With the Libby commutation in hand, and no charges filed against any leakers in the Plame matter, the only remaining sign of the case was the civil action brought by Plame against several administration officials. And that too is now history as a result of the immunity provided to government officials.  The court dismissed Plame’s lawsuit, noting its lack of jurisdiction. (See Washington Post)

So let me see if I understand the final results here. A prosecutor investigated the leak and indicted a senior level official on after-the-fact charges.  A jury convicted this individual, but the President commuted his sentence. Thus, the criminal process failed to ascertain who was responsible for the leak and the executive didn’t seem to care.

And so the aggrieved party tried the civil process, but found that the executive has immunity.

And the executive is claiming executive privilege for certain former executive level employees who were called before Congress to testify about "firings" of US Attorneys.

I keep wondering how Alexis de Tocqueville  would have written this chapter in his book "Democracy in America."

(esp)

The President’s Order of Executive Clemency that remitted the thirty-month prison sentence of I. Lewis Libby keeps raising new questions about federal sentencing now that the White House has determined any prison term was "excessive" even though the judge faithfully applied the Federal Sentencing Guidelines.  This past Supreme Court term, the United States argued for the application of a proportionality principle when a sentencing judge departs from the Guidelines in issuing a sentence, the flip side of the reasonableness presumption for a within-Guidelines sentence.  According to the government, the further the sentence fell from the Guidelines calculation, the greater the justification required for it, otherwise it would be disproportionate and result in uneven sentences.  During the oral argument in Claiborne v. United States (here), Deputy Solicitor General Michael Dreeben asserted the following in response to a question by Justice Scalia about how to determine whether a particular Guideline sentence was reasonable:

I do think, though, that the Court should be concerned about each district judge formulating his or her own set of personal sentencing guidelines and then applying them in the court to the cases that appear on that judge’s docket without any check on appellate review to ensure that, although the sentence might be in some possible world reasonable, it’s out of whack with what the Sentencing Commission has prescribed and what other district judges are doing. If there is no check on appeal, then I do think that the clock has been turned back to the 1983 era before the Sentencing Reform Act; and that does not seem to me a reasonable interpretation of what the Booker remedial opinion thought it was accomplishing. What the Booker remedial opinion said that it was accomplishing was providing an important mechanism that Congress itself had intended, namely appellate review, in order to iron out sentencing differences.

And our submission is that inherently means some form of substantive proportionality review.

While the Court dismissed Claiborne because the petitioner was killed in a robbery before the decision issued, it granted certiorari in a nearly identical case from the same circuit that raises the issue of the reasonableness of a sentence that departs substantially from the Guidelines (Gall v. United States).  During the upcoming argument, will the defense, and perhaps even members of the Court, raise the Libby commutation as evidence that the Guidelines may be askew in certain instances, especially when it involves a government official with a long history of public service who is a first-time offender? 

Blog co-editor Ellen Podgor coined the apt term "Libby motion" to reflect the likely argument defendants will make in seeking a lower sentence from the trial court based on the commutation.  The same argument can be made in the Court of Appeals, and perhaps even in Gall, that the proportionality principle offered by the United States overextends the Guidelines by ignoring crucial circumstances in particular cases — as evidenced by the "excessive" sentence handed down to Libby that presumably complied in the main with the Guidelines.  Proportionality does not work if the Guidelines themselves may lead to unreasonable sentence.  Or so will Justice Scalia ask, perchance?  (ph)

The President’s commutation of the thirty-month sentence of I. Lewis Libby has created a bit of a mess on a number of different fronts.  First, was it really a commutation?  The former Pardon Attorney at the Department of Justice, Margaret Love, explains that when the executive commutes a sentence it merely reduces the penalty, but does not eliminate it all together.  In her view, it should be termed a remission and not a commutation because Libby never served any time in prison.  While the President can issue a pardon, which would eliminate the punishment altogether, the commutation in this case is not the typical one.

To make things even more complicated, one rational offered for commuting the prison term was that Libby would still be subject to punishment,  The President’s Grant of Executive Clemency (here) states that "pursuant to my powers under Article II, Section 2, of the Constitution, do hereby commute the prison terms imposed by the sentence upon the said Lewis Libby to expire immediately, leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence."  An order (here) issued on July 3, 2007, by U.S. District Judge Reggie Walton, who presided over the trial and sentenced Libby, questions whether the term of supervised release is legally permissible.  The statue, 18 U.S.C. Sec. 3583(a), states that a term of supervised release may be imposed "after imprisonment," but of course Libby will not serve any time in prison.  The Judge has asked the parties to the litigation for their position on the issue, and in a footnote raises the question whether the views of the President should be solicited.  I doubt either party will encourage such a submission, and I suspect that even if asked, the White House would decline to participate lest it become mired further in the prosecution of Libby.

Finally, would any prison sentence have been acceptable to the President?  While the U.S. Probation Office recommended a downward departure from the 10-16 month range called for by the Federal Sentencing Guidelines under its calculation, it did not recommend a specific term or even probation.  But, according to the President’s Press Secretary, Tony Snow, any time in prison would have been "excessive" and therefore would have triggered the grant of executive clemency, perhaps even a day.  In a statement to the press (here), Snow asserted that "he [the President] said it was excessive, and he thought that any jail time was excessive. And therefore, he did not see fit to have Scooter Libby taken to jail." [Italics added]  Snow went on to note, "You have obstruction of justice, and then you have mitigating factors that bumps it down. And the bump down gets you, according, again, to the parole commission, to an area where it would be appropriate, it would be within acceptable guidelines to have such things as home detention or probation. Probation is something that is going to be required in this case."  Probation — actually supervised release, but the Press Secretary may have watched one too many Law & Order episodes — appears to have played a key role in the President’s analysis of what was an "excessive" sentence, but in fact it may be off the table now under the governing statute for a term of supervised release.

Commutation, or remission, is certainly half-a-loaf, which may have been the President’s design all along because a full pardon would have been viewed as a complete usurpation of the judicial process before the court of appeals even heard the case.  But issuing it before the sentence began, even for a day, sends the message that factors outside the normal considerations of the appropriate punishment were at work in this case.  When a term like "excessive" is used to justify the decision, the obvious question is, "Compared to what?"  The Eighth Amendment contains a prohibition on excessive fines, which requires some consideration of the severity of the underlying violation.  Similarly, the Supreme Court’s pre-Booker analysis of sentencing departures in Koon required that the case be "outside the heartland" before a judge could grant a departure, meaning that it must be extraordinary compared to other cases.  What makes the Libby sentence so different from those imposed in other perjury and obstruction of justice prosecutions, or other such defendants if one wishes to focus on the individual?  The President’s commutation means that there will not even be a term of home confinement, resulting in a punishment far less than almost all sentences for a felony in the federal system.  Libby’s public service and the fact that he is a first-time offender do not appear to be so distinctive as to require that there be no form of confinement, unless one wishes to make public servants convicted of crimes largely immune to prison terms because virtually none will ever have a prior conviction.  Perhaps it is as simple as sentencing czar Doug Berman is quoted as stating in a Washington Post article (here) about the President’s decision: "My friend Scooter shouldn’t have to serve 30 months in prison because I don’t want him to." (ph)

"Far from a slap on the wrist," is what Tony Snow, white house spokesperson, said when talking about the fact that President Bush decided to commute Libby’s sentence so that he will not have to serve any jail time.  After all, Libby will have probation or is it supervised release, a fine, and the collateral consequences that white collar offenders often face. The court is faced with an unusual circumstance of how to deal with the supervised release in light of the fact that the accused did not serve a prison sentence.  The courts order requesting the government and defense to submit briefs on this issue and commentary can be found here on Doug Berman’s Sentencing Law & Policy Blog.

But will Libby be required to suffer all the indignities suffered by other offenders?  Will he have to pee in a cup? If it becomes probation then 18 U.S.C. 3563 (5) may apply, which states: 

"for a felony, a misdemeanor, or an infraction, that the defendant refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant;"

Will the court waive this one?  Or will this be the point that President Bush steps in to pardon Libby? (see NYTimes article discussing Bush’s response to a question on a possible pardon of Libby)

(esp)

Will we be seeing defense counsel making "The Libby Motion,"  what will the motion contain, and how will judges react?

Clearly, every criminal defense lawyer who practices in the white collar arena is asking him or herself – why shouldn’t my client have this same privilege?  After all the client may have been convicted of a perjury or obstruction charge, may have children, may be suffering the collateral consequences of the loss of a law license, may have served their country – perhaps in war, and may be a first offender. Should they not receive the same sentence of "no time."

One should expect that there will be Libby Motions made, and/or motions that contain this language in a request for a departure from the guidelines.  The motion will likely include a comparison to the client’s circumstances with that of Libby. It will probably also contain language from the U.S. Sentencing Guidelines that speaks to a basic policy consideration of the guidelines being to obtain "reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal conduct."  And after all, the guidelines permit departure for factors that were not considered by the U.S. Sentencing Commission. Did the Commission consider that a President would take an entire sentence and commute it prior to the individual even seeing one day in jail?  And understanding that the U.S. Sentencing Commission did not consider this, should a departure therefore be allowed?

And the judges, what will they do with these motions?  The activist ones – might follow the activist executive and say – yes this is grounds for departure.  But more likely we will see judges continue to follow the flow of the guidelines and sentence individuals as if the Libby case did not exist.

And we law professors will be left to try and explain this to students. 

(esp)

This is clearly a controversial move by President Bush – to commute the prison sentence of Libby.  Some thoughts:

1.  The Timing – 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?

• President Bush states that the prison sentence here is "excessive" – but there is a big difference between 30 months and no time.  One has to wonder why he didn’t wait until Libby had served some time and then commuted the sentence.  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?  Bush’s immediate dismissal of the entire jail sentence is suspect when he could have adjusted the sentence by waiting until Libby served some time, before issuing him a  free "get out of jail card."
• And if he planned to commute the sentence, was this prosecution really worth it?  Will it have a deterrent effect absent the jail time? How much money was spent on this prosecution and as a taxpayer was the dollar spent wisely here?  If the goal was not to have Libby serve jail time, would an earlier resolution have been more appropriate.

2. Was this a political decision?

• Whether one calls this political or a benefit for the privileged, it is clear that the typical person convicted of a crime would not receive this benefit.  This is a scenario so far removed from the norms of the system that one has to recognize that this action is clearly suspect.
• 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?

3. What does this say about the Federal Sentencing Guidelines?

• A new departure from the guidelines has been created.  It can only occur when the President of the United States authorizes it. It is not founded on any departure law considered by the U.S. Sentencing Commission or Congress.  It is premised on whether you have a direct connection to the President.
• 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?
• This sentence, perhaps high, was within guideline range.  Does this case represent the need to revise the guidelines to offer first time white collar offenders softer and more reasonable sentences. Or is this case a one-time exception?

4.  Recognizing the effect on third parties is important.

• President Bush recognizes the effect of this conviction on Libby’s wife and children – they have suffered.  It is good that Bush understands the injustice in society to innocent parties when someone is convicted of criminal conduct.  But is this not something that all families of the convicted face.  Should courts and the U.S. Sentencing Commission consider this in recommending a sentence?

Perhaps President Bush is correct that Libby did not deserve jail time.  But what is bothersome here is that 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?

(esp)

Attorney Ted Wells, Libby’s lawyer issued a statement as follows:

“Mr. Libby and his family wish to express their gratitude for the President’s decision today.  We continue to believe in Mr. Libby’s innocence.  Scooter and his family appreciate the many Americans who have supported them over the last two years.”

(esp)

In a most professional way, Prosecutor Patrick J. Fitzgerald responds to the President’s statement commuting Libby’s sentence.  He states:

"We fully recognize that the Constitution provides that commutation decisions are a matter of presidential prerogative and we do not comment on the exercise of that prerogative.

We comment only on the statement in which the President termed the sentence imposed by the judge as "excessive." The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process."

Statement here –

Download us_v_libby_special_counsel_statement_july_2_2007.pdf

Stay tuned for Commentary.(esp)