A Belated Appraisal of the Scooter Libby Commutation

In this fine space just a few months ago, I offered my position on the presidential pardon and whether I. Lewis “Scooter” Libby should be a recipient of that presidential power. On Monday, July 2nd, President Bush commuted the 30-month prison term of Libby’s original sentence, which also included a $250,000 fine and a two-year probation. Libby has paid his fine and will soon begin the supervised release period.

Like many commentators, I disagree with President Bush’s decision, but for different reasons than many of those editorialists and columnists have offered. Those on the liberal end of the spectrum seem to argue either that the pardon of Mr. Libby removes incentives for Mr. Libby to testify against others who may have been involved in the outing of CIA operative Valerie Plame Wilson or that the sentence of Mr. Libby was within federal sentencing guidelines and thus appropriate, directly contradicting President Bush’s position that the sentence was “excessive.” Liberals also complain that Bush went outside the standard Justice Department system for advising the president on matters of clemency. Those of a more conservative bent seem to be dissatisfied that Mr. Libby was not completely pardoned for the crime, as they believe that Special Prosecutor Patrick Fitzgerald over-reached in his investigation and that because there has not been an indictment for the theoretical underlying offense (the outing of a covert CIA operative), Mr. Libby’s crime is minor at best. Note: these summaries are my impressions of the general consensus and not necessarily applicable to every liberal or conservative commentator, respectively.

I disagree with President Bush’s decision because I believe that the commutation of Mr. Libby’s sentence ignores the tenets of the criminal justice system we as a society have built and upheld these past 220 years (longer if you consider the influence of British law on American law). Both the indicting grand jury and the convicting trial jury were convened under procedures we as a society have agreed to through our legislators in the body of law we have. Furthermore, the sentence itself, which President Bush claims was excessive, fit within the federal sentencing guidelines we as a society have agreed to, again through the voices of our legislators. While the power to commute Mr. Libby’s sentence is granted to the office of the president in the Constitution of the United States, there are ways to execute that power that are consistent with justice and the rule of law (see below and my more extensive previous discussion of the matter). President Bush’s commutation is outside the rule of law in that he has unilaterally decided, contrary to centuries of jurisprudence and the legitimate laws agreed to by the people of the United States, that Mr. Libby’s sentence is incorrect. If President Bush’s definition of an incorrect sentence is not consistent with the understanding of the American people as legitimately expressed, then he is bound by his oath to the American people not to commute that sentence. If Mr. Libby deserves mercy, or forgiveness, or new evidence proves Mr. Libby did not commit the crime in question, then a commutation or pardon may be appropriate, but that was not President Bush’s reasoning. Therefore, while President Bush has the authority to execute the pardon and commutation powers however he wishes, he was incorrect to do so in this case because his reasoning is inconsistent with the rule of law and approaches the level of rule by executive fiat.

While determining whether President Bush’s actions were correct is valuable, and while violations of the rule of law are quite damaging to our polity, it is unavoidably true that the commutation has occurred and cannot be changed. However, as President Bush and other commentators have noted, commuting Mr. Libby’s prison sentence does not preclude President Bush from pardoning Mr. Libby in the future. Now that Mr. Libby’s prison sentence has been commuted, I am satisfied with the outcome provided President Bush does not pardon Mr. Libby in the future. This position that President Bush should not pardon Mr. Libby may seem contradictory to my previously stated position on Mr. Libby’s future, namely, that he should be forgiven for his crimes after serving his sentence, but I hold that the two positions are not inconsistent when considered in the context of the general principles I wished to apply in my earlier discussion of the case and the commutation of Libby’s sentence.

In my previous discussion of the issue, I argued that pardons are appropriate as an act of mercy in the rarest of occasions, to overcome errors or oversights in the legal system, and as an act of society forgiving an individual for a crime. I went on to argue that in the case of Libby and all criminals of all stripes, the forgiveness pardon is appropriate after the convicted criminal has met the following conditions: (1) completion of the required sentence, (2) publicly acknowledging he committed the crime in question, (3) publicly apologizing for the crime, (4) swearing upon penalty of perjury he has not committed any other crimes within the statute of limitations, and (5) solemnly swearing to never commit another crime of any kind, possibly with consequences attached in the event of recidivism. I believe forgiveness is valuable, and that the social stigma associated with felony convictions should be relaxed or eliminated so these offenders can be successfully re-introduced into society with the incentive to be good, productive citizens.

To my knowledge, Mr. Libby has not met any of the conditions for the forgiveness pardon, is not unusually deserving of the mercy pardon, and was tried in a fair and just way with no exculpatory evidence coming to light since the conviction and sentencing. However, assuming that Mr. Libby meets the conditions required for the forgiveness pardon at some future date, I believe that even then, he should not be pardoned. This belief stems largely from my position that President Bush’s commutation of Mr. Libby’s prison sentence was outside the rule of law. Because the rule of law was not applied in this case; that is, because the sentence legitimately issued to Mr. Libby was not carried out, he is thereby not punished for his crimes to the extent that our society demands. In the absence of a sufficiently punitive formal sentence, Libby should instead be punished by the informal institutions that ostracize convicted felons. While I oppose those institutions because they remove incentives for convicted criminals to try to be productive members of society, in Mr. Libby’s case I can find no other institution to provide justice now that he cannot be jailed for his crimes.

However, I do recognize that a lifetime of ostracism may exceed the punitive effects of a 30-month prison sentence; therefore, I expect that after a period of ten to fifteen years suffering the consequences of his actions, society may wish to revisit its ostracism of Mr. Libby and perhaps then formally pardon him through the use of the presidential pardon power. However, until the legitimate justice demanded by the American people is satisfied, I oppose any pardon of Mr. Libby.

I do recognize, however, that President Bush has few restraints remaining on those decisions in which he has dominion. The only electoral interests he has to serve at this point are those of the Republican Party, and the party has already laid the groundwork for denouncing Bush’s policies, particularly on his recently quashed immigration bills. Increasingly, prominent Republican members of Congress have distanced themselves from the Bush position in Iraq as well. In other words, he has lost his ability to act as a policy entrepreneur and has very little remaining accountability. I would not be surprised if at some point between now and the end of his term, President Bush formally pardons Mr. Libby. That pardoning, however, will serve as a stark reminder that President Bush, unlike the United States as a whole, believes that his rule as president is more important than the rule of legitimately enacted legislation. While we may well have already known that to be the case, it is still a sad diagnosis of the health of our federal republic.

–posted by Kevin at about 3:50 Central Time

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One Response to A Belated Appraisal of the Scooter Libby Commutation

  1. […] that stay where you put them As an addendum to Kevin’s appraisal of the Scooter Libby commutation, I heard this short story on NPR’s All Things Considered yesterday: Quiz Show Draws US […]

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