President Bush dodged the Libby question for weeks, repeating his intent to allow the case to have its run through the appellate process before making a decision as to whether or not he would pardon the now convicted felon. As has been the case with President Bush all along, it was just another lie. If there's a legacy to be had, now too many to name, lying to the public is probably the most persistent. The president had no intention of keeping his nose out of the justice system this time, anymore than he did when he ordered the firing of several U.S. attorneys currently involved in corruption investigations involving prominent Republicans across the country.
Just hours after an appeals court where two of three justices were Republicans - one of them a Bush appointee - rejected Libby's request to remain free pending his appeal, the president reversed course and issued a commutation of Libby's prison sentence. For the crimes of lying to the FBI, lying to a grand jury and federal prosecutor, and for obstructing a federal investigation spawned at the request of the CIA to discover the identity of the person who outed covert CIA agent Valerie Plame - an act of treason, especially during war time - Libby's ultimate punishment will be a monetary fine which will undoubtedly be paid off within a year once he joins the lecture circuit and accepts whatever position he is offered from the neo-conservative think tank the American Enterprise Institute. After resigning in shame from the World Bank amid accusations of corruption, former administration official and bank president Paul Wolfowitz recently joined AEI last month.
As we debate what has happened, looking to mistakes of the past, and considering just how untrustworthy Republicans appear to be these days, it's important never to forget that I. Lewis Libby was not convicted by the Democratic party, Michael Moore, Cindy Sheehan, Hillary Clinton, or any alleged cabal of liberals intent on making somebody - anybody - from the Bush administration pay for what they've done to this country, and the world. Libby was convicted by a jury of his peers, unanimously, which mathematically should have included no less than 3 staunch administration supporters and was composed of nearly 50% Republicans.
Underlying crime be damned, a jury was presented with facts that alleged that several crimes were committed by Libby, and they unanimously agreed that he was guilty of all of them. It would have only taken one person hang the trial, one single dissenter to end the media circus and keep the president from having to make such a tough decision, but it wasn't to be. Libby's star-studded expensive defense team couldn't convince a single person on the jury of his innocence.
Not one.
I've argued before that if there was a single principle upon which democracy couldn't survive without, it was the rule of law. Though the definition differs from place to place, the rule of law means that no person within society no matter what their legal, financial, or political standing, can be considered above the law. From a homeless person sleeping on the sidewalk to the President himself, no one is unaccountable.
This administration has been accused of a wide variety of crimes over the years and hasn't been held to account for a single one. The system hasn't even had a chance to determine if the accusations were true or not, because not one single legal proceeding against the administration other than Libby's trial has ever progressed beyond the investigation stage, thanks to consistent obstruction and stonewalling by the Justice Department and the White House.
The charges have become so many that it is hard to consider them collectively. The twisting and outright falsehoods told of intelligence in the runup to the Iraq war, the detention of foreigners in Cuba without charge or trial which has been ruled illegal by the Supreme Court, the wiretapping of Americans outside of FISA which has been ruled illegal by a district court, the firing of United States attorneys in alleged attempts to influence ongoing voter fraud investigations and possible attempts to disrupt investigations of prominent Republicans for corruption, the detention of American citizens in military brigs on U.S. soil which was recently ruled illegal by a court of appeals; the list seems to grow nearly every month.
And this doesn't address admitted violations of the Geneva Convention, breaking the ABM treaty with Russia, the torture of prisoners, and the unlawful dismissal of congressional subpoenas.
Beyond partisan allegations of criminal conduct, these unresolved scandals and the presidents seeming inability to tell the truth has cost the government what little credibility it had with the public. Not only has trust in the executive been repeatedly betrayed, the administrations thirst for absolute power has sapped confidence that congress is capable of reigning in an out-of-control president and his officers. One attempt after another has been denied outright or ignored.
As I look to the president's statement from yesterday, it triggers memories from a few weeks ago and exists in complete contradiction to case precedent in the United States when it comes to sentencing guidelines.
"I respect the jury’s verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive," wrote President Bush, "therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend thirty months in prison."
Several astute observers have noted that a ruling by the Supreme Court under Chief Justice John Roberts just last week is eerily applicable to Libby's current situation, and our presidents grave error in judgment and understanding. The Washington Post reported that the court, in an 8-1 landslide opinion, ruled that a veteran of the armed forces who was sentenced to 33 months in prison for perjury did not receive an abnormally hash sentence. The court reasoned that when a judge issues a sentence in accordance with federal sentencing guidelines, that such a sentence is "presumptively reasonable". Otherwise, one would gather, such a sentence would not be available under the guidelines in the first place.
Libby's defense team argued that his many years of public service should weigh in favor of his receiving a lighter sentence than that which every other person has received in the past for the exact same crime, though with the Supreme Court's nearly unanimous ruling that even service in the armed forces isn't enough to gain leniency, that argument becomes highly dubious at best. And when viewed through the filter of that case, Libby's sentence, being in line with federal sentencing guidelines, must be "presumptively reasonable."
It is likely that had Libby appealed his case all the way to the Supreme Court, he similarly would have lost by an overwhelming margin. The appeals court ruling that Libby cannot remain out on bail during his appeals were probably based on the reasoning that Libby was likely to lose his appeals based strictly on the contention that he was wrongly convicted, and saving that, all that was left is an appeal of the sentence length which couldn't possibly result in him being freed from it entirely. All that would be left to decide would be how much, if at all, to reduce his sentence. Given the time it would take to process such appeals, it would be likely that should an appeal based on his sentence duration succeed, he would have served time in prison roughly equal to that which the reduction would have resulted.
This made his attempts to remain free pending those appeals nothing more than him trying to avoid his inevitable prison sentence for as long as possible. Ultimately, Libby was going to serve time no matter what, and this was something that President Bush couldn't stand. Not for his friend, not for a Bush loyalist. In the top echelon of the executive branch, nobody goes to jail.
Nobody.
A few short weeks ago, Salon columnist and attorney Glenn Greenwald addressed a claim by conservatives that wanted Libby pardoned but supported Clinton's impeachment for precisely the same alleged crime - of which Libby was found guilty by unanimous decree, while Clinton was found innocent. Their argument - one of many that wreaked of desperation where you basically throw any and every excuse you can possibly think of into the public forum, hoping that at least one will stick to the wall - hinged on the claim that Libby's sentence for obstruction of justice, giving false statements to investigators, and perjury, was excessive.
Greenwald quoted statements made by then U.S Attorney for New York, Rudolph Giuliani, where Giuliani addressed a case of a judge that received a 12-month sentence for perjury. Giuliani has already stated his agreement with Libby's sentence commutation, and has openly pressed for Libby's pardon on the grounds that "there was no underlying crime" other than lying to the FBI and a grand jury, apparently, and that his sentence was excessive. In complete contrast, I quote for you what Greenwald discovered from a NY Times story dated - eerily enough - September 11th, 1987.
The United States Attorney in Manhattan, Rudolph W. Giuliani, declared yesterday that the one-year prison sentence that a Queens judge received for perjury was "somewhat shocking."
"A sentence of one year seemed to me to be very lenient," Mr. Giuliani said, when asked to comment on the sentence imposed Wednesday on Justice Francis X. Smith, the former Queens administrative judge. . . .
Justice Smith was convicted of committing perjury before a grand jury investigating corruption in the city, Mr. Giuliani said later, adding that "he could have helped root out corruption" by cooperating with the grand jury.
Glenn noted that a number of Watergate players were tried and convicted for perjury, precisely for lying to grand juries and investigators, and how damaging such actions always are to said investigations. In fact, it isn't so much that perjury charges are brought in retaliation for the grand jury not finding anything, those charges are filed precisely because the lies told to the jury, and the obstruction of the investigation, has made it entirely impossible to find out what happened in the first place.
Joe Kline of Time magazine made such a case in a blog appropriately named swapland, in a rambling missive replete with typographical errors and misspellings that makes me wonder where this guy gets off attacking bloggers as being unrepentant and unprofessional critics when he can't even bother to spell check a three-paragraph post.
"But all this pompous bloviation in the lrft-wing blogosphere about the rule of law, and no special cases, is just so much baloney. Were all these commenters and bloggers in favor of sending Bill Clinton to jail for perjury? I mean, he was surely guilty" Kline wrote. I'm struggling not to laugh at how horrible this argument really is, and that he posted it on Time's website where people could actually read it.
As I mentioned a few paragraphs ago, and despite what Kline wishes were true but is anything but, Clinton was not found guilty, whereas I. Lewis Libby was, which turns this post into nothing but a bitter rant from an anti-Clintonite that in all honesty used a non sequitur as his one and only defense of what we all knew was going to happen anyway. It reminds me of the editorials that current White House Press Secretary Tony Snow wrote during the Clinton administration when he was working for Fox News, arguing that the administration should under no circumstances challenge or try to ignore subpoenas from the Republican controlled congress during the Whitewater investigation, even if it appeared that they were simply fishing for a crime they knew for certain existed (turned out there wasn't one) if only they could dig up enough dirt to find it. The constant focus on the presidents sex life under the guise of a real estate scam investigation was frighteningly disturbing and blatant, but Snow defended the legal right of congress and the special prosecutor to do it anyway.
In that editorial, Show wrote that it was his belief that executive privilege was not an absolute right, and that any president that would use it to try to stonewall legitimate investigations by congress (also expressing his belief that congress did in fact possess oversight authority over the executive branch - apparently it only has that power when Republicans run the show) was in fact attacking the foundation of democracy itself. Presidents, he wrote, must be held to account by the people, or all faith is lost.
Naturally when this administration made the same arguments that the Clinton administration made, Snow made a 180-degree turn and essentially took the side of the Clinton and Nixon administrations and argued against his very own position paper. I feel it necessary to note, again, that it was written while Snow was working for Fox News, showing just how far Fox and Snow have bent over to support what otherwise is a repugnant administration - by their own arguments - just because this one happens to be Republican.
Sound familiar? It should, because it is precisely that kind of reversal that Joe Kline is accusing Democrats of doing when it came to the rule of law. But, as I noted, there is a bit of a difference. Clinton was exonerated by the Senate of his accused crimes, while Libby was convicted by a jury. Clinton need not be held to account under the rule of law, because the rule of law prevailed. He was impeached by the opposition party and found innocent. Period.
But Kline has a point, he just made it insincerely. The rule of law only works when it is applied universally, and yesterday, that didn't happen. In fact, the rule of law doesn't actually exist in this country when you really think about it. We've been living under the illusion of having it, but we're not there quite yet. The right of a President to pardon a person is written into the constitution itself but that alone defies the notion of all men (and women) standing equally before the law. The president at his discretion with no legal recourse for the justice system or the victims of these criminals outside of civil suits may wipe the slate clean for anyone, anytime, for any or no reason at all. Sadly, that power is absolute.
Article II, Section 2: "The President shall...have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
As it were, it would take a constitutional amendment to remove this power, and frankly I couldn't think of any better choice right now that could restore the publics faith in government. The burning of flags, abortion, legally mandated balanced budgets - these things possibly with the exception of flag burning are important issues to Americans, but none of them address the very real damage that is continually done to this country every time a president is set to leave office, and he defecates on the rule of law by pardoning fairly convicted criminals, allowing them to ascend above the law.
It makes no sense for the president to swear to uphold the law and the constitution during his or her inauguration only to destroy the legal foundation of the country with the wave of his hand. It defies the system of law the founders created to have a single person have that kind of power, yet they are the ones who unwisely made it possible. It would have made far more sense to grant this power to the congress, so that such decisions where not subject to a single persons whim. But alas, I wasn't around at the founding of the country, so we'll just have to live without that one.
I do believe that language should be repealed however, but given that the second step in amending the constitution is the approving signature of the president before being considered for ratification by the states, any amendment that would strip the executive of power would likely to dead before it ever got off the ground.
The only bright spot in that consideration is that be necessity, for any amendment to be considered valid, it must pass through congress on a 3/4th's vote, which by its very nature is in excess of the votes needed to override a veto. To my knowledge, such a conflict has never arisen, which leaves the entire matter disturbingly unsettled.
Regardless, if this country is to live by the rule of law, the power of arbitrary pardons must be eliminated.
And the question I raised in the title remains unsettled as well. I. Lewis Libby was not pardoned, but instead saw his sentence commuted, meaning he will forever remain a convicted felon in the United States. His license to practice law has already been suspended, and he'll likely be further disbarred if all subsequent appeals fail.
Libby lied to the FBI, lied to a grand jury, and obstructed an investigation into the identity of the person criminally responsible for revealing the identity of a covert CIA agent to our enemies - an act of treason. For his role in all of this, Fitzgerald has intimated that the reason he prosecuted Libby was because his lies and obstruction so damaged the investigation that it was impossible to continue. For those still making the dismissed "no underlying crime" argument, obstructing an investigation that resulted in an act of treason seems pretty liberating to me.
When all is said and done, the crimes that Libby has been convicted of and those that President Clinton were accused don't mean much when compared to what President Bush has been accused of doing in the past few years.
In reality, the role the president played in the illegal wiretapping of Americans reminds us that regardless of what they say, government cannot be trusted at its word. While violating the fourth amendment carries no criminal penalties, FISA does - a felony, making that case and those actions impeachable offenses. There is every reason to believe that once the administration lost even once in a federal district court - as it has - the possibility that it could snowball into revealing the true crimes of this presidency meant it had to retreat at all costs. That implicit acknowledgment of wrongdoing should be more than enough to lob every investigatory tool congress and the people have at the White House, if not because there was a time when the mere appearance of impropriety was enough for people to resign in disgrace. Today, that's actually something Republicans campaign on.
It is because this administration has been more secret than any other in the history of the nation that we will never know the true extent to which they abused their power and broke the law. This administration should serve as a lesson to those who would like to see the executive branch become even more powerful than it is today - these people abused their power, our trust, and the law to a degree unparalleled in our short history, and the only man held to account for it won't serve so much as a single day in jail.
If there is a lesson to be learned - and trust me, there are plenty - the one that will stick with us the longest, virtually guaranteeing our repetition of these mistakes, is that when it comes to the privilege structure in our society, there is in fact a level that exists above which the law doesn't apply. Even above celebrities like Paris Hilton that received favoritism in the justice system that seems shockingly unfair and unprecedented, there's yet another level one can achieve, one that exceeds cult of personality, one that exceeds the power of money.
Those who exist in this White House are above the law, they know it, and are loving every minute of it. For all our good intentions, we're responsible for it, and there's absolutely nothing we can do about it at this point. Republican apologists protect this administration entirely because they know if they are loyal enough, they too will be protected by it, and they will never allow the people to hold these criminals responsible for their actions.
In the end, there is little else that can be said. Republicans pride themselves on being tough on crime, but have proven themselves one of the most corruptible group of people in congress in decades, while gleefully lobbying for and now celebrating the injustice that is I. Lewis Libby's successful campaign to obstruct a federal investigation. Tough on crime indeed, so long as you're a woman, minority, or Democrat. But not so tough if you're a Republican, loyal from stem to stern, ready to break every law in the name of serving the party interest.
Not the nations interest, the parties interest.
As we near our Independence Day, a day of celebration and pride, I as an American couldn't be more disgusted and ashamed of my country than I am today. I can only pray (to my all powerful flying spaghetti monster of course) that an end will come soon, that in 2008, America will experience a regime change of her own. In 2008, that will be my Independence Day.