VA Gov Restores Scooter Libby's Civil Rights

Scooter Libby can vote again. The Governor of Virginia's list of pardons, clemencies and restoration of rights for 2012 is contained in this report of the Virginia legislature, released Feb. 23. Libby's rights were restored in November, 2012.

Virginia's rules for restoration or rights are here.

Libby's prison sentence was commuted by then President G.W. Bush in 2007, hours after his request for an appeal bond was denied by the Court of Appeals, meaning he'd have to go to prison while waiting for the appeal decision. Many people, myself included, saw the commutation as total disrespect for the law. [More....]

Where did all the outrage come from? In my view at the time:

It has little to do with Libby and everything to do with Bush, special treatment and the federal sentencing system that applies to everyone else in America.

Why the outrage against Bush?

President Bush, with the stroke of a pen, wiped out Libby's prison sentence. He didn't reduce it. He eliminated it.

Why? Because in his view, the sentence was too harsh. He thought the Judge calculated Libby's guidelines at too high a level. He thought the Judge should have granted Libby a departure from the guidelines. Because he disagreed, because he is President, because Scooter Libby is in his elite circle, he threw the law out the window. He didn't reduce the sentence to a lesser term of imprisonment. He didn't wait for the Court of Appeals to decide if Judge Walton was right or wrong. He didn't wait for the system to run its course. Instead, because he didn't want Scooter Libby to spend even a single night in prison, he intervened and set Libby free.

The hypocrisy:

He made this decision just weeks after he had the Attorney General send his minions to Congress to argue that every federal offense should carry a mandatory minimum sentence from which a Judge cannot depart. In other words, for every other defendant in America, Bush wants to preclude judges from exercising discretion and require them to sentence according to a mathematical formula. Libby, on the other hand, gets a free pass because the Judge didn't exercise the discretion Bush thinks Judges in other cases ought not to have.

With that one stroke of the pen, Bush trivialized and rendered meaningless the hard work of Judge Walton, the D.C. Circuit Court of Appeals, the prosecutors and the probation officer. He told them it didn't matter how much time they spent analyzing the facts or the law or even whether they were right or wrong. He could care less what the law held. He thought differently and that's all that mattered.

The politics of crime:

For every other defendant, prosecutor, judge and defense lawyer around the country, his action says something more: The law doesn't apply if the defendant has a good enough connection to the President -- and only if the defendant has a connection to the President.

Every other defendant be damned. Their families and children can suffer, their lifetimes of good works can be overlooked. So what if they have medical issues or they committed only a single act of criminal behavior in an otherwise unblemished life? For them, the Guidelines and mandatory minimums will continue to apply and they will be separated from their families and lose their jobs while they wait in prison for the Court of Appeals to rule on whether their judge was right or wrong.

All the while, Bush and his henchman Alberto Gonzales will do everything in their power to lean on Congress to pass more laws reducing the ability of federal judges to use their independent judgment.

My clients and the clients of every other defense lawyer in the country will continue to go to jail and serve sentences that are far harsher and more unfair than the one handed down to Scooter Libby, and they'll just have to play by the rules.

And, that's why I'm so mad.

Scooter Libby seems so irrelevant today. But it's worthwhile revisiting the details of his case, if for no other reason than to remind ourselves of the inequities between the powerful and the powerless in our criminal justice system.

I have no problem with Libby's civil rights being restored. It should be automatic upon completion of one's sentence. And he still has a felony conviction. I wonder if Virginia will also restore his law license.

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  • Display: Sort:
    More governors should do this more often (5.00 / 3) (#1)
    by Peter G on Fri Mar 01, 2013 at 09:11:40 AM EST
    and for more ex-felons.  Florida, in particular, could use a lot more clemency action.  Not to mention the President's shameful record of failing to exercise his clemency power (both commutations and pardons) on the federal level, not only for those suffering unwarranted and lingering collateral consequences of federal convictions but also for those serving excessive federal sentences.

    To Be Fair... (5.00 / 2) (#3)
    by ScottW714 on Fri Mar 01, 2013 at 11:12:37 AM EST
    ...Libby didn't do it for personal gain in the regular sense, he did it knowing that the people he was aiding would protect him.  

    It's no excuse, but like Wall Street, these people know they will never answer for their bad deeds, and in all likelihood, they only reason they have these positions is because they understand that and will commit bad deeds when called upon.

    Libby was just another replaceable pawn, if not him, someone else.  He should have went to prison, but they should also go after the real beneficiaries of his bad deeds, namely Cheney and Bush.  He lied to protect the very people who pardoned him.

    For (none / 0) (#2)
    by koshembos on Fri Mar 01, 2013 at 10:47:17 AM EST
    Done your time/punishment, you should be a citizen like everyone of us.

    Of course (none / 0) (#4)
    by jbindc on Fri Mar 01, 2013 at 11:26:59 AM EST
    Libby didn't do any time or really get any punishment.

    also can he possess guns? (none / 0) (#5)
    by fishcamp on Fri Mar 01, 2013 at 12:39:55 PM EST

    Not if he remains a convicted felon (none / 0) (#6)
    by Peter G on Fri Mar 01, 2013 at 03:40:15 PM EST
    I am pretty sure that the Bush clemency order modified his sentence, not his conviction.

    To clarify and explain (none / 0) (#7)
    by Peter G on Fri Mar 01, 2013 at 03:50:59 PM EST
    The governor of Virginia only has clemency authority over Virginia state court convictions (not involved here) and over Virginia state-law-imposed disabilities of federal convictions (such as the right to vote and to serve on state court juries).  With few exceptions (such as race, poll tax,etc.), the U.S. Constitution makes the issue of qualifications to vote, even in federal elections, the business of the states.  The firearms disqualification for felons is imposed by federal law, and therefore can only be restored according to federal law.  Under 18 USC 921(20) if all three of his principal civil rights (voting, jury service, right to run for office) were lost by virtue of his federal conviction and then were restored by action of the Governor, then his conviction no longer counts under the federal law, and so, yes, he could possess a firearm.  At least, that's how I understand it.

    I don't think it's that simple (5.00 / 1) (#8)
    by scribe on Fri Mar 01, 2013 at 04:26:36 PM EST
    Remember, Libby's conviction was for federal crimes, not state crimes.  So, while the Virginia governor could give him back his right to vote in Virginia, the Virginia governor could not relieve him of any burdens vis-a-vis federal law, as relates to a federal conviction.

    So, if I were him I would not be running off to the gun store just yet.

    I will add further, that I see the hand of Cheney in this.  You will recall he was adamant that Bush give Libby a full and complete pardon, as opposed to a commutation.  Bush had the advice of his own personal criminal defense counsel before deciding to not go the full pardon route, much to Cheney's fuming disgust.  As discussed at greater length then the overriding consideration Bush was faced with was that, if he had given Libby a pardon, Libby could have been forced to testify fully and completely as to all his involvements in everything surrounding both the outing of Valerie Plame and the lies underpinning the Iraq war.  Libby, if he had been pardoned, would not have been able to "plead the Fifth" if called in to testify to, say, Congress.  That, because he would have had no exposure to criminal penalties by virtue of his pardon.

    So, to keep a lid on disclosure of exactly what went on and who was moving it, Bush kept Libby out of jail but did not pardon him.  The motivation was a pretty explicit threat, communicated by Mrs. Libby, that there was no way Scooter would spend any time in prison because he would sing.  Recall, Fitzgerald had a still-open case (against, inter alia, Karl Rove, who was named as a suspect) and surely had made it clear to Libby and his counsel that he would be willing to listen.

    Back then, when I was writing more, I wrote a diary titled "Libby's B*tches".  You should go read it.  The long and the short of it was that he successfully blackmailed both Bush and Cheney and that anyone with eyes could see it.

    And, I'm willing to bet Scooter had just about finished the manuscript for his book.  Maybe he was circulating it for pre-publication review and someone at CIA passed word to Cheney....


    Read my comment again (none / 0) (#9)
    by Peter G on Fri Mar 01, 2013 at 05:07:51 PM EST
    I also said it depends on federal law.  The federal gun law I cited (and linked) says, in part:
    Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

    His federal conviction would seem to be "any conviction" for which his "civil rights [have now been] restored."  Unless the governor's restoration order "expressly provides" that Libby may still not possess firearms, I think he is clear under the federal law.  If you disagree, please explain why.

    Like I said (none / 0) (#11)
    by scribe on Sat Mar 02, 2013 at 09:06:38 AM EST
    If I were him, I wouldn't go running off to the gun store right away.  He needs good solid legal advice based on all the nuances of his case and the Va. governor's action.  Which we don't have here.

    The executive power to pardon ... (none / 0) (#12)
    by Donald from Hawaii on Sat Mar 02, 2013 at 02:57:55 PM EST
    ... and commute is generally absolute and not subject to legal review. While politics nominally dictates that a clear rationale be provided the public for such an undertaking, a president or governor can pardon at whim, if so desired.

    But as President Gerald Ford's fate in the 1976 campaign taught us, the one real check on the executive power to pardon is both intangible and ominous, i.e., fickle public opinion. The potential adverse impact on the executive's political standing and public approval ratings could be severe or perhaps fatal, should the electorate collectively come to decide that yes, a given pardon is a big deal to them.

    More recently, whatever remaining political asperations harbored by former CA Gov. Arnold Schwarzenegger and former State Assembly Speaker Fabian Núñez were probably torpedoed by the outgoing governor's midnight decision in January 2011 to commute the prison sentence of Núñez's 22-year-old son Esteban from 16 to 7 years, for his role in a fatal stabbing of a San Diego State student at an October 2008 college fraternity party.

    The public quickly picked up on the fact that none of Esteban's three guilty compatriots from that night received the same due consideration from Gov. Schwarzenegger for their own respective 16-year sentences, and the outrage over the apparent political favor was both immediate and widespread.