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.

Lewis Libby: "Pardon me."

Lewis Libby, who helped Vice President Cheney and others betray an American CIA agent in order to punish her husband for telling truths that should have undermined a US invasion of Iraq, and who has been convicted and sentenced for lying under oath, is back in the news because the trial judge has refused to let Libby remain free until his appeal is decided . . . there being no chance that his appeal could succeed.

It is notable that now, as when Libby was convicted and sentenced, his name is invariably mentioned in conjunction with the possibility of a presidential pardon, almost as if the natural procedure for all convicted felons is sentencing, appeal, pardon . . . rather than sentencing, appeal, jail. As we all know, pardons are even rarer than honest politicians, almost unheard of. It is also rare for a convicted criminal to be freed pending appeal.

Last night on MSNBC’s “Countdown” a guest expert said something which supported my earlier assertions that there was almost no support among the general public for a presidential pardon. I argued that the instant clamor for a pardon arose from the fact that Libby is Jewish. In accord, the “Countdown” expert stated last night that there was very little support for a Libby pardon outside the Washington beltway, and that the support was primarily from neocons . . . the word “neocons” pertaining to a category of Jews who moved into “conservatism”. (I will write about the meaning of “neocon” soon.)

Below I copy some of my earlier comments, but first I want to suggest that perhaps the constant babble about a pardon is part of a campaign to give the impression – which may not be true – that President Bush can hardly wait to pardon Libby, and to give Bush an excuse to “bend to the public will”. Perhaps the neocons hope to pressure Bush by making it seem that a pardon for Libby is a foregone conclusion. But it is questionable whether any such pressure ever influences G.W. Bush, who, once set in motion, is about as responsive to public opinion as Godzilla demolishing a city.

The real danger that there might be a pardon comes from Libby’s now being able to make a deal with the prosecutor to avoid all or some of his prison term by telling everything that he knows and covered up with lies . . . which means putting Vice President Cheney on the skewer and bringing the fire a bit too close to G.W. Bush for comfort. But only a Godzilla completely immune to all opinion, including the judgments of history, would grant a pardon under such circumstances:

1. The Godfather (Bush/Cheney) does bad things. 2. Subordinate (Libby) lies in court to protect his boss, The Godfather. 3. Subordinate sentenced to jail. 4. Subordinate may avoid jail by spilling the beans about The Godfather. 5. Godfather – the only person with power to keep subordinate out of jail – grants presidential pardon in order to keep subordinate from squealing.

A little too obvious even for President Bush? We’ll see. The Godfather’s favorite method – simply rubbing subordinate out – would be a lot easier.

The rest of this post contains things I wrote about Libby earlier. If you didn’t read them before, let me guarantee you that they really are fabulously important and interesting.

I wrote on March 8, "Let’s Hear It for Libby, Folks”:

‘As one who thinks that I. Lewis Libby got what he deserved, I was surprised that last evening’s television news discussions were virtual pep rallies for Libby’s pardon. Guests had been selected to promote the idea that Libby was a wonderful guy who should be pardoned. Almost all of the Libby-related discussions centered on his prospects for a pardon. Yet no one suggested that Libby was not guilty of the serious crimes for which he was convicted; no one questioned that he consciously, deliberately committed those crimes over a long period.

‘That leads to my final observation on why Libby is being treated like a hero instead of a criminal. When I saw how he was being boosted by the media I checked this morning and found out that he is Jewish. I noticed years ago that whenever an individual somewhere in the world was accused of a crime and there was a great international media outcry in support of the accused and against the accuser, the accused was usually Jewish. It became a kind of game with me to notice the phenomenon of “worldwide outrage” and see if the individual the protest supported was a Jew.’

Soon after that I wrote:

‘Except for almost all their newspapers and television networks, Americans do NOT want Lewis Libby pardoned.

‘According to a new poll from CNN, most Americans do NOT want President Bush to pardon Vice President Cheney's convicted former chief of staff Lewis Libby. "Nearly 70 percent of Americans oppose a presidential pardon for former White House aide Lewis 'Scooter' Libby after his conviction on perjury and other charges related to a CIA agent's exposure, according to a CNN poll out Monday," the news network reports.
Less than 20 percent support a Libby pardon.’

Antidote to "Pardon Libby" Headlines

If the concerted pleas for a presidential pardon for poor little “Scooter” Libby tug at your heartstrings, you need an antidote quickly. Read these interviews immediately and see your mental health care professional the next morning if you continue to feel any sympathy for Libby.

'Countdown with Keith Olbermann' March 6, 2007

FORMER ACTING U.S. AMBASSADOR TO IRAQ, JOSEPH WILSON

‘I think that the idea of a senior White House official [I. Lewis Libby] being convicted of obstruction of justice and perjury is something that ought to sadden everybody who believes in public service. The responsibility of a public servant to uphold and defend the Constitution is besmirched when they‘re convicted of crimes like this.

‘On the other hand, of course, I think it reconfirms that this is, in fact, a nation of laws, and that no man is above the law. And I think we can take some satisfaction that the Constitution has been defended by the prosecution, by the system of justice, and by the jury of peers that decided Mr. Libby‘s guilt today.

‘I think there‘s an implicit and explicit conflict of interest in the president exercising his pardon authority on behalf of somebody who worked for him.’
‘Whatever the last four or five years have been like for us [Ambassador Wilson and his wife, whose secret CIA status was exposed by her own government, primarily by Libby and Cheney] it‘s been mere inconvenience compared to what this administration has done to our service people and their families in the prosecution of a war that was justified on misinformation and lies, and was really undertaken not for the national security of the United States, but to prove an academic theory, which wasn‘t a very good academic theory at that.

[Comment by Fleming: Libby had a hand in creating the neocon “academic theory” of which Wilson speaks and Olbermann ignores. More about that in another post.]

WILSON CONTINUES: ‘And I would have appreciated the president acknowledging some sadness for the fate of his covert CIA officer [Ms. Wilson], who spent 20 years serving her country, many of those overseas, many of those in what‘s known as nonofficial cover, where she didn‘t even have the benefit of diplomatic protections if she‘d been picked up for espionage.

‘Yes, I would have welcomed that. But I would also welcome from the president of the United States some acknowledgement of what he‘s put our military through in the prosecution of this war in Iraq.


'Countdown with Keith Olbermann' March 9

JONATHAN TURLEY, CONSTITUTIONAL LAW PROFESSOR.
(Professor of Constitutional Law at The George Washington University Law School --
a nationally renowned legal scholar who has written extensively in areas ranging from constitutional law to legal theory.}

‘Lying under oath is the same creature, no matter what the subject is. As you know, I testified in Congress in support of the Clinton impeachment, even though I voted for him. I thought he should be impeached because he lied under oath. He wasn‘t impeached because he had an affair.

‘The same could be said about Scooter Libby. And it‘s very distressing to see some of the people that, frankly, were on that same side during impeachment coming to a different view.

‘You know, perjury, you lift your hand and you take an oath to God. When you go into a courtroom and you lie, and you‘re a high-level official, who either makes the laws or enforces them, our system treats that very, very harshly, because we must. You cannot have that, you can‘t tolerate that, in a system committed to the rule of law.

‘Well, I‘m not too sure how honorable a pardon would be for Scooter Libby. First of all, he doesn‘t meet the criteria and the guidelines for a pardon. This is a president who‘s always said he‘s gone by the book. Well, the book [the U.S. Justice Department pardon guidelines] says that you should wait five years after a conviction. It says it‘s much harder to get a pardon if you‘re a high-ranking official. And you have to accept guilt. All three of those go against Scooter Libby.

INTERVIEWER: . . . list of things that people have been pardoned for, everything from bank fraud to submitting false statements to federal housing administration, to one guy‘s sentence in ‘47 for possessing an unregistered whiskey still.

TURLEY: I agree with that one. But there are some offenses that are a lot more sort of dangerous for society than a whiskey still. And while people in this country seem to think perjury is a minor crime, it‘s not. In my view, it‘s one of the most serious crimes, because it undermines the entire legal system. That‘s why prosecutors hate it, because you can‘t have a legal system, particularly with high officials who engage in that conduct.

‘You can live with a few more whiskey stills, but it‘s much, much more difficult to live with high-ranking officials who lie under oath and get away with it. Prominent officials, public officials, generally get longer sentences, because they betray a public trust. And it‘s important to tell the public that we don‘t have two systems. There aren‘t untouchables in our system, even if you are Scooter Libby, and the next guy above you in the pay grade is the vice president of the United States.

INTERVIEWER: The pardon guidelines also say that for serious crimes such as breach of public trust, a, quote, “suitable length of time should elapse before granting the pardon in order to avoid undermining the conviction‘s deterrent effect.”

TURLEY: Well, you know, because this is a real problem with Scooter Libby, because if he waits the five years, he‘ll be out of jail, simply because he‘s likely to get, under the sentencing guidelines, between one and a half and three years. You‘re supposed to go to jail for some time to taste the penalty. But for Scooter Libby, he‘d have to be pardoned at some point before the president leaves office. And there are many people that say he should (INAUDIBLE) be pardoned right after sentencing. That would be almost unprecedented in our system, and it would send a very clear message.

‘In my view, it would be an great abuse of the pardon power, because he‘s accused of covering up, obstructing justice, to protect the administration. For the president to use his unique authority to give a pardon to such a person before jail, in my view, would be disgraceful.’

Update on yesterday’s VIEW FROM THE MOON.

If these quotes don’t show the kind of orchestrated campaign whose basis I suggested yesterday, I don’t know what could. I said when I started this blog that I was going to publish the significant things which are missing from the U.S. news, and so I am going to repeat: Irving Lewis Libby is getting this incredibly high degree of media support because he is Jewish. By now Special Counsel Patrick Fitzgerald (hmmm, could he be Irish, or is it anti-Irish to ask?), is being painted as the villain in the Libby melodrama, while Libby, though undeniably a criminal, has been elevated to something just short of superhero.


Editor and Publisher:

'Law and Order Newspapers Urge Pardon for Libby
‘NEW YORK A number of newspapers normally tough on "law and order" issues have come out editorially for the immediate freeing of Lewis "Scooter" Libby, convicted on Tuesday in a federal court of four counts of perjury and obstruction of justice.’


The New York Post:

‘President Bush should make things right - by pardoning Libby.

‘Free Scooter Libby.’



Wall Street Journal:

‘The conviction is certainly a travesty of justice, though that is not the jury's fault. The 11 men and women were faced with confusing evidence of conflicting memories in a case that never should have been brought....’



Wall Street Journal March 7, 2007:
‘The Libby Travesty
Mr. Bush owes the former aide a pardon, and an apology. . . . The time for a pardon is now.’


New York Sun:

‘The president's best move would be to exercise his absolute and unfettered bedrock constitutional prerogative of a pardon.’


NRO Online:

‘The Time for a Pardon Is Now. A lot of Republicans seem to be nervous about a pre-2008 election pardon, and John Podhoretz argues . . . that as the leader of his party President Bush should wait until his last days in office to issue a pardon. I think Bush could pardon Libby tomorrow without its affecting the election one way or the other.’


Washington Post March 9, 2007

‘Fitzgerald's Folly
‘A Textbook Case for a Speedy Pardon

‘By Charles Krauthammer

‘A presidential pardon . . . should have been granted long before this egregious case came to trial. It should be granted now without any further delay.’
letters@ charleskrauthammer.com