Commute Libby's sentence?

I am unimpressed and unpersuaded — I would go so far as to say disappointed — by the lack of depth in short pieces today from, respectively, PowerLine's Scott Johnson, the Weekly Standard's Bill Kristol, and the National Review editorial board, all arguing for an immediate pardon of Scooter Libby. (H/t Jonathan Adler at The Volokh Conspiracy.) I think it's a much, much harder question than any of them have acknowledged.

Mr. Kristol's piece is uncharacteristically harsh, I think, but certainly reveals the strength of the passions that the Libby case creates in the hearts of those who once were among George W. Bush's most ardent and articulate supporters:

For President Bush, loyalty is apparently a one-way street; decency is something he's for as long as he doesn't have to take any risks in its behalf; and courage — well, that's nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?

That's just way too personal, and way too facile. The presidential pardon power is intrinsically more subject to unchecked, uncheckable abuse than any other power granted the President by the Constitution — and Bill Kristol and the rest of us were certainly reminded of that by the flurry of outrageous pardons Bill Clinton handed out as he left office. To savage George W. Bush's honor in this manner without even discussing the countervailing reasons against a pardon, and without even discussing the massive political reaction it would cause (think Ford pardoning Nixon), and without even discussing the inevitable damage that reaction will do to the prospects of the GOP nominee in 2008, whoever that may turn out to be, is unworthy of one who is normally such a thoughtful and perceptive analyst.

I'm much more intrigued by two pieces from former federal prosecutors, however. Edward Lazarus explains why Judge Walton's choice of a 30-month sentence can be justified under the federal Sentencing Guidelines, and yet why those guidelines and the Supreme Court's recent Booker decision left room for a lighter sentence that very arguably may have been more appropriate. And William Otis writes that the President ought not pardon Libby outright, but rather that he ought to commute his prison sentence (but not his fine):

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.

Mr. Otis doesn't mention — or perhaps he did, and a WaPo editor left it on the editing room floor — a particularly interesting aspect of the commutation suggestion: Assuming Libby is denied bail pending appeal, an immediate presidential commutation of Libby's 30-month prison sentence would leave Libby and his team free (literally, in the case of Libby himself) to continue challenging his conviction through the normal appellate processes. The fine, the two years of supervised release, and the other disabilities associated with a felony conviction would leave Libby with ample legal standing and practical motivation to continue to do so. If Libby's appeals are then successful, no further presidential action need be considered; and if they are not, either President Bush or his successor might then consider whether further relief, in the form of an outright pardon, would be appropriate.

A commutation would certainly outrage the Left. But it would give the President an opportunity to make some important, principled distinctions that ought to at least partially subdue that outrage, and to speak out on the Libby matter with much more specificity than previously would have been appropriate. Perhaps he could say something like this:

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.

I'm not yet entirely sold on the idea. But I am intrigued by it.