Bush Commutes Libby’s Sentence

The President commuted Scooter Libby’s sentence today, eliminating the prison term but leaving the non-incarcerative sanctions in place. There is no surprise here but it does bring up at least two interesting issues. The first is the way in which Judge Reggie Walton was pivotal in forcing Bush’s hand. Once Judge Walton decided to impose the prison sentence immediately, Bush was left only two options: infuriating his base or nakedly giving cover to a political and professional ally. He did manage to split the baby a bit – by commuting his sentence, rather than pardoning him, Libby will now have to live with at least a few of the nasty collateral sanctions (potential loss of voting rights, loss of the ability to obtain certain professional licenses, etc.) that come along with a felony criminal conviction.

The second interesting issue is that this maneuver shows how the executive can manipulate sentences. I don’t know federal law, but I wonder whether Bush could have ordered imposition of a different, lesser prison term. Could he have altered the length (to say nothing of terms) of probation? Could he have put Libby on house arrest for eight months? And what if Libby gets caught driving drunk next month. Can he be sent to the pokey for a probation violation? Given that Bush respects the jury’s verdict, why exactly is probation, rather than 30 months, or 20 months, or 6 months, appropriate?

Sometimes a President has to spend some political capital for a friend. He did so today – a bit sooner than he might have liked.

UPDATE: Doug Berman has a flock of good posts here, here, and here. Orin Kerr adds good commentary here . And Ellen Podgor has some thoughts and questions here. Then there is P.S. Ruckman, Jr., who has dedicated an entire blog to the (partially realized) prospect of a pardon for Libby. It’s at www.libbypardon.net.

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8 Responses

  1. Dave says:

    What will be interesting is the candiates responses to this issue and how they successfully use it to help themselves in the eyes of the American public. I think most Americans view this as George helping his friends out.

  2. Patrick S. O'Donnell says:

    Count me among most Americans.

  3. Cathy says:

    The second interesting issue is that this maneuver shows how the executive can manipulate sentences.

    Of course, this is the same issue that came up in the Paris Hilton case…

  4. Adam says:

    “Libby will now have to live with at least a few of the nasty collateral sanctions (potential loss of voting rights, loss of the ability to obtain certain professional licenses, etc.) that come along with a felony criminal conviction.”

    The case is still on appeal. Are you suggesting that those consequences would follow even if the court of appeals vacates the conviction?

    As for “most Americans,” I’d say that most Americans (at least most of those outside of DC, New York, and Los Angeles) simply don’t care.

  5. Fraud Guy says:

    Speaking from the flyover states, I do care. In a local mob trial, one of the witnesses was just remanded into custody for refusing to testify against the defendants. He doesn’t have a pardon or commutation to back himself up, just fear of reprisal.

  6. Adam says:

    I’d respectfully suggest that most don’t share your level of concern.

  7. Libby will only suffer until election time says:

    Bush can just pardon him later.

  8. > I don’t know federal law, but I wonder whether Bush could have ordered imposition of a different, lesser prison term.

    * Certainly. A reduction in the length of a sentence or reduction to time served is very common.

    >Could he have altered the length (to say nothing of terms) of probation?

    * I am not aware of an example like this, but I am not aware of any reason why the president could not do it. Commonly, a clemency warrant will simply say, “and will be subjec to terms of probation” (without any extra details)

    > Could he have put Libby on house arrest for eight months?

    * Yes, but the form would have been a conditional commutation of sentence, like the one Patricia Hearst got from Carter.

    > And what if Libby gets caught driving drunk next month. Can he be sent to the pokey for a probation violation?

    * Oh yes. Been done before. Classic example, Lupo “the Wolf” Saietta

    >Given that Bush respects the jury’s verdict, why exactly is probation, rather than 30 months, or 20 months, or 6 months, appropriate?

    * The jury’s verdict was in regard to the offense, not the sentence.

    best,