William Otis, writing in the WaPo, argues that Libby's sentence is too harsh and suggests something less than a pardon:
Scooter Libby should not be pardoned. But his punishment -- 30 months in prison, two years' probation and a $250,000 fine -- is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.
Interesting - as a convicted felon Libby would lose his license to practice law, but that would put him very close to even with Sandy Berger.
The PowerGuys have more, including background on Mr. Otis:
Bill Otis is a career prosecutor, and served as member of the Attorney General's Advisory Committee on the Sentencing Guidelines under both parties. As a special counsel to the first President Bush, Bill worked on issues relating to the pardon of Caspar Weinberger.
Well, he knows from controversial pardons, then.
Writing in USA Today,Victoria Toensing joins in; no prize for guessing her view:
Patrick Fitzgerald abused his prosecutorial powers when he indicted Scooter Libby for a faulty memory. The only remedy is a presidential pardon.
I have several quibbles with Ms. Toensing. Here we go:
From the day he took office as the unsupervised special counsel, Fitzgerald knew that Richard Armitage had first revealed to Robert Novak the fact that the spouse of administration critic Joe Wilson worked at the CIA. He also knew that Libby had never spoken to Novak about Valerie Plame.
Any non-obsessed prosecutor would have closed the investigation at that moment.
I don't know. Fitzgerald as much as admitted after the trial (link to WaPo video) that he was brought in to investigate the very odd story being told by Libby (Rove's "I heard that, too" account of his exchange with Novak also raised eyebrows, until the journalism critics at the FBI got a load of Matt Cooper's sourcing from Libby).
My view is that prosecutors prosecute and special prosecutors especially so; the real blame should be directed at Ashcroft, who lacked the courage to shut the investigation down in December 2003.
More from Ms. Toensing:
Fitzgerald excused others whose sworn-to memories were as bad, if not worse, than Libby's. Ari Fleischer, former White House spokesman, testified he had not told Washington Post reporter Walter Pincus that Wilson's wife worked at the CIA. Pincus swore he did and had his notes to prove it. Fleischer had immunity, but not from false testimony.
Let's pile on! If Ms. Toensing wants to make the case that Fitzgerald was strangely incurious about the truth, and seemed more intent on preserving his perjury case against Libby than figuring out what happened, she should certainly cite the odd treatment of John Dickerson and David Gregory in the context of the Pincus story. As she noted, Fleischer testified that he did not leak to Walter Pincus; that was contradicted by Pincus' testimony to the grand jury (we presume) and the court.
But Fleischer also told the trial court that he leaked to David Gregory and John Dickerson while on the Presidential trip to Africa. Presumably, he told the grand jury something similar, or the defense would have mocked his inconsistent memory. But Fitzgerald never even subpoenaed Dickerson or Gregory in an attempt to establish the facts. My guess? Fitzgerald did not want to further discredit Fleischer, who had a helpful story about a weird lunch with Libby. It was Fleischer's last week on the job, he was about to spend multiple sleepless days and nights on a Presidential trip to Africa, and his memory may have been utterly muddled - Fitzgerald did not want to know.
John Dickerson published a denial that is not exactly table-pounding:
My recollection is that during a presidential trip to Africa in July 2003, Ari and another senior administration official had given me only hints. They told me to go inquire about who sent Wilson to Niger. As far as I can remember—and I am pretty sure I would remember it—neither of them ever told me that Wilson's wife worked at the CIA.
He's "pretty sure"! Strong stuff. But stronger than David Gregory, who as best I know has not been heard from. Oh, lest we forget - Gregory is a colleague of Tim Russert, who insisted that he could not have learned about Ms. Plame prior to July 14, but also admitted his NBC colleagues shared info with him. Gee, maybe Fitzgerald didn't want to discredit Russert, also a key prosecution witness.
Well - Ms. Toensing may have been limited by space, but it is not hard to call into question the seriousness of Fitzgerald's investigation (1, 2). Assuming, of course, one accepts Fitzgerald's occasional explanation that he was investigating a leak; as an investigation of Libby's perjury, it was quite focused.
CONTINUING: Fred Thompson writes in Town Hall, and I will get to it.
UPDATE: The Anchoress wants to let the process play out and let Libby exhaust his appeals; the Captain thinks that will be Bush's preferred course.
My take - that would be fine *if* Judge Walton lets Libby stay free pending his appeals. Otherwise, Libby may sit in jail and complete his 30 month sentence while the appeals play out. Not a big deal if he loses, but where does he get the time back if he wins?
I stand by my earlier temporizing - Bush ought to declassify enough material that the rest of us can judge whether Ms. Plame really was covered by the IIPA, and whether Fitzgerald really had credible grounds to think so when he took the appointment.
Fred's article is also excellent. I think Otis has a very good point. If the judge insists that Libby begin serving time immediately as his appeal progresses, commute his sentence to bring it down to Berger's.
Posted by: clarice | June 07, 2007 at 03:03 PM
Fitzgerald as much as admitted after the trial (link to WaPo video) that he was brought in to investigate the very odd story being told by Libby . . .
That's funny, because I thought he was supposed to investigate:
I'm with Toensing on this point.Posted by: Cecil Turner | June 07, 2007 at 03:14 PM
I just posted this on the other thread, but it seems more on topic here. (And besides -- I get to consume more of Tom's bandwidth with the ego boost of seeing my words yet again!)
Well, Bush is a notorious poker player who doesn't tip his hand unless he needs to. If he were going to do what I want him to do, I would think, first, wait until we see if Walton denies the appeal bond. If he doesn't, then Bush should just keep his mouth shut. If he does, then the next step will be to appeal that decision -- and I think that appeal has an excellent chance of succeeding. Only if the appeals court denies the appeal bond should Bush commute the sentence.
I think that Walton is playing a dangerous game here. He is afraid that if Libby is allowed to appeal, then the appeals court is going to spank him very badly. So I think he is trying to force Bush to pardon Libby so as to moot the appeal and make it all go away. (Because, you see, a side effect of pardoning Libby is that it also "pardons" Walton and Fitzgerald and Russert by making any punishment for them dead letter.)
If that's what's in Walton's head, well something about bringing a knife to a gun fight comes to mind... If we can figure out that Bush can commute the sentence to let the appeals go forward, I'm sure that the White House can figure it out, too. Also, I have noticed that there is one value that judges have which cuts across all idealogical and philosophical lines and all levels of the court system -- they get really really really pissed off at people playing them for fools. If the appeals court decides that Walton is trying to screw with them, they will overrule him and grant the appeal bond so fast that Walton's head will be spinning for a week.
On that same line of reasoning, what Bush should want (as the guy who stood up twice and swore to defend and protect the constitution) is for the judicial branch to fix Walton's mess. The most effective way to do that is to give them enough room to do it -- anything which a prickly judge (and prickliness is a notorious aspect of judical character) would interpret as interference should be avoided unless absolutely necessary. What Bush should avoid at pretty much all costs is setting up a situation where the appeals court believes that Bush is going to pardon Libby anyway, because that would just piss them off, and who knows what sort of disaster they will cause if they decide to get revenge.
Posted by: cathyf | June 07, 2007 at 03:17 PM
cathyf--that is such a brilliant analysis I;ve been posting and sending it everywhere.
Posted by: clarice | June 07, 2007 at 03:18 PM
From Fred -
Now that's the way to get a donation - I'm With Fred
Posted by: Rick Ballard | June 07, 2007 at 03:18 PM
The FIVE YEAR LAW MAKER was taken in because this was what Plame wanted Fitz to focus on. It's been an agenda at CIA since Ames. Plame has given away alot. She is allowing herself to be used in the NY terror airport(pipeline!way too cool a target) thing. She is an excellent resource. The G8 has to be impressed.
I don't think Vlad is gonna tell ya.
Posted by: qquirl | June 07, 2007 at 03:23 PM
So Cathyf--If the President did commute, that wouldn't piss off the appeals court?
Posted by: glasater | June 07, 2007 at 03:31 PM
"Bush ought to declassify enough material that the rest of us can judge whether Ms. Plame really was covered by the IIPA, and whether Fitzgerald really had credible grounds to think so when he took the appointment."
TM,
Being covered would only be one prong. How do you get past the CIA's abject failure to protect if she was covered? Harlow's jibberjabber on top of her own attendance at a Democrat steering function with hubby are enough to snap that prong.
I would rather see the initial referral coupled with the final referral. I believe that the initial referral would be more dispositive. You know, the one made before CIA's Dem clique got their marching orders from Schumer and Conyers.
Posted by: Rick Ballard | June 07, 2007 at 03:32 PM
I'm still surprised at how the defense let Ari off the stand without bringing in Dickerson and Gregory to confirm/deny the testimony, especially when Gregory ties into Russert.
So Ari didn't tell you about Plame but was dropping big hints to ask the CIA. Well, what did the CIA tell you when you asked? Did you tell your bosses? Why not? Wasn't this a huge story at the time?
What about the follow-up from Ari's testimony with the investigators? So Ari has said that he told Dickerson and Gregory about Plame. Can we see the notes from the FBI's interviews with these two reporters? You didn't talk to these reporters?
Just feel that the defense left a lot on the table. Still shocked that a reporter who worked with some of the witnesses was on the jury.
Posted by: danking | June 07, 2007 at 03:34 PM
If the President did commute, that wouldn't piss off the appeals court
Not bloody likely. It's not like they are looking for work.
Posted by: Jane | June 07, 2007 at 03:41 PM
I'm not sure a reduction of the sentence would vitiate the appeal, Jane. But as the sentence far exceeded the Probation Dept report, I don't think a reduction ahead of the appeal would "piss off the court" either.
Posted by: clarice | June 07, 2007 at 03:55 PM
Being a former blackjack/poker dealer I appreciate the President's skill or proclivities in that area but right now am wondering how his chess game is doing.
Posted by: glasater | June 07, 2007 at 04:02 PM
Sorry, not going to let a thread titled "Justice for Libby" go without a link to one of my all time favoritest articles EVER.
E-V-E-R
I Call for Justice
No prize for guessing who wrote it.
Posted by: Jeff Dobbs | June 07, 2007 at 04:03 PM
In fact, I think that his touch has been about right -- so far. Emphasizing that there is a real person who is the victim in all this, and the political games are being played for high stakes for him, while staying very far away from anything even remotely resembling a threat of use of executive power (pardon or commutation.) It gives the appeals court judges the room to do the right thing.
Yeah, sure it's like parents of a high-strung toddler falling all over themselves to make sure that they don't trigger the brat to have a tantrum, but in this case the "brats" are extremely dangerous not only to Libby, but to all of us.
Absolutely. Which is why he shouldn't do anything which makes the appeals court even think that the idea has occured to him, unless he is actually in the process of commuting the sentence. Let Walton piss off the appeals court while Bush acts all innocent "of course we are deferring to you, blah blah blah."Posted by: cathyf | June 07, 2007 at 04:09 PM
Thank you Cathyf for your truly insightful comments and clear thinking put to words. Can understand that judges are prickly but Walton should have had "reversal" in the back of his little mind from the beginning of the trial. One can only wonder---
And surely including pardoning Walton, Fitzgerald, et al, would be terrible.
Posted by: glasater | June 07, 2007 at 04:30 PM
We (collectively) spend way too much time here seriously engaging trolls, so we are experts and how it works. Fitzgerald's strategy was very troll-like -- throw all sorts of stuff around, hoping that some would stick, and that the defense would miss refuting something.
I spent lots of time talking about the peculiar logic of the Cooper count back during the trial. I maintain that Fitzgerald played a subtle game: he made a charge with an "and" in the middle. The charge was that Libby did not tell Cooper that he heard about Plame from reporters and instead Libby confirmed without qualification. Well, in fact, according to the testimony Libby said that there were two qualifications -- "from reporters" and "didn't know if it was true" while Cooper's notes noted one qualification -- "didn't know if it was true". So the second clause of the count -- "without qualification" -- was false according to all witnesses and all testimony. (And I keep screaming that filing this in an indictment was Fitzgerald committing perjury and obstruction of justice by simply lying in his characterization of Cooper's testimony before the grand jury.) The logic of Fitzgerald's game is that he was offering this as bait to the defense. You see, the defense went in there and proved beyond any and all doubt, that this charge was false. What I think happened, is that Fitzgerald thus successfully transferred the burden of proof to the defense in jurors' minds -- "Well, they didn't prove this charge false. They proved that other charge false, so why didn't they prove this one? It must be true." That charge then became the bunt or sacrifice fly for the other charges (my, my, more baseball analogies...)
The whole transfer of the burden of proof thing is classic troll behavior. They start by making all sorts of "ignorant" provably false assertions, which we all spend lots of time showing are false. But eventually it always ends the same way with them demanding that we prove a negative, and then claiming victory because we failed to do something logically impossible. The problem is that engaging the trolls at the beginning when their demands are reasonable gives their later absurd demands legitimacy.
Yeah, I know what you mean -- but on the other hand, I'm the author of endless multi-page blog comments. I'm very well aware that droning on and on and on just makes people turn off, and that overwhelming a jury with days and days and days of stuff risks turning them against you. (Although in this particular case this particular jury turned out to be very tolerant of this crap -- they put up with being forced by Fitzgerald to listen to 8 hours of tapes of Libby's testimony. It was a risky strategy for Fitzgerald, but he won on that one.)Posted by: cathyf | June 07, 2007 at 04:44 PM
There is a way to put an end to this sort of thing. Make an example of Fitzgerald. Collect up all of the lies in all of his court filings in this case, and charge him with perjury and obstruction. One count of each for each lie. Add conspiracy to commit obstruction, with the FBI agents and other lawyers either indicted or unindicted co-conspirators, to each lie as well. There's a line between playing hardball and committing crimes, and the DoJ has edged further and further over the line. It's time to push them back on the other side.
Here I am commenting upon myself again. Oh, well, vanity... :-)Posted by: cathyf | June 07, 2007 at 04:54 PM
Very good posts, cathyf. Great analysis.
Posted by: lurker9876 | June 07, 2007 at 06:15 PM
Thank you H & R. (A case of the good stuff is in the mail.)
Posted by: clarice | June 07, 2007 at 06:23 PM
Cathy,
While I certainly like the idea of putting Fitz in prison - for life to set an example, I can't think of a time when he was under oath and thus the perjury charge is a tough one. I'm rather see him disbarred for ethical problems. For one thing, it will probably hurt more. Most prosecutors like him and Nifong are holier than thou guys who think they corner the market on ethics - after all, they work for the people.
Actually, I don't want him even to go to prison. I want him out of public service and handed his hat "by the people".
It's not gonna happen.
Posted by: Jane | June 08, 2007 at 07:58 AM
The whole transfer of the burden of proof thing is classic troll behavior.
Ain't that the truth. Usually with a negative (e.g., Juke's patented: "Tell me why that doesn't prove . . . "). It's a fallacy, and fundamentally dishonest, but too often it works.
Actually, I don't want him even to go to prison. I want him out of public service and handed his hat "by the people".
Concur, and with your prognosis as well, unfortunately.
Posted by: Cecil Turner | June 08, 2007 at 08:28 AM
"Most prosecutors like him and Nifong"
Ugh - now that's one ugly sentence.
Posted by: Jane | June 08, 2007 at 08:32 AM
Heck, I don't even care if Fitzgerald goes to jail. I just want him made an example of as deterrence for the other prosecutors out there. (You see, I live in IL. Where prosecutors tried two innocent guys four time and got death penalties three times -- the convictions kept getting overturned on appeal and the defendents would get new trials -- even though the prosecutors got proof beyond any doubt between the first and second trials that the guys were innocent. This was discovered in the middle of the fourth trial. The prosecutors were tried for prosecutorial misconduct -- by Fitzgerald -- and got off. The county's states attorney, Jim Ryan, thought that using the judicial process to try to murder someone was so no big deal that he thought he could run for governor in 2002, and that's why we've got The Haircut as a governor. So, yeah, I'm pissed by prosecutors committing crimes in my name, and what happened to Libby is not some isolated incident.)
All of the legal filings are sworn to under penalty of perjury. Now, sure, the indictment press conference wasn't under oath so the lies he told there are "merely" obstruction and conspiracy to commit obstruction, but the whole paper trail is basically all under oath.Posted by: cathyf | June 08, 2007 at 09:44 AM
All of the legal filings are sworn to under penalty of perjury.
Yup, you are absolutely right!
So, yeah, I'm pissed by prosecutors committing crimes in my name, and what happened to Libby is not some isolated incident.)
That stuff has bothered me for my entire career - and the stuff in the other direction (Berger) bothers me too. I think it has gotten worse, I think more lawyers are willing to lie more often, but I could be wrong about that.
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