Liberals: "Underlying crime" in Libby case

Like several commenters on my original Scooter Libby post, Josh Marshall is assuming the existence of an underlying crime that was protected by Libby's perjury:

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.

Note how quickly the tables have turned here. People (like Marshall) who bemoaned the guilty-until-proven-innocent attitude of Republicans during the Clinton years have now decided -- based on no hard evidence -- (a) there was an underlying crime and (b) that President Bush "is a party to" it. To believe this to be true, you have to believe that Richard Armitage innocently leaked Valerie Plame's status to Robert Novak before other Bush officials could unleash a plot that demonstrably violated the relevant statute. In addition, you have to believe that Libby's testimony would reveal this plot. While it's possible that all of this happened, assuming that it did is completely unreasonable.

Matthew Yglesias is more circumspect about the existence of an underlying crime, but still frames the issue in a "when did you stop beating your wife?" style:

Most of Libby's defenders -- George W. Bush, David Brooks, etc. -- don't seem to be denying that Libby committed a crime by lying under oath to investigators. They want us to say that, rather, he deserves to be treated very leniently because there was no big deal here. The alleged absence of an underlying crime is key to that theory. The converse theory is that there was an underlying crime and the crime can't be proven because Libby lied to investigators.

If that theory is wrong -- if there really was no crime -- then it seems we ought to get some kind of explanation from Libby as to why he lied. People sometimes do have reasons to lie to investigators other than a desire to cover up criminal activity (hiding non-criminal activity that's embarrassing is the obvious one) but if Libby wants mercy he should offer up a plausible score on this account. But Libby hasn't offered any such story... Maybe there was no crime here; but if there wasn't, then what was Libby doing? He's not even trying to convince us that he had some other reason to lie.

Libby is by all accounts a loyal servant. Couldn't he just be protecting his superiors from exposure of embarrassing but non-criminal conduct? In the end, we have no idea what happened. There is no proof of a criminal conspiracy. Asserting or speculating that one took place is irresponsible.

Update 7/6 10:37 AM: Yglesias concedes a great deal of ground in a response, changing the question from "Doesn't the absence of an explanation for Libby's conduct suggest the existence of an underlying crime?" (the subject of his previous post) to "Was Bush's decision to commute Libby's sentence an abuse of power?":

Brendan Nyhan criticizes liberals for simply assuming the existence of an underlying crime in the Scooter Libby case and sweeps my post here into that rubric, wondering of Libby "Couldn't he just be protecting his superiors from exposure of embarrassing but non-criminal conduct?" He certainly could. But let's assume that's true. Is "I broke the law to help my boss cover-up embarrassing but non-criminal conduct" a reasonable case for lenience? No. Is "he broke the law to help me cover-up embarrassing by non-criminal conduct" a reasonable case for granting someone clemency? Also no.

The bottom line is that on one theory -- Libby broke the law to spare his superiors embarrassing revelations of their lawbreaking, and is being pardoned by those same superiors to help perpetuate the cover-up of their embarrassing lawbreaking -- Libby deserves to go to jail and Bush has seriously abused his power by pardoning Libby. On Nyhan's alternative theory -- Libby broke the law to spare his superiors embarrassing revelations of their embarrassing non-criminal conduct, and is being pardoned by those same superiors to help perpetuate the cover-up of their embarrassing non-criminal conduct -- Libby also deserves to go to [jail] and Bush has also seriously abused his power by pardoning Libby.

This -- that the President of the United States is abusing his power in a serious way -- is a substantially more important issue than the question of whether Josh Marshall should be slightly more circumspect in his characterization of the serious abuses of power.

Actually, unsubstantiated assertions that the president of the United States participated in a criminal conspiracy are a pretty important issue. (Matt's liberal friends were pretty worked up about this issue a few years ago -- and rightly so.) In any case, despite my misgivings about the Libby case, I ultimately agree with Yglesias that Bush's decision was an abuse of power and I support the proposal he highlighted that would amend the Constitution to ban pardons and commutations for "executive-branch employees convicted of crimes carried out in the course of their professional duties."

Update 7/6 12:41 PM: Yglesias added the following update to his post:

UPDATE: See Brendan's update. Bottom-line, I think it's rock solid that Bush abused his power, and until someone can offer a plausible account of what kind of non-criminal conduct Libby is helping to cover-up, I'm not going to be too upset if people assume that what's being covered-up was, in fact, a crime. The fact that Bush is actively and openly participating in the cover-up (and there's no serious doubt that something is being covered-up) naturally whets one's suspicions. Bush and Cheney are, however, clearly entitled to a legal presumption of innocence.

I'll just add that many conservatives had many such "suspicions" about the reasons for alleged coverups of, say, Whitewater that turned out to be unfounded.

Update 7/7 10:32 AM: Conversely, as Media Matters points out, Robert Novak is incorrect to assert definitively that "there was no underlying crime." As a result of Libby's perjury and obstruction of justice, we don't know that for sure either.

Comments

[Robert]

The problem is that the whole Cheney/Bush regime is so secretive, so isolationistic in their approach to open government that it isnt entirely unreasonable to assume that underhanded/backroom dealings are going on in the Whitehouse. Look at the build-up to the Iraq war with Cheney's constant presence at the CIA. Look at the reasons behind the personal attacks against Joe Wilson. Look at the overseas black sites for prisoner torture. Look at how every single person that wanted to wait for the UN to do their job was branded a traitor, a terrorist and/or liberal backslider wanting to just "hug" an insurgent.

Frankly this administration is only reaping what they sowed.

And if nothing else, an investigation into everything that has gone on is not an unreasonable request.

[SomeCallMeTim]

That's a bizarre epistemic posture to demand. Yglesias explicitly acknowledges that there may be some non-criminal explanation. He isn't asking, "Why did you beat your wife?" He's saying, "Your wife turned up late last night with bruises and a broken arm. Why did you lie about being at home with her that night?"

I'm unwilling to trawl the archives, but I strongly suspect that it contains speculation by you (a) about Nfong's motives in the absence of explicit confirmation from Nfong about why he acted as he did, and (b) about what Nfong did wrong in the absence of definitive evidence that he did that that wrong thing. Why best guesses and the like are OK with you in one case and not the other is...probably best left to speculation.

[Blar]

We have no idea what happened may be the best argument against leniency on Libby. When someone perjures himself in order to hide something, you don't go lenient on him until after you find out what he was hiding. Libby's perjury has been successful: whatever he was trying to hide remains hidden. You don't tell someone in these circumstances "congratulations on your successful perjury; I'll give you the benefit of the doubt and assuming that whatever you're hiding isn't all that bad." Withholding punishment in a case like this is absurd - except, of course, for someone who shares Libby's desire to keep these things hidden.

[Seth]

"until someone can offer a plausible account of what kind of non-criminal conduct Libby is helping to cover-up,"

Do we now live in a world in which the burden of proving innocence is upon the accused?

The other interesting issue is the Republican insistence that "Well Clinton did it first" with respect to granting clemency inappropriately. It's not as if that makes it better.

[crack]

Who got convicted of a crime in the Whitewater affair? Who got pardoned for committing a crime to cover up Whitewater?

[categorical imperative]

So, are you suggesting it is OK for people to lie to police and grand juries about suspected criminal acts, just because their testimony might be embarrassing? Libby may have foiled an investigation into a crime. Of course we don’t know in fact whether there was an underlying crime: whether one occurred or not was precisely what was bring investigated. One of the reasons we don’t know is precisely because Libby lied. What is so difficult about that? If your reasoning were adopted the criminal justice system would grind to a halt. Suppose you were mugged, and I were a witness, and I decided to lie about it because I was in an embarrassing situation when it happened. Would you feel that my actions were OK?

[justaguy]

Where is the connection to Whitewater? Did Clinton ever pardon someone who was convicted of obstruction of justice in an investigation into executive branch crimes? Or in investigations into alleged Clinton crimes in general?

He pardoned Susan McDougal, after the Whitewater investigation was over and after she had served her term, so I don't see the comparison with Libby. (Please draw the connection if you can)

The only comparison that I can think of is George HW Bush's Christmas Eve pardons of the Iran Contra crew.

"Clinton did it too" can only get you so far.

[Azael]

In the end, we have no idea what happened.

My lord, Brendan. For someone who prides themselves as a stickler for details, one simply has to sit back and wonder why on earth you are ignoring the fact that one of the crimes the man was convicted for was obstruction of justice. It would seem that even a "fair n' balanced" mind such as yours could understand that the reason we don't know what happened is because Libby obstructed our view. I mean, my lord! Are you claiming that obstruction of justice isn't a crime? Then why, pray tell, is this law on the books?

He broke the law. Yes, why he broke the law is unclear.

It's a complete and utter mystery why on earth you can't seem to get this through your head.

[Cycloptichorn]

The prez. is in a completely indefensible position on this issue. He's really in trouble.

Because there really are only two explanations for why this commutation/pardon took place:

1, Bush doesn't believe his friends and political allies should fall under the same system of justice as the rest of America does, or

2, He's covering up for potential criminal investigations into his offices.

There is no cogent third explanation for why he would commute the prison sentence.

I expect the WH pool reporters to keep hammering away on this issue for some time.

[DWPittelli]

I think Bush reasonably sees the prosecution of Libby as “political.” Not political in the sense that the prosecutor was motivated by partisan animus, but political in the sense that the prosecution of Libby would not have happened under ordinary nonpolitical circumstances where a prosecutor has discretion as to what merits prosecution and no need to justify his assignment by taking on an unmerited or marginal prosecution in a given matter.

Like the rest of us, Bush, most likely, does not know whether Libby was lying, or had a bad memory and the bad judgment not to say “I don’t recall” more often.

But he does know that it is only because Libby worked for the Bush Administration (i.e., OVP) that he was pursued by a specially and specifically assigned prosecutor. And that it is only because of Bush’s public demand for cooperation that Libby had to answer any questions put to him by the FBI and that prosecutor (and probably believed that 100 “I don’t recall” answers would not be acceptable, even when accurate, and despite such answers’ utility in other cases). And it is only under the microscope of such a focused investigation that such inconsistencies in memory and testimony would be prosecuted, with the inconsistencies of journalists and other Administration outsiders overlooked.

Thus it should not surprise us that Bush would see that commuting Libby’s sentence is proper, and indeed morally obligatory for Bush. And assuming Bush does not believe himself an omniscient observer of an innocent being railroaded, it is also not surprising that Bush might have properly preferred to let the judiciary handle this, until Libby faced prison before his appeals were heard.

Of course, Bush’s opponents do not know, and cannot be expected to believe, that Bush’s motives are pure. For those who believe that Cheney, Libby and Bush were engaging in a sinister outing conspiracy, this commutation is the latest chapter in their nefarious project.

Without knowing what is in Bush’s conscience, we cannot know if his act today was morally upright — required even — or condemnable, and it is absurd for us to pretend otherwise, on either side, when we are all grasping at shadows.

[Karl K]

Yeesh..you people.

This is all SO simple.

A lie is not a cover up: it is an untruth.

Libby wasn't convicted of hiding something: he was convicted of telling a grand jury under oath something that was contradicted by the testimony of other witnesses -- specifically Tim Russert. That he did so is de facto obstruction of justice.

That's it. End of issue.

Look, here is the plausible explanation of all of what happened in this silly, stupid, and in the end, trivial affair.

Kristof writes his article, where he either misunderstood or believed that Joe Wilson was sent by Cheyney, and publishes that. Cheyney's office,rightly by foolishly, was furious.

They then set out to discredit Joe Wilson -- hmm, discrediting a critic, is THAT going to be an impeachable offense? Meanwhile, it turns out the Joe Wilson is quite discreditable -- he lies about the forged documents (which according to the timeline he could have NEVER seen at the time he said he did), lies about his wifes role in sending, and, it turns out, lies in his op-ed article since, if anything, his trip actually LENT credence to Saddam seeking uranium.

Libby Rove Cheyney all talk about it amongst themselves, and talk about it to reporters. OFF THE RECORD, it appears. "Who sent her?" asks one. "Why, his wife, we think--she works at the CIA." THAT'S IT. Talk amongst themselves. Talk talk talk. No conspiracy to "out" her. Just a desire to expose Joe Wilso as the lying opportunistic washed-up ex-diplomat he is. Simple as that.

Voila, her name gets into Novak colums. And who has told him? Why, RICHARD ARMITAGE! Everybody knows Val Gal works at the CIA says Armitage, says Andrea Mitchell. EVERYBODY.

The New York Times, ridden with Bush Derangement Syndrome the way Charlie Manson is ridden with delusional granduer, demands a special prosecutor. They get one. The SP drag s everyone in front of grand jury. He throws reporters into jail. He catchers Scooter in a fib, who probably fibbed because he thought he was in trouble, and continued the fib because, well, he either convinced himself it WAS true, or because he thought he could get away with it.

A fib, in the end, about what he told Tim Russert.

That's it. Nothing more nothing less.

A ridiculous farcical preposterous set of events that in the end mean nothing, except a big fat meaty book contract for Valerie Plame, a $250K fine and disbarment for Scooter, and millions of taxpayer dollars, and millions of blog bits, wasted.

Totally completely wasted.

[Tully]

Do we now live in a world in which the burden of proving innocence is upon the accused?

Sure. It's only the technicalities of those infernal laws that so annoyingly prevent Evil Bush from being hung, drawn, and quartered at the hands of the righteous, in summary judgement. All that's needed to determine guilt is Yglesias' assertion that it's "rock-solid." No trial or evidence required, just the Red Queen standard.

The screams of the crowd at being denied their scapegoat reflect more on them than on the goat.

[Ryan Waxx]

> It would seem that even a "fair n' balanced" mind such as yours could understand that the reason we don't know what happened is because Libby obstructed our view.

Bullshit. We know exactly what he obstructed: we know it because it was proven in a court of law, remember? And as we know, the prosecuter knew the answer before he ever asked the question.

The motivations are not prosecutable, nor are they provable. Lets say tomorrow Libby says "I lied because I wanted to prevent embarrassment to the Administration." This would literally fulfill your demand, and I am willing to bet that it wouldn't satisfy you.

Because your demand has nothing at all to do with weather you are satisfied. You are using the exact same methods as the truthers, and with as little integrity: looking for a scrap of unknown or a thing that's unprovable either way, and building fantasy castles on that real estate.

[edh]

I agree with Karl K.

Plus, I think Libby has serious grounds to appeal his conviction. I think denial of Libby's release pending that appeal was what motivated the timing of Bush's commutation.

Did you know the judge had actaully prevented Libby's defense from calling Andrea Mitchell as a witness at trial to explain her prior statements that contradicted Russert's testimony?

The precedent the court sited for this exclusion pertained to prosecution witnesses only. Moreover, I don't see how her testimony would have been duplicative, irrelevent or distracted the jury -- except that it might raise reasonable doubt about Russert's credibility.

[edh]

Karl K,

One correction. You said this about Libby:

"A fib, in the end, about what he told Tim Russert."

Actaully, if Libby did fib about his conversation with Russert, wasn't it about Libby's recollection of what Russert told him, not the reverse?

I think this distinction makes Fitgerald's case against Libby even more questionable.

[Big Jim]

Rudy G, a former federal prosecutor, got it exactly right when he noted that lying to the feds or a grand jury about a conversation with Russert is only a crime if it was MATERIAL to whatever crime was being investigated at the time of the lie. What was the underlying crime being investigated that would make Libby's recollection MATERIAL? If he learned Plame worked at the CIA from someone else, so what? WAS Plame "corvert"? If so, and that's very doubtful,did anyone in the administration who knew it tell a reporter? Remember, the Miller count was tossed by the judge, and the jury rejected the Cooper count. No evidence ever suggested Wilson's revenge theory was anything but his own invention.

[memyself]

Didn't it come out during the trial that Libby was the source for Richard Armitage? Libby told so many people so many times that it probably would have been surpirsing if one of the hadn't leaked.

[memyself]

If lying to the FBI is only a crime if it is material to an underlying crime, why did Martha Stwerart go to jail? There was no underlying crime there.

[Hankmeister]

Those slamming the eeeeevil Bu$Hitler/Cheney/Rove/Halliburton/Exxon junta on the basis of it "acting guilty" because of it being "so secretive" blah, blah, blah ... should not only examine themselves but also the political party they patronize. I think we're witnessing a classic case of projection, that is, a person or collection of individuals projecting their own foibles, phobias and paranoia on the opposition. After all, Republicans didn't invent dirty tricks and the opposition naturally assumes that if they would have been president trying to assure his re-election in 2004, well, by golly, they'd just start up a war with a bunch of Islamic lunatics in 2001!

Remember the left's state of mind the last six years. Effortlessly anti-war liberals have developed any number of laughable black helicopter conspiracy theories including the absolutely ludicrous "Troother" conspiracy theory that the downing of the Twin Towers on 9/11 was an inside job accomplished with demolition charges! Now imagine that same paranoia and utter insanity that is brought to bear on other issues like Scooter Libby's "guilt". And also keep in mind these same people pride themselves on supposedly being a "reality-based community" with Daily Kos and democraticunderground.com leading them like lemmings off a cliff into a sea of self-made kool-aid. Buwahahahahaha. You can't make this stuff up!

BTW, Martha Stewart shouldn't have been sent to prison for her "crime". I guess someone in the Justice Department wanted to make an example of some fat-cat Democrat or something. Well they did it, I hope they're happy.

[Hankmeister]

Oh, BTW, I bet Fitzgerald in front of a grandjury could - after grilling your grandmother for hours on end and reframing questions about where she precisely was on the day cousin Louie fell into the pond and drowned - ring her up on "perjury" charges after interviewing the rest of the family who were either less distracted or had better memories than hers.

[owillis]

Brendan, do you get some sort of pleasure out of being the "good" liberal that cons can pet on the head to carry their water?

[boris]

So what was the truth that Libby should have told that would not have "obstructed" the investigation or resulted in conviction? Based on evidence presented at trial it would be something like this ...

Libby: I first learned about Wilson's wife in June when CIA’s Harlow told Cathie Martin who told Vice President Cheney and me. It sounded like CIA was using her as a lame excuse for sending that blundering assclown Joe to Niger. There was no mention that the lame excuse might be classified.

Anyway I don't recall discussing it with anyone else until some reporter brought it up in July. Might have been Russert, or maybe Novak. Anyway I mentioned it to Miller and Cooper. I remember telling Cooper that I wasn't even sure if it was true.

Anyway, if that's the truth Libby had to cover up ... 2 questions. (1) Why? Nothing there particularly embarrassing or risk for legal jeopardy. (2) Would that truth have altered the "investigation" into IIPA violation? Fitz never bothered to explain that detail did he.

[Cincinatus]

I'm glad I never contradicted Tim Russert under oath.

[Big Jim]

Martha Stewart was questioned in connection with the Sam Wexcel insider trading investigation: he had family members and friends sell stock on the basis of a forthcoming FDA rejection of his company's major product. He went to prison for the crime of insider trading. Her crime was lying about what she knew about Sam's trading, which was MATERIAL to HIS crime. Armitage had nothing to do with the people in the White House or the VP's office - he saw some written report prepared by the CIA and volunteered the info to Novak, who then confirmed it by calling Harlow at the CIA. The Libby case should have been tossed by the judge on the basis that the purrported Russert lie wasn't MATERIAL to anything resembling a crime and obstructed nothing.

[Big Jim]

One other point. Neither Cooper nor Miller testified that they learned of Plame from Libby. In fact, both either acknowledged [Cooper] or suggested [Miller] that Libby was not the source. Libby said he didn't tell any reporter about Plame, and several reporters who he spoke to about Wilson prior to Novak's column so testified at trial. No real evidence supporting the claim Rove/Libby/etc."outed" Plame, on purpose or otherwise.

[jakester]

Unfortunately for most everyone here, this is no longer about Libby, who was found guilty by a jury of his peers, but rather about Bush, who went against his own DOJ guidelines to grant an unprecedented commutation of a sentence to a friend, a political ally, and extremely well-connected colleague who knows an awful lot about the activities within the Bush administration over the past several years.

Brendan, whatever "liberal bloggers" might be saying about whether or not there was an underlying crime is entirely beside the point. The criminal justice system has spoken. Bush took it upon himself to undermine that system before it had even run its course, and WELL WHAT DO YOU KNOW it just happened to be in a case that put the spotlight directly on the most shameful, ongoing travesty of his own administration: the falsehoods leading up to the Iraq War and the subsequent attacks on anyone and everyone who stood up to the bullsh*t. Bush said he'd "take care of" the leaker(s). And what do you know - that's exactly what he's done.

The bottom line is this: even if all your malarky is correct - that Fitzgerald, Walton, and the jury all carried out a miscarriage of justice, then the CORRECT remedy for this is through the appeals process. THAT'S WHY IT'S THERE! But no, based on no evidence that he's shown us, Bush has taken it upon himself to call the verdict "excessive." He doesn't say that Libby didn't violate the law. Just that spending one day in jail is too much for the man. Bush asks us to take him at his word that he carefully weighed the facts of the case before making this difficult decision, but what exactly has he done over the past few years to warrant our taking him at his word? He said he would fire the leakers, but when it came out that Karl Rove indeed was involved in the leak, Bush not only didn't fire him but has kept him at a high-level security clearance. And we're supposed to take him at his word that he made this decision based on the merits of the case, rather than cronyism or political expediency?

The fix was in from the start. Libby knew it. The press knew it. You all know it, and your bloviatings and rationalizations about underlying crimes, Clinton-did-this, Sandy Burger, etc. don't change the fact that Bush has crossed the line. Big time.

[jakester]

Neither Cooper nor Miller testified that they learned of Plame from Libby.

Oh Big Jim, this is just a flat-out lie. Judith Miller, in fact, testified that she did learn of Plame from Libby. You're trying, it appears, to make it seem like the outing of "Joe Wilson's wife" is somehow different from the outing of "Valerie Plame." But this is just a semantical con game, a distinction without a difference, and a sad coda to your ongoing misdirection.

[boris]

Actually Miller testified that someone other than Libby told her about Plame in June, that she went to jail to protect that source, and she didn't remember who that was.

Miller also had the name "Valerie Flame" in her notes and the Wilson's phone number which she did not get from Libby. This tends to confirm the Andrea Mitchell statement that reporters covering intelligence knew about Valerie.

Her notes from the Libby meeting contain the phrase "wife works at bureau" which in hindsight Miller suggests she meant the CIA. Actually the CIA is never referred to as "bureau" but State Department INR is. That happens to be Armitage's actual source.

[jcasey]

Whether or not there was an underlying crime is irrelevant to the crime of obstruction of justice and perjury. Besides, such a posture would reward criminal behavior (obstruction of justice, perjury) so long as it succeeds in covering up the crime. Libby, like many many other criminal defendants, perjured himself (on several occasions). That's a crime. So long as that remains a crime, he's guilty of it.

[REN]

memyself, July 06, 2007 at 09:26 PM wrote: "Didn't it come out during the trial that Libby was the source for Richard Armitage?"

No. Armitage himself has sourced his knowledge and went to the FBI when he realized his mistake. Read first memyself, make your insinuations later, after you have the facts. Here's a starter for you...

Newsweek, Sept. 4, 2006: "Armitage acknowledged that he had passed along to Novak information contained in a classified State Department memo: that Wilson's wife worked on weapons-of-mass-destruction issues at the CIA." ...

(Newsweek, cont...)"Armitage, a well-known gossip who loves to dish and receive juicy tidbits about Washington characters, apparently hadn't thought through the possible implications of telling Novak about Plame's identity. 'I'm afraid I may be the guy that caused this whole thing,' he later told Carl Ford Jr., State's intelligence chief. Ford says Armitage admitted to him that he had 'slipped up' and told Novak more than he should have."

[Campesino]

Who got convicted of a crime in the Whitewater affair? Who got pardoned for committing a crime to cover up Whitewater?

Posted by: crack | July 06, 2007 at 02:38 PM
********************************************
Susan McDougal.

Actually, instead of perjury, she just refused to testify and went to jail for contempt. Clinton pardoned her later

[Hankmeister]

Unfortunately for most everyone here, this is no longer about Libby, who was found guilty by a jury of his peers, but rather about Bush, who went against his own DOJ guidelines to grant an unprecedented commutation of a sentence to a friend,...

What tripe. Classic liberal double-standard. Susan McDougal and the Clintons were very good friends. And I bet the ever nuanced jakester will probably whine that Clinton didn't commute McDougal's sentence but rather pardoned her - so it's not the same blah, blah, blah.

The fact that Bill Clinton pardoned well-known fugitives and freakin' terrorists just doesn't generate much moral outrage among the LibDonks like a Libby commutation does it?

What was it Hillary said on June 28th of this year, that "non-violent offenders should not be put in prison"? And what did she say less than five days later about Scooter Libby, "He should serve his prison sentence." And then some self-righteous spew about how this undermines the Constitution. Buwahahahaha ... Presidential pardons and commutations are powers bequeathed to a President BY THE CONSTITUTION! Doh!

We're just witnessing more of the left-wing double-standard justice system. The partisan barrackroom lawyers on the left and their kangaroo courts are what pose the greatest threats to free Americans in this constitutional republic. We saw it with Nifong (D-Moon) and his headlong pursuit to get himself re-elected by going after the Duke lacrosse players despite exculpatory evidence that was even in the blogosphere within days of the alleged incidence. And yet there are liberal hacks today who still whine the young men "were let off" even after the new DA publicly proclaimed them innocent in no uncertain terms!

We are in very real danger from liberal legalists and their perverted view of "rule of law" if these socialist collectivists were to ever monopolize the reigns of power in this country.

[Jason Coleman]

I think what most fail to realize is that the appeals process will go forward from here, and in almost all likelihood, Libby will be fully exonerated for multiple reasons (least of which is the lack of an underlying crime).

The Dems and far left are trying to make mileage of this now because they can, not because they truely believe in what they are saying (see The Clintons and their actual pardons. . .many of which are HIGHLY questionable).

The commutation in my opinion is justified in light of other more serious crimes treated with kid gloves (see Sandy "Pants" Berger). By all rights Libby should have been allowed to remain free while the appeals process went forward, when politics barged into the judicial process and the judge denied a reasonable request, Bush stepped in, and rightly so.

Now the appeals will go forward, and the media/political spotlight will dim and in the end, Libby will be exonerated (and rightly so). I doubt we'll hear any apologies from the Left or Dems when justice is done and the politics and media freakshows end with Libbys acquittal on appeal.

[jcasey]

Scooter Libby, not Bill Clinton, was convicted of perjury and obstruction of justice. Perjury is a crime regardless of whether there is an "underlying crime" or not. There are for instance no "crimes" in civil cases, yet one can commit perjury.

Until Bill Clinton can somehow be blamed for Scooter's conviction, invoking his name does nothing to exonerate Scooter.

In a separate matter, George Bush commuted Libby's sentence. That seems to be his prerogative as President. Whether he should have is both a political and a moral question. These are not the same.

[boris]

Let’s say the primary witness in a perjury trial is someone like BJ, who lies about half the time so nobody can ever be sure if what he says is true.

Mocktard: The BJ version of the story is different than the Scooter version and assuming BJ is telling the truth then Scooter must be lying.

Me: Why would you assume that? BJ is a proven liar ???

Mocktard: So what, that’s no excuse for Scooter to lie is it? Two wrongs don’t make it right you know.

Me: WTF??? That’s not the point at all. You can’t send Scooter to jail based on an unreliable source like BJ.

Mocktard: Sure can! You yourself admit that BJ tells the truth at least half the time.

Me: BJ has already told three different versions of the story. He’s not credible.

Mocktard: If even one of those versions is true that makes Scooter the liar. Based on your own admission at least one of them MUST be true.

Me: I give up. You are a fool.

[Karl K]

Up above, Jakester articulates a lot of what the anti-Bushites think about the Libby case -- basically, he did the crime, he should do the time (even as the appeals process wends its way through the system).

So, I am going to give Jakester, and others who apparently have very little sense of history and understanding of the way Presidential power works, a little lesson. Because, being ignorant, they need it.

When the founders wrote the pardon/reprieve power into the Constitution, they did so quite thoughtfully. In fact, you can understand their thoughts by reading The Federalist papers. (In fact, I think it should be an indictable crime, if not a moral one, for anyone to talk about the presidential pardoning/reprieve power, if they have not sworn under oath that they have read, and understoood, the Federalist Papers, specifically Federalist 74, which was authored by Hamilton.

Here's why Hamilton wrote:

[The President] is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

There is no mention here of some prohibition against pardoning/commuting the sentences of White House co-workers. There is no mention here that pardons/reprieves are designed to rectifying a miscarriage of justice. There is no mention that pardons/reprieves are done because someone turns out to be innocent.

However, there is a very specific, and very clear, mention, of pardoning/reprieving those who have been the recipients of verdicts that constitute "unfortunate guilt" from a justice that is "too sanguinary and cruel."

THOSE the operative words and phrases here. THAT'S what the founders meant when they created the pardon/reprieve power.

You know, I found it striking that a couple of the Libby jurors went public immediately after the verdict that they felt bad about convicting Libby, and that one ever suggested he should be pardoned. That juror, unlike Jakester and other Bush Derangement Syndromites, actually understood what the framers intended. (In fact, if I were President, and that juror violated my prospective law of commenting upon the pardon power without reading Federalist 74, I would pardon him in a nanosecond).

If any guilt is unfortunate and punishment too cruel, it's the guilt and pison sentence of Scooter Libby -- who should have never been put in this position in the first place had Fitzgerald stopped the investigation once he found out that it was Richard Armitage who leaked Plame's name...and that an initiating underlying crime was never committed.

[Cecil Turner]

Conversely, as Media Matters points out, Robert Novak is incorrect to assert definitively that "there was no underlying crime." As a result of Libby's perjury and obstruction of justice, we don't know that for sure either.

Don't know what folks' standards for "for sure" are, but we can be pretty well assured there was no IIPA violation. One of the elements of the crime is that the defendant acted:

knowing that the information disclosed so identifies such covert agent . . .

And there's exactly zero evidence (or even indication) that anybody involved in this case knew she was covert (if she in fact was). The source for most of the leaks is the INR memo . . . and it's not in there. None of the phone calls to OVP even mentioned the possibility that the information was classified, let alone that Plame was covert. None of the witnesses at trial suggested it. Per the IIPA definitions section, they wouldn't even qualify as "classified information" because it wasn't "clearly marked or clearly represented" as such. And even Fitzgerald admitted, in his 8/27/04 affidavit, there was no evidence Libby knew anything of the sort:

To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.

Interestingly, that point came to light earlier in Libby's GJ testimony, when Fitz asked if he thought that learning it from reporters was a defense against leaking. Libby correctly points out that's a red herring:

Q. And when you were interviewed by the FBI, the first interview in this case, did you understand that if you had told reporters that Wilson's wife had worked at the CIA, based upon knowledge you had learned from the government or from conversations with Vice President Cheney, that you could have committed a crime?
A. My understanding, when I heard it from Vice President Cheney, was that it wasn't classified information.
I didn't understand it to be classified information. So my understanding would be, if I didn't think it was classified information, if it wasn't presented to me as classified information, if I wasn't intending to release classified information, that it wouldn't be a crime. But I'm not -- this not my area of the law.

The idea that there is an underlying crime assumes some source for learning Plame's identity was classified. There is no evidence any such source exists. The idea that Libby's "perjury and obstruction" obscured something here is also hard to credit. If Fitz could've proven Libby knew the information was classified, he could've gotten another count of perjury and perhaps the IIPA violation as well. He didn't even try.

[jcasey]

No one can seriously question whether the President can commute and pardon. He can.

Whether he *should* commute Libby's sentence is another and more difficult question.

Libby leaked the name of an undercover CIA operative to several people (before Armitage did it). But regardless, Libby perjured himself. Perjury is illegal. Even though he was assisted by some very competent lawyers, a jury of his peers found him guilty. There better be a pretty compelling reason for commuting his sentence (especially for those guilty of a similar offense) or, if it comes to it, pardoning him.

[Cecil Turner]

Libby leaked the name of an undercover CIA operative to several people (before Armitage did it).

Just plain wrong. Armitage first leaked on June 13th (and not just a passing reference either). That was one day after Libby's note about hearing it from the VP, and ten days before his first conversation with Judy Miller. There's no evidence Libby brought it up with anyone else, and the Miller conversations are dependent on her not-so-reliable memory and notes.

[jcasey]

Oops. Without any counter evidence, I'll have to say I'm wrong on that fact and thanks for pointing that out (I swear I read something to the contrary--nonetheless--in the absence of the evidence, I'll concede it).

Nonetheless, he was convicted of four of the five counts. Perjury and obstruction of justice are illegal.

[Cecil Turner]

(I swear I read something to the contrary--nonetheless--in the absence of the evidence, I'll concede it).

Nicely said. You probably heard it from Fitzgerald's presser after the indictment. He claimed (incorrectly) that Libby was the first leaker. (The first time he said it, he qualified it as "first known" leaker, the second time, he just said first.) He was wrong, and should've known it, as he'd already interviewed Armitage. Presumably Sir Richard didn't mention it to him . . .

Nonetheless, he was convicted of four of the five counts. Perjury and obstruction of justice are illegal.

In a highly charged political case in the most Democrat-slanted jury pool in the nation. We still don't know the political demographics of the jury, but the DC Federal pool is taken from registered voters, and the registrations run 9:1 Dem. Personally, I'd dispute the "of his peers" claim . . . and in any event the after trial statements by jurors suggest considerable political bias present. Combined with the refusal of the court to allow a memory expert and the CIPA procedures used to keep out some exculpatory evidence, I think Libby did not receive a fair trial. I also happen to think the most logical explanation is that his memory in fact was faulty, and that he's innocent, regardless of verdict.

In any event, cross-referencing the IIPA statute to increase the sentence is a basic fairness issue. Libby's "obstruction" obviously had nothing to do with Armitage's leak of Plame's identity, and there's no evidence to suggest any plot to out Plame. Armitage did it by accident, sloppily, just as he claimed. So even if one allows the conviction was just, the sentence should've been as the probation folks' recommended: a downward departure from the non-cross referenced guidelines. That's apparently the President's position, and a reasonable one. I consider that it's still too harsh.

[jcasey]

Fair enough. Perhaps the jury pool is democratic, but that doesn't mean they'll be more inclined to convict republicans of perjury or that Libby didn't get a fair trial. I suppose his lawyers could have requested a change of venue. In any case, I would say that the concerns you raise could be settled on appeal.

[boris]

more inclined to convict republicans

In a Russert says vs. Libby says they could be more inclined to believe Russert. Partisan bias seems to affect credibility when it comes to political figures. (Surprise surprise)

[jakester]

Look, the president could pardon every single person in the United States if he wanted to. It wouldn't make it right. You all can pretend all day that this commutation was just part of how things are done. In fact, it was an extraordinary measure taken against established procedures, and now the full spin machine is out in force to obfuscate and misdirect the hell out of this unforgiveable action by the president.

And by the way, those jurors who thought it was shameful that Libby was the fall guy did NOT think that nobody should go unpunished for what happened with the Wilsons. And in fact, we will see in civil court that someone does pay. Ultimately, he fell on his sword for Cheney, and was rewarded for it.

But Cheney will get his. I don't think he'll make it out of the second term in office. It goes without saying (or should) that in a just world, he would be behind bars.

[Hankmeister]

Karl K, you've committed the unpardonable sin when debating liberals. You use facts, historical precedence and founding opinion. In their feel-good world that's "unfair". Next thing you know they will invoke a "fairness" doctrine limiting us "neo-kkkons" to how many verfiable facts and founding opinion we can cite in our debating points.

[Cecil Turner]

And by the way, those jurors who thought it was shameful that Libby was the fall guy did NOT think that nobody should go unpunished for what happened with the Wilsons.

Yeah, except they were looking for Rove, et al, despite having listened to Armitage, gleefully leaking, on tape, about how "perfect" it was that Joe Wilson's wife was a "WMD analyst out there." You'll excuse me if I don't place a lot of store in their opinion about who should get punished, if they are ignoring the actual leaker in order to go after their preferred political targets.

But Cheney will get his.

A perfect illustration. As long as you're ignoring Armitage, it's pretty obvious the leak isn't what's really bothering you.

[boris]

for what happened with the Wilsons

They brought that on themselves. Once they went public with a takedown of the administration during an election year it was only a matter of time before their "secret" gets revealed. One could make a very good case they helped it along.

Andrea Mitchell, Judith Miller, Dick Armitage and bob Woodward were all onto the story well before Libby and Rove. Don't think it was gonna stay discrete for long.

[boris]

Robert Novak is incorrect to assert definitively that "there was no underlying crime."

It's a good bet that Novak is close enough to the story to assert that the only person who possibly violated either the law, CIA regulations, secrecy guidlines, or non disclosrue agreements was Bill Harlow of the CIA. He informed Cathie Martin, Bob Grenier, and Bob Novak about Valerie's CIA affiliation as an unclassified detail to explain why the CIA chose Joe Wilson.

When he called Novak back to request not using Valerie's identity in the story he did not provide a legitimate explanation, such as "because her CIA affiliation is classified". Later he explains he could not disclose the real reason the CIA did not want her exposed was because the "real reason" was classified. That suggests the "real reason" was something other than her affiliation.

Regardless, if any classified information was disclosed in an unauthorized fashion it was Bill Harlow who done it. The obligation to protect Valerie's identity does not fall to Scooter Libby, whose day to day duties regarding classified information does NOT include protecting the identity of covert CIA agents.

[Karl K]

So, Jakester, who decides what pardon or commutation is "right?"

Pinch Sulzerger? Katrina van den Heuvel? Keith Olberman? YOU??

Who decides that Clinton's pardon of FALN murderers is "right?" Who decides that Clinton's pardon of fugitive-tax evader- illegal-oil-trader-with-Iranian-mullahs-Marc Rich was "right" -- you know the guy whose wife was a big time Democratic contributor and whose wife gave those oh-so-special public smooches to Bubba?

YOU?

And who decides that Bush's commutation of Libby's sentence -- Libby who had NEVER committed any crime in his life until that point, and who by all accounts had sacrficed a considerable amount of personal fortune to do public service -- yes, who decides the rightness of that?

YOU??

Fortunately, the question of the "rightness" of such presidential exercise of power belongs the conscience of that particular president.

And, in some cases, I think certain presidents have NO discernable conscience...and others certainly do.

But, hey, that's just me.