Free Scooter!

Occasionally in politics there are clarifying moments, moments when it becomes crystal clear that something very serious is wrong and that our political discourse has become completely unmoored from anything that resembles rational debate. Today was one of those moments.

Scooter Libby was sentenced today to a term of 30 months in prison, a sentence well-within the relevant sentencing guidelines for the felonies of which he was convicted. The instantaneous and nearly universal response among movement conservatives was to demand that he be immediately pardoned.

Bill Kristol, the founder of the Weekly Standard, decried the injustice of Libby's prosecution and sentence, going as far as harshly chastising President Bush for not having pardoned Libby already:

So much for loyalty, or decency, or courage. For President Bush, loyalty is apparently a one-way street; decency is something he's for as long as he doesn't have to take any risks in its behalf; and courage--well, that's nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?

Good lord. After everything that Bush has done over the years, after his complete trainwreck of a presidency, it's Bush's reluctance to immediately pardon a convicted felon that causes Kristol to lose his respect for the man?

Not to be outdone, the editors of the National Review, the nation's other leading conservative magazine, issued their own editorial calling for a pardon. It's worth excerpting at length:

President Bush should pardon Libby, and do it now. There has always been solid justification for a pardon. Although he tried mightily, prosecutor Patrick Fitzgerald never found enough evidence to charge Libby or anyone else with violating the Intelligence Identities Protection Act or the Espionage Act in the CIA-leak affair.

Yeah, he didn't find enough evidence because Libby lied repeatedly about his role in the affair and obstructed the investigation. That's the whole point. It's what Fitzgerald has been saying since the day he announced the indictment.

[T]he discrepancies between Libby’s grand-jury testimony and that of the journalists who contradicted him can be explained by differences in memory, and should not have resulted in perjury and obstruction-of-justice charges against Libby. Anyone who watched Libby’s trial knows it was a parade of conflicting memories, and reasonable people could disagree with the jury’s verdict.

Actually, twelve reasonable and conscientious people watched the entire trial and concluded, beyond all reasonable doubt, that Libby intentionally and repeatedly lied about material facts. That's what "beyond a reasonable doubt" means. It means that reasonable people don't in fact disagree. Are juries infallible? Of course not. But only someone with major partisan blinders on could have read Libby's testimony and listened to the parade of witnesses who contradicted him and not come away convinced that Libby lied rather blatantly to the grand jury. Even Tom Maguire, a guy who has consistently gone the extra mile to defend Libby, concedes that he probably lied "to keep Cheney out of the story." The evidence is overwhelming and cannot be explained away by "faulty memory." That's why we have trials.

Now, however, we have a new reason to call on President Bush to pardon Libby: Fitzgerald’s deplorable behavior in the days leading up to the sentencing. In pre-sentencing legal arguments, it became clear that Fitzgerald wanted the judge to sentence Libby, who had been found guilty of process crimes, as if he had instead been convicted of those more serious underlying allegations that formed the basis of the CIA-leak investigation. Fitzgerald ignored the fact that he had never brought charges under the Intelligence Identities Protection Act or the Espionage Act, and wrote that the grand jury “obtained substantial evidence indicating that one or both of the statutes may have been violated.”

This is either rank dishonesty or total cluelessness. I suspect the former. As the editors of the National Review should know, this is how sentencing works. The federal guidelines are very specific and they require, in the case of obstruction of justice, that the sentence be pegged to the type of crime that was being investigated. It doesn't matter whether anyone was ever charged with that crime. In fact it doesn't even matter whether the person committing obstruction was a subject of that investigation. What matters is what was being investigated. Fitzgerald was simply doing what he was supposed to do under the guidelines.

The problem was that Fitzgerald not only did not charge Libby or anyone else with those underlying crimes, he never even offered any evidence in court that those crimes, as carefully defined by the statutes involved, ever happened. His throw-the-book-at-him sentencing recommendation contradicted the conclusion reached by probation officials . . .

Again, this totally misstates how sentencing works. All sorts of evidence can be considered during sentencing that is irrelevant or inadmissible at trial. And the burden of proof is much lower (preponderance instead of reasonable doubt). Moreover, federal prosecutors almost always reach a higher calculation under the guidelines than the probation office does. If you doubt this, go watch any of the thousands of sentencing hearing that take place every day in federal court. It's probably also worth pointing out that even the probation office recommended that Libby receive close to two years prison time, which is a significantly tougher sentence than the medal of honor and pat on the back that the editors of the National Review evidently believe Libby deserved.

Going one step farther, Fitzgerald also argued that Mrs. Wilson was, without any doubt, a covert CIA agent as defined by the Intelligence Identities Protection Act. In court filings, he offered what he said was a CIA-authored summary of her job status affirming that, at the time her name was revealed by Novak, she was covert, and that the CIA was taking “affirmative measures to conceal her identity,” as required by law. But many months ago, when Libby’s defense team was begging for such information, Fitzgerald refused to provide it.

First of all, as a point of fact, Plame's status wasn't relevant to any issue at trial and therefore was properly excluded. And that likely worked to Libby's benefit, given that information about her covert status would likely have prejudiced the jury against Libby. Moreover, Fitzgerald primarily raised the issue during sentencing because Libby's legion of high-profile defenders kept claiming publicly that Plame was not covert and that the entire investigation was therefore some sort of political witchhunt. As stated previously, just about everything is fair game at sentencing. The rules regarding relevance and burden are very different. Fitzgerald did nothing remotely wrong by introducing this evidence.

But in the days before sentencing, Fitzgerald suddenly wanted to talk about Mrs. Wilson’s job. Again, Libby’s lawyers were given no chance to look into her status at the CIA. “We have never been granted an opportunity to challenge this conclusory assertion or any of the other unsubstantiated claims in this document, nor permitted to investigate how it was created.”

Again, there is nothing strange about discussing matters at sentencing that were inadmissible or irrelevant at trial. Judges are supposed to entertain a much wider set of facts, including things like prior offenses and general character, that would never be allowed at trial. That's why Libby's defense team was allowed to submit all those letters from Libby's friends and professional contacts attesting to his character; that kind of stuff would never be allowed at trial. And the notion that Libby's team would have somehow debunked the CIA's report on Plame's status had it been allowed additional discovery is a stretch to say the least. The government has a burden to turn over anything exculpatory and severe sanctions can result from failure to do so.

All of this might be funny if it weren’t so serious for Libby. He is a dedicated public servant caught in a crazy political fight that should have never happened, convicted of lying about a crime that the prosecutor can’t even prove was committed. President Bush has the power to end this ridiculous saga right now. He should do so.

Oh the humanity! Someone please end this "ridiculous saga" before our very system of justice crumbles under the weight of this monumental injustice.

Keep in mind, these are the very same people who didn't raise a peep when the Bush administration whisked an American citizen off the streets of Chicago and held him incommunicado, in solitary confinement and under extreme sensory deprivation, without any process whatsoever, for years. These are the very same people who don't care one whit about the people, many of whom are totally innocent, who have been detained without process for years in Guantanamo or rendered to another country to be brutally tortured. These are the very same people who openly advocated for a kangaroo court system in which those on trial for their lives would not be allowed to see the evidence against them and in which coerced confessions would be admissible.

But somehow the fact that Scooter Libby's high-priced legal team was not allowed to rummage around in the CIA's covert ops files during the sentencing phase of his trial is such a manifest injustice that it requires an immediate pardon? Give me a break.

There's something deeply revealing about the fact that Scooter Libby has become the poster child for injustice among movement conservatives. I mean, here is a rich, incredibly well-connected Republican who is investigated and indicted by a Republican political appointee with an impeccable reputation. He's caught dead-to-rights on multiple counts of perjury and obstruction and given every opportunity to reach some sort of plea deal. Instead, he hires a dream legal team in the hopes that they can "pull an OJ" and somehow convince a jury to acquit him. He loses after a federal jury, which clearly took its job very seriously, finds him guilty beyond all reasonable doubt on four felony counts. His legal team then requests and receives letters from scores of highly influential people attesting to Libby's character and the judge allows them to be submitted for consideration. Meanwhile, all throughout the press, influential pundits and politicians openly come to Libby's aid and publicize his cause, doing their best to influence his sentencing proceeding (and his trial for that matter). Despite all this, Libby is convicted and sentenced to a prison term that falls well within the sentencing guidelines for the crimes he was found to have committed.

Yet in the alternate reality in which today's movement conservatives inhabit, this case is somehow the very definition of injustice. The absurdity of it all is just staggering. Of everything I've read today, this series of questions from Tom Maguire perhaps best captures the lunacy of it all:

[W]hat does Bush do next? Does Dick Cheney still have any sway in this Administration, and how hard will he push for a Libby pardon? Will a Libby pardon be offered as an olive branch to the righties who are furious with Bush over immigration?

As insane as that last question should sound in any rational universe, it's actually a legitimate question in this bizarro world in which we happen to find ourselves. It's quite possible that pardoning a convicted felon for no apparent reason would, at least temporarily, assuage the Republican base. But what does that say about the Republican base?

One last point before I go. Allow me to quote a post I wrote following the first round of editorials calling for Libby's pardon:

These pieces are remarkable not only because they casually call for such an extraordinary remedy, but because of something they don't do. Typically, when confronted with genuine injustice, a concerned and conscientious observer attempts to identify the broader systemic problem that led to the injustice. He asks himself: how did this injustice come about? Is the law itself unjust? If not, were the rules under which the individual was tried fair and just? Were the individual's rights to counsel and to present his own defense respected? If so, was there some corruption of the trial process itself, a corrupt or incompetent judge, a biased jury, incompetent counsel, etc.?

The reason a conscientious observer asks these questions is because he wants not only to remedy the injustice that has occurred, but to ensure that it does not happen again or has not happened already to similarly situated defendants. Notably absent from the opinion pieces calling for Libby's pardon, however, is any attempt to explore or identity the problems in the system that resulted in this supposed injustice. And that absence speaks volumes.

No one is claiming that our laws against obstruction of justice and perjury should be repealed or amended. No one is claiming the jury failed to conscientiously deliberate and consider all the evidence presented to it. Some commentators are taking issue with some of Judge Walton's evidentiary rulings, but there's a built-in way of challenging the correctness of those rulings. It's called an appeal. I've yet to hear anyone suggest that the Federal Rules of Evidence themselves need to be amended.

The same is of course true of the complaints about Libby's sentence. Libby was sentenced in accordance with the federal sentencing guidelines. Yet no one is calling for a repeal or amendment of those guidelines to prevent this sort of "injustice" from recurring. And while the folks at the National Review and elsewhere are complaining about the supposed unfairness of the sentencing proceeding, that's what appeals are for. If anything was improper, our system has a built-in way of dealing with such errors. But conservatives have no patience for any of this. To quote myself again:

Conservatives are essentially treating the Libby case as a one-off situation. They have no problem with the law itself or with our criminal justice system generally. They just disagree with the outcome in this particular case and want to change it. There's something almost self-evidently discrediting about that. It shows both disdain for process and a truly myopic degree of partisanship.