Libby: So What Happened?

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

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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.