Cognitive dissonance on Libby commutation

President Bush's commutation of Scooter Libby's prison sentence has unleashed a predictable series of simple-minded reactions.

Liberals and Bush opponents are, of course, outraged. Joe Wilson and Atrios (here and here) are claiming that the commutation is "obstruction of justice" -- a nonsensical claim on its face (the president's pardon power is absolute except for impeachment). Meanwhile, Josh Marshall (here and here) and Andrew Sullivan are asserting without evidence that the decision was made or influenced by Vice President Cheney.

On the other side of the aisle, the Wall Street Journal editorial page denounces Bush for failing to pardon Libby. As Noam Scheiber suggests, other conservatives are likely to do the same, though many are keeping the volume low for the moment.

As for me, I'm torn. It appears Libby did perjure himself, which is a serious matter under any circumstances. But he wasn't the original leaker -- Richard Armitage was -- and it's highly unusual to prosecute someone for perjury in a case where the underlying crime wasn't prosecuted. The most obvious example where this did happen is, of course, Bill Clinton. And as David Brooks notes in a column that captures some of my ambivalence, almost no one has a consistent position on the two cases:

Republicans who’d worked themselves up into a spittle-spewing rage because Bill Clinton lied under oath were appalled that anybody would bother with poor Libby over lying under oath. Democrats who were outraged that Bill Clinton was hounded for something as trivial as perjury were furious that Scooter Libby might not be ruined for a crime as heinous as perjury. It was an orgy of shamelessness. The God of Self-Respect took sabbatical.

With all of that said, it's hard to justify circumventing the normal commutation process and overruling a judge and jury before Libby has served a day in jail.

At a more general level, Matthew Yglesias may be right that the pardon power is too strong, particularly given the frequency with which associates of the president are prosecuted in the contemporary era.

Finally, from a political point of view, I'd guess that this will push Bush's abysmal approval ratings to new lows. Glenn Reynolds suggests it will improve his standing by appealing to disaffected conservatives, but a snap Survey USA automated poll found that conservatives are actually split on the issue. One big loser would seemingly be Fred Thompson, whose stalwart support of Libby is now much more salient (his quote: "I am very happy for Scooter Libby").

Comments

[Rob]

The parallels with Bill Clinton are considerable. Both Clinton and Libby lied under oath. For both the penalty is monetary (in Clinton's case, as a result of civil penalty; in Libby's case, criminal) only, with no prison time. Clinton was disbarred; Libby will be. In both cases the subject about which they lied does not itself appear to have been criminal. Libby has had to undergo the ignominy of a criminal conviction, which Clinton did not.

There are also parallels to Sandy Berger's case. Berger also lied, though to investigators rather than under oath. In his case, the subject of the lies probably was criminal. His fine, while substantial, is only a fraction of the penalties imposed on Clinton and Libby. Like them, he did no jail time.

The outlying statistic in all this is Martha Stewart, who lied to investigators and got jail time for it.

BTW, a common thread of the prosecutions of Libby and Martha Stewart, also shared by many less well-known objects of criminal or civil action, is that when an investigation is long and expensive, the investigators have a bureaucratic imperative to justify their efforts by collecting a scalp. Woe to the poor schmuck who ends up without a chair when the music stops.

[Philip the Equal Opportunity Cynic]

Brendan,

I typically admire your willingness to call either or both poles of mainstream political opinion out when they're wrong, but on this issue I think you should stop prostrating yourself at the altar of bipartisanism. At least you're willing to point out the Clinton inconsistencies, though. (I'm in the minority: I thought the president shouldn't have been above the law in 1998, and I think the president shouldn't be above the law now.)

And I'd be surprised if it much changes Bush's poll numbers. The 28% dead-enders are still dead-enders; immigration might make them mad, but they never thought Republican cronies should be subject to the law so there's no reason they'd start now. The split Republican numbers are interesting, but I think they only reveal those who are already off the reservation.

[nocturnation]

...it's highly unusual to prosecute someone for perjury in a case where the underlying crime wasn't prosecuted.

I'm sorry, but perjury is an entirely separate issue. An "underlying crime" is quite simply beside the point.

Also, by your framing of the issue, the crimes of Libby are reduced to exactly one, perjury. However, it was this crime in the pursuit of obstruction of justice (a weighter charge) that demonstrably foundered the investigation of the underlying crime.

Lastly, let you mind rest over the perjury of Bill Clinton. Are all lies/obstructions to a grand jury the same? I think not, although I understand that for the purposes of law, they must be treated the same. Libby's lies were central to the underlying investigation. Clinton lied about a hummer.

[cleek]

One big loser would seemingly be Fred Thompson, whose stalwart support of Libby is now much more salient

it's hard to be much more stalwart or salient than being on the "Advisory Board" for Libby's Defense Fund.

a nonsensical claim on its face (the president's pardon power is absolute except for impeachment)

it might be absolute. but you should ask the ghost of Richard Nixon about how an unfriendly Congress would look at how it is used.

[Michael Young]

You seem to be unduly influenced by the fact that the underlying crime has not been prosecuted. Are you unwilling to accept the notion, advanced by the prosecution, that Libby's perjury essentially made prosecution of the underlying crime impossible? Moreover, it seems that obstructing the prosecution
of a non-trivial matter was the clear *intent* of Libby's testimony.

And is the distinction between lying to cover up a personal indiscretion versus a serious public interest really so hard to understand? The perceived interest in "consistency" here is just foolish.

[Randinho]

This is really just a great deal of fence straddling on Brendan's part. A word to the wise, Brendan: fence straddling can damage your nether regions.

[Philip the Equal Opportunity Cynic]

And is the distinction between lying to cover up a personal indiscretion versus a serious public interest really so hard to understand?

It's not hard to understand, but it's irrelevant. Perjuring oneself, as Bill Clinton did, to thwart a harassment suit is no more honorable.

That said, it doesn't matter that the Democrats' arguments to get Clinton off the hook are now backfiring, because obviously the Republicans are every bit as inconsistent here. (Viscerally I feel like the GOP is being even more cynical here. But then I recall all the assurances that attempting to thwart justice is fine just so long as it's about sex. If Scooter had been getting a blow job at some point in this sordid mess, everything would presumably be hunky-dory.)

What's just is just, regardless of party affiliation, and I'd prefer to see perjurers of all political stripes in jail.

[Stuart Levine]

Two points.

First, commutation can be a constituent part of an obstruction of justice. From Caro's Blog at TPM Cafe: "The following is from a report written and released by the Judiciary Committee in 1974 in the aftermath of the Watergate crisis: “In the [Virgina] convention George Mason argued that the President might use his pardoning power to ‘pardon crimes which were advised by himself’ or, before indictment or conviction, ‘to stop inquiry and prevent detection.’ James Madison responded: ‘[I]f the President be connected, in any suspicious manner, with any person, and there be grounds tp believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.’

Whether the commutation is part of a conspiracy to obstruct justice is a question of fact not a question of law.

Second, the Clinton perjury analogy simply does not hold water. Clinton was asked a question that was (i) irrelevant and immaterial to (ii) the prosecution of a civil lawsuit that was without merit and (iii) that was politically motivated, and (iv) which intruded on his personal life and was (v) intended to gain political advantage by embarrassing him. Ken Starr was a close second in his lack of professionalism to the Duke "rape case" prosecutor. Indeed, Starr had earlier provided legal counsel to Paula Jones with respect to the civil case.

On the other hand, the Libby prosecutor was professional in every sense of the word. The grand jury investigation was intended to determine who was involved in the intentional public disclosure of a CIA operative. Libby lied in an attempt to obstruct the investigation to protect his allies from the political embarrassment of having it disclosed that they intentionally put national security at risk in order to gain partisan political advantage. He deserved to go to jail.

[chris ghhio]

I'm sorry lying under oath in order to stymie an investigation into serious sexual abuse is inexcusable. Forgetting who someone told something to first is totally understandable.

The Clinton and Libby 'crimes' are totally different. Any attempt to prostrate

[Gus]

Sandy Berger pleaded guilty, dumbasses. You tend to get a better deal when you plead guilty. What this commutation means is that the president's friends are above the law. You may be comfortable living in a country with one system of justice for the rich and powerful and another for the rest of us, but I'm not. The man was tried, found guilty, and sentenced, period. Any spinning is bullsh*t. I though conservatives were all about the rule of law.

[Stuart Levine]

I would agree that "lying under oath in order to stymie an investigation into serious sexual abuse is inexcusable." The points I made, however, were that (i) the Paula Jones lawsuit was not "an investigation into serious sexual abuse" since (a) her claim was dismissed on motions, having been found to have no merit, and (b) the lawsuit was conducted in a way that could fairly be characterized as extortionate (Ms. Jones shopped around the right-wing law foundations until she found one that would take the case; if she had a real case for sexual harassment, there would have been battalions of employment attorneys willing to take the case on a contingent fee basis) and (ii) Clinton's testimony re: his sexual activities with Ms. Lewinsky in no way stymied the prosecution of Ms. Jones' case (in fact, even had he testified fully about the affair, the testimony would not have either been admissible at trial nor would it have been likely to lead to the discovery of admissible evidence).

Of course, neither Ms. Jones nor her attorneys ever intended to ask the President of the United States about his sexual activities in order to discover evidence that would be admissible at trial or would lead to discovery of admissible evidence. That would only have been the case if her lawsuit were "an investigation into serious sexual abuse."