made at Hit & Run earlier. I think Libby lied under oath trying to shield his boss and, yeah, I think Fitzgerald pursued Libby as opposed to the others hoping to flip him to get to Cheney. I don't think Fitzgerald, himself, was politically motivated, but when you consider the context in which he was appointed as a special prosecutor, the years he spent and the indictments (or lack thereof) he finally sought, I continue to believe that the heart of the matter was partisan politics. YMMV.
Subtract the political context and what are you left with? Misleading investigators and twice making false statements under oath to a grand jury. Serious, but not 2.5 years incarceration serious when you consider the rest of the consequences that have befallen Libby.
(Here, BTW, is the indictment against Libby for anyone wishing to sort out the facts as alleged and apparently accepted as true by the jury.]
Okay, so life is unfair and lots of other people get screwed in the criminal justice system and don't get presidential clemency and blah, blah, blah. All true. Still, the most apt comparison here is to Sandy Berger.
Berger took five copies of the same classified document with him and cut up three of those documents. (Apparently he only needed one extra copy to check to see if the first one was correct. The others went to, what, classified ransom notes?) So we have an underlying case of a breach of national security, a statutory offense. Berger eventually copped to a misdemeanor, an option probably not offered Libby but which (yes, for purely partisan political reasons) Libby was not in a position to accept anyway since the price would have been to roll on Cheney.
Anyway, Berger was fined $50k, got two years probation, did 100 hours of community service and relinquished his law license. (This sentence was, btw, more severe than the recommended sentence.)
Again, I'm saying these are only roughly analogous and if you want to argue Berger should have served time, too, okay. Bearing in mind, however, the original purpose of the special prosecutor's appointment and the end results of his investigation, I'd say sending Libby to prison because Fitzgerald couldn't make his case against Cheney or Rove, etc. is unreasonable.
5 comments:
I'm waiting to see if Bush's approval ratings now drop down to the single digits.
I find Dershowitz's claims about the political nature of the U.S. Court of Appeals decision somewhat dubious since the decision was two sentences long. That inferrence is quite a stretch.
Yes, that's Orin Kerr's take over at Volokh, and it's true that Dershowitz's take (which is close to mine) isn't anywhere close to being open and shut on that point.
I don't know that the length of the decision is relevant though; it just means we don't have the court's express reasoning in denying bail. (Of course, if there was a background political agenda, it wouldn't be in the decision, anyway.)
Of course, if there was a background political agenda, it wouldn't be in the decision, anyway.
True, but the longer the opinion, the easier it is to find material to support a claim of political bias. Unless the brevity itself is unusual, it's hard to get much out of it.
Of course, I am generally skeptical of claims that judges have acted politically, so the statement of anybody who "knows" the judge acted politically because the outcome was other than they would've liked is going to get short shrift with me.
Of course, I am generally skeptical of claims that judges have acted politically, so the statement of anybody who "knows" the judge acted politically because the outcome was other than they would've liked is going to get short shrift with me.
Fair enough. I admit it's mere speculation on my part to suspect (and hubris on Dershowitz's to assert) a political motive in denying bail. I am, however, perhaps less skeptical about U.S. Circuit judges being political, albeit behind appropriately judicial reasoning, and denying bail to someone who is neither a danger to the community nor a flight risk pending appeal raises a flag or two.
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