White Collar Crime Blog on Libby
I wanted to use this post to address some commentary on the Scooter Libby commutation posted over at the White Collar Crime Professor Blog. First, some background information: the blog is edited by law professors Peter J. Henning (Wayne State) and Ellen S. Podger (Stetson). Podger is credited with predicting a flurry of "Libby Defenses" and, on July 12, the blog featured a piece entitled "Everyone's Doing the Libby Motion." The piece compared the motion to "the latest dance craze" but, so far as I can tell, Henning and Podger have mentioned only two examples of such motions in the last two months - both of which were rejected. See my commentary here and here and here.
The blog also took the narrow view of President Bush's clemency options, observing, on June 6:
- Why did President Bush commute this sentence just hours after a three court panel (made up of two Republicans and one Democrat) had ruled that Libby would not receive bond pending appeal? I am not sure how the party identification of the panel is relevant to the timing of the commutation, but the President clearly agreed with the Probation Department that prison time was excessive. He also issued a public statement explaining his position. What else are we looking for here? Would four hours have been better? Or four weeks?
- One has to wonder why he didn't wait until Libby had served some time and then commuted the sentence. Not at all. See above response.
- Was he afraid of Libby cooperating to avoid jail time? Was it necessary to commute the sentence immediately to avoid Libby moving from being a jailer to a cooperator? There is certainly no constitutional prohibition against such psycho-analysis but, if the President considered prison time excessive, the point would appear to be moot. By the same logic, Bush should have been "afraid" to grant anything less than a full and unconditional pardon, and he would have done so much much sooner (as more than a few were demanding). But he didn't. It would appear that offending Libby is/was not among the President's primary concerns.
- And if he planned to commute the sentence, was this prosecution really worth it? I am not aware of anything, any commentary or any suggestion by anyone that the President "planned" to commute the sentence. Indeed, the standard commentary, for weeks, has been that Bush would be granting a pardon. In addition, the President is being criticized for saying he would not intervene until the process was complete, and then granting the commutation. Doesn't sound like much of a "plan" to me.
- Will it have a deterrent effect absent the jail time? Not sure what the "it" is!
- How much money was spent on this prosecution and as a taxpayer was the dollar spent wisely here? Alexander Hamilton calculated millions were spent to prosecute a handful of participants in the Whiskey Rebellion and Fries's Rebellion, all of whom were pardoned by George Washington and John Adams. I am still working on whether or not those prosecutions were "worth" the effort. Will have to get back on this one. Also curious to know what amount they are putting on justice in law schools these days. Haven't seen the chart!
- If the goal was not to have Libby serve jail time, would an earlier resolution have been more appropriate. Again, I know of nothing, or any commentary by anyone that suggests the commutation was a "goal." Otherwise, if, after sentencing, the President was of the opinion that prison time was excessive, there would be no reason whatsoever to intervene before the final decision regarding bail was made.
- Was this a political decision? Why on earth would it not be? And what is the point of contrast that might give serious meaning to that kind of language? Of course, others would ask if the prosecution was political? So, where on earth does that kind of rhetoric get anyone?
- The judges involved in this case are far from individuals who would be considered activist judges - does this make the executive - the President - the activist? Why, sure, if your definition of an "activist" is simply "a public official that employs constitutional checks and balances." With respect to the pardon power (and the veto power for that matter), Bush appears to be one of the least "activist" presidents in history. How's that?
- What does this say about the Federal Sentencing Guidelines? Why, quite obviously, nothing whatsoever.
- Can future defendants who are convicted with similar conduct argue that they should receive a sentence of no time so that like defendants receive like punishments? Future defendants are, of course, free to make any arguments that they like on their own behalf, and judges are free to dismiss such arguments. If these hypothetical defendants are really really fortunate, the benefit of good representation will discourage them from even thinking about comparing themselves to Scooter Libby.
- Does this case represent the need to revise the guidelines to offer first time white collar offenders softer and more reasonable sentences. Only in the sense that multiple axe murderers and every prisoner who murdered less than three people should have been freed when Woodrow Wilson pardoned Thomas M.C. Bram.
- Or is this case a one-time exception? None of the above. It was an individual act of clemency, not a ruling in a class action suit, or a "policy" in any reasonable sense of the language.
- Recognizing the effect on third parties is important ... Should courts and the U.S. Sentencing Commission consider this in recommending a sentence? One would hope that anything reasonable would be considered in sentencing, although individual acts of clemency are certainly a flimsy basis upon which to declare a consideration "reasonable." See my commentary here.
- [one] elite individual is receiving this benefit while others with comparable circumstances will not have this benefit - it all comes down to who has access to the President. Is this equal justice under law? Some, of course, would argue the reason Libby was prosecuted to begin with was that he was an "elite." Social status does not always translate into advantage. The King of England used to replenish coffers by selling pardons. The wealthy were charged higher prices because ... they could afford it! When all is said and done, Libby's status as an elite and his "access" got him (1) a trial (2) a commutation in the shadow of federal prison (3) no pardon and (4) nothing remotely similar to the Sandy Berger treatment.
Regarding the use of phrase "equal justice under law" here ... well, Mr. Burke said it best in 1790:
But I cannot stand forward, and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing colour and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind. Abstractedly speaking, government, as well as liberty, is good; yet could I, in common sense, ten years ago, have felicitated France on her enjoyment of a government (for she then had a government) without inquiry what the nature of that government was, or how it was administered? Can I now congratulate the same nation upon its freedom? Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a mad-man, who has escaped from the protecting restraint and wholesome darkness of his cell, on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer, who has broke prison, upon the recovery of his natural rights?
The blog also took the narrow view of President Bush's clemency options, observing, on June 6:
The administration may be placed in a situation of making a quick decision on whether to pardon Libby or allow him first to serve his sentence. The pardon would be in sharp contrast to other pardons issued by President Bush. His past pardons have not been for individuals who were recently sentenced.I cannot speak to whether or not the editors of the blog were aware of William Otis'commentary on a commutation of sentence or my own commentary on respites but, regardless, the flawed perspective was certainly widespread. After the President acted, the blog submitted the following questions here, which I wanted to respond to.
- Why did President Bush commute this sentence just hours after a three court panel (made up of two Republicans and one Democrat) had ruled that Libby would not receive bond pending appeal? I am not sure how the party identification of the panel is relevant to the timing of the commutation, but the President clearly agreed with the Probation Department that prison time was excessive. He also issued a public statement explaining his position. What else are we looking for here? Would four hours have been better? Or four weeks?
- One has to wonder why he didn't wait until Libby had served some time and then commuted the sentence. Not at all. See above response.
- Was he afraid of Libby cooperating to avoid jail time? Was it necessary to commute the sentence immediately to avoid Libby moving from being a jailer to a cooperator? There is certainly no constitutional prohibition against such psycho-analysis but, if the President considered prison time excessive, the point would appear to be moot. By the same logic, Bush should have been "afraid" to grant anything less than a full and unconditional pardon, and he would have done so much much sooner (as more than a few were demanding). But he didn't. It would appear that offending Libby is/was not among the President's primary concerns.
- And if he planned to commute the sentence, was this prosecution really worth it? I am not aware of anything, any commentary or any suggestion by anyone that the President "planned" to commute the sentence. Indeed, the standard commentary, for weeks, has been that Bush would be granting a pardon. In addition, the President is being criticized for saying he would not intervene until the process was complete, and then granting the commutation. Doesn't sound like much of a "plan" to me.
- Will it have a deterrent effect absent the jail time? Not sure what the "it" is!
- How much money was spent on this prosecution and as a taxpayer was the dollar spent wisely here? Alexander Hamilton calculated millions were spent to prosecute a handful of participants in the Whiskey Rebellion and Fries's Rebellion, all of whom were pardoned by George Washington and John Adams. I am still working on whether or not those prosecutions were "worth" the effort. Will have to get back on this one. Also curious to know what amount they are putting on justice in law schools these days. Haven't seen the chart!
- If the goal was not to have Libby serve jail time, would an earlier resolution have been more appropriate. Again, I know of nothing, or any commentary by anyone that suggests the commutation was a "goal." Otherwise, if, after sentencing, the President was of the opinion that prison time was excessive, there would be no reason whatsoever to intervene before the final decision regarding bail was made.
- Was this a political decision? Why on earth would it not be? And what is the point of contrast that might give serious meaning to that kind of language? Of course, others would ask if the prosecution was political? So, where on earth does that kind of rhetoric get anyone?
- The judges involved in this case are far from individuals who would be considered activist judges - does this make the executive - the President - the activist? Why, sure, if your definition of an "activist" is simply "a public official that employs constitutional checks and balances." With respect to the pardon power (and the veto power for that matter), Bush appears to be one of the least "activist" presidents in history. How's that?
- What does this say about the Federal Sentencing Guidelines? Why, quite obviously, nothing whatsoever.
- Can future defendants who are convicted with similar conduct argue that they should receive a sentence of no time so that like defendants receive like punishments? Future defendants are, of course, free to make any arguments that they like on their own behalf, and judges are free to dismiss such arguments. If these hypothetical defendants are really really fortunate, the benefit of good representation will discourage them from even thinking about comparing themselves to Scooter Libby.
- Does this case represent the need to revise the guidelines to offer first time white collar offenders softer and more reasonable sentences. Only in the sense that multiple axe murderers and every prisoner who murdered less than three people should have been freed when Woodrow Wilson pardoned Thomas M.C. Bram.
- Or is this case a one-time exception? None of the above. It was an individual act of clemency, not a ruling in a class action suit, or a "policy" in any reasonable sense of the language.
- Recognizing the effect on third parties is important ... Should courts and the U.S. Sentencing Commission consider this in recommending a sentence? One would hope that anything reasonable would be considered in sentencing, although individual acts of clemency are certainly a flimsy basis upon which to declare a consideration "reasonable." See my commentary here.
- [one] elite individual is receiving this benefit while others with comparable circumstances will not have this benefit - it all comes down to who has access to the President. Is this equal justice under law? Some, of course, would argue the reason Libby was prosecuted to begin with was that he was an "elite." Social status does not always translate into advantage. The King of England used to replenish coffers by selling pardons. The wealthy were charged higher prices because ... they could afford it! When all is said and done, Libby's status as an elite and his "access" got him (1) a trial (2) a commutation in the shadow of federal prison (3) no pardon and (4) nothing remotely similar to the Sandy Berger treatment.
Regarding the use of phrase "equal justice under law" here ... well, Mr. Burke said it best in 1790:
But I cannot stand forward, and give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing colour and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind. Abstractedly speaking, government, as well as liberty, is good; yet could I, in common sense, ten years ago, have felicitated France on her enjoyment of a government (for she then had a government) without inquiry what the nature of that government was, or how it was administered? Can I now congratulate the same nation upon its freedom? Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a mad-man, who has escaped from the protecting restraint and wholesome darkness of his cell, on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer, who has broke prison, upon the recovery of his natural rights?
posted by P.S. Ruckman, Jr. | 12:42 PM
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