Bio
"The world we have made as a result of the level of thinking we have done thus far creates problems we cannot solve at the same level of thinking at which we created them." Albert Einstein
my website: http://desententia.com
I am smart enough to know that I do not have all of the answers, and not dumb enough to believe that I do. I live in Seattle with my wife, two incredible kids, and a few pets that have earned a place inside the house. I am an avid soccer player and coach, longtime supporter of KEXP, and love shredding powder. I practice law to pay the bills.
Comments
You beat me to the punch on
You beat me to the punch on this one. Bush's reasoning on this decision is idiotic at best.
hypocrisy
Yeah, because Clinton never pardoned ANYBODY *cough*
Since when did Clinton
Since when did Clinton define what is right? Hypocrisy is saying that because Clinton pardoned people, Bush should be able to as well. This case actually has nothing to do with Clinton. The merits of this commutation should rest entirely upon this case, not others.
"Since when did Clinton
"Since when did Clinton define what is right"
Can you point me to one blog post of yours that criticizes Clinton's pardons? Since Clinton has pardoned 4 times more people than Bush, you had plenty of opportunity. Yet somehow you were strangely silent on those matters.
This post was motivated by politics pure and simple.
Um...well, since this blog
Um...well, since this blog didn't exist when Clinton was in office, you are right...we were "strangely" silent about his pardons. :)
rjohnson and I often disagree. But on this issue we do agree and it isn't because of politics. We both agree because of principles not politics.
Well, yeah, but...
The hypocrisy is quite apparent here since Republicans attempted to impeach Clinton for the very same crime.
The pardon is a strange thing
I don't have much to do say about the merits of the Libby pardon, except to note that pardons are these strange singularities that disrupt our normal legal logic and machinations. To wit: Libby's sentence was squarely within the parameters of the sentencing guidelines. The Bush DoJ has been adamant that the sentencing guidelines are per se fair, and should never be departed from by judges or the discretion of its prosecutors.
A consistent (or intelligent) person would, if s/he thought this particular sentence unfair, look at the sentencing guidelines and reassess their parameters for perjury. (People are basically Rawlsians, and the previously described process is more or less what's demanded by reflective equilibrium).
But we know pardons don't work like that; they're like the black holes of justice in which legal / political logic breaks down. Strange that we even have such a power in our system.
Not a pardon, but a commutation
President Bush's action leaves part of the sentence intact and professes to respect the jury's decision. He acts, by the way, not above the law, but in accordance with power he is granted under the constitution. If you're going to criticize him, at least get the facts straight first.
Joe Knippenberg
Was I criticizing him?
First, as r. johnson notes, it's all pursuant to the pardon power. It's fine if you want to get to that level of nitpickery (I do regularly), but it's not especially germane to the topic of hand.
That said, my point about Bush's pardon (heh) is that, like every other pardon from every other president, it is likely in conflict with the guiding principles of justice. It just so happens that, in Bush's case, the conflict has been clearly articulated by him in such a way that it's impossible to miss.
The pardon power is an act of mercy; and mercy is a conceptual tear in the fabric of justice, a point at which "what's fair" is submitted to some other consideration (I was about to say "what's merciful," but that's just tautological). It's just a strange logic, if we can even consider it a logic at all rather than the point at which logic stops and something else takes over.
So not a criticism of Bush per se, but a "isn't that weird?" comment about pardons and mercy generally.
Interesting.
Funny, I never thought of mercy as a tear in the fabric of justice--always thought of it as woven throughout the fabric making it stronger. Anyway, are pardons only conceived of as acts of mercy? Are there any other reasons to establish the power to pardon, without mercy (e.g., balance of powers among branches of government by redressing injustices perpetrated by the judicial branch, or something like that). No snarkiness here, I really am just curious, and too lazy to try and slog through law blogs.
Great thing about this blog
Non-snarkiness is assumed. As Knippenberg's comment makes clear, it's not logically necessary that pardons be conceived of as mercy; one can see them as a rough distribution of justice in a legal system that occasionally errs.
I'm not convinced by that argument (the law can be made fact sensitive - we don't and shouldn't have to rely on a super-just President that puts on his superhero tights and flies around distributing justice), but it's reasonable.
Coincidentally, I just read a decision from Justice Marshall in which he notes that the power to pardon is an act of grace. That fills out nicely what I was trying to get at before: God's grace is a deviation from justice (since we're all sinners that should, by right, be damned), not an adherence to justice.
Re: great thing
My argument doesn't rely on the law's never getting it right, just on it's sometimes getting it wrong. It also doesn't rely on the executive's always getting it right.
Justice may not be done simply by ruining Scooter Libby's career, requiring him to reliquish his license to practice law, putting him on probation, and making him (his friends) pay a $250 K fine. Has justice been done to Bill Clinton? Sandy Berger?
Reasonable people can disagree. Fortunately, we don't have the responsibility to make these calls in a way that sticks. That, under our Constitution, is the President's job, House Democrats to the contrary notwithstanding.
Well, let me qualify that. Given that the definition of "high crimes and misdemeanors" is left to Congress's call, I suppose that articles of impeachment could be drawn up in response to this alleged abuse of prerogative. Then I suspect that, just as the Republicans learned after their effort to impeach President Clinton, Democrats would learn that there's a price to be paid for pursuing political differences too far.
Joe Knippenberg
Brief note on political responses
Short of impeachment is the political response of hearings, which the Dems seem to thinking about at the moment, and which the GOP held in 2001.
An alternate response would be something like the "Lewis Libby Sentencing Act," to inscribe Bush's delicate sensitivities to fairness into the law by granting discretion to trial judges.
(they do have some discretion now per the recent Supreme Court's decisions, but I'd imagine the sentencing guidelines are taken as highly persuasive authority)
Sauce for the goose
Is, I suppose, sauce for the gander. Should Democrats do everything Republicans do, and vice versa?
Joe Knippenberg
Mandatory Sentences
Yes, after Booker, the sentencing guidelines were considered highly persuasive. Take a look at the arguments US Solicitor General Paul Clement made last year on behalf of the Bush administration regarding a 33 month sentence for lying to a grand jury. They argued that sentences falling within the guidelines should be deemed by the courts as reasonable. http://www.usdoj.gov/osg/briefs/2006/3mer/2mer/2006-5754.mer.aa.pdf
What this means is that defense attorneys have a valid basis for appealing sentences for perjury as being excessive, even when they are within the sentencing guidelines.
r.johnson
The Irony
The Irony of describing this as a 'political difference' is thick. Libby was convicted of lying under oath as part of a criminal investigation. Libby was not charged with leaking Valerie Plame's identity, nor was that the crime for which he was convicted. The leak, and whether it was done for political reasons, is the political difference. By describing this as a 'political difference', you are simply underscoring and reinforcing the culpability of George Bush (more accurately Dick Cheney) in leaking the name for political reasons.
r.johnson
A Distinction Without a Difference
Joseph,
Whether a pardon or a commutation, jpe's comments are equally valid and applicable. If it helps you to understand what he meant by inserting "commutation" for pardon, go right ahead- it does not change the import of the comment.
But about this being 'in accordance with power granted under the constitution', you are skipping a few steps. Generally speaking, does the constitution grant this broad power? Yes, but lets look at the rules that have been put in place to make sure the exercise of power is not arbitrary. As TPM notes,the executive branch has issued standards for considering requests for pardons or clemency, and this 'request' (none was made) does not comply with the executive branch's own criteria. "Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding." Libby fails on both counts. So are you saying that the executive branch can ignore the standards it uses to grant clemency, simply because it can?
And how do you square to claim made by Bush that the sentence was excessive with Bush' stance on mandatory minimum sentences? Just last month, on June 1, 2007, Bush's lap dog Alberto Gonzales announced a move to 'restore the binding nature of sentencing guidelines.' Isn't the proper response to change the sentence for all, and not this one man if this sentence is indeed excessive?
r.johnson
Bush vs. Clinton
True enough that Clinton (or anyone else) doing it doesn't make it right. The concept of pardoning (or commuting sentences) is the same. But in practice, the differences are quite obvious. jpe, were you just this offended when Clinton pardoned cronies? Or -- even better -- how about when he pardoned sixteen murdering terrorists to try to buy his wife the Puerto Rican-American vote? I'm all ears to hear how loudly you protested that.
I'm not protesting anything
I'm just noting the incoherence that lies at the heart of any pardon. It's interesting stuff. For the record, I didn't pay attention to politics during the Clinton years.
Punishment doesn't equal the crime
The entire reason Libby was charged in the first place is a joke. But for the Clinton apologists or those who fret that the President just proved again why he's so crooked, check out the article written by our 42nd President:
Enough said.
No Joke
What's so funny about lying under oath in a criminal investigation?
r.johnson
Justice and the rule of law
The history of political thought (beginning with Plato and Aristotle) recognizes a tension between justice and the rule of law. In a nutshell, the general principles inherent in the rule of law apply only roughly and imprecisely to particular people and particular circumstances. That's why in Plato's REPUBLIC the philosopher-king rules the just city. In St. Thomas's SUMMA, the gap between eternal law and natural law (not to mention human law) takes cognizance of the same phenomenon.
In John Locke's SECOND TREATISE OF GOVERNMENT, one of the reasons for executive prerogative is to replace an injustice done by the rule of law with justice done by the executive's particular judgment.
So I don't think pardons and commutations reflect a tension between justice and mercy, but rather between justice and the rule of law. Strictly speaking, I would argue, justice is always "above the law," since no law is perfectly just. That doesn't mean that I would in general favor the rule of a philosopher-king, nor do I regard GWB as a philosopher-king. But I don't begin by assuming that the application of the law is always just or that "lawlessness" is always unjust.
Needless to say, I think that "rules" for granting pardons and reprieves just reproduce the problem I indicated: you can't have rules for making exceptions to rules (and pretend that that's justice). It simply shoves the problem back a step.
Our real disagreement, I suspect, is about whether Judge Reggie Walton's sentence or President Bush's commutation is a better approximation of justice in this case.
Joe Knippenberg
Beautifully put.
Exactly. Did you know that several of the jurors shed tears when they gave the guilty verdict? They made it clear in interviews that they felt they had no choice but to render a guilty verdict based on the law, but that the law was not rendering justice in this case. This case is just what happens when a renegade "independent" prosecutor turns into a political operative. Bush righted a wrong, plain and simple.
Zero
You have zero credibility when you say that Patrick Fitzgerald is a renegade prosecutor turned political operative. He's a card carrying republican who did not let partisanship get in the way. And Walton? Appointed by George W. Bush, and recently named by John Roberts to the FISA court.
Zero.
r.johnson
Absolutely.
Oh, you're right, I forgot -- no member of a political party can ever be used as a tool to do anything to hurt the party.
Its relative
Joseph,
I am not sure that it is an apt description to label this tension between justice and the rule of law. What you are really describing is tension between differing philosophies of law, both positivist and natural, within the 'law' itself. While Hobbes and similar positivists would condemn the commutation as violating 'law', Locke's views on natural law are used to explain (as you put it) why an individual acts contrary to 'law' to 'replace a perceived injustice.' Yet Locke and other followers of natural law recognized limitations on 'replacing perceived injustices.' They still found a source, some 'higher principle' usually derived from God's laws or from some higher moral code, for their chosen action. While you may not believe that there can be limitations (rules) for granting pardons and reprieves, those very political philosophers you cite did not the exercise of power to be arbitrary, and would have recognized limitations on Bush's claimed authority to act.
I am pretty sure that 'thou shall not lie' is one of the ten commandments, so I would bet that Bush did not rely upon God's laws for his 'higher' authority.
Regardless, the Bush administration has been a strong proponent of positive law- a positive law philosophy underlies the claims that a judiciary is 'activist' or that one can say 'one size fits all' in sentencing. So while you can talk in the abstract of Bush's adoption of natural law philosophy in this instance, you ignore Bush's history of promoting a positivist perspective on law. Thats the hypocrisy that lies at the heart of this.
And yes, whether you see this sentence as wrong it comes down to whether you see this sentence as wrong. 'Injustice' is in the eye of the beholder. Its relative.
r.johnson
Re: it's relative
I don't think that GWB has been a positivist at all. Many people's beefs with him have a great deal to do with what he thinks is "written in the hearts" of people all over the world.
Locke's natural law is so general as to admit a great deal of prudence (a positivist would call it arbitrariness) in its application.
Hobbes isn't simply a positivist, but he is someone who, in civil society, argues for the absolute authority of the sovereign, even against general laws he has promulgated. It would be as hard to deploy Hobbes as it is Locke against this act of executive prerogative.
Joe Knippenberg
He does have a positivist's
zeal for generality in law - witness his administration's fierce support of mandatory minimums. There is nothing in anything he has said or done until the Libby clemency to suggest that he has been anything other than a "do the crime, do the time, and nuts to the fact-sensitivity of justice" kinda guy.
jpe - I think legal
jpe - I think legal positivism is being misrepresented with respect to a Presidential pardon or reprieve. There is no contradiction with being a legal positivist and the issuance of a presidential pardon. I'm not expressing my opinion as to whether Bush is a legal positivist, but assuming for the sake of argument that he is, it is certainly within the scope of the president's positive legal authority to exercise the power granted to him by the plain text of the constitution (and affirmed by the supreme court) and issue a pardon or grant clemency. A positivist would say that Bush's action is valid regardless of the moral, logical or political implications of the action.
UNITED WE STAND, DIVIDED WE FALL
Great comment
(that is all)
Pres. Bush can't even reason clearly in a statement...
This is truly the final straw for me.
"I have said throughout this process that it would not be appropriate to comment or intervene in this case until Mr. Libby's appeals have been exhausted. But with the denial of bail being upheld and incarceration imminent, I believe it is now important to react to that decision"
So in other words, the appeal process didn't have a thing to do with whether he acted or not, because Libby's still in the appellate process. It was all about avoiding jail time.
For a politician who built a reputation as a hard-nosed supporter of law & order when he was governor, this is a slap in the face. The imperial presidency lives on!
Interesting test from
Interesting test from DWSUWF:
Which of the following choices do you believe? Chose only one:
A) It was right for both Clinton to be impeached and Libby to be prosecuted for lies under oath, even though there was no underlying crime.
B) It was wrong for both Clinton to be impeached and Libby to be prosecuted for lies under oath, since there was no underlying crime.
C) It was right for Clinton to be impeached but wrong for Libby to be prosecuted for lies under oath, even though there was no underlying crime.
D) It was wrong for Clinton to be impeached but right for Libby to be prosecuted for lies under oath, even though there was no underlying crime.
If you answered A or B - Congratulations! You are not a partisan hypocrite.
If you answered C or D - there is no point in continuing to read this blog. You should go listen to podcasts of Anne Coulter or Bill Maher. Enjoy.
I'm a little late to this
I'm a little late to this discussion, but let me wade in anyway.
Although I don't necessarily support the decision to commute Libby's prison sentence, I'm dismayed by the charge that Bush's action was somehow "above the law". The president is granted the power in the Constitution to "grant reprieves and pardons," and I just don't understand how a power granted by the highest law of the land can be said to be "above the law." It doesn't make sense to simply say that the branches are "co-equal" because the Constitution gives each branch distinct powers and duties. The Constitution also establishes checks and balances, putting one branch "above" the others on certain matters, and the reprieve and pardon power is one of those checks and balances.
As for the distinction between a pardon and a commutation, it is indeed significant. One leaves the conviction intact and simply modifies the punishment, while the other has the effect of overturning the conviction itself. It's the difference between being found guilty of a crime and being acquitted. The difference is substantial.
UNITED WE STAND, DIVIDED WE FALL
Rod Dreher says it best:
Rod Dreher says it best: "Think about it: Paris Hilton did more time in the slammer than Scooter Libby. What a legacy George W. Bush has left us..."
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