Libby and Law

I imagine that the blogosphere is lit up like a Fourth of July night sky with posts about Libby, and so here I’m going to comment strictly on the legal aspects. This might be helpful to some people. I remember how little I knew about such things when I entered law school.

(I’ve been writing about Libby for some time; please look at my Labels.)

The presidential power to pardon is granted under Article II, Section 2 of the Constitution:

"The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

A “reprieve” reduces the severity of a punishment without removing the guilt of the person reprieved. A pardon removes both punishment and guilt. In constitutional language, President Bush has granted Libby a reprieve.

The Constitution gives the President almost unlimited power to pardon or reprieve in the case of federal crimes. Certainly, however, the framers of the Constitution never foresaw that a president would himself break the law and then promise an underling such as Libby that the underling would be pardoned if he would lie under oath to protect the president.

My analysis is that while President Bush unarguably had the constitutional right to commute Libby’s sentence, he did not have the constitutional or legal right to engage in a deception in which he used the pardon power to hide his own crimes or those of his vice president by, in effect, bribing a witness before the witness testified. It seems obvious that Libby was informed by Bush and Cheney from the beginning that he could lie as much he pleased under oath because the commutation of any prison sentence was guaranteed. It’s worth noting that if the promised commutation had not been forthcoming, Libby could have done serious damage by belatedly telling all.

A legal act may be part of the evidence of a criminal offense, even though not in itself illegal. A legal act may, for example, be essential to the success of a criminal conspiracy.

A criminal conspiracy is an agreement between two or more persons to achieve an illegal goal through legal and/or illegal actions, or to accomplish a legal end through illegal actions. For example, planning to rob a bank (an illegal act) in order to raise money for charity (a legal end) is a criminal conspiracy because the parties agreed to use illegal means to accomplish the goal. On the other hand, conspiring to set up a charitable organization (a legal act) in order to unlawfully launder money (an illegal end), is also a criminal conspiracy. Likewise a presidential pardon of a felon (a legal act) in order to hide crimes and obstruct justice (an illegal end), may also be considered a criminal conspiracy.

The crime of obstruction of justice includes crimes committed by judges, prosecutors, attorneys general, and elected officials in general. Obstruction of justice in the United States refers to the crime of offering interference of any sort to the work of police, investigators, regulatory agencies, prosecutors, or other (usually government) officials.

Alexander Hamilton wrote in “The Federalist #74” concerning a constitutional provision for a presidential pardon: ‘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.’

Alexander Hamilton didn’t know What-Me-Worry Bush did he? “Dread of being accused of weakness or connivance” for pardoning Libby? Bush considers all accusers so far beneath him that their outcries could never beget circumspection in that blockhead.