Prof. Berman's Response

"Over at his interesting blog Pardon for Scooter Libby?, P.S. Ruckman, Jr. has this extended post dissecting the written testimony I submitted to the House Judiciary Committee for its hearing this past week on Bush's commutation of Libby's sentence (background here and here). Most of Ruckman's critiques would be more fitting were I writing a scholarly article and not simply sharing perspectives with members of Congress, but I am still grateful for his thoughtful exploration of my thoughts.

Though I have little quibble with many of Ruckman's specific points, I see a conceptual flaw in a lot of his commentary. Ruckman treats my comments as if I was making assertions about federal clemency law, but I ultimately share his view that the federal clemency power operates outside the realm of law. My testimony about the puzzling and potentially harmful aspects of Bush's commutation is principally about the symbolism of the President's sentencing decision and assertions on behalf of Libby, especially against the backdrop of the Bush Administration's broader sentencing policies and practices.

Everyone should and must understand that the Bush commutation has no formal legal impact on other cases. But the symbolism of the decision — and especially the reasons given by the President for his decision — will surely have some impact (at least subconsciously) on sentencing decision-makers and the general public."

My original post on this topic can be found HERE