The "Libby Motion"

A July 4th article, "Bush Rationale on Libby Stirs Legal Debate" which appeared in the New York Times reads, in part:

"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 ... "It's far more important than if he'd just pardoned Libby. [What] you're going to see is people like me quoting President Bush in every pleading that comes across every federal judge's desk. [I] anticipate that we're going to get a new motion called 'the Libby motion.' [It] will basically say, 'My client should have got what Libby got, and here's why.'

Yes, it appears the Libby commutation is exciting news for lawyers everywhere, or at least for those willing to take the most outrageous positions in defense of their clients. Move over Twinkie Defense! Here, at last, is the new restraining mechanism on the pardon power that we have all been looking for. The reasoning in public explanations of individual pardons will become cumulative policy via countless defense motions. The President has clearly unleashed a wild animal in the Halls of Justice and there is just no caging that rascal back up! Anxious to be on the cutting edge of this legal development, I am currently researching the following questions:

1. Just exactly what is the Libby Motion? Ms. James seems to have stopped short. The quote should have begun with the word "why," not ended there.

2. Is this hypothesized birth of the motion based on the premise that there are a significant number (dozens? hundreds?) of criminal cases pending in the federal system with defendants who are just like Scooter Libby? Why did Ms. James say it would be the "basis" of "many legal arguments?"

3. If the answer to Question 2 is "yes," then why are we hearing so much about that one single case, the Rita case? Why aren't we hearing about all of those others? There would certainly be no better time to march them out into the public eye.

4. Just for the record, is there any other example, in the entire history of the United States where the public explanation for an individual act of clemency turned into a "motion"and mugged the federal judiciary, a motion so prominent, a motion so widespread, that it was worthy of mention in the New York Times before it was ever even made by a single lawyer, anywhere?

5. If the answer to Question 4 is "yes," then the question that follows seems obvious enough: has such a bizarre and extraordinary motion ever actually been accepted by a federal judge?

6. If the answer to Question 5 is "no," then what impact can we expect this unprecedented event to have on the pardon power? Will presidents provide more/less explanation for their pardons? If they do not have the courage to veto legislation, will they simply bypass our system of checks and balances in a sinister way, by issuing public explanations for pardons which will then be instantly translated into policy by a thousands defense attorneys? Why, is this what Democratic presidents could have been doing all along to undo the harsh sentencing guidelines created and put into law by Republicans? A single act of clemency? It almost seems too easy ... the cynic might note.

After, recognizing the Libby commutation has, "as a purely legal matter," no "particular force outside Libby's case," the Times article observes, "But that does not mean judges will necessarily ignore it." My research on the matter - to date - suggests that it would have been more more appropriate for the Times to follow the initial observation with: "And that suggests, if anything, that no judge anywhere will recognize it."

For an update on the Libby Motion, click HERE.