Half now, half later

(This piece first appeared in the Asheville Citizen-Times on July 15, 2007.)

No party hats. No confetti. Mostly relief among neoconservatives, their pundits and Republicans presidential candidates after President Bush commuted “Scooter” Libby’s perjury and obstruction of justice sentence in the CIA leak case. Former federal prosecutor Rudolph Giuliani echoed Libby supporters who complained that “ultimately, there was no underlying crime involved.”

Martha Stewart served her time. Washington’s clubbish elite, however, couldn’t stomach seeing Libby in prison after conviction by a jury of commoners.

The former White House aide was sentenced to 30 months — 30 being roughly the number of friends who raised $5 million for his legal defense before the commutation on July 2. Libby drafted a check for his $250,400 fine that afternoon.

It was just 1998 when Republicans warned that not holding President Bill Clinton accountable for alleged perjury and obstruction of justice threatened our very republic. In impeachment proceedings, chief prosecutor Rep. Henry Hyde, R-Ill., spoke passionately of bedrock principles, invoking Lexington, Concord and Bunker Hill. GOP lawmakers stampeded the podium to proclaim that no man is above the law.

Clinton was acquitted by the Senate.

By January 2001, conservative insiders looked forward to George W. Bush appointing like-minded Supreme Court judges and restoring the rule of law, as they understand it. At a mock funeral eulogizing the Clinton years, columnist Cal Thomas toasted to “the end of moral corruption … and the return of a controlling moral authority in the White House.” Former Supreme Court nominee Judge Robert Bork chimed in: “In a sound country, Clinton would long ago have been hung upside down in a dungeon.”

Moral authority

Their moral authority installed dungeons at Guantanamo Bay and other exotic locations, adding modern amenities like “enhanced interrogation techniques” and tribunals featuring coerced testimony. Besides a handful of terrorists, the authorities imprisoned hundreds of others for years before releasing them from Guantanamo without charge or apology — thousands more from prisons in Iraq and Afghanistan. The most common underlying crime was being in the wrong faith at the wrong time.

Libby’s impending imprisonment, however, drew swift action. Displaying uncharacteristic leniency, the president declared Libby’s punishment “excessive,” drawing on sentencing complaints which were “routinely and strenuously opposed by his own Justice Department,” the New York Times reported.

In a nearly identical case decided weeks earlier, the Justice Department argued for upholding the sentence of Victor A. Rita’s 33-month sentence for perjury and obstruction of justice. His two decades of service in the armed services, commendations, awards and medals should have no bearing, they said, calling Rita’s sentence reasonable. In an 8-to-1 decision the Supreme Court agreed.

In Libby’s case, however, the president intervened even as the White House promoted a bill to reinstate mandatory sentencing rules struck down by a 2005 Supreme Court decision. Judges should have little discretion in sentencing, the administration argues, saying that leads to disparities in punishments for similar crimes.

“This is opening up a can of worms about federal sentencing” said Ellen S. Podgor of Stetson University.

“I anticipate that we’re going to get a new motion called ‘the Libby motion,’” the law professor told the New York Times. “It will basically say, ‘My client should have got what Libby got, and here’s why.’ ”

The political heat over the decision had to be anticipated. Commutations are rare, and generally not granted until a prisoner has begun serving his sentence, or while the conviction or sentence is under appeal. Why the rush?

Was it because the administration’s fall guy might reveal incriminating details of the CIA leak once behind bars? (Commutation leaves Libby’s conviction intact for now, along with his right to invoke the 5th Amendment under oath.) Like something out of film noir, commutation could be seen as an inducement to remain silent until the president leaves office, when a full pardon will be issued. Half now, and the other half when the job is done.

Before leaving office, President George H.W. Bush pardoned six former Reagan administration officials — including former Defense Secretary Caspar Weinberger, still facing trial. It effectively quashed further inquiry into the Iran-Contra cover-up and any role Bush pere played in it.

For Washington’s elite, it’s often not what you know, but who you know. But for senior officials like Libby, it helps if what you know might be incriminating.