T Nation

Libby's Sentence Commuted

Suprised there hasn’t been a thread about this yet. I would hope the same conservatives who thought Bill Clinton deserved to be impeached for perjury (I’m one of them) agree that Libby deserved to be punished for committing the same crime. Instead Bush, who has issued a small number of pardons, commutes his buddy’s sentence.

Is this to keep Libby from talking about Cheney’s crimes (wiretapping, torture authorization, etc.)? Either way, it’s disgusting.

And as an article from the Atlantic http://www.theatlantic.com/doc/200307/berlow notes:

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 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.

His prison sentence was commuted but his conviction and fine still stand.

I personally feel the original prison sentence was too long but having him spending a few weeks in federal pound-me-in-the-ass prison would have been reasonable.

[quote]Zap Branigan wrote:
His prison sentence was commuted but his conviction and fine still stand.

I personally feel the original prison sentence was too long but having him spending a few weeks in federal pound-me-in-the-ass prison would have been reasonable.
[/quote]
How much do you think Bush and Cheney are going to have to pay to keep this man quiet?

There are a few reasons why people may support this commutation of a major prison sentence – and I don’t recall Clinton serving any prison time, either…

Firstly, you’ll allow us a bit of the reverse O.J. retort: We still don’t think Libby is guilty of perjury, even if a jury disagreed (and note that one member of the jury was an employee of the Washington Post who should never have been empaneled due to bias).

Libby had a credible defense. The perjury charge was based on discrepancies between the grand jury testimony of a few journalists and the testimony of Libby – and all parties were attempting to recall small conversations and happenings from over a year’s time.

Libby’s position was that the discrepancies could be explained by differences in memory, and a reasonable person listening to the faulty memories of the witnesses who testified could have concluded that Libby simply had things mixed up.

Then there’s the problem with this particular sentence. Special prosecutor Fitzgerald argued that Libby should have been sentence as if he were convicted leaking Mrs. Wilson’s identity.

However, that crime was never even charged, let alone proved. As a matter of fact, Armitage was the leaker. The judge accepted Fitzgerald’s recommendations, sentencing Libby to 30 months in jail. Seems excessive.

Remember that Libby’s conviction still stands. The commutation is only for the prison sentence. And no one could deny that Libby, who will still have to pay a $250,000 fine, who will likely be disbarred, and who lost his high position in government, has been punished - maybe even still excessively, given the problems noted above.

[quote]BostonBarrister wrote:
Remember that Libby’s conviction still stands. The commutation is only for the prison sentence. [/quote]

I’m no expert, but doesn’t the commutation enables Libby to retain his Fifth Amendment privileges? In which case, it somewhat guarantees that he doesn’t flip on Bush and Cheney.

[quote]LIFTICVSMAXIMVS wrote:
Zap Branigan wrote:
His prison sentence was commuted but his conviction and fine still stand.

I personally feel the original prison sentence was too long but having him spending a few weeks in federal pound-me-in-the-ass prison would have been reasonable.

How much do you think Bush and Cheney are going to have to pay to keep this man quiet?
[/quote]

Not a penny. He will make a fortune on the lecture circuit or as a lobbyist.

[quote]BostonBarrister wrote:
Remember that Libby’s conviction still stands. The commutation is only for the prison sentence. And no one could deny that Libby, who will still have to pay a $250,000 fine, who will likely be disbarred, and who lost his high position in government, has been punished - maybe even still excessively, given the problems noted above.
[/quote]

He likely will not have to serve probation, the 250,000 dollar fine is minimal for him…

He will get a high paying job with one of Bush/Cheney’s supporters and will come out of this incredibly well.

He is not going to be struggling to find work or anything…he will be rewarded for his silence with an incredibly posh job.

In reality, public perception is the only punishment Libby will be facing and I doubt he or anyone else from this White House cares about that…

The Bush administration is hoping the appeal will work, but in the mean time, they can keep their promise that Libby won’t do any jail time.

If the appeal fails, assuming it happens in a timely fashion, then I’d predict a full pardon from Bush close to the end of his term.

Anyway, we can all rest assured that Libby was given promises in advance and that he knows he’ll be looked after one way or another.

[quote]
BostonBarrister wrote:
Remember that Libby’s conviction still stands. The commutation is only for the prison sentence.

lixy wrote:
I’m no expert, but doesn’t the commutation enables Libby to retain his Fifth Amendment privileges? In which case, it somewhat guarantees that he doesn’t flip on Bush and Cheney.[/quote]

No, he retains his 5th Amendment rights irrespective of whether his sentence is commuted. If he were sent to jail, he would still have them; if he were fully pardoned, he would still have them. And with his sentence commuted, he still has them.

Anyone see the news article quoting Bush supporting a 33 month sentence for the same crime? Forget the guys name…

Victor Rita.

Found a link too.

[quote]BostonBarrister wrote:
No, he retains his 5th Amendment rights irrespective of whether his sentence is commuted. If he were sent to jail, he would still have them; if he were fully pardoned, he would still have them. And with his sentence commuted, he still has them.[/quote]

IANAL, but every piece I’ve read and interview I heard claims that he can’t invoke the fifth if he’s pardonned.

Bush’s intent was to obstruct justice by preventing Democrats from getting around a Libby Fifth Amendment dodge and compelling testimony under oath from a defendant whose pardon negated that Fifth Amendment claim.

http://www.theleftcoaster.com/archives/010601.php

Well, in some ways, the commutation is actually worse than a pardon, because with a commutation, Scooter Libby still retains his Fifth Amendment privileges. So if John Conyers tomorrow called up Scooter Libby and said, We’ve got to talk. I’d like to know exactly what happened when Dick Cheney ordered you to leak something classified to Judy Miller. I want to know whether President Bush actually did declassify it or whether Vice President Cheney was just making that up – he does that, and Scooter Libby just says, I plead the Fifth, and we still dont get --we as American citizens dont get to understand what our president and what our vice president did to retaliate against somebody who was just exercising his First Amendment speech rights.

http://www.democracynow.org/article.pl?sid=07/07/03/1433207

Can we please get to the bottom of this? Anybody is well versed in US constitutional law around here? BB, do you have anything supporting your claim that “if he were fully pardoned, he would still have them”? If so, please present it.

[quote]lixy wrote:
BostonBarrister wrote:
No, he retains his 5th Amendment rights irrespective of whether his sentence is commuted. If he were sent to jail, he would still have them; if he were fully pardoned, he would still have them. And with his sentence commuted, he still has them.

IANAL, but every piece I’ve read and interview I heard claims that he can’t invoke the fifth if he’s pardonned.

Bush�??s intent was to obstruct justice by preventing Democrats from getting around a Libby Fifth Amendment dodge and compelling testimony under oath from a defendant whose pardon negated that Fifth Amendment claim.

http://www.theleftcoaster.com/archives/010601.php

Well, in some ways, the commutation is actually worse than a pardon, because with a commutation, Scooter Libby still retains his Fifth Amendment privileges. So if John Conyers tomorrow called up Scooter Libby and said, �??We�??ve got to talk. I�??d like to know exactly what happened when Dick Cheney ordered you to leak something classified to Judy Miller. I want to know whether President Bush actually did declassify it or whether Vice President Cheney was just making that up�?? – he does that, and Scooter Libby just says, �??I plead the Fifth,�?? and we still don�??t get – �??we�?? as American citizens don�??t get to understand what our president and what our vice president did to retaliate against somebody who was just exercising his First Amendment speech rights.

http://www.democracynow.org/article.pl?sid=07/07/03/1433207

Can we please get to the bottom of this? Anybody is well versed in US constitutional law around here? BB, do you have anything supporting your claim that “if he were fully pardoned, he would still have them”? If so, please present it.[/quote]

The 5th Amendment right against giving testimony that is self-incriminatory is an individual right. You, as holder, can give it up as part of an agreement, but it can’t be stripped.

The idea w/r/t a pardon is that its acceptance is a de facto admission of guilt for that particular offense, and thus the 5th Amendment would no longer apply [u]to the question of guilt on that particular offense.[/u] Acceptance may even be a de jure admission. But the key is the bolded, underlined phrase above.

Which means your linked articles are going off on a relatively obscure moot point. The only thing to which the 5th Amendment would be deemed inapplicable would be the fact of whether Libby committed perjury and obstruction of justice. Libby could not be forced to admit anything that would be further incriminating (assuming for the sake of discussion that there was something to admit).

ADDENDUM: I was looking into this a little bit more, and it seems that a pardon isn’t necessarily an admission of guilt on the subject of the pardon. What a pardon does is make it so you cannot be charged again with the same crime (no double jeopardy), thus obviating the 5th Amendment to the fact of committing that crime. But, as stated, it still only applies to the fact of whether one committed the specific crime for which one received a pardon.

ADDENDUM 2: The reasoning in the addendum above leads to a very solid reason for Bush to have used the commutation instead of the pardon, assuming Bush believes Libby can win a reversal on appeal. The commutation preserves the appeal, whereas a pardon would moot an appeal.

[quote]Beowolf wrote:
Anyone see the news article quoting Bush supporting a 33 month sentence for the same crime? Forget the guys name…

Victor Rita.

Found a link too.


[/quote]

“Excessive” doesn’t necessarily refer to the general punishment for perjury and obstruction of justice, but almost surely relates to the specifics of this case. In addition to what I wrote above, there were other issues. Two other confessed leakers (Richard Armitage and Ari Fleischer), one of whom obtained the information from a classified document then passed it on to reporters (Armitage) and the other of whom received confirmation of the information by reading it in a classified document (Fleischer). Neither of them has been charged with anything.

Further, Armitage misled investigators about his role as the leaker for two years and may have attempted to tamper with two witness (Novak and Marc Grossman).

Fleischer likely committed perjury on the stand in the Libby trial when he denied under oath telling Walter Pincus about Plame - though I’d be willing to credit him with a mistake of memory in that case, same as I believe for Libby.

ADDENDUM:

A few more factual differences between the cases - including corrections of the MSM - here: http://patterico.com/2007/07/04/la-times-flubs-basic-fact-on-story-about-length-of-libby-sentence/

and here: http://justoneminute.typepad.com/main/2007/07/rita-and-libby.html

[quote]BostonBarrister wrote:
What a pardon does is make it so you cannot be charged again with the same crime (no double jeopardy), thus obviating the 5th Amendment to the fact of committing that crime. [/quote]

I’m not sure if your purpose was to clarify or obfuscate things, but let me tell you that you most certainly didn’t achieve the former.

I’m very confused by your use of the verb “obviate” in the context of what’s amounts to a constitutional right. Seriously. obviating the 5th Amendment to the fact of committing that crime? C’mon!

[quote]
BostonBarrister wrote:
What a pardon does is make it so you cannot be charged again with the same crime (no double jeopardy), thus obviating the 5th Amendment to the fact of committing that crime.

lixy wrote:
I’m not sure if your purpose was to clarify or obfuscate things, but let me tell you that you most certainly didn’t achieve the former.

I’m very confused by your use of the verb “obviate” in the context of what’s amounts to a constitutional right. Seriously. obviating the 5th Amendment to the fact of committing that crime? C’mon![/quote]

The purpose of the 5th Amendment’s right is to protect people from being forced to give testimony that would incriminate themselves. Because of the prohibition on double jeopardy, someone who has been convicted and pardoned cannot be tried again for the same offense. Thus, there is no danger that testimony concerning that offense for which they were pardoned would be incriminating. That’s why I used “obviate.”

[quote]BostonBarrister wrote:
The purpose of the 5th Amendment’s right is to protect people from being forced to give testimony that would incriminate themselves. Because of the prohibition on double jeopardy, someone who has been convicted and pardoned cannot be tried again for the same offense. Thus, there is no danger that testimony concerning that offense for which they were pardoned would be incriminating. That’s why I used “obviate.”[/quote]

Right. But a pardoned Libby might be summoned to give more details (not necessarily incriminating to him) on the issue. Those details are likely to involve Bush and Cheney’s involvement in the affair.

Do we agree on that?

[quote]lixy wrote:

Right. But a pardoned Libby might be summoned to give more details (not necessarily incriminating to him) on the issue. Those details are likely to involve Bush and Cheney’s involvement in the affair.

Do we agree on that?[/quote]

If they’re not self-incriminating, then the 5th Amendment wouldn’t apply anyway.

To be explicitly clear, here is the text of the 5th Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The bolded section is the prohibition on double jeopardy. The underlined section is the prohibition on being forced to provide self-incriminating testimony.

One can be compelled to testify against someone else, just not against oneself. That is why Susan McDougal spent time in jail for contempt of court when she refused to answer questions about the truth of Bill Clinton’s testimony.

[quote]BostonBarrister wrote:
If they’re not self-incriminating, then the 5th Amendment wouldn’t apply anyway.[/quote]

Who’s going to know if they are truly self-incriminating or not?

It’s not like there is any incentive left in place to encourage testifying.

[quote]BostonBarrister wrote:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
[/quote]
I don’t suppose you could offer any clarifications of the definition of a “person” within this context?