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Wednesday, July 04, 2007

We are bloggers, hear us roar

On the subject of the power of conservative blogs, Patterico links and quotes the Wall Street Journal and Allah at Hot Air, before opining himself:

[W]ell-written and insightful blogs can have an influence beyond that reflected by our admittedly pathetic hit counts. Reporters and politicians’ staff members monitor the better blogs for an indication of how the public feels. People e-mail posts to friends and relatives. And because the Internet is everywhere, you never know whom you’re going to reach.

It would be foolhardy for blogs to take all the credit for any major political occurrence like the defeat of amnesty. But blogs’ significance should not be unduly downplayed, either.

Allah, in turn, had linked and paraphrased Dean Barnett before writing:

[R]ight-wing blog readership is so pitifully small that we can’t influence much of anything except when opinion is unusually and passionately united on an issue, in which case Republican legislators might note it as a sort of "early warning system" for how the base at large is going to react.

The metaphor I'd prefer, actually, is biology and in particular biofeedback. There, you have what is by number, volume, or mass a comparatively tiny number of comparatively complex molecules that trigger, suppress, and otherwise affect one another — all of which, collectively, end up having a huge role in determining the actions of the major systems that collectively make up the organism. And it's a very distributed process. It's hard to say, "Here are the individual molecules that generated that allergic reaction that caused me to sneeze so violently that I ruptured a cervical disk." A lot of other things also go into the total causation of that ruptured cervical disk, too, but we may have a place in the causal chain whose importance is indeed disproportionate to our size and number.

Call us irritants, accelerants, catalysts, messenger RNA, or whatever. But ignore us, collectively, at your peril. Because when the circumstances line up just right and the chain reactions start to cascade, we can induce sneezing, spasming, nausea, confusion, headache, muscle ache, diarrhea, vomiting, and erections that last more than four hours.

(I'm talking to you, Dan Rather, you pathetic metaphor-mixing has-been. And are you listening, John ("my candidacy is toast but I can't admit it yet") McCain?)

Posted by Beldar at 02:35 AM in Weblogs | Permalink | Comments (4)

Tuesday, July 03, 2007

You know you are suffering from Bush Derangement Syndrome

... when you become incensed that he says this:

"I rule nothing in or nothing out," Bush said when asked about whether he might pardon Libby before leaving office in January 2009.

You and I, gentle readers and fellow pundits, can speculate and prognosticate and ruminate to our hearts' content, and no one seriously accuses us of trying to subvert the justice system, implement a coup d'etat, or take over the world on the basis of our carefully structured analyses spun from pundit-sugar.

But that's exactly what Dubya was suspected and explicitly accused of during the four years before the commutation decision, during all of which time he refused to rule anything in or out. It's exactly what Dubya was accused of when he made the commutation decision yesterday. And it's what he's being accused of now that he is, once again, refusing to rule anything in or out as of today for the future.

At least ever since there were rather severe consequences to the phrase "Who will rid me of this meddlesome priest?" in 1170, chief executives have tried to be more discrete.

Posted by Beldar at 05:08 PM in Law (2007) | Permalink | Comments (4)

80,277 reasons why Sandy seriously ought not fret so much about whether the Libby commutation threatens the Republic (or even The New Republic)

I've blogged before about Sanford V. Levinson, who holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at my alma mater, Texas Law School. I had the privilege of editing a book review that he wrote for the Texas Law Review, and he was my legal ethics professor during what was my last year, and his first year, at UT-Law in 1980. He's appeared most notably in the meta-pages of BeldarBlog in October 2005 as a soundly defeated courtroom foe of the supposedly constitutionally inadequate Harriet Miers. He's also a frequent blogger at Balkinization, a very fine and rabidly progressive law profs' blog that I peruse whenever I'm feeling either in need of comparative evidence of my own intellectual adequacy (rare) or sleepless (somewhat more common). I genuinely like and admire Prof. Levinson, who I almost feel like I could call "Sandy" in person and without rebuke.

I wish, therefore, that I could have the chance to buy, and then split with him, a pitcher of Lone Star over at the Posse East this afternoon, so we could talk over his current anxiety.

You see, writing in The New Republic Online (not firewalled, hurrah! h/t Ramesh Ponnuru, who reads TNR so I don't have to), Prof. Levinson found himself so very fretful about the Libby commutation that he couldn't "restrain [him]self" from, well, fretting pretty much all over his op-ed there — but to my astonishment, he doesn't lay all the blame on the obvious whipping boy, i.e., the current occupant of 1600 Pennsylvania. There's another, very surprising villain who's implicated here, says he:

No one should doubt that we are in a constitutional crisis. And part of the crisis can be found within the Constitution itself.

The snarky reply to this is, of course:  America under constitutional siege by its own Constitution — Day 80,277!

Prof. Levinson allows how Pres. Clinton's pardoning of Marc Rich was, "[a]s with so much of the Clinton presidency, ... tawdry but unthreatening to a Republican Form of Government." Well, okay, I'll buy that, as long as we're sticking to things that are provably corrupt. That's a good suggestion; let's not go speculating about presidential motives. But how, then, can he write in the next sentence, of Dubya: "Mr. Bush's commutation, is such a threat, unless, of course, one defines a 'Republican Form of Government' as 'Government by the Republican Party.'" And with what proof, with what evidence for this sweeping condemnation? Well, that would be what they taught me at Texas Law School to call "sweeping, wild-ass speculation":

The best explanation of the pardon is not compassion but, rather, fear that Mr. Libby might be tempted to provide more information about the cabal to turn the presidency (and vice-presidency) into "regal," if not out-and-out dictatorial, authorities totally independent from any scrutiny or accountability.

You see, in America, we don't need M1A2 tanks on the Mall to let us know there's a coup d'etat in progress. We can know it's true simply because we read it in the words of blogging liberal law professors.

Okay, here's the deal: I'll pledge 1000 hours of my time to lead the drive to endow a new super-duper $50M chair at Texas Law School. The sole condition is that the Law School faculty en masse, and the chair's holder in particular, must pre-commit that if the chair's holder ever accuses an American president — any American president — of being an "out-and-out dictatorial [authority] totally indepedent from any scrutiny or accountability,' then he (the professor) must go live and teach for a year in any country whose name ends in the syllable "-stan."

But in fairness, as constitutional crisis-mongers go, Prof. Levinson's reaction is actually comparatively restrained, and maybe he thought better of his excessive fretting after a night's sleep or a morning nap. In comments, he writes:

As crises go, the Libby pardon may not count very high on the Richter Scale, but even minor earthquakes are nonetheless evidence of trauma and, on occasion, signal the likely occurrence of something much more major.

Still: A minor earthquakes? Earthquakes? Is Prof. Levinson's promised next paper with Prof. Balkin going to be called, "Tectonic Faults in the Constitutional Seascape of the Pardons Clause"? Man! I want to get in on the bidding for the movie rights to that one! ("And featuring Academy Award-winner Al Gore in a double-role as 'Gouverneur Morris' and 'Professor Richter'!")

Prof. Levinson, I know, already had his poly-sci PhD and had just finished law school for his JD in 1973-1974, when America actually was on the brink of a constitutional crisis. I was reading the UPI news feed into the microphone as a DJ at radio station KPET-AM in Lamesa on the day Nixon boarded Marine One for the last time in August 1974. And I certainly haven't forgotten that time, nor the Supreme Court decisions and grand jury proceedings and congressional impeachment hearings that all led up to it. And who can forget Florida 2000? Then, too, good arguments could be made that we were on the brink of a constitutional crisis.

Nowadays, I throw the term "crisis" around pretty lightly. I was in the drive-through lane at Whataburger's last night and dropped a dime I needed to be able to provide exact change for my grilled chicken sandwich, and that was a crisis, I thought at that moment. (A "grilled chicken sandwich/exact change crisis," to be precise.)

But ... "constitutional crisis"? Doesn't that call for an incredulously interjected "Seriously?" from each of his students, like the interns do on Gray's Anatomy? Shouldn't a distinguished law professor be a little more discriminating about the use of that term? With all due and genuine respect to Prof. Levinson, I seriously tend to think so.

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

UPDATE (Wed Jul 4 @ 1:35am): Prof. Levinson reconfirmed my clear recollections of his warmth, humor, and good manners in the following email exchange with me (republished here with his permission):

----- Original Message -----
From: Bill Dyer
To: Sanford Levinson
Sent: Tue Jul 03 16:28:13 2007
Subject: New offer for a UT-Law endowed chair -- seriously!

Prof. Levinson,

I don’t subscribe to TNR so I can’t comment on your op-ed (if that’s what it should be called) there. But here’s a link to my own blog post about whether the Libby commutation is (or isn’t) a constitutional crisis.

http://beldar.blogs.com/beldarblog/2007/07/dont-fret-so-sa.html

Best regards from your former student,

- Bill Dyer a/k/a Beldar

----- Original Message -----
From: Sanford Levinson
Sent: Tuesday, July 03, 2007 5:21 PM
To: Bill Dyer
Subject: Re: New offer for a UT-Law endowed chair -- seriously!

I could take refuge in the fact that the title was given my piece by the New Repoulic, but that would require ignoring the fact that I did indeed use the term.  "Crisis" is probably hyperbolic, but my main point was that this was precisely the kind of (ab)use of the pardon power that George Mason and Luther Martin feared in 1787.  And who knows what further indictments (and pardons) are going to come before 2009?

All the best,

Sandy

----- Original Message -----
From: Bill Dyer
To: Sanford Levinson
Sent: Tue Jul 03 17:32:13 2007
Subject: RE: New offer for a UT-Law endowed chair -- seriously!

IF you attribute to Dubya the motive you did, THEN it is exactly the sort of abuse.

If you read what he wrote and credit that instead, then it’s the sort of use envisioned by the Founders.

We can surely agree that this is in the eye of the beholder, or at least a highly subjective question of motive about which partisans are unlikely to agree.

But thanks for the prompt reply!  I won’t quote your email without permission, but feel free to post, now or whenever, in my humble blog’s comments. Or if you’d prefer, I’d always be glad to reprint your written reaction from an email in my blog text if (but only if) you gave permission. (I did that recently in a very civil dialog with Marty Lederman on executive privilege … I’m about to re-engage with him, I hope, on the subject of Cheney and the executive order on classified materials, oh joy!)

- Beldar

----- Original Message -----
From: Sanford Levinson
Sent: Tuesday, July 03, 2007 6:46 PM
To: Bill Dyer
Subject: Re: New offer for a UT-Law endowed chair -- seriously!

I agree with you that much depends on how one assesses W's motive (and takes his statement seriously, though even then it's hard to see that any jail time at all is "excessive," especially given the Supreme Court decision a few weeks ago.

Feel free to use my reply however you wish.

All the best,

Sandy

Posted by Beldar at 03:54 PM in Humor, Law (2007) | Permalink | Comments (9)

On Libby's sentence enhancement based on unproved crimes

It's now a moot issue, and I'm far from an expert on sentencing. Given the commutation of Libby's sentence, I now no longer intend to do the sort of research and preparation that I had planned for this post. But I do want to write briefly (by my warped standards) about the problem I have with Libby's 30-month prison sentence that President Bush just commuted. So consider what follows to be an admittedly half-baked opinion.

The subtitle of this post could be: "No sentence enhancement was appropriate unless Fitz at least had a legitimate 'Drat that Libby!' shout."

(Note: The premise for this whole post, necessarily for purposes of argument, is that Libby is guilty. You can't talk about sentencing meaningfully otherwise. It's just a premise, though, and just an assumption arguendo; don't read it into me saying I'm 100% persuaded of Libby's guilt, because I'm neither 100% persuaded of his guilt or of his innocence.)

*******

Post-Booker, we're still not quite certain if the U.S. Supreme Court has finished shaking up the constitutional outlines of sentencing law. Scooter Libby's sentence is now guaranteed not to make any new precedents on that. Except for the commutation of his prison sentence, though, it might have. The sentencing guidelines under which Libby's 30-month sentence was determined permitted Judge Walton to take into account, in connection specifically with the obstruction of justice count, unproved and possibly unprovable crimes under the Espionage Act and the Intelligence Identities Protection Act. As best I understand the current state of sentencing law, that's probably okay, so long as it's not mandatory but discretionary on the part of the sentencing judge.

I understand, and agree with, the particular rationale behind permitting an unproved crime to be used as enhancement for obstruction of justice. Otherwise, you would have the effect of effectively rewarding those who've successfully obstructed an investigation into, for instance, an IIPA violation.

*******

To illustrate the general point, look with me at a couple of hypotheticals.

Suppose Scooter Libby's obstruction of justice had been, for example, destroying unique and irreplaceable documents from the National Archive, of which there are no completely identical copies, and without which we are unable to inquire into the identities, actions, and motivations of co-conspirators at whose behest he was acting. Suppose he'd filched a copy of a memorandum on the margins of which his co-conspirator had made an incredible handwritten admission: "Good thing the press never looked into this, because this happened during was the week I accepted a bribe from those Saudi princes." Sure, there are other copies of that memorandum in the Archives — but none of them had that one hand-written tidbit, and Libby has now stolen and destroyed the version that did have the handwriting. Assume further that without that unique document, we now can't even figure out who the co-conspirator was, much less prove his guilt through such an unqualified admission. So in this hypothetical, we assume that we have a genuine case of international espionage, bribery, and treason which is therefore unable to be prosecuted — but all that Libby can be convicted of is obstructing justice when he  stole and destroyed the memo. (Assume with me that without the destroyed memo, there's also not enough corroborating evidence for a conspiracy charge.)

In those circumstances, would it be fair to enhance Libby's obstruction of justice sentence by considering the serious nature of the crimes whose investigation and prosecution he successfully obstructed? Sure, I have no problem with that. Indeed, we definitely ought not let such deviousness go unpunished, especially when, by the success of the devious acts, we may never know the whole scope of what additional crimes were committed or by whom.

Or let's take the same hypothetical, but change one fact: Contrary to Libby's expectation, FBI agents found the remains of the acid-stained document, and FBI forensic scientists have been able to make out the handwritten language. Same obstruction of justice, in other words — and it might very well have worked! But this time it didn't. Assume that Bill Clinton Mr. X was caught and duly punished for bribery, espionage, and treason, despite Scooter's obstruction. Once again, on this hypothetical, I have no problem enhancing Libby's obstruction sentence based on the unproved crimes, based on his clever-but-failed obstruction scheme.

*******

Here, though, the prosecution has not been able, as far as I understand, to articulate a causal chain in which anything that Libby did actually did obstruct Fitzgerald's investigation, or even a plausible chain of events by which it could ever have been expected by Libby or by anyone else to do so. There wasn't anything to his obstruction, in other words, than telling a story that would conflict with someone else's story. Nothing was permanently hidden; no path of inquiry was blocked. For Libby's feeble obstruction to have succeeded in hiding another crime, or preventing its investigation and proof, the FBI and Fitz would have had to be completely vegetative.

In first my hypothetical above, at some point during his investigation, Fitzgerald shouts, 'Drat that Libby! Now that he's poured acid on the only copy of the memo with the handwritten notes, we'll never know who Mr. X was!" Or in the second hypothetical: "Drat that Libby, Mr. X might have gotten off but for the competency of our investigation!"

So what's the "Drat" shout that Fitzgerald could make about anything Libby did here? What even hypothetical evidence did Fitz forever lose based on the sand that he claims Libby tried to throw in his eyes?

All this is to say: When an obstructer of justice has been so painfully inept at it as Libby turned out to be, or ever even boded likely to be (from this kind of conduct) I think it may indeed be an abuse of discretion for the unproved crimes to be considered for purposes of sentence enhancement.

Judge Walton would probably say to this argument that he didn't enhance Libby's sentence nearly as much as the guidelines would have authorized him to do, given the nature of these specific unproved crimes. But unless you can articulate how the prosecution actually was ever at any risk of being prejudiced on these facts, I can't see that any enhancement at all is appropriate.

"Well," Fitz might say, "We had to spin their wheels longer to clear up the confusion that Libby created." Fine, that's true. But that's built into the penalties for garden-variety obstruction, un-enhanced.

"Well," Fitz might say, "Libby didn't know that we had identified Armitage as the first leaker, and he thought he might have been the only leaker, and so he was protecting himself from a potential espionage or IIPA charge by concealing his status as a co-leaker (but not first leaker)." Okay, that's fine too — but if so, that was an awfully stupid, naïve plan, and it certainly didn't prevent you from developing other evidence from the witnesses who Libby did admit to speaking with that Libby was a co-leaker, and it certainly didn't interfere with your ability to charge and try to prove all of the other elements of those crimes if you thought such crimes were indeed committed. So tell me what you could have been expected to actually miss, Mr. Fitzgerald, from the sand that Mr. Libby threw in your eyes?

This just seems to me to have been a spectacularly bad case for enhancement on its facts. It was the weakest part of Fitz' closing argument on obstruction, too, but you don't have to have had a clever, sensible, easily understandable and plausibly successful obstruction plan to be convicted for obstruction.

*******

A few points in closing about Mr. Fitzgerald: Saying that I think there's a hole in Fitz' argument on enhancement that Judge Walton ought to have seen, or a hole in Judge Walton's sentencing explanation on enhancement that an appellate court ought to have seen, is not at all the same thing as saying that "Fitz = Nifong!" or that "Fitz and Reggie are proceeding in bad faith!" or that "This is a partisan witch-hunt!" I expect every prosecutor to argue for the outside limits on sentencing most of the time, especially when the defendant hasn't shown contrition. And when trial judges explain what they've decided, that necessarily reads like they're defending themselves against being reversed on appeal, and that's okay too.

I also disagreed with Team Fitz, Judge Walton, and the D.C. Circuit on whether Team Libby had raised a "genuine question" for purposes of bail pending appeal. But that doesn't mean anyone involved is a Nazi.

I'm not surprised that Fitz continues to defend his now-mooted position on sentencing, either. I do think, however, that he probably spoke unnecessarily and unwisely in issuing a press statement quibbling with Dubya's commutation statement:

We fully recognize that the Constitution provides that commutation decisions are a  matter of presidential prerogative and we do not comment on the exercise of that prerogative. 

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.”   The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country.  In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws.  It is fundamental to the rule of law that all citizens stand before the bar of justice as equals.  That principle guided the judge during both the trial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process.

Dubya's description of the sentence as "excessive" certainly wasn't an evaluation of the sentencing guidelines or their use here. He's not looking at it from the standpoint of a sentencing judge or an appellate panel, but from the point of view of a President, and he's entitled to consider additional and different factors.

Fitz is an advocate doing his job — and the way the system works is that someone else has the job of advocating the opposing position just as fiercely. The problem with this particular statement, though, is that arguing with the President in the press isn't really part of Fitz' job. Since all of the imprisonment issues are now permanently mooted, there's no more need for him to be arguing about the prison sentence in court either. Arguing about it anywhere now comes across as being political, instead of just being a vigorous advocate. Doing so isn't bad faith; I think it's just a garden-variety error in judgment, albeit on a brightly lit high stage. As with his mistaken accusation of Libby as being the "first leaker" in the indictment press conference, he's made another misstep outside the courtroom — one that contrasts so vividly with his successful footwork inside them. He should continue to let his court filings do his talking.

Posted by Beldar at 04:18 AM in Law (2007) | Permalink | Comments (9)

Beldar on the blogosphere's reactions to the Libby commutation

My own extended remarks now posted, I'll comment on just a few other posts with reactions to the Libby commutation that catch my eye.

Emptywheel at The Next Hurrah posts that "George Bush obstructs justice." This is true if, but only if, your concept of "justice" involves a Constitution that excludes the pardon power. Otherwise, it's just loose and over-the-top rhetoric.

Ed Morrissey at Captain's Quarters posts that Dubya was "Splitting the Baby," and writes that "like Solomon, Bush will probably find neither side satisfied." But he thinks the decision "strikes a balance that few will appreciate now, but later will accept as wise, as far as it goes." I wouldn't have used this metaphor, but I don't disagree with Ed's comments.

Jeff Goldstein thinks that Dubya should have just gone the whole nine yards at one fell swoop:

[I]f the President was going to take the kind of sustained heat he’s about to get from the press and Congressional Democrats, anyway — and believe me, they’ll be falling over themselves to get in front of a camera to talk about the Republican culture of corruption — he should have just done the right thing and pardoned Libby completely.

That's rather the point, though: Dubya obviously didn't think that pardoning Libby completely was the "right thing." I take the President at his word that he believes the appeals process should play out, and that implies pretty strongly, I think, that he's willing to accept its final results as being, well — final.

Volokh conspirator Prof. Orin Kerr (with whom chief conspirator Eugene Volokh concurs) finds "Bush's action very troubling because of the obvious special treatment Libby received. President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail." And, consistent with that, Bush didn't commute Paris Hilton's sentence either, did he? The thing is, for all of Paris Hilton's celebrity, her traffic offenses and jail time were run-of-the-mill. So what kind of case, Prof. Kerr, would it be okay to get the President's specific and unusual attention, if not Scooter Libby's?

Writing on the HuffPo, Jeralyn Merritt asserts that "Hypocrisy, Thy Name is Bush," taking Dubya to task more for varying from his previous statements that he'd let the system play out than (at least in this post) the merits of the decision. "Bush's arrogance is apparent from the extent to which Scooter's clemency decision departs from Justice Department guidelines on pardons and clemency," she continues, which generally provide that requests aren't accepted until your appeals are exhausted and you're serving your sentence. That's true, and a very powerful argument — if (but only if) you're the sort of person who's into what I'd call "footnote justice." That's someone who thinks that departmental regulations from the C.F.R. are holy writ, and the Constitution isn't. It's certainly true that this departed from the "ordinary course" routine "pardons and clemency" process that tens of thousands of convicted criminals try to employ. But this decision wasn't made on the basis of an application from Libby's lawyers to the DoJ anyway! I don't think even Jeralyn would argue that this is an "ordinary case" in any respect. Is Dubya supposed to be among the handful of politically, governmentally aware adults in the U.S. who is immune to interest in this case?

Meanwhile back at TalkLeft, her co-blogger Big Tent Democrat draws the obvious conclusion from this event using razor-sharp logic: "Will our Democratic representatives wake up and understand NOW that he will never end the war in Iraq — that only a Congress that says no to funding the Debacle past a date certain can end the war? I doubt it." I doubt it too, Big Tent. The President's position on the war is just too obscure to top congressional Dems, notwithstanding this latest, abundantly clear war message from the White House.

It's "an excellent resolution," writes Power Line's John Hinderaker, that "will go over well with the party's conservative base and will contribute, to some degree, to a restoration of Bush's standing with conservatives." I hope in later posts John and his co-bloggers will expand on this. It's a long time until January 2009, and conservative self-immolation out of dissatisfaction with George W. Bush for that long a period is definitely not productive.

Kevin Drum writes:

The only thing I didn't foresee was that Mr. Principle would carefully read the polling tea leaves and commute only part of Libby's sentence so that he could pretend this was some kind of deeply profound Solomonic judgment, not just a craven favor for a friend. His statement along these lines is enough to make one ill. Ugh.

That's so shallow. How can an intelligent left-leaning pundit discuss the distinction between outright pardon and commutation, and still refuse to even acknowledge the possibility that it's a reverence for justice which has caused President Bush to deliberately allow the appeal to go forward, with the serious possibility that the conviction will be affirmed? Reading "polling tea leaves" would have dictated either a full pardon or no relief at all.

It's like the Hard Left's outrage dials only have one setting — 11.

My friend Patterico isn't pleased — and it would be the rare current prosecutor who would be, I suppose:  "You do the crime, you do the time. The jury said Scooter Libby did the crime. He should do the time." He thinks Republicans will be "slaughtered" in the 2008 election because of this, and that's certainly what the Dems will try to do. "This particular convicted felon wasn’t worth it," he writes.

I appreciate this viewpoint, and Patterico and I have been among a pretty small minority of conservative bloggers who've been supportive of Fitzgerald and skeptical of those who argue that the whole Libby prosecution is bunk. I suspect that my friend would agree with me that if we start applying a relativistic approach — comparing Libby with, say, Sandy Berger — the Libby commutation would look better. But he'd also certainly argue that a relativistic approach is improper, and I tend to agree with that; and he'd argue that Berger going unpunished doesn't justify others going unpunished, and I definitely agree with that.

Indeed, if I keep hypothesizing Patterico's arguments, I may talk myself into his position here.

What he and I — and, with respect, you too, gentle readers — all lack is what I'll call the "sweaty shirtsleeves perspective" that Dubya has. If there is a basis for showing mercy, for indulging in an act of "constitutional grace," for Scooter Libby, it is because of the public service he's rendered during his career — not for reasons particular to this prosecution. Critics see it as cronyism, but in fact, no one is better qualified to judge the value of Libby's public service than President Bush. Huge, huge portions of what Scooter Libby did as a key inside figure in implementing the Administration's response to 9/11 and global terrorism is still highly classified. But the President knows on a first-hand basis what the man contributed, what its value has been, and under what critical and pressure-filled circumstances he served. And as it happens, George W. Bush is the one person in whom the Constitution entrusts the power to weigh that public service against the serious crimes of which Libby stands convicted. And he clearly thinks "this particular convicted felon" is deserving, even though there will be a political price to pay.

Patterico may doubt his wisdom, but in this instance, I doubt he doubts Dubya's sincerity. To the extent I have a basis to judge, I can't disagree with the judgment President Bush has reached, and I think in fact that I actually do agree.

Finally, Dr. James Joyner at Outside the Beltway shows a deft touch at punditry through music video link-posting, which I'll repeat:

The more I know, the less I understand.
All the things I thought I'd figured out
I have to learn again.
Ive been trying to get down
To the heart of the matter,
But everything changes
And my friends seem to scatter.
But I think its about forgiveness,
Forgiveness!
Even if, even if
You don't love me anymore.

Posted by Beldar at 01:01 AM in Law (2007) | Permalink | Comments (3)

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.

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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 | Comments (8)

I was wrong: D.C. Circuit panel denies Libby's application for release pending appeal

Special counsel Patrick Fitzgerald continues his unbeaten streak in the Libby case, and I have been proved flatly wrong in my prediction that the D.C. Circuit would grant Libby bail pending appeal:

A federal appeals court ruled today that I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, must report to prison shortly to begin serving his 30-month sentence for lying to federal investigators about his role in leaking a CIA officer's identity.

In a one-paragraph order, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit denied Libby's request to remain free while he appeals his conviction for perjury and obstruction of justice.

The judges said that Libby's appeal does not raise "a substantial question" close enough that it is likely his conviction will be overturned.

Libby's lawyers can, and probably will, ask the full D.C. Circuit to rehear that decision en banc, and/or ask the member of the Supreme Court with responsibility for emergency matters out of the D.C. Circuit — that being Chief Justice John Roberts — to overturn the panel's decision. The odds of getting that relief from either are very, very remote.

Posted by Beldar at 12:43 PM in Law (2007) | Permalink | Comments (13)