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Tuesday, July 03, 2007

Beldar on the blogosphere's reactions to the Libby commutation

My own extended remarks now posted, I'll comment on just a few other posts with reactions to the Libby commutation that catch my eye.

Emptywheel at The Next Hurrah posts that "George Bush obstructs justice." This is true if, but only if, your concept of "justice" involves a Constitution that excludes the pardon power. Otherwise, it's just loose and over-the-top rhetoric.

Ed Morrissey at Captain's Quarters posts that Dubya was "Splitting the Baby," and writes that "like Solomon, Bush will probably find neither side satisfied." But he thinks the decision "strikes a balance that few will appreciate now, but later will accept as wise, as far as it goes." I wouldn't have used this metaphor, but I don't disagree with Ed's comments.

Jeff Goldstein thinks that Dubya should have just gone the whole nine yards at one fell swoop:

[I]f the President was going to take the kind of sustained heat he’s about to get from the press and Congressional Democrats, anyway — and believe me, they’ll be falling over themselves to get in front of a camera to talk about the Republican culture of corruption — he should have just done the right thing and pardoned Libby completely.

That's rather the point, though: Dubya obviously didn't think that pardoning Libby completely was the "right thing." I take the President at his word that he believes the appeals process should play out, and that implies pretty strongly, I think, that he's willing to accept its final results as being, well — final.

Volokh conspirator Prof. Orin Kerr (with whom chief conspirator Eugene Volokh concurs) finds "Bush's action very troubling because of the obvious special treatment Libby received. President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail." And, consistent with that, Bush didn't commute Paris Hilton's sentence either, did he? The thing is, for all of Paris Hilton's celebrity, her traffic offenses and jail time were run-of-the-mill. So what kind of case, Prof. Kerr, would it be okay to get the President's specific and unusual attention, if not Scooter Libby's?

Writing on the HuffPo, Jeralyn Merritt asserts that "Hypocrisy, Thy Name is Bush," taking Dubya to task more for varying from his previous statements that he'd let the system play out than (at least in this post) the merits of the decision. "Bush's arrogance is apparent from the extent to which Scooter's clemency decision departs from Justice Department guidelines on pardons and clemency," she continues, which generally provide that requests aren't accepted until your appeals are exhausted and you're serving your sentence. That's true, and a very powerful argument — if (but only if) you're the sort of person who's into what I'd call "footnote justice." That's someone who thinks that departmental regulations from the C.F.R. are holy writ, and the Constitution isn't. It's certainly true that this departed from the "ordinary course" routine "pardons and clemency" process that tens of thousands of convicted criminals try to employ. But this decision wasn't made on the basis of an application from Libby's lawyers to the DoJ anyway! I don't think even Jeralyn would argue that this is an "ordinary case" in any respect. Is Dubya supposed to be among the handful of politically, governmentally aware adults in the U.S. who is immune to interest in this case?

Meanwhile back at TalkLeft, her co-blogger Big Tent Democrat draws the obvious conclusion from this event using razor-sharp logic: "Will our Democratic representatives wake up and understand NOW that he will never end the war in Iraq — that only a Congress that says no to funding the Debacle past a date certain can end the war? I doubt it." I doubt it too, Big Tent. The President's position on the war is just too obscure to top congressional Dems, notwithstanding this latest, abundantly clear war message from the White House.

It's "an excellent resolution," writes Power Line's John Hinderaker, that "will go over well with the party's conservative base and will contribute, to some degree, to a restoration of Bush's standing with conservatives." I hope in later posts John and his co-bloggers will expand on this. It's a long time until January 2009, and conservative self-immolation out of dissatisfaction with George W. Bush for that long a period is definitely not productive.

Kevin Drum writes:

The only thing I didn't foresee was that Mr. Principle would carefully read the polling tea leaves and commute only part of Libby's sentence so that he could pretend this was some kind of deeply profound Solomonic judgment, not just a craven favor for a friend. His statement along these lines is enough to make one ill. Ugh.

That's so shallow. How can an intelligent left-leaning pundit discuss the distinction between outright pardon and commutation, and still refuse to even acknowledge the possibility that it's a reverence for justice which has caused President Bush to deliberately allow the appeal to go forward, with the serious possibility that the conviction will be affirmed? Reading "polling tea leaves" would have dictated either a full pardon or no relief at all.

It's like the Hard Left's outrage dials only have one setting — 11.

My friend Patterico isn't pleased — and it would be the rare current prosecutor who would be, I suppose:  "You do the crime, you do the time. The jury said Scooter Libby did the crime. He should do the time." He thinks Republicans will be "slaughtered" in the 2008 election because of this, and that's certainly what the Dems will try to do. "This particular convicted felon wasn’t worth it," he writes.

I appreciate this viewpoint, and Patterico and I have been among a pretty small minority of conservative bloggers who've been supportive of Fitzgerald and skeptical of those who argue that the whole Libby prosecution is bunk. I suspect that my friend would agree with me that if we start applying a relativistic approach — comparing Libby with, say, Sandy Berger — the Libby commutation would look better. But he'd also certainly argue that a relativistic approach is improper, and I tend to agree with that; and he'd argue that Berger going unpunished doesn't justify others going unpunished, and I definitely agree with that.

Indeed, if I keep hypothesizing Patterico's arguments, I may talk myself into his position here.

What he and I — and, with respect, you too, gentle readers — all lack is what I'll call the "sweaty shirtsleeves perspective" that Dubya has. If there is a basis for showing mercy, for indulging in an act of "constitutional grace," for Scooter Libby, it is because of the public service he's rendered during his career — not for reasons particular to this prosecution. Critics see it as cronyism, but in fact, no one is better qualified to judge the value of Libby's public service than President Bush. Huge, huge portions of what Scooter Libby did as a key inside figure in implementing the Administration's response to 9/11 and global terrorism is still highly classified. But the President knows on a first-hand basis what the man contributed, what its value has been, and under what critical and pressure-filled circumstances he served. And as it happens, George W. Bush is the one person in whom the Constitution entrusts the power to weigh that public service against the serious crimes of which Libby stands convicted. And he clearly thinks "this particular convicted felon" is deserving, even though there will be a political price to pay.

Patterico may doubt his wisdom, but in this instance, I doubt he doubts Dubya's sincerity. To the extent I have a basis to judge, I can't disagree with the judgment President Bush has reached, and I think in fact that I actually do agree.

Finally, Dr. James Joyner at Outside the Beltway shows a deft touch at punditry through music video link-posting, which I'll repeat:

The more I know, the less I understand.
All the things I thought I'd figured out
I have to learn again.
Ive been trying to get down
To the heart of the matter,
But everything changes
And my friends seem to scatter.
But I think its about forgiveness,
Even if, even if
You don't love me anymore.

Posted by Beldar at 01:01 AM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to Beldar on the blogosphere's reactions to the Libby commutation and sent a trackback ping are listed here:


(1) Carol Herman made the following comment | Jul 3, 2007 1:45:25 AM | Permalink

This whole thing is a political joke. Just depends on which side you're on.

When it was Bill Clinton's turn, having gotten caught "with doing something with Monica," he evaded the punishment BECAUSE the People, in the majority, backed him. And, men do get a pass when they go outside their marriages. Ain't anything new. (And, the "lying about it?" That, too, got the pass.)

Bush has been SLOW about everything he does. And, what other issues do the Bonkeys have,anyway?

You're certainly not going to convince most Americans that going to lawyers gets ya more than just a throw of the dice.

Miscarriages of justice abound. But where individuals garner respect is when they can get heard in front of the Bar, and justice ultimately gets done. Like in the Dryfus case. And, then it took a writer, to write the wrong.

Here? Sounds fair enough.

As to Paris Hilton going to jail, that was just the judge (sauer) feeling his oats. THe DA had a wife on a suspended license. And, nobody went to jail. Let alone how overcrowded they are.

Sandy Berg(l)er of stuffing his pants and sox with secrets fame; only paid $50,000.

I'm sure, ahead, Libby's law license will also hang in the balance.

I have no idea whose gonna be writing books. But WHEN Fitz' "show" closes down; perhaps, then, there will be books? And, tattle tail stories.

Why is the left so geard to do violence in politics with this legalese, I have no idea. But it's possible they're losing; and they've got nothing in their swamp, now, except mud?

As to Fitzgerald's lack of respect for President Bush, I'm not surprised. His presser against Libby will stand out as an injustice ... Just as Nifong accelerated his hopes for incarcerating innocent men, by innuendo, alone.

Eventually, this stuff catches up.

So far John Roberts hasn't figured out how to do much with the Supreme Court. Too bad. But that's the way it goes. We'll be getting clashing wallpaper; and split legal arguments; which are not on par with King Solomon's decision. (He was looking for the liar. The baby lived!)

(2) Eric Rasmusen made the following comment | Jul 3, 2007 9:22:54 AM | Permalink

One thing I haven't seen discussed is the implications of this for the appeal. I gather from Fitzgerald's whining press release that the appeal continues. That's good. The DC Circuit wouldn't delay the sentence during the appeal, as they ought to have, so now it is the president that is delaying the irreversible harm. The fine can be reversed later without harm, so it remains.

I don't think this was the President's intent, but that's how it works out.

(3) Beldar made the following comment | Jul 3, 2007 9:27:15 AM | Permalink

Eric: Been there, done that (immediately previous post, also linked from the first sentence in this one, see the bullet points).

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