The Libby Precedent

In his decision to commute Scooter Libby's prison term, President Bush said the sentence was "excessive." While the president's power in this area is absolute, it seems reasonable to expect some sort of logic and consistency. If Libby's sentence was excessive, then Bush has to admit that a similar sentence, given to another person under similar circumstances, is also excessive.

It seems there actually is such a case, one in which the Bush Administration took a far different approach.

Similarly, in a case decided two weeks ago by the United States Supreme Court, the Justice Department persuaded the Supreme Court to affirm the 33-month sentence of a defendant whose case closely resembled that against Mr. Libby. The defendant, Victor A. Rita, was, like Mr. Libby, convicted of perjury, making false statements to federal agents and obstruction of justice.

Mr. Rita has performed extensive government service, just as Mr. Libby has. Mr. Rita served in the armed forces for more than 25 years, receiving 35 commendations, awards and medals. Like Mr. Libby, Mr. Rita had no criminal history for purposes of the federal sentencing guidelines.

The judges who sentenced the two men increased their sentences by taking account of the crimes about which they lied. Mr. Rita’s perjury concerned what the court called “a possible violation of a machine-gun registration law,” while Mr. Libby’s of a possible violation of a federal law making it a crime to disclose the identities of undercover intelligence agents in some circumstances.

When Mr. Rita argued that his 33-month sentence had failed adequately to consider his history and circumstances, the Justice Department strenuously disagreed. SOURCE

So why is it that Victor Rita has to go to prison, and Scooter Libby does not? The only answer that passes that laugh test is that Scooter Libby is the president's friend, and Victor Rita is not. Andrew Sullivan put it succinctly: "The bottom line for Americans is this: George Bush’s friends do not go to jail. Your friends do."

There's another problem, too. Mr. Bush's decision to simply commute Libby's prison term rather than grant a full pardon will affect many other cases, according to legal scholars. Libby's sentence was the result of Justice Department "sentencing guidelines" that the Bush Administration has vigorously enforced, and even sought to increase in some cases. When the president said that Libby's sentence was excessive, he implicitly criticized the sentencing practices of his own Justice Department.

“By saying that the sentence was excessive, I wonder if he understood the ramifications of saying that,” said Ellen S. Podgor, who teaches criminal law at Stetson University in DeLand, Fla. “This is opening up a can of worms about federal sentencing.”

By yesterday morning, in fact, Mr. Bush’s arguments for keeping Mr. Libby out of prison had become an unexpected gift to defense lawyers around the country, who scrambled to make use of them in their own cases.

“The president of the United States has come in on his own and said, ‘30 months is not reasonable in this case,’ ” said Susan James, an Alabama lawyer representing Don E. Siegelman, the state’s former governor, who is appealing a sentence he received last week of 88 months for obstruction of justice and other charges.

“It’s far more important than if he’d just pardoned Libby,” Ms. James said, as forgiving a given offense as an act of executive grace would have had only political repercussions. “What you’re going to see is people like me quoting President Bush in every pleading that comes across every federal judge’s desk.”

Indeed, Mr. Bush’s decision may have given birth to a new sort of legal document.

“I anticipate that we’re going to get a new motion called ‘the Libby motion,’ ” Professor Podgor said. “It will basically say, ‘My client should have got what Libby got, and here’s why.’ ”

As a purely legal matter, of course, Mr. Bush’s statement has no particular force outside of Mr. Libby’s case. But that does not mean judges will necessarily ignore it. SOURCE

Get the idea? The consequence of Bush's leniency for Libby is that judges now have reason to impose lesser sentences on other criminals. I'm sure this is not what he intended, but it will be the result. So much for law and order.

Hat tip: Poliblogger