The Libby Fallout

Patterico offers up criticisms of the Libby commutation. Now, I should start by saying that I’m not necessarily a huge fan of the decision; I still think there was an arguable case for prosecuting Libby and that he was probably guilty, but the decision to commute his prison sentence nonetheless strikes me as a reasonable call, and maybe the right one. I mostly enjoyed the spectacle of the brain-bending hypocrisy of the people who think anything less than years in prison is too small a price for perjury…but also that being guilty of perjury and obstruction of justice should be no obstacle to staying president and even being returned to the White House in 2008; people who think that this pardon is some horrible abuse of power, yet pardoning fugitive traitors for cash and terrorists for votes is no reason not to vote Clinton again in 2008.
Anyway, for background I’ll repeat here what I said in the comments of the last thread:
My two cents, since I was too busy to comment when the verdict came down? First, I think Libby’s conviction will be overturned on appeal due to the limitations on his ability to impeach the star witness against him, Tim Russert. Second, I do think Libby was trying to hide the truth, but I also think he suffered from a lousy memory and that Russert was untruthful – I doubt very strongly that he intended to tell a story that much at odds with the chronology, I think he misremembered what happened and tried to shade it further. That’s not a defense of Libby, it’s just what I think happened. Also, I have never ripped Fitzgerald, and I’m not joining the caucus that says he was horribly abusive, but I do think all things considered he should probably have pulled the plug on his investigation once he knew who the leak had come from. He didn’t prosecute Armitage, which strongly suggests that he knew that there was no legal basis for a prosecution based on the leak. Instead, he called Libby and Rove and others repeatedly to the grand jury for no other reason than to investigate their statements to the FBI. Under the circumstances, that strikes me as a waste of resources and poor prosecutorial judgment. And I do think the people in the media he chose not to question strongly suggests there were answers he wasn’t interested in hearing.
That said, Patterico – who was in favor of the prosecution – offers three main criticisms of the commutation. One is that Bush didn’t work through the usual pardon process (in fact, he seems to have reached the decision while fishing with Vladimir Putin). This strikes me as a minor quibble in this case; the main purpose of the process is to vet the submission that goes to the president to make sure that he gets a fair presentation of the facts rather than the slanted perspectives of one side in a criminal case. Here, Bush was already familiar with the players and the facts (we all are, by now, but Bush knows them personally). Granted, the process also provides another benefit (the professional staff can provide perspective on how similarly situated defendants are sentenced), but fundamentally, this was a judgment call Bush was well-entitled to make himself.
The second criticism, from Orin Kerr, is a little more substantial: that Bush has scarcely used the pardon power at all (no doubt in large part due to the bad odor from the previous Administration), and thus this is more in the nature of special treatment than is usually the case for presidential pardons of associates of the President.
That’s a fair argument, but at bottom I think the motive here is Bush’s belief – as has been the belief of past presidents, fairly or otherwise – that Libby would never have been prosecuted in the first place were it not for his political position (it was only the political firestorm over the Plame leak that forced the appointment of a Special Prosecutor in the first place). High executive branch appointees do get special treatment the rest of us don’t, but they also face a risk of criminalization of their daily activities that ordinary people don’t. It cuts both ways. On some level, letting Libby go to jail would have been a legitimazation of the kind of criminalization of foreign policy that the Democrats specialized in during the 1980s, and that is a kind of calculus that makes this decision wholly unlike the situation of ordinary criminal defendants.
Third, Patterico argues that the GOP will pay a terrible political price. Maybe I’ve grown more cynical after the 1990s, but I doubt it. Bush is unpopular, to be sure, and the Democrats have had great success with the “culture of corruption” mantra in convincing the public that the Republicans are up to their eyeballs in shady land deals and defense contracts and freezers full of cash, plus Democratic candidates are busy working to mislead the public about what Libby was actually prosecuted for. But first of all, this is an instrumental argument – that Bush should have let the electoral impact of the decision govern his judgment. Second, I think political people consistently underestimate the built-in cynicism of the average voter with regard to politicians. Third, this story hasn’t had nearly the cache with voters that it has with bloggers, who have obsessed about it endlessly since July 2003 (I’ve certainly posted about it enough, and I’m far from one of the most obsessed bloggers), and there will be a lot of other water under the bridge by November 2008. Fourth, the Democrats remain highly likely to nominate Hillary.
Bush had a tough decision to make. I think he made a reasonable call, given the nature of the underlying prosecution and the political origins of the entire investigation.
UPDATE: WSJ Law Blog says that some criminal defendants will be asking judges for the same treatment Libby got. But judges are not the president; the pardon power has always been the exception to the rule of law.