Bush Saving Scooter

21:41 Tue 03 Jul 2007
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I’m not sure how many people still believed that the rule of law still functioned in this country, but the commutation of Scooter Libby’s sentence more or less puts paid to the idea.

Bush ignored pardon guidelines:

Sec. 1.3 Eligibility for filing petition for commutation of sentence.

No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances.

Bush claimed (accurately) that the probation office recommended a lighter sentence than Judge Walton gave, but in commuting the sentence to zero jail time Bush also ignored the probation office’s recommendation of 15 to 21 months of jail.

Bush still hasn’t ruled out the possibility of a pardon for Libby.

However, if Libby is pardoned, Libby can no longer claim a Fifth Amendment right to silence, and this is quite relevant given the reasons surrounding the entire prosecution—that Libby was obstructing the investigation into why a political attack on Joseph Wilson was made, following Wilson’s revelation that allegations concering Saddam Hussein trying to buy uranium from Niger were patently false.

While it’s fairly clear to all but the most benighted that the White House fabricated the case for invading Iraq, there’s a significant difference between it being clear and it being provable in a court of law. When someone outed Wilson’s wife Valerie Plame as part of an attempt to discredit (and take revenge on) Wilson, that was a felony, and a felony that could be investigated without running right into “national security” walls (unlike the wiretapping case, where the administration are successfully hiding behind those walls). However, that investigation, and the leverage of a felony prosecution, obviously pose a gigantic threat to the administration because of the likelihood that people will start going on the record about everything else going on around the buildup to war—including a lot of things likely to be quite illegal. The obvious course was for everyone to keep their mouths shut, which is more or less what happened. However, Libby, in so doing, was guilty of obstruction of justice, which is what he was sentenced to jail for. Bush basically had to keep him out of jail for two reasons: one, to appease Bush’s political base, who can’t bear the thought of one of their own going to prison; two (hypothetically), because who knows if Libby might have drawn the line at prison, and might have started talking about who knows what?

Incidentally, for anyone who thinks that Libby’s prosecution and sentencing were some kind of Democratic partisan witch hunt, I quote Glenn Greenwald:

The Plame investigation was urged by the Bush CIA and commenced by the Bush DOJ, Libby’s conviction pursued by a Bush-appointed federal prosecutor, his jail sentence imposed by a Bush-appointed “tough-on-crime” federal judge, all pursuant to harsh and merciless criminal laws urged on by the “tough-on-crime/no-mercy” GOP. Lewis Libby was sent to prison by the system constructed and desired by the very Republican movement protesting his plight.
—Glenn Greenwald, http://www.salon.com/opinion/greenwald/2007/07/03/libby/index.html

Bush hasn’t shown much interest in the merciful side of justice before now. He presided over many executions as Governor of Texas, and never intervened in any of those to commute a death sentence to anything less harsh. But the specter of jail time for one of the inner circle? Unthinkable!

There’s still a missing link here, in terms of the rule of law. Bush has the right to commute sentences this way, and to issue pardons. At the same time, this isn’t a miraculous escape hatch for all kinds of malfeasance, because in cases where the President is abusing his powers (for instance, by pardoning others to make sure his own crimes don’t come to light), Congress has the right to investigate and, further, to impeach. Not only does Congress have the right to do this, it’s their duty to do so, because that’s how the entire checks-and-balances system is designed to work. But if Congress is too gutless (or partisan, or shameless, or a combination of all of those) to do its duty, then the President can abuse his powers all he wants. Which is what’s been happening in this country for years. Congress cowers pathetically in front of the Executive Branch, and so we are here today, with a President blatantly perverting the course of justice and likely getting away with it.

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