Alan Dershowitz on Libby's Commutation

[MakersandIce]

I've never cared much for Alan Dershowitz, but I enjoyed this opinion on Libby's commutation.

http://www.huffingtonpost.com/alan-dershowitz/playing-politics-with-lib_b_54772.html

The outcry against President Bush's decision to commute Scooter Libby's sentence is misplaced. President Bush acted hours after the US Court of Appeals denied Libby bail pending appeal. That judicial decision was entirely political. The appellate judges had to see that Libby's arguments on appeal were sound and strong -- that under existing law he was entitled to bail pending appeal. (That is why I joined several other law professors in filing an amicus brief on this limited issue.) After all, if he were to be sent to jail for a year and then if his conviction were to be reversed on appeal, he could not get the year back. But if he remained out on bail and then lost the appeal, the government would get its year. In non-political cases, bail should have and probably would have been granted on issues of the kind raised by Libby.

But the court of appeals' judges, as well as the district court judge, wanted to force President Bush's hand. They didn't want to give him the luxury of being able to issue a pardon after the upcoming presidential election. Had Libby been allowed to be out on appeal, he would probably have remained free until after the election. It would then have been possible for President Bush to pardon him after the election but before he left office, as presidents often do during the lame duck hiatus. To preclude that possibility, the judges denied Libby bail pending appeal. The President then acted politically. But the President's action -- whether right or wrong on its merits -- was well within his authority, since pardons are part of the political process, not the judicial process. What the judges did was also political, but that was entirely improper, because judges are not allowed to act politically. They do act politically, of course, as evidenced by the Supreme Court's disgracefully political decision in Bush v. Gore. But the fact that they do act politically does not make it right. It is never proper for a court to take partisan political considerations into account when seeking to administer justice in an individual case.

The trial judge too acted politically, when he imposed the harshly excessive sentence on Libby, virtually provoking the president into commuting it.

This was entirely a political case from beginning to end. Libby's actions were political. The decision to appoint a special prosecutor was political. The trial judges' rulings were political. The appellate court judges' decision to deny bail was political. And the President's decision to commute the sentence was political. But only the President acted within his authority by acting politically in commuting the politically motivated sentence.

 

[unregistered]

 

[The Heretic]

So, the fact that Bush said Libby was guilty and should pay a penalty was wrong?

That aside, I think the only time a President or a Governor should commute a sentence or pardon a crime is when there is a gross miscarriage of justice. Moreover, I think we should pass a law that says a President can't commute a sentence for an official in his cabinet, or pardon someone in his cabinet, or the past sitting President or his cabinet. Let's see if the President and his admin team obey the law when they know they don't have a get out of jail card sitting in the Whitehouse.

 

[PoastMonkey]

So, the fact that Bush said Libby was guilty and should pay a penalty was wrong?

That aside, I think the only time a President or a Governor should commute a sentence or pardon a crime is when there is a gross miscarriage of justice. Moreover, I think we should pass a law that says a President can't commute a sentence for an official in his cabinet, or pardon someone in his cabinet, or the past sitting President or his cabinet. Let's see if the President and his admin team obey the law when they know they don't have a get out of jail card sitting in the Whitehouse.

In other words, you want to decide what is a "gross miscarriage of justice" and you want a constitution amendment to limit the president's authority to pardon people you think deserve it.

 

[MakersandIce]

Sometimes it takes one to know one.

Pardon?

 

[unregistered]

 

[MakersandIce]

I meant that Alan Dershowitz is a political animal himself and should be able to spot an unscrupulous judge acting on political impulse instead of the law.

Ahh........

Would you have ever thought in a 1000 years that he would stand up for Bush?

 

[unregistered]

 

[MakersandIce]

I do believe he holds the law above politics.

Except for that OJ thing.

 

[phrodeau]

So, the fact that Bush said Libby was guilty and should pay a penalty was wrong?

That aside, I think the only time a President or a Governor should commute a sentence or pardon a crime is when there is a gross miscarriage of justice. Moreover, I think we should pass a law that says a President can't commute a sentence for an official in his cabinet, or pardon someone in his cabinet, or the past sitting President or his cabinet. Let's see if the President and his admin team obey the law when they know they don't have a get out of jail card sitting in the Whitehouse.

Or to pardon himself, as Nixon was advised to do.

 

[Ulaven_Demorte]

I keep hearing that Libby's punishment was overly harsh and unwarranted, mostly from the same right wing boot-lickers.

Libby was found guilty of 4 of 5 charges against him, was prosecuted by a US Attorney that is a Bush Republican appointee, sentenced by a Federal judge that is a Bush Republican appointee and that punishment was well below the maximum sentence for his combined offenses. All of the charges against him are crimes in and of themselves brought about by his repeated obstruction of a federal investigation and perjury before a grand jury.

Now for the "no underlying crime" meme and the Armitage deflection. It was known that Armitage was one of the people that leaked Valerie Plame's identity months before Fitzgerald was appointed to investigate who else was involved. Libby's Obstruction and Perjury made that investigation impossible, which is why he was the only person charged.

He should be in jail, period. By commuting Libby's sentence Mr. Bush has reinforced the idea that those within his administration believe that they are somehow above the law. That Obstruction of Justice and Perjury are somehow "minor offenses" when committed by high ranking public officials in defense of the President and Vice President.

Mr. Bush deliberately subverted the legal process to protect both himself and his Vice President. Faced with actual jail time Libby would have rolled over on the administration in exchange for a lighter sentence. This could not be allowed to happen, and by commuting only the jail time portion of Libby's sentence and leaving the convictions to stand for appeal they have left Libby an "out" if called to testify before Congress, had he been pardoned he could no longer plead the 5th when called to testify. This is no coincidence.

 

[unregistered]

 

[Cap’n AMatrixca]

So, the fact that Bush said Libby was guilty and should pay a penalty was wrong?

That aside, I think the only time a President or a Governor should commute a sentence or pardon a crime is when there is a gross miscarriage of justice. Moreover, I think we should pass a law that says a President can't commute a sentence for an official in his cabinet, or pardon someone in his cabinet, or the past sitting President or his cabinet. Let's see if the President and his admin team obey the law when they know they don't have a get out of jail card sitting in the Whitehouse.

With a DC jury, you criminalize Republicanism and enable the Nifongs, Earls and Fitzpatricks because that jury, which Alan left out, like OJ, also made a political call.

Anyone find it more than co-incidental that at a time Fitz was trying to hang Rich, Libby procured a pardon in absentia for him from the Clinton Administration in their last-hour fire sale? Maybe a touch of payback in his dogged and determined persecution?

 

[zipman]

I keep hearing that Libby's punishment was overly harsh and unwarranted, mostly from the same right wing boot-lickers.

Libby was found guilty of 4 of 5 charges against him, was prosecuted by a US Attorney that is a Bush Republican appointee, sentenced by a Federal judge that is a Bush Republican appointee and that punishment was well below the maximum sentence for his combined offenses. All of the charges against him are crimes in and of themselves brought about by his repeated obstruction of a federal investigation and perjury before a grand jury.

Now for the "no underlying crime" meme and the Armitage deflection. It was known that Armitage was one of the people that leaked Valerie Plame's identity months before Fitzgerald was appointed to investigate who else was involved. Libby's Obstruction and Perjury made that investigation impossible, which is why he was the only person charged.

He should be in jail, period. By commuting Libby's sentence Mr. Bush has reinforced the idea that those within his administration believe that they are somehow above the law. That Obstruction of Justice and Perjury are somehow "minor offenses" when committed by high ranking public officials in defense of the President and Vice President.

Mr. Bush deliberately subverted the legal process to protect both himself and his Vice President. Faced with actual jail time Libby would have rolled over on the administration in exchange for a lighter sentence. This could not be allowed to happen, and by commuting only the jail time portion of Libby's sentence and leaving the convictions to stand for appeal they have left Libby an "out" if called to testify before Congress, had he been pardoned he could no longer plead the 5th when called to testify. This is no coincidence.

Great post. The only thing you forgot is that it is extremely unusual to commute a sentence when the defendent shows no remorse or admission of guilt and has not served a single day of his sentence.

 

[unregistered]

 

[Cap’n AMatrixca]

They were lawyers?

I note a touch of vindictiveness and smallness in the Democrat response.

I thought "they" were the compassionate crowd, but then, I dismissed what Cindy said about them. Maybe she had a point...

 

[unregistered]

 

[Cap’n AMatrixca]

Agreed.

They sure as hell didn't want Bill Clinton to do any time at all when he lied. Not only that, but on June 28 (four days prior to the commutation) Mrs. Bill Clinton gave a speech where she declared that White Collar criminals should not be put into the jail system. Of course, as a woman, she reserved the right to change her mind, just like her views on Iraq.




Time to go and beat the forest back...

 

[Ishmael]

Except for that OJ thing.

Don't blame Dershowitz for that. He was only doing his job and every citizen is entitled to a vigorous defense. It was the jury that made the decision, not Dershowitz.

And I sometimes wonder if the juries aquittal of OJ really did OJ any favor?

Ishmael

 

[The Heretic]

In other words, you want to decide what is a "gross miscarriage of justice" and you want a constitution amendment to limit the president's authority to pardon people you think deserve it.

What I want is for the Presidents and their administrations to stop breaking the laws with impunity and contempt - then when they are caught the President bails them out with a commutation or pardon.

I am saying there is a conflict of interest and that the President should not be able to commute the sentence or grant a pardon to someone who is in his cabinet or works under his/her direct supervision. I also believe that Presidents should not be pardoned themselves.

I am saying that if the President and his admin are held accountable for their actions, then maybe they will obey the law more often.

 

[Saint Boner]

"See you at the pardon." ~ Dub

http://img.photobucket.com/albums/v460/xonvaldez/seeyou.jpg

 

[Ulaven_Demorte]

Agreed.

They sure as hell didn't want Bill Clinton to do any time at all when he lied. Not only that, but on June 28 (four days prior to the commutation) Mrs. Bill Clinton gave a speech where she declared that White Collar criminals should not be put into the jail system. Of course, as a woman, she reserved the right to change her mind, just like her views on Iraq.




Time to go and beat the forest back...

Big difference here.
Clinton was aquitted.
Libby was convicted, 4 of 5 counts.

Tourettes kickin in again eh?
Clinton did it!
Chappaquiddick!
*squawk!*

 

[Ulaven_Demorte]

With a DC jury, you criminalize Republicanism and enable the Nifongs, Earls and Fitzpatricks because that jury, which Alan left out, like OJ, also made a political call.

Anyone find it more than co-incidental that at a time Fitz was trying to hang Rich, Libby procured a pardon in absentia for him from the Clinton Administration in their last-hour fire sale? Maybe a touch of payback in his dogged and determined persecution?

Anything to justify an appologist attitude huh Cap'n Oblivious. So now Fitzgerald's investigation was "personal"? Bitch please.

You see, thats the difference between Republicans and Democrats. Republicans, for the most part, will forgive any tresspass of one of their own and circle the wagons round them in defense but will do everything within their power to prosecute a non-Republican. The Democrats tend to toss the offender to the wolves regardless of affiliation.

 

[bronzeage]

Don't blame Dershowitz for that. He was only doing his job and every citizen is entitled to a vigorous defense. It was the jury that made the decision, not Dershowitz.

And I sometimes wonder if the juries aquittal of OJ really did OJ any favor?

Ishmael

I'm sure he appreciated it.

 

[PoastMonkey]

What I want is for the Presidents and their administrations to stop breaking the laws with impunity and contempt - then when they are caught the President bails them out with a commutation or pardon.

I am saying there is a conflict of interest and that the President should not be able to commute the sentence or grant a pardon to someone who is in his cabinet or works under his/her direct supervision. I also believe that Presidents should not be pardoned themselves.

I am saying that if the President and his admin are held accountable for their actions, then maybe they will obey the law more often.

The Constitution grants the President virtually unlimited power to pardon anyone (s)he wants. It's a power every modern President has exercised. If you want to limit that power, it has to be done by amending the Constitution.

N.B. the poster above that brought up the advice given to Nixon - the President could theoretically pardon himself.