Commute Libby's Sentence (updated)

Clarice Feldman
William Otis , who does know such things, offers the President yet another means to deal with the shocking sentence Libby received without breaking his own rules on the granting of pardons or precluding Libby from appealing his conviction:

Commute his sentence to match Berger's.
A sense of proportionality argues in favor of eliminating Libby's prison term. This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime. Sandy Berger, national security adviser to President Bill Clinton, was not sentenced to prison for sneaking documents out of the National Archives, destroying them and then lying to investigators. For his actions, Berger received no jail time, a fine one-fifth of that imposed on Libby and 100 hours of community service.

To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal. Commutation offers a middle ground. Unlike a pardon, commuting the prison sentence would not erase the conviction. It would leave Libby with the disabilities of a convicted felon -- no small matter for a lawyer and public figure. But commutation would alleviate the harshest, and unnecessary, aspects of the sentence. A partial commutation would send the message that we insist on being truthful, but in the name of a justice that still cares about individual circumstances, we will not insist on being vindictive.
Here is a list of Clinton's Presidential pardons

If Judge Walton thinks that setting such an outrageously high sentence, ignoring the advice of the Probation Department, and denying bail pending appeal will force the President into pardoning Libby early on the theory he would not let Libby sit in jail while the case progresses, the jurist may not have considered this possibility, which I think it is a sound move.

Update:

Beldar is intrigued by William Otis' suggestion that the President commute part of Libby's sentence if the judge will not allow him to remain out on bond pending appeal(and the Court of Appeals does not overrule that), noting that Libby would be free to pursue an appeal of the case in the interim and the president could revisit the pardon possibility after the Court of Appeals decides the case. He's even written what I think is a fine draft of the speech the Preisdent should give if he takes that course:
We know that no one was ever charged, and never will be, with any substantive crime for the revelation of Valerie Plame's employment with the CIA. We know that a jury of his peers found Lewis "Scooter" Libby guilty of perjury and obstruction of justice in connection with the investigation of such possible crimes. Mr. Libby and his lawyers are in the midst of exercising their rights to have that verdict, and his conviction and sentence, reviewed in the normal appellate process. Whether his appeals are successful in whole or part, they will presumably eventually bring closure to his legal battles — and either way, there will be important lessons for us to learn from that final result. The respect we all share for the rule of law requires that we allow that process to reach its natural conclusion, and that we then seek out and pay attention to such lessons.

Nevertheless, it is already sufficiently clear to me that in the particular circumstances of this case and this individual, service of a lengthy prison sentence would promote no good end but cruelty. Scooter Libby is not a continuing threat to anyone. I know from first-hand personal knowledge how dedicated and devoted a public servant he has been, and what personal sacrifices he has already made on behalf of our country. I know this man's character; I have seen into his heart. And from that, I know that his abrupt, forcible exile from public service, his shame over the damage done to his reputation, and his agony at the effects of all this upon his family and friends and former colleagues — all these things have already combined to inflict upon him a greater punishment than most men would suffer from 30 or even 300 months in prison.

Without undermining our law enforcement system, the Constitution gives every President the power and the responsibility to weigh competing considerations, including very subjective ones, to ensure that genuine justice is done even in individual cases. And it is in fulfillment of that responsibility that I exercise that power today to commute Mr. Libby's 30-month prison sentence — while deliberately leaving in place, at least for the present, his conviction and the remainder of his sentence, including the very substantial monetary fines and two years of supervised release.

I do so without prejudging or even making any implied comment on how his ongoing appeal should turn out, and I do so without endorsing any of the conduct that the jury found to be blameworthy. I do so knowing that in the tragic story of Scooter Libby — as already written, and as yet to be finished until his appeals are done — there is already an ample deterrent to any public official who may ever be tempted to commit perjury or obstruct justice, so that this act of mercy will in no way encourage future lawlessness.

And finally, I do so knowing that reasonable men and women of decency and good will might reach a contrary conclusion to the one I have reached, or that they might have continued to reserve judgment until after Mr. Libby's appeals had been completed, even if that meant he would serve prison time on a conviction and sentence that might ultimately be overturned. I respect those views, but I cannot substitute them for my own. It would be easier, frankly, to permit Scooter Libby to simply go to prison, but I believe it would be wrong, and that it would be an injustice, and that my responsibilities under Article II, Section 2 of the Constitution in this particular case require me to take the opposite course to this limited extent.

So I act now with grave purpose, and with a humble acknowledgment of the imperfections of our species, and with thanks for the grace we enjoy as citizens under the Constitution and laws of these United States of America.
William Otis , who does know such things, offers the President yet another means to deal with the shocking sentence Libby received without breaking his own rules on the granting of pardons or precluding Libby from appealing his conviction:

Commute his sentence to match Berger's.
A sense of proportionality argues in favor of eliminating Libby's prison term. This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime. Sandy Berger, national security adviser to President Bill Clinton, was not sentenced to prison for sneaking documents out of the National Archives, destroying them and then lying to investigators. For his actions, Berger received no jail time, a fine one-fifth of that imposed on Libby and 100 hours of community service.

To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal. Commutation offers a middle ground. Unlike a pardon, commuting the prison sentence would not erase the conviction. It would leave Libby with the disabilities of a convicted felon -- no small matter for a lawyer and public figure. But commutation would alleviate the harshest, and unnecessary, aspects of the sentence. A partial commutation would send the message that we insist on being truthful, but in the name of a justice that still cares about individual circumstances, we will not insist on being vindictive.
Here is a list of Clinton's Presidential pardons

If Judge Walton thinks that setting such an outrageously high sentence, ignoring the advice of the Probation Department, and denying bail pending appeal will force the President into pardoning Libby early on the theory he would not let Libby sit in jail while the case progresses, the jurist may not have considered this possibility, which I think it is a sound move.

Update:

Beldar is intrigued by William Otis' suggestion that the President commute part of Libby's sentence if the judge will not allow him to remain out on bond pending appeal(and the Court of Appeals does not overrule that), noting that Libby would be free to pursue an appeal of the case in the interim and the president could revisit the pardon possibility after the Court of Appeals decides the case. He's even written what I think is a fine draft of the speech the Preisdent should give if he takes that course:
We know that no one was ever charged, and never will be, with any substantive crime for the revelation of Valerie Plame's employment with the CIA. We know that a jury of his peers found Lewis "Scooter" Libby guilty of perjury and obstruction of justice in connection with the investigation of such possible crimes. Mr. Libby and his lawyers are in the midst of exercising their rights to have that verdict, and his conviction and sentence, reviewed in the normal appellate process. Whether his appeals are successful in whole or part, they will presumably eventually bring closure to his legal battles — and either way, there will be important lessons for us to learn from that final result. The respect we all share for the rule of law requires that we allow that process to reach its natural conclusion, and that we then seek out and pay attention to such lessons.

Nevertheless, it is already sufficiently clear to me that in the particular circumstances of this case and this individual, service of a lengthy prison sentence would promote no good end but cruelty. Scooter Libby is not a continuing threat to anyone. I know from first-hand personal knowledge how dedicated and devoted a public servant he has been, and what personal sacrifices he has already made on behalf of our country. I know this man's character; I have seen into his heart. And from that, I know that his abrupt, forcible exile from public service, his shame over the damage done to his reputation, and his agony at the effects of all this upon his family and friends and former colleagues — all these things have already combined to inflict upon him a greater punishment than most men would suffer from 30 or even 300 months in prison.

Without undermining our law enforcement system, the Constitution gives every President the power and the responsibility to weigh competing considerations, including very subjective ones, to ensure that genuine justice is done even in individual cases. And it is in fulfillment of that responsibility that I exercise that power today to commute Mr. Libby's 30-month prison sentence — while deliberately leaving in place, at least for the present, his conviction and the remainder of his sentence, including the very substantial monetary fines and two years of supervised release.

I do so without prejudging or even making any implied comment on how his ongoing appeal should turn out, and I do so without endorsing any of the conduct that the jury found to be blameworthy. I do so knowing that in the tragic story of Scooter Libby — as already written, and as yet to be finished until his appeals are done — there is already an ample deterrent to any public official who may ever be tempted to commit perjury or obstruct justice, so that this act of mercy will in no way encourage future lawlessness.

And finally, I do so knowing that reasonable men and women of decency and good will might reach a contrary conclusion to the one I have reached, or that they might have continued to reserve judgment until after Mr. Libby's appeals had been completed, even if that meant he would serve prison time on a conviction and sentence that might ultimately be overturned. I respect those views, but I cannot substitute them for my own. It would be easier, frankly, to permit Scooter Libby to simply go to prison, but I believe it would be wrong, and that it would be an injustice, and that my responsibilities under Article II, Section 2 of the Constitution in this particular case require me to take the opposite course to this limited extent.

So I act now with grave purpose, and with a humble acknowledgment of the imperfections of our species, and with thanks for the grace we enjoy as citizens under the Constitution and laws of these United States of America.