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Very Special Treatment

Orin Kerr:

I find 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. His handful of pardons have been almost all symbolic gestures involving cases decades old, sometimes for people who are long dead. Come to think of it, I don't know if Bush has ever actually used his powers to get one single person out of jail even one day early. If there are such cases, they are certainly few and far between. So Libby's treatment was very special indeed.

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The DOJ Manual on Commutation

Via Talking Points Memo, with my emphasis:

DOJ manual on Commutations (emphasis added) ...

Section 1-2.113 Standards for Considering Commutation Petitions

A commutation of sentence reduces the period of incarceration; it does not imply forgiveness of the underlying offense, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed. Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding.

Also, Bush didn't just reduce Libby's jail sentence, he eliminated it. His reasoning was that the judge's sentence was excessive and the Probation Department had recommended a lesser term, perhaps one of probation or home confinement.

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Patrick Fitzgerald Weighs In on Scooter Libby Commutation

This just in. Patrick Fitzgerald has issued this statement on President Bush's commutation of Scooter Libby's sentence. He takes no position on the commutation, but criticizes Bush's characterization of the sentence as excessive:

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.” The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as
equals. That principle guided the judge during both the trial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process.”

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Scooter Libby Commutation, Part Two

I'm coming late to the news that President Bush has commuted Scooter Libby's prison sentence.

With the denial of bail being upheld and incarceration imminent, I believe it is now important to react to that decision," Bush said in a statement issued by the White House early this evening. Although the president said he "respected" the jury's verdict, he added that he had "concluded that the prison sentence given to Mr. Libby is excessive."

Bush left Libby's $250,000 fine in place. Big Tent Democrat weighed in here.

The text of Bush's Clemency Order is here.

My immediate thought is that Dick Cheney has some clout left after all. My second is that Libby may not get a pardon when all is said and done. From President Bush's statement:

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Appeals Court Denies Bond for Scooter Libby

The D.C. Circuit Court of Appeals has denied Scooter Libby's request for an appeal bond.

President Bush has repeatedly said he will not pardon Scooter Libby while his case is in the Appeals court.

Does Libby have any options besides reporting to prison on schedule? If he was certain a pardon would be granted, he could drop his appeal of his conviction. Then Bush could say the matter has concluded in the courts and the time is right for him to grant a pardon.

Bush could commute his sentence to probation, reserving the pardon issue until the Appeals Court has ruled on the conviction.

Other than those, I can't think of any. It sounds like Libby will be proceeding to prison as scheduled.

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Rich v. Cohen

Sunday, Frank Rich wrote:

What makes these [Libby testimonials]rise above inanity is the portrait they provide of a wartime capital cut adrift from moral bearings. . . . The Libby supporters never acknowledge the undisputed fact that their hero, a lawyer by profession, leaked classified information about a covert C.I.A. officer. And that he did so not accidentally but to try to silence an administration critic who called attention to the White House's prewar lies about W.M.D. intelligence. And that he compounded the original lies by lying repeatedly to investigators pursuing an inquiry that without his interference might have nailed others now known to have also leaked Valerie Wilson's identity (Richard Armitage, Karl Rove, Ari Fleischer). . . . Given that Mr. Libby expressed no contrition in court after being convicted, you'd think some of his defenders might step into that moral vacuum to speak for him. But there's been so much lying surrounding this war from the start that everyone is inured to it by now. In Washington, lying no longer registers as an offense against the rule of law.

Right on cue comes Richard Cohen:

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Scooter Libby Denied Appeal Bond, Ordered to Report to Prison Within Weeks

Bump and Update: As expected, Judge Walton denied Scooter Libby's request for an appeal bond and ordered him to report to prison within weeks. Team Libby will immediately appeal. Marcy Wheeler provides analysis of the ruling.

As for the time it will take the D.C. Circuit to decide Libby's appeal of Walton's decision, I can only go by how long my last one took in a different Circuit. The Notice of Appeal was filed on Jan. 18 and the 10th Circuit issued its order upholding the trial court on March 8, about 7 weeks later. I would think the D.C. Circuit might take longer.

This means Libby almost certainly will be designated and ordered to report before the Appeal is decided. So, unless the Circuit Court stays Walton's order pending the outcome of the appeal, which is not likely, or Bush commutes Libby's sentence to probation before his surrender date, Libby will do at least some time in prison.

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Pach at Firedoglake will be live-blogging the Scooter Libby appeal bond hearing. Here's the latest:

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Scooter Libby's Latest Filing to Stay Free Pending Appeal

Scooter Libby is fighting hard to get an appeal bond. He's even bringing another lawyer on board, Lawrence Robbins, to "bring his special expertise."

Personally, I think Libby should get the appeal bond. Judge Walton doesn't seem inclined to agree, but nothing is certain until he rules tomorrow morning.

Note that Libby will not be going to jail tomorrow even if the appeal bond is denied. Fitzgerald doesn't oppose that and Judge Walton said he intended to grant a voluntary at last week's sentencing hearing. He will be granted a voluntary surrender date between 30 and 45 days from now. During that time, Team Libby will appeal the denial of bond, should that occur, to the D.C. Court of Appeals.

I summed up the grounds in his initial request (pdf) here. Christy at Firedoglake analyzes Fitzgerald's response here and here.

Today, Tom Maguire of Just One Minute posts Libby's response to Fitzgerald (pdf) and provides his analysis.

Jane of Firedoglake writes about Obama's general counsel Robert Bauer calling for a Libby pardon.

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Mary Matalin Pleads for Scooter Libby Defense Funds

The downside to sending out mass fund-raising letters is that you never know in whose hands they will wind up.

This one from Mary Matalin, in which she pleads for contributions for Scooter Libby's appeal and argues Libby is innocent, ended up in mine.

Here it is in its entirety. Enjoy.

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Memo to Byron York: Going To Jail Pending Appeal Is The Norm, Not The Exception

Writing in The Hill, Byron York laments the fact that Judge Walton is "determined" to send Scooter Libby to jail pending his appeal:

At sentencing this week, Walton also said that he saw no reason why Libby shouldn’t be behind bars sooner rather than later — in other words, that he should begin serving his sentence while his appeal is underway. Why the hurry? These days it’s often the case that when a defendant is judged no danger to society and no danger to flee the country, he is allowed to remain free on appeal.

Tom Maguire seconds the motion. I had the same thoughts when I first heard this. But we were all wrong. I think it is due to the fact that York, Maguire and I are not well versed in criminal law. You see, going to jail pending appeal is the norm, not the exception. The relevant statute says:

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Is Fitzgerald's Appointment As Special Counsel A Close Constitutional Question?

Somewhat lost in the pleasure that Judge Walton's now famous footnote has provided, is the question of whether law professors make a credible argument that Fitzgerald's appointment runs afoul of the Appointments Clause of the Constitution. The law professors argue:

The dispositive Constitutional question then is whether the Office of Special Counsel to which Mr. Fitzgerald was appointed is inferior office within the meaning of the Appointments Clause.

If it is not an "inferior" office, all agree, then it is subject to Presidential appointment and Senate confirmation. But there is more to it than that. Patrick Fitzgerald was a duly appointed and confirmed U.S. Attorney. Does that matter? Not only does it matter, it decides the case imo. Let's explore these issues on the flip.

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The GOP Talking Points on Libby Debunked, By WaPo No Less

David Broder would have done himself a favor if he had read the Washington Post reporter who actually covered the Scooter Libby trial, Carol Leonnig before he penned his embarrassing regurgitation of GOP Talking Points. Published the same day Broder wrote his nonsense, Leonnig wrote, in part:

3. Libby didn't leak Plame's identity.

Oh, brother, am I tired of this one. Libby wasn't charged with the crime of knowingly leaking classified information about Plame; he was charged with lying to investigators. But the overwhelming weight of the evidence at the trial -- including reporters' notes of their interviews with Libby -- showed that Libby had indeed leaked classified information about Plame's identity, even though that wasn't what put him in the dock. The jury agreed that Libby lied when he said that he'd been telling reporters only what other reporters had told him about Plame's role at the CIA.

What is unclear is whether Libby knew she was a covert CIA agent at the time he discussed her with reporters -- a key point in determining whether this was an illegal leak. But Walton said that Libby "had a unique and special obligation" to keep such secrets, well, secret.

Oh brother Carol, are you and a lot of people tired of the nonsense from your colleague David Broder.

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Scooter Libby Sentencing Hearing Transcript

A million thanks to Jason Leopold of Truthout who just sent me a copy of the 103 page Scooter Libby sentencing transcript he purchased from the court reporter.

If a major media outlet doesn't publish it, I'm not going to post the whole thing or share it because this is how court reporters make their money and as a practicing lawyer, I don't want to break any rules.

I will read it late tonight and post pertinent excepts. If there's any part you particularly would like to read, let me know in the comments.

In other Libby news, via How Appealing, Judge Walton is allowing an amicus brief to be filed regarding the appeal bond issue. His order is here (pdf) and Howard says to check out the disparaging footnote.

The amicus brief by law profs is here.

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Scooter Libby Files Motion for Appeal Bond, Lists Grounds

Team Libby today filed its Motion for Appeal Bond, listing the grounds upon which they believe the Court erred before and during trial. I've uploaded the motion(pdf) and attached exhibit (pdf).

I think they make some excellent arguments, particularly about the standard. It's not necessary that Judge Walton believe he was wrong, or that reversal is probable, only that the issue presents a close question or one that could have been decided the other way.

The grounds Libby raises:

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Rough Days Ahead for Scooter Libby

I have an op-ed in the Washington Examiner today on Scooter Libby's sentence and his chances for an appeal bond.

For another first-hand account of the sentencing hearing, check out Scott Shrake at Huffington Post.

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