The Commutation

I agree with Josh Marshall at Talkingpointsmemo.com that this was the worst possible decision. Josh argues that a wrong, though consistent, argument could be made that the prosecution was wrong from the start and that the whole verdict should be overturned with a full pardon. But to acknowledge that the prosecutor was doing his duty, as Bush did, and that the jury did its and to acknowledge that punishment should be meted out but then step in and insure that Scooter Libby serves less jail time than Paris Hilton defies logic. If Bush felt the 30 months handed out by his appointed judge, Reggie Walton, was excessive--and it's not given the sentencing guidelines--then he could have let Libby serve some time and then commuted the sentence.

Despite this, Bush is having some success in having this portrayed as a Solomonic decision. The rare, long White House statement, designed to give the impression of deep thoughtfulness, is without two fundamental things: One, an apology to Valerie Wilson who saw her lifetime career at the CIA ended by the, at best, reckless and at worse, deliberatley malevolent actions of Bush officials. Second, the whole case is treated with clinical detachment, as though Bush were looking at it from afar. Libby committed the crimes--and Bush still acknowledges them to be crimes--while he was working for Bush, not only as Dick Cheney's Chief of Staff, but as an "assistant to the president," the highest rank of any staffer in the White House. And the investigation was not one in which it was the mere personal crimes of a senior administration official being investigated, say Webb Hubbell's thievery from the Rose Law Firm, prior to his entering the Clinton Justice Department. Bush has decided that someone who works for him and commits felonies on the job should not serve any jail time. This afternoon, the White House left open the possibility of a full pardon at a later date.

There is one point on which, I think, Libby was treated unfairly and that's the imposition of sentence while he was still working his appeals. When I was in the CIA leak case I received several months worth of suspended sentencing while my case worked its way to the Supreme Court. I had the agreement of the prosecutor, which made a huge difference. In Libby's case, Fitzgerald demanded immediate sentencing, which is what is usually doled out. Still, Fitzgerald cut me a break by allowing me to stay out of jail on appeal and it would be hypcritical for me to expect different treatment for Libby.

By the way, I was wrong--in spirit if not in fact--when I said that Bush would not pardon Libby. Technically, I was right. He hasn't pardoned Libby. But his commutation was an effective pardon making my prediction that Bush would treat Libby with the say disdain he treated death row inmate and evangelical cause celebre, Karla Faye Tucker, to be thoroughly wrong. Why spare the life of a contrite death row inmate when you can commute the sentence of an unprepentant felon?