The sentencing of Scooter Libby has created a firestorm of protest in the blogosphere, and even in the Republican presidential primary contest. Most of the candidates said they would consider a pardon, if elected and if George Bush has not issued one before then. Most of those have based their point on the notion that Libby should never have been prosecuted in the first place. However, the man who helped get Caspar Weinberger his pardon disagrees, but suggests that a commutation may be a better option (via Power Line):
Scooter Libby should not be pardoned. But his punishment -- 30 months in prison, two years' probation and a $250,000 fine -- is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.
There is a legal principle at stake in this case greater than either Libby or the politics of the moment. It is a fundamental rule of law that the grand jury is entitled to every man's evidence. The grand jury cannot survive as the essential truth-finding tool it is if witnesses can lie with impunity. True, Libby committed a "process crime" -- that is, so far as has been established in court or even alleged by the prosecutor, he committed no crime until after the government initiated its investigation of the underlying act (namely, the revelation of Valerie Plame's CIA employment). But for obvious reasons it is not for grand jury witnesses to determine when an investigation is legitimate. As the Supreme Court has noted, there are many ways to challenge questions one believes the government should not be asking, but "lying is not one of them."
U.S. District Judge Reggie Walton noted that there was ample evidence that Libby intentionally lied. Jurors took care (they did not convict on all counts), and the evidence before them makes it hard to believe that Libby's misstatements were merely a product of poor memory or confusion. The case was proved, and the conviction should not simply be wiped away.
Yet the sentence is another matter. Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison. He is by no stretch a danger to the community, as "danger" is commonly understood. He did not commit his crime out of greed or personal malice. Nor is his life one that bespeaks a criminal turn of mind. To the contrary, as letters to the court on his behalf overwhelmingly established, he has been a contributor to his community and his country. And whether or not we agree, we cannot dismiss out of hand the notion that Libby thought he was serving his country by his overall conduct in this episode, specifically by letting it be known, truthfully, that it was not the White House that tapped Joseph Wilson to look into whether Saddam Hussein had sought uranium in Niger.
This sounds like a better option to me. Like Bill Otis, I cannot just disregard a jury's conviction and claim no crime occurred. They found Libby guilty on four of five counts of perjury and obstruction of justice -- crimes that go to the heart of our justice system. Whether or not the investigation in question resulted in an indictment on the original charges, we cannot allow people to lie and obstruct justice, even when they believe they act with the best intentions. Keeping the conviction and the fine while commuting the prison sentence would be a good middle ground to acknowledging the adventuresome nature of Patrick Fitzgerald's investigation, and it also allows Libby to continue to pursue his appeals on the conviction.
However, I'm struck by the notion that the sentence is extreme or excessive. Federal sentencing guidelines for perjury and obstruction are pretty clear, as my friend Jeralyn Merritt points out. Obstruction of justice is a level 14 crime for sentencing purposes, and even with no criminal record, a single count at that level brings a 15-21 month sentence, as the DoJ chart shows. It also carries a 3-level upgrade if "the offense resulted in substantial interference with the administration of justice." That puts Libby's level at 17, with a 24-30 month sentence. If the defendant/convict abused a position of "special trust" -- and as a high-ranking government official, Libby qualifies -- the level on sentencing has to be increased two levels to 19. That puts the potential sentence at 30-37 months -- and that's not accounting for multiple convictions for perjury.
Federal judges do not have a lot of leeway on sentencing. That's because conservatives insisted on these sentencing guidelines more than twenty years ago, frustrated with a judiciary that gave too many slaps on the wrist. They work well, too, but they tie the hands of federal judges. Judge Reggie Walton expressed sorrow and frustration at the sentencing, but his hands were mostly tied. As I wrote earlier this week, the convictions made the sentencing an anticlimax, and Walton appears to have actually taken it easy on Libby. Walton's only other option would have been to vacate the convictions, but he had no real legal basis on which to do that.
I believe Bush will wait for the appeals process to run its course before inteceding on Libby's behalf in any way. If he does intercede, he would be better advised to take Otis' advice.
UPDATE: On the other hand, we have a great example of California justice in ... must not type these two words ... Paris Hilton. (AAARGH!) Shaun Mullen notes that she got out of a 45-day sentence after just five days by -- wait for it -- crying:
As everyone but those hundreds of tortured souls rotting in Gitmo surely know by now, the hotel heiress was streeted only five days into her 23-day sentence (already reduced from 45 days) in a celebrity lockup for repeatedly driving drunk.
The reason: Paris couldn’t sleep and had become a sniveling mess. She will serve the rest of her sentence at home with a tracking device attached to her ankle.
The New York Post said she was seen crying after she cracked “under the pressure of prison.”
May Libby can go for a sobutation instead. Californians should be embarrassed.
UPDATE II: Back to the substance of the matter. The Los Angeles Times reminds us of who appointed Walton, and why:
That Walton would put the Bush administration in an uncomfortable position of having to consider a politically charged pardon for Libby is highly ironic: The 58-year-old jurist was one of the first appointments that Bush made to the federal bench in October 2001, a prime example of a new law-and-order mentality that the administration wanted to infuse in the courts.
"Bush wanted people to know that 'I appoint tough guys to the bench,' " said Roscoe Howard, the U.S. attorney in Washington during Bush's first term. "They appointed him just for what he did to Scooter; they were just not expecting it to happen to Scooter." ...
The 2 1/2 year sentence was within the range of guidelines that the Bush administration has created and espoused for federal judges to follow to ensure that defendants are punished the same regardless of the judge hearing their case. The administration and Republican members of Congress have admonished other judges who give defendants a break under the guidelines — as lawyers for Libby sought Tuesday when they asked Walton to give him probation only.
As I noted above, that get-tough attitude was needed on the federal bench. Walton did what he got appointed to do -- and given the guidelines, may have taken it a little easy on Libby.