New York Times on Scooter Libby

The New York Times points out the obvious in the Scooter Libby case:

Until he commuted the 30-month prison sentence of I. Lewis Libby Jr. on Monday, President Bush had said almost nothing about his philosophy in granting clemency while at the White House.

As governor of Texas, though, Mr. Bush discussed and applied a consistent and narrow standard when deciding whether to issue pardons and commutations. And that standard appears to be at odds with his decision in the Libby case.

Mr. Bush explained his clemency philosophy in Texas in his 1999 memoir, “A Charge to Keep.”

“In every case,” he wrote, “I would ask: Is there any doubt about this individual’s guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?”

In Mr. Libby’s case, Mr. Bush expressed no doubts about his guilt. He said he respected the jury’s verdict, and he did not pardon Mr. Libby, leaving him a convicted felon. And Mr. Bush acted before the courts had completed their review of his appeal.

“As governor, Bush essentially viewed the clemency power as limited to cases of demonstrable actual innocence,” said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates.

“The exercise of the commutation power in Libby,” Professor Steiker continued, “represents a dramatic shift from his attitude toward clemency in Texas, and it is entirely inconsistent with his longstanding, very limited approach.”

The "unique case" of Scooter Libby

As Fz points out, Bush's long and heartfelt contemplation of the Libby pardon goes against his record in Texas. Andrew Sullivan digs up more, from the archives of the Atlantic:

On the morning of May 6, 1997, Governor George W. Bush signed his name to a confidential three-page memorandum from his legal counsel, Alberto R. Gonzales, and placed a bold black check mark next to a single word: DENY. It was the twenty-ninth time a death-row inmate's plea for clemency had been denied in the twenty-eight months since Bush had been sworn in. In this case Bush's signature led, shortly after 6:00 P.M. on the very same day, to the execution of Terry Washington, a mentally retarded thirty-three-year-old man with the communication skills of a seven-year-old.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes...

Sullivan interjects:

The number of people George W. Bush sent to their deaths without a second's thought is higher than any living governor in the United States. And yet it took a perjury conviction of a white, wealthy, connected apparatchik to awaken the president's sensitivity to injustice:

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

Gonzales declined to be interviewed for this story, but during the 2000 presidential campaign I asked him if Bush ever read the clemency petitions of death-row inmates, and he equivocated. "I wouldn't say that was done in every case," he told me.

Yet the prospect of Scooter Libby serving 30 months in prison sent the President leaping for a pen to sign a pardon. Whatever happened to equal justice under the law? The White House doesn't know what that means. And if you don't believe me, just ask them (as a reporter did at a White House press conference):

Q Scott, is Scooter Libby getting more than equal justice under the law? Is he getting special treatment?

MR. STANZEL: Well, I guess I don't know what you mean by "equal justice under the law." But this is a unique case, there's no doubt about that.

It's a unique case, all right. But not a complicated one, as Joshua Marshall points out here:

Setting aside whether Scooter Libby should spend 0 days in jail for what most people spend from 1 to 3 years in jail, the key here is that it's inappropriate for the president to pardon or commute a sentence in a case in which he (i.e., the president) is a party to the same underlying crime. Because it amounts to obstruction of justice.

It's really not that complicated.

No, it's not.

More on Scooter Libby

I have taken so long to provide a post on Scooter because Dave beat me to the punch and really, what else is there to say? I'm not one of those wackos who thinks that for whatever reason Libby was the definition of a true patriot (I suppose anyone associated with the Bush Administration is a true patriot in some people's eyes). So, I obviously don't have a counter argument. But, perhaps there is more to say about this anyway. A respected professor of mine directed me to this post by Sanford Levinson on The New Republic's blog, Open University.

As DC points out below, Bush has not used his pardon power very often as President, and indeed, did not use it very often as Governor of Texas, or as Levinson says,

as Governor of Texas he exhibited almost blithe disregard--enabled, to be sure, by his lawyer Alberto ("Fredo") Gonzales--of the poor wretches condemned to die under a notably slipshod system of Texas criminal justice.

So, he didn't pardon any people wrongly sentenced to death by Texas's "justice" system, but all of a sudden he has boatloads of compassion for someone who was sentenced to (and fully deserves - 30 months is not "excessive" for this sort of crime) 30 months in prison? I don't buy it. Team Bush/Gonzales have always fought for tougher criminal sentencing. Indeed, this isn't compassion. This is paranoia. Levinson quotes George Mason, one of the founding-era patriots who opposed the pardon power:

the President of the United States has the unrestrained Power of granting Pardon for Treason; which may be sometimes exercised to screen from Punishment those whom he had secretly instigated to commit the Crime, and thereby prevent a Discovery of his own guilt.

Could Bush be doing something similar? Certainly, Scooter is not guilty of treason, but as Levinson notes,

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. This is simply one more illustration of the mendacity and corruption at the heart of the Bush Administration.

In other words, Bush has to look out for those who know damaging secrets. If Bush hadn't commuted Scooter's sentence, and if he ultimately does not pardon him completely, would Scooter be more inclined to reveal more of the dictatorial secrets of the Bush Administration?

I suppose the world may never know.

Bush commutes Libby, delights the "Party of Law and Order"

So Bush commuted Scooter Libby's prison sentence yesterday, and the "Party of Law and Order" cheered him on. Some of the best commentary on this case comes from Orin Kerr at the Volokh Conspiracy:

I find 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. His handful of pardons have been almost all symbolic gestures involving cases decades old, sometimes for people who are long dead. Come to think of it, I don't know if Bush has ever actually used his powers to get one single person out of jail even one day early. If there are such cases, they are certainly few and far between. So Libby's treatment was very special indeed.

What's particularly outrageous is the way that Republicans have portrayed the Libby sentence as "politically motivated." Kerr points out the obvious:

I find this argument seriously bizarre. As I understand it, Bush political appointee James Comey named Bush political appointee and career prosecutor Patrick Fitzgerald to investigate the Plame leak. Bush political appointee and career prosecutor Fitzgerald filed an indictment and went to trial before Bush political appointee Reggie Walton. A jury convicted Libby, and Bush political appointee Walton sentenced him. At sentencing, Bush political appointee Judge Walton described the evidence against Libby as "overwhelming" and concluded that a 30-month sentence was appropriate. And yet the claim, as I understand it, is that the Libby prosecution was the work of political enemies who were just trying to hurt the Bush Administration.
...
But for the case to have been purely political, doesn't that require the involvement of someone who was not a Bush political appointee?

My personal favorite defense is that Libby's perjury didn't matter because no one was convicted in the case, sort of a no harm no foul defense. But where were these enlightened Republicans when Bill Clinton lied about his affair?