obviously, i've only been reading those "secular progessive" law books.

Ernesto, however, seems to think judges are bound to adhere to false accusations and one past pardon misuse (the Marc Rich pardon) instead of, you know, the law.

Libby has refused to acknowledge his guilt. His actions helped scuttle a career, damaged national security and may have cost some lives. Fitzgerald gave him opportunities to correct his falsehoods which Libby declined to do.

He thus deserved no mitigation from the judge and has not earned a pardon.

  On the one hand, it has been felt that a procedure is needed to serve several purposes.

 Starting with "correcting" "wrongful convictions" in an expedient manner when judicial processes would either be difficult and time-consuming or even unavailing due to jurisdictional and prodecdural, I think most people would support these type of actions even if it is  "second-guessing or "overruling" the jury.

  Next you have the cases of where a person has served his sentence, paid his debt to society, led a productive life and been granted a pardon more as a symbol of acknowledged redemption than evasion of punishment. I think many people find this idea supportable.

   Then you have instances where the purpose of a pardon is to remove a "disability" where the legal effect of a past conviction is to disqualify a person from some type of participation in society where it has been decided such participation would harm no one and benefit the individual. Again, I think people mostly can support this idea.

  Then you have commutations where the conviction is not touched but the sentence is reduced. sometimes this is a "compromise" decision wheredoubts abbout the judicial proceedings exist ut not enough for the executive to feel a pardon is warranted and others more simply when it is decided the original punishment was too harssh.

  All of these categories --in the abstract-- seem easily supportable. The problem is  that the pardoning power is deep and broad and can easily be "abused" both in situations presented as one the above type cases  but which seem dubiously described in that manner to many and in cases that don't really seem to fet any of those.

  Particularly troubling are the preemptive pardons which are executed prior to a conviction and act to prevent prosecution and sometimes to short-circuit investigation and disclosure of acttions. Also, obviously troubling are the pardons that seem to have been purchased and based on who the person is and his political influence rather than any "legitimate" ground.

  I think we need a pardoning and commutation process and I think the power should be very broad. the bigger issue is WHO should have the power and what procedural safeguards against abuse should exist. The pardoning power in this country is directly derived from the pardoning power of the British Crown and so it was given to the President and is essentially a plenary power. (some states are different) a President must report his pardons to Congress but he can pardon anyone he wants for any reason he wants and is not obligated to follow any procedure (although one is in place it can simply be ignored at the whim of the President).

  When an executive pardons a political ally where factual guilt seems apparent or where facts remained undeveloped because of the pre-emptive effect of a pardon people justly get upset. When it appears that a person has paid for a pardon and the spectre of pure avarice is present. people get upset.

   These things obviously do happen at both state and federal levels, but I don't think it justifies limitation on the pardoning power. I think political consequences are sufficient to mitigate the abuses and as long as disclosure of pardons is required the relatively few "corrupt" ones -- which while unseemly do not seem to have had any influence either on public safety or political balances of power-- are a price worth paying to allow for the good that can be done with power propewrly exercised.

  I don't believe any case on the issue exists (because no executive has ever purported to do it)but I think it is clear that the pardoning power does not include the power to grant one immunity from prosecution for crimes that might be committed in the future.

In the foreword to a treatise on the subject of the pardoning power, Professor Willoughby described the proper method for interpreting a constitution:

    "In order to obtain a just estimate of the meaning and practical significance of specific provisions of the Constitution, it is necessary to consider not only the cases considered by the courts in which their application has been involved, but to examine the considerations leading to their embodiment in the Constitution, the interpretations given to them at the time the Constitution was drafted and adopted, and to survey the manner in which, in practice, these provisions have been legislatively or administratively applied."

W. H. Humbert, The Pardoning Power of The President, 1 (American Council on Public Affairs, Washington 1941).

    The executive's prerogative withh respect to pardons and commutations can be traced all the way back in time to the prerogative of the King of England before the colonies were settled and all the way forward to the present day. See: 27 Henry 8, ch. 24 § I (1535); E. Coke, Institutes 3rd (4th Ed. 1669); 4 W. Blackstone Commentaries, at 400 (ed. 1847) ; Ex Parte Garland, 71 U.S. 333, 380; U.S. v. Wilson, 32 U.S. 150 (1833).

  As the United States Supreme Court stated in Wilson:
    At the time of the adoption of the federal constitution, American statesman were most familiar with the prerogative exercised by the King, so that obviously when the words "to grant pardons" were used in the Constitution of the United States they conveyed to the mind the authority as exercised by the English Crown. Therefore we relied on common law for rules prescribing the manner in which it is to be employed.
        * * * *
    As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon.

U.S. v Wilson, at 159-160.

    "The pardoning power includes, in practice, full pardon, pardon to terminate sentence and restore civil rights, conditional pardon, amnesty, amnesty on condition, reprieve, commutation, commutation on condition and remission of fines and forfeitures." Humbert, supra, at 22.

  What I termed a "preemptibe pardon" is a species of amnesty. President Carter's grant of amnesty to those who violated Selective Service laws during Vietnam is probably the best known example of this use of the pardoning power. Carter essentially pardoned anyone who had broken SS laws regardless of whether they had been charged with any offense. It did not however grant anyone the ability to break laws in the future.

  As far as the law goes, I've summarized it above. The "law" is that the President has plenary power to grant pardons, including pardons people think are wrong or unjustified and to do so for any reason he decides. The "law" does not require the President to follow any procedure for deciding whom to grant clemency or to what degree. As for "tradition" -- the tradition has been well established for pardons many find morally dubious to be granted.

He was a casualty in yet another special prosecuter which hunt that spent millions of dollars and came up with nothing.

Just like Martha the prosecuter couldn't close the case with nothing so they charged Libby with lying (which is a crime) so he should go to jail.

  Let's take it the next step and assume that during an investigation into either the Rich pardon or a forthcoming Libby pardon two things happen:

 1) The investigation doesn't just find insufficient evidence but  concludes no crime was committed in relation to the pardon; and

  2) Someone makes a false statement of fact under oath regarding a matter material to the investigation into the pardon.

  The investigation would still be proper and it would still be an offense to have lied during it.

  The ultimate goal of an investigation is not conviction--it's uncovering the truth. You have no more right to obstruct an investigation that concludes no crime was committed than one where it is concluded a crime was committed.

   Remember, too, you could have the inverse situation where a lie occurred in the  prosecution of someone who was convicted. It would hardly be a defense to a charge of perjury or obstruction that since there was a conviction your false statement was not actionable, even if the person would have been convicted in the absence of your false statements. your obligation to be truthful is not contingent on the outcome of cases.

and their logic goes something like this: the outing of Valerie Plame as a CIA operative wasn't shown to be a criminal act, so Scooter shouldn't be punished for lying about it to the FBI and a grand jury.

From what they said, and I'm speaking as a lay person here, Fitzgerald successfully argued to the judge, regarding the punishment, that the underlying crime was related to national security and thus his sentence should be in a different - harsher - category of sentencing guidelines.

The less-putative guidelines were something like 20 - 24 months, and the harsher nat'l security guidelines were 30 - 37, and the judge accepted the argument for the harsher guidelines but gave him the lowest level of sentence in those harsher guidelines.

Anyway, the pundit's point was that there was no underlying crime, and, even if there was, that Libby had nothing to do with it (or something like that), so the judge should not have accepted Fitz's argument for the harsher sentencing guidelines.

"If the offense involved obstructing the investigation or prosecution of a criminal offense" combined with the general guidelines jurisprudence made Fitzgerald's argument pretty strong.

As I also  noted the  language in the perjury guidelinei s different:

"c) Cross Reference

(1) If the offense involved perjury, subornation of perjury, or witness bribery in respect to a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above."

  It might not seem like much but the obstruction guideline expressly including "investigation or prosecution" becomes very significant when the perjury guideline drafted by the same body does not have that language. If "investigation or prosecution" is to be given any meaning it would definitely strengthen the argument that proof of the underlying is not required.

  But,  that conclusion is not inescapable. At the least, the argument that the c-r's application should be limited to where  if the government can present evidence satisfying the court that the underlying did in fact occur it should  not be necessary for anyone to  BE CONVICTED of the underlying is a decent argument.