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.
Bushï¿½??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.
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, ï¿½??Weï¿½??ve got to talk. Iï¿½??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 upï¿½?? – he does that, and Scooter Libby just says, ï¿½??I plead the Fifth,ï¿½?? and we still donï¿½??t get – ï¿½??weï¿½?? as American citizens donï¿½??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.
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.