Witnesses Announced for Hearing on Libby's Commutation

The House Judiciary Committee has announced the list of witnesses for Wednesday's hearing on "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials.

Via TP Muckraker and Sentencing Law & Policy:

  • Ambassador Joseph Wilson
  • Roger Adams, US Department of Justice Pardon Attorney
  • Douglas A. Berman, William B. Saxbe Designated Professor of Law, Moritz College of Law, The Ohio State University
  • Tom Cochran, Assistant Federal Public Defender, Middle District of North Carolina (Attorney for [sic] Vincent Rita, Rita v. US)
  • David Rifkin, partner, Baker & Hostetler LLP, former Justice Department official during the Reagan and Bush Sr. administrations.

TP Muckraker quotes Rep. John Conyers on the purpose of the hearing:

"Congress must now look into presidential authority to grant clemency, and how such power may be abused. Taken to its extreme, and possibly in the case of the Libby clemency, the use of such authority could completely circumvent the law enforcement process and prevent credible efforts to investigate wrongdoing in the executive branch."

While I'm pleased Joe Wilson and Prof. Berman, who writes the excellent Sentencing Law & Policy blog are going to be witnesses, I'm concerned that the committee will not be hearing from anyone involved in the Libby commutation process.

There was no clemency petition, the Pardon Attorney was kept out of the loop and I just don't see how these witnesses will shed any light on whether Bush's motive for granting the clemency was proper or improper.


None of these witnesses have information on communications between Team Libby and Bush, Cheney and Bush or between Bush and the advisors he consulted about the commutation.

Unless this is just the first of several hearings, I'm disappointed.

When Congress investigated President Clinton's pardons, President Clinton waived presidential privilege and allowed his White House advisors most involved in the decision to testify at the hearing. The Committee was able to conclude there was no evidence Clinton misused his pardon authority.

Why isn't the Committee calling Bush's advisors? According to the Washington Post, Fred F. Fielding, Chief of Staff Joshua B. Bolten and his outgoing counselor, Dan Bartlett advised the President.

No one is challenging Bush's constitutional right to grant the commutation. The issue needing investigation is that Bush commuted Libby's sentence in an investigation his Vice President was in up to his eyeballs. Did he do it to keep Libby quiet? Did he commute Libby's sentence rather than pardon him so that Libby could retain his 5th Amendment privilege against self-incrimination and refuse to testify at congressional hearings or a grand jury about Cheney and/or Bush's role in leaking Valerie Plame's identity?

It seems the Committee wants to hear testimony only on facts we all know: That usually people don't get their sentences commuted until they've done some time; that a court ruled a guideline sentence was proper in the Rita case which had similarities to Libby's case; that Libby's sentence wasn't excessive under the Guidelines and that it was within Judge Walton's discretion to grant or deny Libby a departure or variance from the guideline range. We all know that most people who are convicted of perjury and obstruction of justice get jail time and a regular Joe wouldn't have gotten a get-out-of-jail free card.

As the New York Times opined last week,

Presidents have the power to grant clemency and pardons. But in this case, Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell.

The Committee should be examining that which we don't know: Was Bush's commutation of Libby's jail sentence just bad judgment? Or, did he do it to silence Libby and prevent him from spilling the beans on Cheney or Bush himself in PlameGate?

I don't see how this group of witnesses is going to shed any light at all on this issue, and it's an issue the public has a right to be concerned about.

As I wrote here, I would like to see Patrick Fitzgerald called as a witness and asked whether he and Team Libby had any discussions after Libby's conviction about Libby providing information to the Government on Cheney and Bush's role in PlameGate in exchange for the Government's filing of a motion for sentence reduction. If there were, and Bush knew about them, there's an increased chance this commutation was based on improper motives.

On Sunday, Rep. Conyers said:

"What we have here _ and I think we should put it on the table right at the beginning _ is that the suspicion was that if Mr. Libby went to prison, he might further implicate other people in the White House, and that there was some kind of relationship here that does not exist in any of President Clinton's pardons, nor, according to those that we've talked to ... is that it's never existed before, ever," Conyers said in a broadcast interview Sunday.

Has the Committee decided to forego that aspect of the investigation?

Update: Rep. Conyers sent a letter to Bush Monday asking him to waive executive privilege and allow his aides who participated in the commutation discussions to testify before the committee. My criticism may be premature, particularly if multiple hearings are going to be held.
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  • Display: Sort:
    Conyers the Mole? (5.00 / 1) (#2)
    by JHFarr on Tue Jul 10, 2007 at 12:55:21 AM EST
    Has the Committee decided to forego that aspect of the investigation?

    Yes, I know it's absurd, but after that last overly-hyped Judiciary Committee hearing that just put everyone to SLEEP, I decided that Conyers might as well be working for the other side. I doubt even Bush nuking Persia will wake the man up. Maybe just enough to have another hearing, though.

    Bah. I'm pissed.

    as j. notes -- in her update. . . (none / 0) (#7)
    by the rainnn on Tue Jul 10, 2007 at 11:13:49 AM EST
    (above) and, as she and i, and others
    discussed in late-night comments
    last night over at nexthurrah, i,
    and many others, have good reason to
    believe this is just the first of
    several hearings -- it is needed to
    lay the foundation for how unusual
    and out of character this was -- coming
    from "kill 'em all" gwb43. . .

    next hearing -- if we aren't looking
    at impeachment hearings by then -- will
    go into the particulars of libby's very
    close connection to cheney and bush. . .
    and the consideration, and rejection, of
    REDUCED, as opposed to eliminated, jail time.

    that's the best way to establish a quid
    pro quo
    was implied, from the jump. . .

    just my $0.02. . .


    one small correction -- to mr. v. rita's name. . . (none / 0) (#1)
    by the rainnn on Mon Jul 09, 2007 at 11:41:56 PM EST
    i first saw this on the gavel,
    speaker pelosi's blog this after-
    noon, then at thenexthurrah.com. . .

    Tom Cochran, Assistant Federal Public Defender, Middle District of North Carolina (Attorney for Vincent Rita, Rita v. US)

    and the original sources also con-
    tained the error -- mr. rita's first
    name is "victor" not "vincent".

    victor a., in fact.

    just for the record.

    The testimony of AFPD Cochran and (none / 0) (#3)
    by Peter G on Tue Jul 10, 2007 at 01:59:06 AM EST
    ... Prof. Berman should clearly show that the officially stated reasons for the commutation are false in every particular.  Their testimony should also lay bare the hypocrisy of the decision as a matter of sentencing policy.  The inference that there was a different reason for this act of clemency, and the special favoratism involved, will then be quite apparent.

    Maybe ... (none / 0) (#4)
    by chemoelectric on Tue Jul 10, 2007 at 02:35:46 AM EST
    These are probably those whom Conyers et al. could get on short notice. Hopefully this hearing will deal mainly with the question of whether a more thorough investigation is necessary.

    Note that Bush-Cheney now will, most likely, stonewall to the point of 'executive privilege' on essentially 'everything' from now on, under the leadership of Fred Fielding. There was probably no chance of hearing this Wednesday from anyone involved in the keep-Libby's-mouth-shut process (which is a subprocess of a broader criminal cover-up).

    David Rivkin?!? Are they nuts?!? (none / 0) (#5)
    by kovie on Tue Jul 10, 2007 at 03:07:54 AM EST
    Why is the committee wasting its time on the odious David Rivkin, one of the main Libby shills who's been spewing nauseatingly rediculous talking point nonsense throughout the Plame investigation and Libby trial? He's like DiGenova, Toensing, Specter and Gonzo rolled into one--the spitting, lying and bloviating image of why so many people hate lawyers. The very thought of him and the Repub members of the committee stroking each other just makes me ill. Ugh.

    (Nothing personal intended towards ethical and honest lawyers, of course.)

    Libby's boss (none / 0) (#6)
    by Madison Guy on Tue Jul 10, 2007 at 10:34:39 AM EST
    Last refuge of a <s>scoundrel</s> Cheney: The patriotic pumpkin patch.

    What About Conyers Motive? (none / 0) (#8)
    by MrGreyGhost on Tue Jul 10, 2007 at 04:34:04 PM EST
    Here's a guy, John Conyers, whose been after Bush for years, still wants him impeached, berates the President every chance he gets. Altogether it's a moot issue because as the Left keeps forgetting to mention: it was RICHARD ARMITAGE who outed Valerie Plame, NOT Scooter Libby. The double standard here is so obvious--when Bill Clinton pardoned drug traffikers, FALN terrorists, fugitives, et al, the Left looked the other way and said nothing. But let a Republican President exercise his Constitutional RIGHT to commute the sentence of a man who did nothing wrong and all hell breaks loose. Now Congress will waste its time just so Joe Wilson (who along with his wife has long abused their 15 minutes of fame) can take yet another shot at Bush--now how predictable is that?