Was a Crime Committed in the Commutation Yesterday?
Tue Jul 03, 2007 at 09:46:11 AM PDT
There has been considerable outrage here and across the blogs (and nation) over yesterday's commutation. Many have addressed the questions of whether it was right, morally, ethically, and politically. Today I would like to address whether it was right legally.
Disclaimer: IANAL
It is possible that Bush may find himself guilty of the same crime that Libby was convicted of: Obstruction of Justice. The crime of Obstruction of Justice is defined in the 18 USC 1512. Specifcally, the following section is of interest: (After the fold)
Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process;
The key language in this statute is "corruptly persuades." Was Libby's silence bought as many here have conjectured? If Libby knew that he would be pardoned, or otherwise spared from jail time for lying, then he would have no reason not to lie. The existence of a quid pro quo in this instance would certainly open up charges of corruption.
Corruption is defined (by the dictionary, if anyone has a more precise legal definition I would welcome it) as "impairment of integrity, virtue, or moral principle : DEPRAVITY b : DECAY, DECOMPOSITION c : inducement to wrong by improper or unlawful means (as bribery) d : a departure from the original or from what is pure or correct" (Merriam Webster) It is not hard to imagine that if Libby knows that Bush/Cheney "have his back" that it would lead him to willingly refuse to testify, knowing that any serious consequences that he would suffer can be erased. This would certainly impair the legal investigation into the Plame leak.
Additionally, bribery of a witness (and promising the elimination of prison time) is punishable under 18 USC 1510 as well. Also, if Libby knew before he committed his crime that Bush would cover him, that makes Bush an accessory to whatever crimes Libby is guilty of.
Now I'm sure someone will point out that the Constitution gives the President the power to commute and pardon. This is true. The Constitution says:
and he [the President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
However, this cannot be construed to say that the Constitution gives the President the power to break the law. He is certainly allowed to commute Libby's sentence, but if so doing breaks a law in the process, he is not protected from breaking that law. The Constitution declares other rights as well, for example, the right to bear arms. However, if you violate a concealed carry law you can't claim the Second Amendment as a defense, because you violated the law in the process of exercising that right. Similary, the President certainly can commute the sentence, but not in a way as to obstruct a criminal investigation. He cannot use his Constitutional powers to ignore the law (though he certainly has tried).
And for the record, obstruction of justice is an impeachable offense.
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