Tuesday, July 3, 2007

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.


Anonymous said...

What disturbs me is if this was a conspiracy as you wrote here, good post Fleming, then is that not reason for the Congress to investigate and possibly impeach? There are thousands of arguments on blogs for impeachment. What you wrote seems obvious so why is a Democratic Congress not screaming?

MarcLord said...

Hi fleming,

MarcLord here, just stopping by. Happy 4th of July! I am grateful for your praise of my ham-handed writing efforts, which in no way approach your manifest level of long-honed skill. My amateur posts are aimed at my family, my friends, and primarily at my very young son in his future.

Your post on Libby is incisive, and I'll get around to cross-posting it and reading your others. Prozac the Clown was born of a certain frustration, a device of my frustration, a confirmation of what I've long felt coming in my bones. Those who have taken power, as is natural, also long to unmask their ascendancy. They can't help it.

As a country on this very day, I believe we are at a crossroads, one unlike any we've faced before. The mockery of the Libby commutation is a keystone which may announce a new order, which there is precious little left to resist. Or the mortar which holds it, and still is drying, may elide and slip so that many otherwise formerly sound stones in its towering archway totter and fall.

In short: the Founders can no longer save us, nor even protect us. A new system is required. To plagiarize from a poster over at Sic Semper Tyrannis, Pat Lang's blog, who quotes Britannicus the son of Claudius in Robert Graves' book Claudius the God:

“I don’t believe in the Republic anyway. You can’t reverse the course of history. My great-grandmother Livia said that, and it’s true. I love the days of old, as you do, but I’m not blind. The Republic is dead, except for old-fashioned people like you and Sosibus. Rome is an empire now and the choice only lies between good Emperors and bad ones.”

I don't necessarily endorse Britannicus, and believe our wisest course is to not be an empire at all, nor to have Emperors. Yet as the smell of celebratory gunpowder wafts through my window on this night, I'm in the minority. (Glad to meet you, too.) What I think is that we need to stop looking backward to our former benefactors, and must contemplate how best to move forward.


My Mind's Eye... said...

Well said. Though the Constitution may give a President "almost unlimited power" it unfortunately does not offer any guarantees against the abuse of that power.

Fleming said...

Zoey, I ask the same question: Why do we not hear the Democrats yelling for impeachment? They have proved about as useful as a wet firecracker so far, haven't they? Is it their usual whine, "We don't have the votes."

I'm not by any means an expert on the constitutional and legal questions involved, much less the complexities of impeachment, but it seems clear to me that Bush and Cheney are involved in obstruction of justice and in conspiracy to commit that crime and who knows what else. Some kind of action must be taken to get more evidence.

Since it seems that the commutation per se can't be classified as an impeachable offense, that it must be attacked as part of a larger whole. . . and only Congress can carry out the attack as far as I know. The judiciary can't initiate an action; somebody has to bring matters before the courts before they can act.

Thanks for the comment.

Fleming said...

Marc, thanks very much for the kind comment and for replying to my comment. Your blog really is original and impressive, and Prozac the Clown is a great character.

As for the rest of your comment here, I'll just say that it speaks eloquently for itself, and I couldn't agree more. I often find myself comparing our situation in the US to past, long-gone empires in their crumbling stages. Last December I invoked OZYMANDIAS on this point.

I'll add your blog to my Links.

Fleming said...

Mind's Eye, thank you. It seems that the people who wrote the Constitution tried their best to foresee every kind of governmental chicanery and did pretty well, but it is up to Congress to pull its collective snout from the feeding trough and exercise its powers to the utmost. Congress is too quick to sniffle, "We can't do that", while Bush & Co. just go ahead and do anything, whether they have the legal power or not, and then see what happens.

Thanks for the comment!

MarcLord said...

fleming, I'm a-linkin' you up now to my favorite Caravanserai list. Sorry haven't had much time w/work and the 4th yesterday for comm, but I dig your blog and am very pleased to make your acquaintance. (Ozymandius would be a good code name.)

Fleming said...

Marclord, thank you. Because we aren't publicizing our email addresses, if you (or anyone else) wants to send me a personal message as a "Comment", I'll read it but won't publish it unless it would be of interest to others.