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Monday, July 02, 2007

On prediction for Dubya's Libby commutation, Beldar shoots — and he scores!

It would appear that my crystal ball is better for predicting behavior from Dubya than from the D.C. Circuit.

Beldar (writing as Dubya), on June 7, 2007:

Without undermining our law enforcement system, the Constitution gives every President the power and the responsibility to weigh competing considerations, including very subjective ones, to ensure that genuine justice is done even in individual cases. And it is in fulfillment of that responsibility that I exercise that power today to commute Mr. Libby's 30-month prison sentence — while deliberately leaving in place, at least for the present, his conviction and the remainder of his sentence, including the very substantial monetary fines and two years of supervised release.

I do so without prejudging or even making any implied comment on how his ongoing appeal should turn out, and I do so without endorsing any of the conduct that the jury found to be blameworthy. I do so knowing that in the tragic story of Scooter Libby — as already written, and as yet to be finished until his appeals are done — there is already an ample deterrent to any public official who may ever be tempted to commit perjury or obstruct justice, so that this act of mercy will in no way encourage future lawlessness.

And finally, I do so knowing that reasonable men and women of decency and good will might reach a contrary conclusion to the one I have reached, or that they might have continued to reserve judgment until after Mr. Libby's appeals had been completed, even if that meant he would serve prison time on a conviction and sentence that might ultimately be overturned. I respect those views, but I cannot substitute them for my own. It would be easier, frankly, to permit Scooter Libby to simply go to prison, but I believe it would be wrong, and that it would be an injustice, and that my responsibilities under Article II, Section 2 of the Constitution in this particular case require me to take the opposite course to this limited extent.

So I act now with grave purpose, and with a humble acknowledgment of the imperfections of our species, and with thanks for the grace we enjoy as citizens under the Constitution and laws of these United States of America.

Dubya (writing as President George. W. Bush), today:

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.

I still like my version better, but his will do. I do especially wish he'd used the words "mercy" and "grace" — because that's what this decision was all about.

*******

Some pundits had suggested that Dubya ought to issue a "respite" — that is, an executive stay pending appeal, simply keeping Libby out of prison pending the resolution of his appeal, but leaving open the possibility that he'd still have to do prison time if the appeal is unsuccessful. This appealed to me when I first heard it suggested because it's so tightly tailored.

But it would have generated political consequences for Dubya almost as great as an outright commutation, and would have left open the possibility that Dubya would have to reconsider a commutation or outright pardon on a later date.

One thing is certain: Today's commutation ends presidential involvement in this case. If Libby's appeal fails, there is essentially no chance that Dubya will pardon him outright. So from the presidential perspective, today's result provides total political closure — although it emphatically and pointedly does not provide total legal closure from Libby's or Fitzgerald's point of view!

*******

Some pundits will be disappointed that Dubya did not pardon Libby altogether. That would have abruptly ended the ongoing appeals process. It would have left Libby free from any further official consequences, without the $250k fine or even the disabilities that attend a felony conviction. But if you are a Libby advocate or sympathizer (I'd say I'm the latter but not the former), and that is your view, then think twice, and thrice.

A full pardon also would have left Libby with the full stain of the conviction in the public eye. Something that has been little commented upon — except, perhaps, in the bowels of the comments at Just One Minute or several left-leaning blogs that have followed the case far more closely than I have — is just what Libby's best-case and lesser options are from the appellate process.

  • Odious comparisons between Fitzgerald and Nifong notwithstanding, there is zero chance that Libby would ever be affirmatively cleared and proclaimed innocent by the prosecutor here.

  • That leaves as Libby's very best-case appellate option one that is still so unlikely as to be a near-impossibility: a ruling by the appellate court that there was insufficient evidence for any rational jury to have convicted. That would be the equivalent of an appellate directed verdict in Libby's favor, and it would firmly establish him as being "not guilty" in the eyes of the law. On the rare occasions when this happens, retrial is barred by the double-jeopardy clause of the Constitution. I would guess that that happens in well under one percent of appeals, and it's not going to happen here; his lawyers may not even make the argument on a perfunctory basis. "Rational jury" for purposes of this appellate test means one that's presumed to have resolved all of the credibility issues against the defendant, and to have drawn all possible inferences from circumstantial evidence against him. When that hard standard is rigorously applied, it's abundantly clear that a "rational jury" could have found sufficient evidence to establish proof beyond a reasonable doubt on every element of the crimes of which Libby was convicted. Fitz had a check-mark in every box, in other words, and a jury could have bought that even if you, as an observer, personally found some of the check-marks unpersuasive.

  • The next best result, and, realistically, the best result Team Libby could ever have hoped for, or may still hope for on appeal, would be an appellate ruling that the trial was materially unfair in some respect that requires the conviction to be reversed — because, for example, Judge Walton erred and abused his discretion in refusing to allow Libby's memory expert — combined with a favorable ruling on Libby's challenge to Fitzgerald's appointment. That one-two appellate punch would have require the conviction to be vacated (including incarceration, fine, and felon's status), and it would have at least partially bleached the public stain of the original conviction. But it would have also effectively barred a retrial, because the double-jeopardy clause would prevent the required re-indictment by either a regular DoJ prosecutor (acting without the odd appointment that Fitz had) or a 28 C.F.R. part 600 "special counsel" from outside the DoJ altogether. That scenario — the conviction reversed, the first jury's results thrown into doubt, but no second trial — is still available to Libby after today's presidential commutation, but it would not have been available after a pardon. The commutation, in other words, still leaves Libby his best chance for at least a partial public vindication.

  • If Team Libby wins only on the appointments issue, though — and especially if the D.C. Circuit goes on to reach, and rejects, his other arguments (which it also might just skip as being unnecessary for it to reach) — Libby could end up with his conviction overturned, facing no retrial, but still painted in the public's eyes as someone found guilty and then sprung on the most ethereal of technicalities (leaving his moral guilt undiminished and essentially unquestioned).

  • It's also possible that Team Libby will lose on the appointments argument, but win on some other one. That would result in a reversal of the conviction and a remand back to federal district court for a new trial, with both Fitz and Judge Walton reprising their roles. Maybe in a retrial, Libby would take the witness stand — his decision not to do so in the original trial having been inexplicable to me if he genuinely believes himself not to be guilty. But because of the presidential commutation, of course, the worst Libby would be looking at on retrial would be a re-conviction plus a re-imposition of the fine, probation, and felony disabilities.

  • Or it's possible — although I think this unlikely — that Libby might lose on his appointments challenge, win on some other argument, win a new trial as a result — but that Fitzgerald, in the exercise of prosecutorial discretion, might choose not to press forward with a new trial, but would instead agree to simply dismiss the indictments. It's also possible, but I think it's unlikely, that a reversal might trigger a plea agreement — some compromise that would leave Libby with a felony conviction and probation, but perhaps without the fines. I judge these two scenarios as unlikely precisely because Libby has such strong motivations, presidential commutation notwithstanding, to continue to try to clear his name, and because Fitz recognizes his own important role in vindicating the principles that those who lie during investigations or obstruct justice must be held legally accountable for that.

*******

"Mr. Fitzgerald is a highly qualified, professional prosecutor who carried out his responsibilities as charged." Fifteen words for which Patrick Fitzgerald would probably not trade a year's salary. I think they were appropriate. His job's not over, though.

*******

Some politicians ought to be glad that God does not, in fact, smite politicians who tell colossal lies with bolts of lightning:

House Judiciary Committee Chairman John Conyers, Jr. (D-Mi.) released a statement saying that "until now, it appeared that the President merely turned a blind eye to a high ranking administration official leaking classified information. The President's action today makes it clear that he condones such activity. This decision is inconsistent with the rule of law and sends a horrible signal to the American people and our intelligence operatives who place their lives at risk everyday."

This is phony on so many levels that it leaves me dizzy. Perhaps Rep. Conyers would like the nation's chief executive to start routinely speaking out on all pending federal prosecutions — starting with U.S. Rep. William Jefferson's (D-LA) pending bribery case — so no one will think he's "turning a blind eye" to government corruption? Shall we just have the president phone up the jurors during the trial to tell them how to vote? It's not that I expect the Dems to give Dubya any credit for not issuing an outright pardon. I just expect them to tell more nuanced, sophisticated lies than this.

Rather than "mak[ing] it clear that he condones such activity," the commutation, as opposed to an outright pardon, makes it clear to anyone with the honest eyes to see it that President Bush is indeed committed to the rule of law, and that that is precisely why he's allowing the appeals process to continue (and, potentially, the fine, probation, and felony disabilities to stand). This is an act of limited presidential mercy. Only a demagogue can transform that into "condoning." Or maybe Rep. Conyers would like to be "condoned" himself by the destruction of his career, a felony conviction, two years of probation, and a quarter-million dollar fine (not to mention what's probably a seven-figure legal bill)?

I'm proud of the President. I think he did the right thing, and he did it at exactly the right time.

Bill Kristol, you misunderestimated our man again, and you should have known better. Oh, ye of little faith, wherefore didst thou doubt? (I'm using that New Testament quote for its literary and political-faith, not religious, meanings.)

But I still want to see how Libby's appeal plays out! Indeed, it's genuinely important that we all see how it does. The DoJ needs to know, for example, whether it can skip 28 C.F.R. part 600 and repeat the Fitzgerald appointment precedent (using a DoJ insider from out-of-town) in future cases. But far more importantly, we need the appellate courts to either validate or invalidate the fairness of Libby's trial. If, as I suspect is still the most likely result, Libby's appeal fails, then that will indeed send an important, and salutary, message to everyone, and especially to current and future high government officials who may be tempted to lie or obstruct justice.

-------------------------

UPDATE (Tue Jul 3 @ 2:25am): I just read one comment over on Tom Maguire's blog which claims that the commutation "adds insult to injury by admitting the President accepts Libby's guilt." That is ridiculous. Neither the commutation nor the president's statement say that. To the contrary, both address only the sentence, and they leave Libby free to continue trying to challenge the conviction.

Statements this off-base make me wonder if there ought not to be an additional diagnosis to go along with "Bush Derangement Syndrome" — I'm just not sure whether it ought to be called "Plame Derangement Syndome," "Libby Derangement Syndrome," or "Fitzgerald Derangement Syndrome."

All of these may now be valid grounds to bar one's execution, by the way — and that fact triggers, in some, "Justice Kennedy Derangement Syndrome" (which requires the longish name to distinguish it from "Teddy Kennedy Derangement Syndrome.")

Posted by Beldar at 11:01 PM in Law (2007) | Permalink

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Comments

(1) Ralph made the following comment | Jul 2, 2007 11:26:42 PM | Permalink

Beldar,

You say that it's clear that Libby lied. I disagree with that, even if I accept that he did, in what way was the lie material to a crime?

When Clinton was going to the impeachment fiasco, many people were saying, "but it's just about sex, it's not material to anything." That argument was not, in general, belittled.

Indeed, had his like not had the effect of causing the dismissal of Paula Jones's suit, many of us would have accepted that it was immaterial.

The fact that when the lie was extablished, Paula Jones's suit was reinstated and ultimately settled for the, to me, non-trivial sum of $800K shows that his lie was material.

I understand that the "obstruction of justice" charge does not require proof of materiality, so I can accept the legalily, though not the justice, of it even with no underlying crime.

The perjury charges I have much more trouble with when there was no crime for them to be material to.

Time will tell. Hopefully this brings all of the issues into the light of day so that they can get to be properly considered. No justice system is perfect, but it's always worthwhile to try to make it less imperfect.

Thanks for your great blog, and well-reasoned opinions.

(2) Beldar made the following comment | Jul 2, 2007 11:38:29 PM | Permalink

Ralph, thanks for the kind words, but I don't think I've ever said "It's clear that Libby lied."

The jury thought he did. I think it's very possible that the jury was right. But it's something on which I haven't ever taken that sort of definite position, and I don't want to be misunderstood to have done so.

I don't know if he's guilty. And I do want to see how his appeal plays out. I still think his best appellate argument is the appointments challenge; if he wins on it, the case is over, but it would be the classic "reversed on a technicality" argument that would still leave the moral (if not legal) force of the conviction standing. As of this minute, were I to predict, I'd say that's the second most-likely outcome (the first most-likely outcome being that his conviction will still be affirmed).

(3) boris made the following comment | Jul 3, 2007 12:55:26 AM | Permalink

I don't think I've ever said "It's clear that Libby lied."

Then I mistook the meaning of your earlier statement:

But when Mr. Fitzgerald got this case, it was already necessarily a false statement/perjury/obstruction investigation because what Mr. Libby had already repeatedly told the FBI agents simply couldn't be squared with the other written evidence and witness statements they had in hand.

The unqualified clarity of the characterization probably misled my interpretation as more than observation.

OTOH Libby's testimony did square rather well with Mitchell's public statement and a prominent EW poster suggested that was why Libby chose Russert as the subject of his fabrication.

(4) Gregory Koster made the following comment | Jul 3, 2007 1:45:18 AM | Permalink

Dear Mr. Dyer: We are still on opposite sides of this one. The President's 15 words on Fitzgerald's performance are a disgrace. They would have been true had Fitzgerald done two things during the trial:

a) the moment Russert finished his testimony, he's subpoenaed to the grand jury and asked about his under-oath testimony in Libby's case. He's indicted, tried and also convicted. Remember, Russert has his $5 million contract as Americak's anchor as a reason to lie. Had Fitzgrald done this, I could believe that he's a strict prosecutor who does not like being trifled with.
b) in his summation, leave out all the allusions to Boss Dick and the rest of the Administration. I think this mud throwing erases any claim to honor Fitzgerald may have, being in the same category as Nifong's press interviews roaring that the lacrosse players were guilty of, of, of, something or other. To be sure, Fitzgerald's slurs were done with far more skill, but assassination is still assassination, whether done with a stiletto or a 16 inch battleship cannon. Combined with a) and you have a prosecutor bent on settling scores. He did. For the President to say those 15 words is, as you say, public approval of Fitzgerald's antics. Nor am I impressed with the notion that "the jury found Libby guilty." Sure they did. Facing a hostile judge who kept his thumb firmly on the prosecutions' side of the scales during and especially after the trial, what else could the jury do? Certainly Fitzgerald did not make his case plainly enough for you to accept that Libby was guilty.

A "respite" would plainly have been the best thing to do to repair Judge Walton's venom. But it is obvious why the President rejected it: Fitzgerald would have dragged the appeal into the middle of the 2008 election campaign, just as Lawrence Walsh did to Caspar Weinberger and Geo. Bush Sr. With all the mud to throw at the climax of the election, Fitzgerald would have been in hog heaven.

The worst of it is, this verdict has me defending Libby. I don't want to defend Libby. I would much rather that Fitzgerald would have looked Libby in the eye during trial and asked him, "How many American servicemen's lives did you save by having all these conversations with reporters, about Valerie Plame?" I know this was not possible in our trial system, but it is the real issue at hand, going straight to this Administration's claims to competent war management. I don't see that Libby was especially qualified to "knock down" Joe Wilson's lies. Nor do I think Libby saved one life, or shortened the Iraq conflict by one day. This entire imbroglio has been a colossal waste of effort on all sides, too many people from the President on down more interested in playing games while men and women die and the nation remains in danger.

No. Fitzgerald is merely an easily offended grudge carrier, using the powers of his office to settle a score of a fool who trifled with him, and did not scriple from using other witnesses (Russert, Mitchell, Dickerson, Cooper, Miller) who trifled just as much---but in the way Fitzgerald wanted. The Law, the Bar may say this is the way the world works. I say it is contemptible. When the history of the conflict with terror is written, Fitzgerald will have a low place. Though not as low as Libby's. Or that of any journalist.

Sincerely yours,
Gregory Koster

(5) JM Hanes made the following comment | Jul 3, 2007 2:08:28 AM | Permalink

I'm relieved that the Prez didn't pardon Libby. While I'm not convinced Libby lied, I don't assume he's innocent either; I do, however, think Fitzgerald's investigation & prosecution were a scandal at multiple levels and set dangerous precedents. I believe it's critically important for this appeals process to play out.

A couple of thoughts on the choice of commutation now. Assuming Libby does not prevail in the DC Court and moves up the ladder, I gather his appeal would likely still be in progress when the President leaves office. Imagine the blowback if he were to pardon Libby while his appeal was in front of the Supremes; at the same time a stay would basically compel Bush to revisit that decision on the way out the door, regardless of the appeal's own timeline. I'm not sure the Prez actually wants to pardon Libby, in which case commutation represents a clearer case of clemancy, as opposed to a judgement on Libby's guilt/innocence or a rejection of the verdict that a pardon represents. If clemancy is what he intends, this would be the most appropriate moment, really.

John Podhoretz made an interesting observation over at the Corner. Although he's been hoping for a pardon, he notes:

I can see, however, how that would have been a nearly impossible call for Bush. For one thing, Patrick Fitzgerald is currently serving as a U.S. attorney in his administration. Were Bush to find that Fitzgerald had conducted a runaway investigation trampling on Scooter Libby, he would not be able to answer the question of why he would allow such a prosecutor to remain the U.S. attorney in Chicago. And if he fired Fitzgerald, as logic would dictate a pardon would require him to do, the storm would be unimaginable. There would be talk about impeachment — serious talk, and not so easily dismissed with a Democratic House and a Democratic Senate.

That kind of attendant political and legal morass is why firing Fitzgerald mid-process was never really a feasible option, despite the enthusiasm for that idea in some quarters.

(6) cboldt made the following comment | Jul 3, 2007 7:53:52 AM | Permalink

-- A full pardon also would have left Libby with the full stain of the conviction in the public eye. --

As will the conviction being upheld. There's no way to unring that particular bell, regardless of the application of presidential prerogative to the verdict and/or sentence.

(7) andrew johnson made the following comment | Jul 3, 2007 12:38:55 PM | Permalink

All well & good and very high sounding but there are treasonous issues involved here, as well as blatant disrespect for the law by Libby and those he's been working for/protecting. Or is this too simplistic for such fine legal minds as yourselves?
No wonder this fairly corrupt administration has got away with such abuses of their power.

(8) Milhouse made the following comment | Jul 4, 2007 11:27:07 AM | Permalink

No, andrew, there are no "treasonous issues involved here". Even in Fitzgerald's version of events, Libby had no idea it was supposed to be a secret that Wilson's wife worked for the CIA. Nor was there a conspiracy to reveal that fact, because nobody in the White House thought it significant. All Fitzgerald claims is that Libby should have been more careful.

And that's assuming it was supposed to be a secret, which is still very much in doubt.

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