
Lots of editorial backlash over Libby deal
Editor and Publisher has compiled the litany of editorials from across the country in the wake of Bush's decision to commute Scooter LIbby's sentence. As E&P notes "nearly all of them have condemned the Bush act."
Here's what's being said. Besides the Wall Street Journal and NY Post who want a full pardon for Libby, the editorials are resoundingly negative:
The [Washington] Post, which had often mocked the court case, declares today: "We agree that a pardon would have been inappropriate and that the prison sentence of 30 months was excessive. But reducing the sentence to no prison time at all, as Mr. Bush did -- to probation and a large fine -- is not defensible. ... Mr. Bush, while claiming to 'respect the jury's verdict,' failed to explain why he moved from 'excessive' to zero.
"It's true that the felony conviction that remains in place, the $250,000 fine and the reputational damage are far from trivial. But so is lying to a grand jury. To commute the entire prison sentence sends the wrong message about the seriousness of that offense."
Seattle Post-Intelligencer: "President Bush's commutation of a pal's prison sentence counts as a most shocking act of disrespect for the U.S. justice system. It's the latest sign of the huge repairs to American concepts of the rule of law that await the next president."
The Denver Post found that "such big-footing of other branches of government is not unprecedented with this administration. The president's abuse of signing statements show his disrespect for Congress' power to make law. His insistence that terror detainees at Guantanamo Bay be denied Habeas Corpus rights mocks legal tradition. It's a shame that his actions in the Libby affair will add to that list. Libby should be held accountable for his crimes."
San Francisco Chronicle: "In commuting the sentence of former White House aide Lewis 'Scooter' Libby, President Bush sent the message that perjury and obstruction of justice in the service of the president of the United States are not serious crimes."
But The Wall Street Journal sees it differently: "By failing to issue a full pardon, Mr. Bush is evading responsibility for the role his administration played in letting the Plame affair build into fiasco and, ultimately, this personal tragedy. ... Mr. Libby deserved better from the President whose policies he tried to defend when others were running for cover. The consequences for the reputation of his Administration will also be long-lasting."
New York Post: "If Bush thinks such parsing will spare him the political backlash an outright pardon would produce, he's wrong. The jackals are tearing at his heels this morning -- and for doing only half the necessary job. Bush knows a pardon is warranted. He should grant it."
The Milwaukee Journal-Sentinel's editorial declares that "mostly this commutation fails on the most basic premise. There was no miscarriage of justice in Libby's conviction or his sentence. The trial amply demonstrated that he stonewalled. Like President Clinton's 11th-hour pardons of an ill-deserving few, this commutation is a travesty."
New York's Daily News: "However misbegotten was the probe by special prosecutor Patrick Fitzgerald, the fact is that Libby did commit a federal crime and the fact is also that he was convicted in a court of law. Thankfully, Bush did not pardon Libby outright, but time in the slammer was in order. Sixty days, say, wouldn't have hurt the justice system a bit."
Chicago Tribune believes that "in nixing the prison term, Bush sent a terrible message to citizens and to government officials who are expected to serve the public with integrity. The way for a president to discourage the breaking of federal laws is by letting fairly rendered consequences play out, however uncomfortably for everyone involved. The message to a Scooter Libby ought to be the same as it is for other convicts: You do the crime, you do the time."
The Arizona Republic: "We thought Scooter Libby was going through the criminal justice system. Just like anyone else. Then, President Bush whipped out a get-out-of-jail-free card. This is the wrong game to play on a very public stage."
San Jose Mercury News: "Other presidents have doled out pardons and the like, usually on the way out of office. It's never pretty. But few have placed themselves above the law as Bush, Cheney and friends repeatedly have done by trampling civil liberties and denying due process. Chalk up another point for freedom. Scooter's, at least."
The Sacramento Bee: President Bush, a recent story in the Washington Post tells us, is obsessed with the question of how history will view him. He has done himself no favors on that count by commuting the prison term of I. Lewis 'Scooter' Libby."
The Dallas Morning News: "Perhaps the president felt he had nothing left to lose, given his unpopularity. But considering how much trouble the White House faces in regard to congressional subpoenas, the last thing this president needed was to further antagonize Capitol Hill regarding abuse of executive power."
The Rocky Mountain News, in Denver, in the most bizarre comment, accepts the "compassion" argument and just wishes Bush had waited a little bit so his move could not be wrongly "perceived": "Bush's statement exudes compassion, and it carefully gives credit to those who criticize prison time for Libby as well as to those who defend it. But the president should have restrained his compassion -- and delayed his commutation -- for at least a few more months, lest he be perceived as subverting justice, too."
Bush and Tom Delay and "exudes compassion"
Tom Delay wrote a book and held forth about how Bush "exudes compassion". This was last year.
Bush Action Defies Supreme Court Precedent and DOJ Policies
WH Admits No Legal Analsysis Done in DoJ To Establish This Was A Strong, Exceptional Case, As Required
This link to the USAM is consitent with the Supreme Court precedent:
TPM:
http://www.talkingpointsmemo.com/archives/014963.php
Supreme court _emphasis added_
[Emphasis in original] "The Supreme Court itself has opined that '[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.' " [ 66 Ohio St. L.J. 875]
This isn't a DoJ rule which POTUS can ignore, or something in the USAM that POTUS can bypass like an EO; this is the Supreme court which says, until all judicial options are exhausted -- which they have not -- the president's clemency-commutation is not lawful or enforceable.
POTUS cannot pick and choose from "precedent" as a basis to defy the Law; then ignore the Supreme court.
See this: A strong case is needed to overturn a Supreme court Precedent, which does not apply here:
[ 419 U.S. 256 ]: "These facts are not insignificant for our interpretation of Art. II, § 2, cl. 1, because, as observed by Mr. Justice Holmes: 'If a thing has been practised for two hundred years by common consent, it will need a strong case' to overturn it." Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922).
By his admission of not involving DOJ in the discussion of commutation, Bush provides no evidence that there was a proper legal analysis to determine that there was a "strong" case or an "exceptional" case in re 66 Ohio St. L.J. 875, cited above.
Wrong citation
The citation 66 Ohio St. L.J. 875 is either wrong or incomplete. Please fix it.
Correct Citation for Law Journal
This is a journal citation, Google kw=[ 66 Ohio St. L.J. 875 ]
See Note 7
kw = "defendant's case is considered final when".
Also, see this:
'''To begin, it is observed that clemency and executive power over punishment is "justified" when it "corrects injustice." The Supreme Court itself has opined that "[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Often times, the correction of this injustice will not involve a full-on pardon of a convicted individual, but rather a sentence commutation, which the term "clemency" does encompass. More notably, it is not unheard of for a member of the judiciary to recommend sentence commutation when justice warrants it, but, because of current circumstances, the judiciary is powerless.'''
First, the court-judicial branch, must decide what "justice" is; but the President has trumped this. A 'complete" review of the final case is only possible after cert is denied; this was not done.
Second, "Injustice" has nothing to do with "bad things that happen when convicted felon is detained" [absense from family] as this was known before Libby testifying before the Grand jury. [See Fitzgerald's questions at beginning of Libby Deposition, that he understood consequences of perjury.]
Third, "Injustice" doesn't mean a "harsh" sentence -- as is related to perjury -- but for a sentence that fails to consider mitigating factors. Yet, the court did review these factors and letters, but sentenced Libby to reasonable punishment. That this punishment is on appeal means the judicial process has not been exhausted.
Fourth, for "injustice" to occur, that justice system must be complete and final. Now, it is premature for the President or anyone to assert that the conviction-sentence of Libby was "unjust" in that this is still a judicial matter for the Judicial Branch to review, not for the Executive to assert prematurely, as is the case here, before all appeal are over.
Again, the Judicial branch has decided that Libby shall be confined until all appeals are exhaust ted. the President has no power to trump the judicial branch until Libby exhausts all judicial options.
Common Problem
Congressional inaction is important on this. As with the MCA, the Congress defined what a "war crime" was which affected ongoing litigation, which is not lawful. Arguably, the MCA -- because it was retroactive, and affected ongoing cases -- was an illegal assertion of judicial power by the legislature.
Congress is not likely to challenge this illegal assertion of judicial power in re Libby, because to do so would invite a question about Congressional illegal assertion of judicial power when it passed the MCA, unlawfully targeting ongoing litigation.
Geneva violations occur when war crimes related evidence is suppressed; when Prisoners of War are retroactively defined as "illegal" despite no exiting standard; or when personnel like Plame-Wilson are retaliated against in re issues of truthful reports of non-imminent threats.
There are issues of international criminal law and Geneva violations, just narrowly over Judicial-Executive-legislative intrusions into eachother's lanes. Google this quote:
[ "Under any civilized judicial system he could have been impeached and removed from office or convicted of malfeasance in office on account of the scheming malevolence with which he administered injustice." ]
The problem the US has is that its leadership have collective assented to unlawful intrusions into each other's lanes; and not held the President to account as would be required of civilized nations; and they're refusing to challenge unlawful Executive rewards for alleged Geneva violations: Retaliation for truthful reports of war crimes related information.
Summation
The President's commutation of Libby is illegal, cannot be recognized, and forms a subsequent line of evidence in re Geneva. Congress needs to review:
Where This Is Going
A. Apparent effort to illegally assert state secrets in re other issues connected with Libby's motivation for perjury.
The above appears more related to an effort to affect ongoing litigation in re rendition, FISA violations, AT&T, and other issues related to "state secrets" which are not related to bonafide claims of privilege; but to efforts to suppress evidence of illegal activity.
B. There are other lines of evidence, disclosed, which POTUS cannot hide in the burning barn. The horses have left.
DoJ IP numbers, as are outside counsel, can be linked with open source infuriating showing personnel were not engaged in official duties, as the AG asserted; but they were involved in non-FISA-warrant related activities using DoJ computers. The Open Source information suggesting there ha been other illegal activity and recklessness by DoJ AG and Staff counsel is broad; and that there are outside counsel who have an interest to seal this issue, as opposed to having the President's commutation reviewed as a subsequent line of evidence in re Geneva violations, war crimes, FISA violations, and other things which should be prosecuted, but Congress refuses to impeach.
C. Enforcement Outside Congress Against POTUS
If Impeachment is not used, then prosecution of a sitting President remains on the table: Each of the 50 State AGs may use this illegal, premature commutation as evidence showing the Executive has illegally usurped judicial power; and that this was done in re NSA violations of State Citizen Privacy Rights. The error is to permit Executive assertion of Judicial power, but not check or stop it as would be expected when fully enforcing Geneva to prevent war crimes.
D. Sample Executive Usurpation of Legislative Power, Congressional Silence
For Example, when the President deports someone with rendition or GTMO confinement -- but that deportation is asserted to be an "executive" function not subject to judicial review, POTUS ignores the problem: The action is a legislative power, not one for the President to assert unilaterally. By putting prisoners in GTMO and exporting/deporting US citizens to GTMO the President has illegally asserted legislative power.
See:
5 F.2d 162
A pardon is for a crime (with exceptions here wholly unimportant); [**4] inter alia, it avoids or terminates punishment for that crime, but deportation is not a punishment, it is an exercise of one of the most fundamental rights of a sovereign (Mahler Case, supra, page 39), a right which under our form of government is exercised by legislative authority.
VA Fed Court, Alexandria
see Note 18 [ 870 F. Supp. 672 ] in re [ 113 S. Ct. 853 ]
Defn of Clemency
Note 13 of [ 506 U.S. 390 ] defines clemency, and applies to Libby's "commutation".
Try this: Herrera Commentary
[ 879 F. Supp. 1503 ]
Commutation: Illegal Unless All Judicial Options Exhausted
The Supreme Court ruled that clemency is valid only when all judicial remedies have been ehausted.
Because the judicial process has not been exhausted, the President is affected the planned appeals, arguably intruding into the Judicial Branch's power.
[Emphasis in original] "The Supreme Court itself has opined that '[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.' " [ 66 Ohio St. L.J. 875]
The President has no basis to say that Libby has "suffered" in that the appeals have not been ehausted; and the Supreme Court has not reviewed the case.
Is there a reason Libby Counsel did not exhaust all options in requesting District court Review, or appealing the sentence to the supreme Court?
Summation
Until all judicial options have been exhausted -- which Libby counel have not done -- the President may not lawfully grant clemency.
your assertion is incorrect
The "legal citation" to the discussion above it completely incorrect. It does not point to a case having to do with presidential clemency/commutations/pardons. It leads to HERRERA v. COLLINS, 506 U.S. 390 (1993), which talked about Herrera's options including an application of clemency when other legal options had been exhausted. So it's being pulled completely out of context for this situation.
Bush is an asswipe but we don't need to make stuff up to nail him for it.
You are correct. The
You are correct.
The statement that clemency remains available even though all judicial recourse has been exhausted does not mean that clemency is only available after exhaustion of remedies. The other anonymous commentators are misreading this phrase.


"exudes compassion"
Interesting that the Rocky Mountain News should make itself a mouthpiece for the "exudes compassion" line.
Expect more comment about how our pres "exudes compassion" as more and more members of his entourage face indictment and prison.
Do not expect to see compassion "restrained".