Muammar Gaddafi has run Libya — and granted
clemency pleas — since 1969.

Call Blawgletter crazy, but we wonder why President George W. Bush commuted I. Lewis "Scooter" Libby, Jr.’s entire 30-month prison sentence instead of taking a more modest step — such as using his clemency powers to keep Mr. Libby out of prison during appeals of his conviction and sentence.

Pre-empting the Courts

Mr. Bush said many times that he’d let the legal process run its course before deciding whether to intervene.  But, for reasons he hasn’t explained, he didn’t wait — declaring his respect for the jury’s guilty verdict but deeming the prison term "excessive". 

The turnabout strikes us as odd if only because Mr. Libby’s appeal would have determined the excessiveness, or not, of his sentence.  If the legal process ran its course — perhaps resulting in an acquittal or a lessening of his punishment — commutation may have proved unnecessary.

So Mr. Bush could have waited.  And he could have kept Mr. Libby free until his appeals ran out.  Article II, section 2 of the Constitution gives the president power to order "Reprieves and Pardons" (except in cases of "impeachment"), a sweeping authority and unreviewable discretion that comprehend everything from a mild expression of regret to a full pardon.  Why, then, did Mr. Bush opt to act early?

Jury Waiver by Libby; Bush’s Lone Star Record

Before grappling with that question, let’s recall that Mr. Libby waived his constitutional right to have a jury determine the facts relevant to the sentencing decision — such as whether he conspired with others in the administration to leak the undercover identity of Valerie Plame.  Mr. Libby chose instead to let the judge find the facts and pronounce sentence.  We can thus think of no reason why Judge Walton’s ruling deserves Mr. Bush’s respect less than the jury’s verdict finding Mr. Libby guilt.

Let us also reflect on Mr. Bush’s clemency record.  As Adam Liptak’s article today in the NYT observes, Texas Governor Bush commuted sentences in fewer cases than any predecessor since the 1940s.  As president, he commuted three sentences and granted 113 pardons while denying more than 1,000 applications.  And, in those instances where he used his authority, we imagine that he waited to act until after exhaustion of all direct appeals.

Potential Explanations

Blawgletter can imagine only two reasons that Mr. Bush short-circuited the legal process in Mr. Libby’s case — one merely unseemly, the other much worse. 

The understandable one involves politics.  Mr. Libby’s supporters argued that the prosecution should never have happened in the first place, contending that the special counsel held too much power and abused it by criminalizing a political dispute over the Iraq war.  They demanded nothing less than a complete pardon.  Political opponents, on the other hand, would have depicted a pardon as an abuse of the clemency power.  They call the commutation by the same name anyway, but commuting the sentence while leaving the finding of guilt at least comes across as less extreme.

The other possible explanation gives us the willies plus the heebie jeebies.  Special counsel Fitzgerald made no secret of his willingness to make a deal in return for Mr. Libby’s cooperation.  The help would doubtless require Mr. Libby to disclose White House secrets — including information about efforts to discredit Joseph Wilson, who denounced Mr. Bush’s claim that Saddam Hussein tried to buy radioactive "yellowcake" in Africa.  Leaving Mr. Libby under threat of a long prison sentence might not have gone far enough to buy his silence.  A desire to keep him quiet, under this possibility, thus may have rushed Mr. Bush into pre-empting the legal process.


We may never know why Mr. Bush reneged on letting the law take its course, why he hurried, and why he commuted Mr. Libby’s prison sentence instead of paroling him during the appellate process.  Mere politics, rather than fear of the truth coming out, may explain Mr. Bush’s speediness.  If not, or if the truth comes out anyway, history may remember Mr. Bush as the first president who used his clemency power to save himself. 

Call him the Libbyan president, for short.

Barry Barnett

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