No Amnesty! (Unless it's for Scooter)

(updated below)

At the risk of sounding like a broken record, there is something incredibly revealing about the widespread demands by right-wing pundits and commentators that the President pardon Scooter Libby. Put simply, this is a crackpot view, an opinion that in any rational universe people would be embarrassed to express publicly. It is a testament to the paradigm-warping power of the right wing echo chamber that so many mainstream figures feel comfortable calling for such an unprecedented and unwarranted remedy.

A presidential pardon is an extraordinary remedy, one that--at least until a few months ago--was generally understood to be proper only in the most unusual of situations, situations where the system has totally broken down and no other remedy is available.

That this is not such a situation is so painfully obvious that even Andy McCarthy at the National Review--who has been known to endorse some rather extreme views--seems genuinely perplexed by his colleagues' crackpot views on this subject:

Not that Scooter Libby has asked for my advice, but I also must say that that the ardor of his supporters — including, I believe, NR — has hurt him, and hurt the conservative movement, in very fundamental ways. As to him personally, all this passionate rhetoric about his heroic service to the United States, how the investigation should never have happened, and how he got unfairly singled out and screwed (all of which I agree with) would be fine if it weren't obscuring something fairly important: Lying to the FBI and a grand jury is a very bad thing, even if we all think it was an unworthy investigation.

The blather about the foibles of memory is just an excuse for people who don't want to confront that inconvenient fact. Foibles of memory come up in every trial — they were particularly highlighted in the Libby trial because the defense hoped to score points with them given the nature of the charges, but they were not materially different from what happens in every trial. That's why we have juries.

Witnesses have varying recollections, and juries sort it out. The evidence that Libby lied, rather than that he was confused, was compelling. And the jury was diligent: the post-verdict commentary showed that they liked and felt sorry for him, several thought there should have been no case, some openly hoped for a pardon, and on the one count where the evidence was considerably weaker than the others, they acquitted him. They convicted him on the other four charges, reluctantly, because they had no choice if they were going to honor their oaths. And I respectfully think it's very presumptuous of people who were not there and did not spend nearly the time and attention the jurors did on Libby's case, to continue saying that the jury got it wrong and this was just a case of faulty memory.

By ignoring all that, and by railing as if Libby deserves an apology rather than acknowledging that he did a bad thing, Libby's supporters have made it easier for him to avoid doing something that would have put him in much better stead with the sentencing judge and would position him much better for a pardon: Utter the words "I'm sorry," in a way that communicates an awareness and some real contrition over the lying. Judges who've sat on cases where the evidence of wrongdoing is compelling expect a defendant — especially a smart, accomplished defendant — to express awareness and remorse; when the defendant fails to do that, it is not at all unusual for a judge to hammer him. The message from Scooter supporters here and elsewhere that he's got nothing to apologize for is not doing him any favors.

Admitting wrongdoing and saying you're sorry comes with some risk — it hurts a defendant's chances on appeal. But I don't think he's got much of a shot on appeal anyway. Moreover, he lives in a country where no one ever has to lie, or even speak — he could have refused to answer the questions unless they gave him immunity. He ought to be sorry and he ought to say so. And, obviously, President Bush has the power to pardon him no matter what anyone advises, but I can tell you that the Pardon Attorney at DOJ is not likely to be very favorably impressed by a "woe is me" petition from someone who doesn't seem to grasp that lying to investigators, especially when done by a public official, is dishonorable behavior.

For all of these same reasons, the notion that Libby's sentence should be commuted--which was floated in an op-ed in the Washington Post today as some sort of "compromise" approach--is equally bizarre. Libby's sentence may seem excessive to some given the non-violent nature of his crimes, but the fact remains that he was sentenced in accordance with the sentencing guidelines. This is something I have some familiarity with, and I can tell you, people who show no contrition for their crimes are almost never treated leniently at sentencing. McCarthy's absolutely right about that.

Moreover, and this is what really bothers me, the people who are complaining about Libby's sentence and demanding that it be commuted are--notably--not claiming that the sentencing guidelines themselves are unjust or should be amended. There's a strong case to be made, in my opinion, that the federal sentencing guidelines are excessive across the board. But the folks at the National Review and Weekly Standard don't care about the excessive sentences that are handed down every day in courtrooms all across the country. They want to treat Libby's case as a one-off situation.

They want extraordinary mercy to be shown to Libby, a man who has not yet even exhausted his appeals and who has, at every step of the way, been represented by the best lawyers money can buy and defended by many of the most powerful and influential figures in the government and media.

Libby's defenders often suggest that he is a victim of a politically-motivated prosecution, but this is such a transparently ludicrous claim that I scarcely know what to say. Libby repeatedly and intentionally misled a federal grand jury that had been convened by a Republican political appointee in a Republican-controlled Justice Department. Despite overwhelming evidence against him, he chose not to seek a plea agreement and instead go to trial, where he lost, badly (note to wingnuts: this is the obvious difference between Sandy Berger and Scooter Libby; Libby would likely have been able to avoid jail time too had he apologized and sought a plea agreement).

Rather than attempting to mitigate the situation he'd gotten himself into (through no one's fault but his own), Libby tried to shoot the moon and get off scot-free. And he didn't make it. Now his defenders want to bail him out with a pardon or a commutation of his sentence. But Libby is quite clearly not a deserving candidate for such extraordinary relief. If anything was unfair or improper about his trial or his sentencing, his very capable lawyers will make those arguments on appeal and a panel of very capable judges will hear them. That's how the system works. Presidential pardons are not supposed to be used as an alternative form of appeal for well-connected defendants.

A careful, sympathetic, conscientious jury convicted Libby beyond a reasonable doubt on four felony counts. He showed zero contrition and was therefore sentenced in accordance with federal guidelines and practice. If that's the sort of injustice that warrants a presidential pardon, then we might as well just empty the federal prisons and grant amnesty to every federal inmate.

Yeah, that's right, I said amnesty. Our friends on the Right have never been terribly good at maintaining logically consistent positions (see impeachment of Clinton, William J.), but has it occurred to anyone that the arguments being deployed against granting amnesty to illegal aliens apply with even more force to the granting of pardons to public officials who obstruct investigations (pardon is just another word for amnesty, after all)? Granting a pardon in this case would only encourage the next person who finds himself embroiled in a high-profile, politically-sensitive investigation to lie to investigators. That's why prosecutors are so adamant that those who commit obstruction of justice be prosecuted for it.

Bonus points for the first person to spot a car with both a "Free Scooter" and "No Amnesty" bumpersticker on it.

UPDATE: Wow. The award for craziest op-ed about Libby goes to this guy at the Wall Street Journal:

In "The Soldier's Creed," there is a particularly compelling principle: "I will never leave a fallen comrade." This is a cherished belief, and it has been so since soldiers and chroniclers and philosophers thought about wars and great, common endeavors. Across time and space, cultures, each in its own way, have given voice to this most basic of beliefs. They have done it, we know, to give heart to those who embark on a common mission, to give them confidence that they will not be given up under duress. A process that yields up Scooter Libby to a zealous prosecutor is justice gone awry.

In case the war analogy wasn't clear, he adds: "Scooter Libby was a soldier in your--our--war in Iraq" and ends with this:

Scooter Libby was there for the beginning of that campaign. He can't be left behind as a casualty of a war our country had once proudly claimed as its own.

What planet does this guy live on? Scooter Libby is not and was not a soldier in anything. He was a public official who was intimately involved in the events that led to the outing of an undercover CIA officer. That's what Fitzgerald was investigating, not the war in Iraq or anything remotely related to the war in Iraq. And Libby lied and obstructed that investigation, crimes for which he was convicted beyond all reasonable doubt by a jury of his peers.

Libby isn't a fallen soldier. He's a convicted felon. There's an enormous difference.

UPDATE II: Comment of the day, from Mike:

The Fitzgerald investigation was 100% a perjury trap. It put Libby into a position where the only alternative to perjury was to violate one of his boss's fundamental principles by telling the truth.