President Bush's commutation of I. Lewis "Scooter" Libby's sentence is simply stunning, both in its hypocrisy and its arrogance.
His spokespersons had assured the public he would not interfere in the judicial process until the appeals court had decided the merits of his appeal.
"Scooter Libby still has the right to appeal, and therefore the president will continue not to intervene in the judicial process," said White House spokeswoman Dana M. Perino. "The president feels terribly for Scooter, his wife and their young children, and all that they're going through."
Here's Tony Snow, asked about a pardon at his press briefing yesterday: "What the President has said is 'Let the legal process work itself out.' We're just not engaging in that right now."
Yet, hours after the D.C. Court of Appeals denied an appeal bond for Libby, the President acted, not by granting Libby a pardon, but by commuting his jail sentence.
His stated reason for the commutation reeks of disingenuity.
Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.
I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.
Bush didn't just reduce Libby's prison term to a lesser amount that was not, in his view, excessive. He eliminated it altogether.
While the Probation Report itself is not public, my review of the pleadings referencing it and the sentencing hearing transcript in the case indicates the Probation Department didn't recommend that Libby spend no time in jail. It found his sentencing guideline range to be 15 to 21 months (instead of 30 to 37 months) and it found the presence of factors that warranted the Judge considering departing below the guidelines. It stated that if the Judge agreed those factors were present and warranted a lesser sentence, the final sentencing range could (not should) drop to a level allowing for either a split sentence of prison and home detention or straight probation.
Judge Walton, in sentencing Libby, carefully considered the grounds for departure before concluding they didn't negate the need for a prison sentence. He's the Judge, that's his call. His decision was subject to review by the Court of Appeals. Bush's decision to short-circuit the process rendered both the Judge's sentencing decision and appellate review of it meaningless.
What changed between the time Dana Perrino and Tony Snow made their pronouncements and today? It wasn't Scooter's sentence. It was only that the Court of Appeals decided Libby would have to serve it before the legal process finished playing out.
At the same time Bush has his Attorney General calling upon Congress to make every federal crime subject to a mandatory minimum sentence, thereby preventing judges from imposing an individually tailored sentence based on their view of the offender's character and mitigating factors, he has no qualms making an exception for a single member of his Administration.
The proposed Sentencing Reform Act will:
* Restore the binding nature of the guidelines by making the bottom of the guideline range for each offense a minimum sentence that must be imposed when the elements of the offense are proven;
Hypocrisy, thy name is Bush.
Bush's arrogance is apparent from the extent to which Scooter's clemency decision departs from Justice Department guidelines on pardons and clemency.
Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding.
Patrick Fitzgerald, in a carefully worded statement (pdf), disputes that Libby's sentence was excessive. Was he consulted on the commutation? He should have been. The DOJ Manual provides:
The Pardon Attorney routinely requests the United States Attorney in the district of conviction to provide comments and recommendations on clemency cases....The views of the United States Attorney are given considerable weight in determining what recommendations the Department should make to the President.
....The Pardon Attorney also routinely requests the United States Attorney to solicit the views and recommendation of the sentencing judge.
It's all part of a well-delineated process.
The Pardon Attorney, under the direction of the Deputy Attorney General, receives and reviews all petitions for executive clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case.
If the requisite investigation was conducted with a chance for the prosecutor and judge to weigh in, followed by a report and recommendation, the process took some time. Rome wasn't built in a day.
Inquiring minds want to know, was protocol and Justice Department policy followed or did Bush unilaterally make this decision, perhaps with his beleagured Attorney General or the Vice President, without moving through the proper channels?
Does anyone doubt that Dick Cheney, whose fingerprints were all over the investigation into the leak of Valerie Plame's identity, called in a chit to spare Libby?
Finally, amidst all the protests and cheers that Scooter Libby dodged the warden with a get of out jail free card, will anyone remember, as Bob Dylan might say, that the Vice President of the United States didn't have to stand naked?
(Jeralyn Merritt blogs daily at TalkLeft: The Politics of Crime.)