The Sentence, Not The Crime

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THE PLANK JULY 7, 2007

The Sentence, Not The Crime

I don't think I've been a particularly passionate defender of Scooter Libby, as Jon Chait says. If I had my way, President Bush would pardon--not just commute the sentences of--each and every non-violent drug offender in the country. But I don't see that happening anytime soon and thus don't feel all that compelled to harp on it. The Libby case is big news, and just because there a lot of people more deserving of commutations or pardons does not suddenly make Libby's case any less compelling.

Libby's sentence was objectively harsh; Judge Walton sentenced him to a
term of incarceration near the top of the advisory guidelines (and
nearly twice the recommendation of the Probation Department). A first time offender with a lifetime of
public service and a legitimate innocence claim would almost never get this sort of sentence unless the judge had an ax to grind, which Walton laid bare in a footnote to what ought to have been a routine response to an amicus curiae brief requesting that Libby remain free on bail pending appeal.

Andrew Sullivan and others have been writing of the double-standard system of justice applied to Scooter Libby. Indeed, Libby has experienced a double-standard, but it's the complete opposite of what Andrew and other critics have been arguing. Celebrity cuts both ways; Scooter Libby was given a harsher sentence and his motion to stay out of prison while on appeal was denied precisely because of his station in life. This situation forced Bush's hand, thus the commutation.

The commutation of a sentence is different from the pardoning of a crime, something that seems to be utterly lost on those with a "fixation," in Jon's words, on "Plamegate." In commuting Libby's sentence, Bush accepted the verdict of the jury but disagreed with the sentence of a spiteful judge. Indeed, Bush said that "The reputation [Libby] gained through his years of public service and professional work in the legal community is forever damaged ... The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting." Those hardly sound like the words of a "monarch" protecting his court toady, as Andrew has been calling Bush these past few days. Bush could have pardoned Libby. Rather, he made the decision to accept the verdict but disagree with what he--and many others--believe to have been an unjust sentence. If Bush does end up pardoning Libby, and thus repudiates what he said quite clearly about the case this week, I will be the first to call him intellectually dishonest.

And while we're on this subject, both Bill and Hillary Clinton have criticized Bush for the commutation. We all remember Marc Rich, but let us also not forget the the last-minute pardons--not the prison sentence commutations--of Roger Clinton, Henry Cisneros, and John Deutsch. I guess this is a stupid question to ask at this point, but does this couple have any shame?

--James Kirchick

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