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.


Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.

If excessiveness was Bush's objection, why didn't he reduce it to probation with home detention? While Libby is now subject to supervised release (the successor to parole) he is getting a far more lenient sentence than that contemplated, let alone recommended by the Probation Department.

I also wonder if Patrick Fitzgerald was consulted ahead of time. From his statement (pdf), if he was, he must have objected. Also in the manual on commutations:

The Pardon Attorney routinely requests the United States Attorney in the district of conviction to provide comments and recommendations on clemency cases that appear to have some merit, as well as on cases that raise issues of fact about which the United States Attorney may be in a position to provide information

....The views of the United States Attorney are given considerable weight in determining what recommendations the Department should make to the President. For this reason, and in order to ensure consistency, it is important that each request sent to the district receive the personal attention of the United States Attorney. Each petition is presented for action to the President with a report and recommendation from the Department, and the recommendation by the United States Attorney is included in this report.

The manual goes on to say:

Generally, commutation of sentence is an extraordinary remedy that is rarely granted.

Finally, was Judge Walton contacted? The manual says:

The Pardon Attorney also routinely requests the United States Attorney to solicit the views and recommendation of the sentencing judge.

Was the Pardon Attorney asleep at the switch or did Bush just bypass him or her?

The Pardon Attorney assists the President in the exercise of his power under Article II, Section 2, clause 1 of the Constitution (the Pardon Clause). See Executive Order dated June 16, 1893 (transferring clemency petition processing and advisory functions to the Justice Department), the Rules Governing the Processing of Petitions for Executive Clemency (codified in 28 C.F.R. §§ 1.1 et seq.), and 28 C.F.R. §§ 0.35 and 0.36 (relating to the authority of the Pardon Attorney). The Pardon Attorney, under the direction of the Deputy Attorney General, receives and reviews all petitions for executive clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case. In addition, the Office of the Pardon Attorney acts as a liaison with the public during the pendency of a clemency petition, responding to correspondence and answering inquiries about clemency cases and issues. The following sets forth guidance on clemency matters.

< Patrick Fitzgerald Weighs In on Scooter Libby Commutation | Bush Administration: Restore The Binding Nature of Sentencing Guidelines >
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    They Are Maniacs (none / 0) (#1)
    by squeaky on Mon Jul 02, 2007 at 09:04:24 PM EST

    It seems clear that price the price (none / 0) (#2)
    by clio on Mon Jul 02, 2007 at 09:55:52 PM EST
    of Libby's silence was no jail time.

    So Bush was involved in this and Libby knows it.  What else does Libby know?

    Be great to get Libby in front of Congress with a grant of immunity and ask him.  Congress might as well give Libby immunity since Bush has made sure he will not pay any price for a conviction.

    I believe the Congress has the power and the tools to do that.  

    But do they have the guts?

    probably not effective (none / 0) (#4)
    by chemoelectric on Mon Jul 02, 2007 at 11:24:34 PM EST
    Libby most likely would continue to lie, unfortunately.

    Here is what probably happened (none / 0) (#3)
    by chemoelectric on Mon Jul 02, 2007 at 11:22:43 PM EST
    Judges decide that Libby goes to prison. Thus the clock starts ticking on Libby's move to his new home. Will the ticking clock cause him to repent?

    Bush, without any personal regard for Lewis Libby, immediately removes the threat of repentance, taking no chances, and not waiting for a Friday afternoon. But it is a calculation, that commutation was less risky than letting Libby contemplate repentance. The calculation still says a pardon is too risky. It is not about scratching backs, even if Libby's back did get scratched.

    All of this is calculation by Bush (and his people) about Bush, not directly about Cheney or Libby.

    I think (none / 0) (#5)
    by Al on Tue Jul 03, 2007 at 01:08:40 AM EST
    the American republic is seriously broken. And right now, I don't think it can be mended.

    I watched the Watergate hearings live on TV. I saw Richard Nixon slowly cornered until, for all his power, he had nowhere to go. Where did that spirit go? What happened?