Libby: So What Happened?

By: Andrew Cohen
Topics: Field Notes

(CBS)

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.

There isn't a whole lot to say, legal analysis-wise, about President George W. Bush's decision to commute the 30-month prison sentence of former White House official I. Lewis "Scooter" Libby. A commutation, like a pardon, is a purely political act, like a trump card, worthy of evaluation and judgment through the lens of politics, not law.

That is not to say, however, that there are no legal consequences to the President's decision. Obviously, Libby gets to fight his appeal (should he choose to) from the comfort of his home. Since the commutation does not erase Libby's convictions for perjury and obstruction of justice relating to the CIA leak investigation you would imagine that the former golden boy would push to try to get a federal appeals court to overturn those blemishes on his otherwise fine record. But don't forget that the President still has the power during or at the end of the appeals process to take the next step and pardon Libby outright. Monday's commutation of the sentence- as opposed to a pardon of the convictions-- does not preclude that possibility.

So what happened? The President simply balanced the political benefit (from his conservative base, which wanted Libby to get the break) against the political backlash (from everyone else in the country, who wanted the guy to serve some time) and determined that he would satisfy the base. And he did so, apparently, without consulting with special prosecutor Patrick J. Fitzgerald, who doggedly investigated the CIA leak case and pushed successfully to convict Libby, or anyone else at the Justice Department.

I can't fault the President for the latter—there is no one currently in a leadership position at the Justice Department who merits the sort of respect that such a consultation would symbolize. Consulting with Attorney General Alberto R. Gonzales, for example, would be an empty, useless gesture. But it is a sign of how personal was the President's decision to commute Libby's sentence—and probably a sign of residual White House anger at the CIA Leak probe- that the executive in chief chose to avoid consulting with Fitzgerald before making the decision. It is standard operating procedure for White House staffers to consult with their colleagues over at Justice before recommending a pardon or commutation.

Here is what Fitzgerald said after he learned of the commutation: "The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing." Compare that explanation with the President's justification for cutting Libby a break and you have the essence of what this dramatic development is all about.

Is it fair? Ask Martha Stewart—she spent time in prison when she lied to federal investigators. Is it just? Ask the hundreds of other people who are sitting in prison now for lying under oath or otherwise obstructing justice. Does it affect the executive branch's ability going forward to enforce the rule of law without fear or favor? Depends upon what your definition of "rule of law" is.

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by July 5, 2007 8:06 AM EDT: This is treason pure and simple and the American people should be outraged. Bush should be impeached immediately. The commutation of the sentence for committing treason in time of war is ludicrous, corrupt and against the law, Well isn't it??

Wake up America!; Reply to this comment


by ericmichael1 July 3, 2007 11:23 PM EDT: If it were twenty years ago, and Libby had given up the name to the Soviets, he would have been put in federal prison for the rest of his life.

In time of war, he would have been executed.

Oh, yes, it's the war on terror...

What he needs to be made to do is to pay Valerie a pension supplement each month for the rest of her life.

Eric; Reply to this comment


by mikeybear2 July 3, 2007 5:22 PM EDT: It is time to Impeach this lawless , fake president and his fat little VP too!
It is embarassing to think people in this great nation of hours voted for this man once, he did not win it he first time it was stolen in florida .I am embarassed for the Bush family, and for this country.; Reply to this comment


by firstsamual July 3, 2007 4:03 PM EDT: I concur with popthebrigh.

To any reasoned person, Bush's commutation of the Libby's sentence is precisely what it appears to be: ***-covering pure-and-simple, corruption, and a transparently self-serving trampling of the most basis principles of fairness and justice under the color of presidential preogrative %u2013 all in the service of an imperial presidency that does what it wants, when it wants, without regard to the truth, justice or any concern for the whim of Americans (forget about world opinion), who clearly disagree bitterly with his policies.

Libby's conviction was made on grounds that he obstructed the investigation into serious crimes in the White House. By commuting Libby's sentence, Bush is effectively rewarding Libby for breaking the law by knowingly obstructing an investigation into crimes in the White House that were committed as a pre-text to launching an unjustified and unjustifiable war that has resulted in nearly $3/4 trillion in defense spending, alone, over 3,500 dead U.S. soldiers, hundreds of thousands of dead Iraqis and millions of Iraqis displaced from their homes.

Impeachment is too mild a word for what is required under these circumstances. By law, it is, nevertheless, the proper place to start.; Reply to this comment


by jobocco-2009 July 3, 2007 4:00 PM EDT: First of all, I am ecstatic that so many people are outraged by this travesty of justice carried out by Mr. Bush. Time and time again this administration has shown flagrant disregard for the Constitution. Our system of checks and balances is being rendered inconsequential by these people. They obviously do not have the welfare of the country or good of its people in mind. Impeachment is over-due, the rule of law must be sustained.; Reply to this comment


by andrewfeller July 3, 2007 3:59 PM EDT: trav7es7ty /Pronunciation Key -[trav-uh-stee]
%u2013noun
1. a literary or artistic burlesque of a serious work or subject, characterized by grotesque or ludicrous incongruity of style, treatment, or subject matter.
2. a literary or artistic composition so inferior in quality as to be merely a grotesque imitation of its model.
3. any grotesque or debased likeness or imitation: a travesty of justice.
%u2013verb (used with object)
4. to make a travesty on; turn (a serious work or subject) to ridicule by burlesquing.
5. to imitate grotesquely or absurdly.

[Origin: 1655%u201365; F travesti, ptp. of travestir to disguise It travestire, equiv. to tra- ( L tr%u0101ns- trans-) + vestire to clothe L vest%u012Bre; see vest]

%u2014Synonyms 1. See burlesque. 3. mockery, perversion, sham, distortion.

Dictionary.com Unabridged (v 1.1)
Based on the Random House Unabridged Dictionary, ) Random House, Inc. 2006.; Reply to this comment


by marshhendrix July 3, 2007 3:50 PM EDT: I just don't understand why people are surprised...don't you all remember the prez saying, on Tuesday, Feb. 10th, 2004:

"If there's a leak out of my administration, I want to know who it is,...If the person has violated law, that person will be taken care of."

He didn't lie! He is just taking care of Libby in a different way than many expected. Personally, I figured on a sentence commutation at the least and a very likely full pardon. The g.w.b. is so corrupt and has so little respect for this Nation that he teases us by flaunting it.; Reply to this comment


by dskarjune July 3, 2007 3:47 PM EDT: "There isn%u2019t a whole lot to say, legal analysis-wise"

Really? A wise analysis would go further... What about the legality of Libby being able to refuse to answer questions before Congress by taking the 5th Amendment while under appeal during the coming years? Should the Democrats pursue investigations or an impeachment, Libby is off the hook, and thus the administration protects itself. This is achieved with commutation rather than a pardon. If that is the President's intent, than the act of commutation becomes an obstruction of justice itself, it would seem.; Reply to this comment


by reachempati July 3, 2007 3:46 PM EDT: In fairness to all others who are serving prison sentence now on similar charges must be commuted of their sentence, and those who already served the prison sentence must be rightfully compensated. Necessary changes in sentencing laws have to be incorporated to affect future cases. Failing that, the so called checks and balances in the constitution can be considered to be a hogwash letting the executive parade over the judicial independence and its authority.; Reply to this comment


by r_lamprey July 3, 2007 3:46 PM EDT: Commuting Lewis Libby's prison sentence is more than a political act. It is another example of the Bush's lack of respect for the citizens and laws of our nation. People in the Bush administration believe that the laws do not apply to them.

Libby's lies to investigators in his attempt to hide his involvement in exposing the CIA agent, and hurting the security of the nation, is certainly worth prison time.

Everyone knows that the commutation is just temporary to keep his friend out of prison, and he will give a full pardon later. The commutation is a shameful act.; Reply to this comment