Tuesday, July 03, 2007


Yes, I do have some thoughts on the commutation of Lewis "Scooter" Libby's sentence!

I get annoyed once in a while, but it is rare for me to get really mad, in-a-rage mad, but that's what happened on January 20, 2001. That's the day that President Bill Clinton pardoned a very wealthy man in Switzerland named Marc Rich.

Rich was a groundbreaking financier, particularly in the area of commodity trading. He also developed a business relationship with Ayatollah Khomeini of Iran, and used those contacts to buy crude oil from Iran during an embargo. In 1983 the U.S. Attorney for the Southern District of New York, Rudolph Giuliani (yes, that one) indicted Rich for tax evasion and illegal trading with the enemy. Rich didn't stick around-- he fled to Switzerland rather than appear on the charges. For 15 years Marc Rich was represented by Lewis "Scooter" Libby (yes, that one) in trying to get rid of the arrest warrant. During this time, Rich's wife donated money to both the Democratic Party and the Clinton library.

Clinton pardoned Rich hours before leaving office, and it was one of the most cowardly and unprincipled things a president has done. Why did it make me mad, though? Why take that personally? Because I had spent years in federal court as a prosecutor under Clinton, arguing that justice should apply equally, and fending off arguments for leniency on the grounds of uniform punishment. On January 20, 2001, that all seemed like a sham.

And now we come around again to the same kind of hypocrisy. President Bush commuted the imprisonment portion of Libby's sentence rather than pardon him, but that may only heighten the hypocrisy this time. You see, just two weeks ago the Supreme Court ruled for Bush's DOJ in the case of Rita v. United States, holding that a properly calculated guideline range is presumtively reasonable. Rita and Libby were both sentenced within the guideline range, both were convicted of lying to a grand jury, and both had significant public service (Rita was a Marine for 24 years).

In the Rita case, Bush's government argued that the sentencing guidelines are rational, and that viewing them as presumptively reasonable meant that people committing similar crimes would be treated the same way regardless of race and class. That's a pretty good statement of principle (though it is tension with the Christian principle of mercy). The Libby commutation, which undoes adherence to the Guidelines rather than the conviction, is an afront to that very principle. To simultaneously stick it to a veteran like Rita while letting off a fat cat like Libby or Rich undermines the principle that from the beginning has animated our sense of justice when we are at our best: "We hold these truths to be self-evident; that all men are created equal...."

Tomorrow I will not be at a parade or a picnic or the beach. I'm going to be in my office, wearing my thinking hat and pacing around and knocking down words that tie together a challenge to all this. With the help of my amigos Michael O'Hear of Marquette Law School, Dustin Benham of Carrington Coleman, and Matt Acosta of, uh, the student lounge at BLS, I'm writing a U.S. Supreme Court brief for the National Association of Federal Defenders in the case of Kimbrough v. United States. The point is simple: A sentencing judge should be able to vary from the guidelines if she thinks they are too harsh in a given case, even if the defendant isn't very, very rich.

There are a lot of colors of patriotism, and right now I'm seeing red.

Wow! I like that team-- two Yalies and two Baylories... theory and practice come together. I'll bet that combo has never produced a brief before.

Don't worry, good sir. We ourselves received a gubentorial pardon from Bush after a conviction of some National Guard document destruction threatened an intern of ours with jail time.

A timely letter to the then-Gov had its intended result: a pardon of our intern and a some favorable regulation dismantling for our vast oil stock portfolio. We're sure that he would assist anyone so imperiled by the justice system.

Bringing honor and integrity back to that Ol White House.

Red, but not with anger
Rudy Giuliani or Vampire Ghouliani?
Apparently Matt retroactively failed some classes and has been relegated back to 2L. Sorry, dude.
Uh, Poseur-- doesn't "second-year student" mean the same as "2L?" Or did you guys all promote yourselves already???
I have a couple of thoughts:

1. It seems to me you have a problem with hypocrisy and not a problem with the actual actions of President Bush. At the end of your post, you say, "A sentencing judge should be able to vary from the guidelines if she thinks they are too harsh in a given case, even if the defendant isn't very, very rich." I would assume that you also think the sentencing judge should be able to vary from the guidelines if he/she thinks they are too harsh even if the defendant is rich (which Libby isn't by the way, the court case has drained him of much of his financial resources, though I'm sure he'll bounce back when the book deal comes through). So, Bush thought the sentence was too harsh, which seems like a completely reasonable point (Christopher Hitchens article on this issue can be found here http://www.slate.com/id/2168642/ - I only cite him because I always think he is fairly reasonable). Even though his sentence was within the applicable guidelines (even though it appears to be on the high side of those guidelines) wouldn't you agree that lessening that punishment if it seems too harsh is the fair thing to do.

2. If the issue is hypocrisy, I always find that debate troubling. As Jonah Goldberg once said, "In a town where looking for hypocrisy is easier than looking for sand on a beach, I am consistently amazed how everyone is willing to accept that hypocrisy is always wrong, even though what we admire most in our politicians is hypocrisy. It's just that when we like the hypocrisy, we call it courage." I know I'm going to take a hit by citing him, but examine the larger point. If Bush came out today and said he was ending the war because we shouldn't force democracy on everyone then some would call him courageous, or say he was doing the right thing. In other words, it is only hypocrisy when it is something you disagree with, and hypocrisy is only wrong when it is something you disagree with as well.

3. In her order, the judge said: "It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse." -- this troubles me, because it seems that she is punishing him almost because he is wealthy, or at least not stricken with poverty. I agree with you that we should not seek to more harshly punish those who are the weakest in our society, but we shouldn't seek to punish the wealthy unequally either, right?

4. I agree with your conclusion, and I think the commuting of the sentence was silly, but not surprising. Just sparking a little argument for fun on a Tuesday.

5. I'm going to spend my 4th with Bud Light and listening to Lee Greenwood...God Bless the U.S.A.!!!

The thing is, right now mercy is largely reserved for those like Libby-- it's not doled out equally. As for your example of hypocrisy being applauded, Bush ending the war, that would seem like him changing his mind in the light of new facts. I don't call that hypocrisy. The reason I see this as so blatant is because the Rita case and Libby's case were simultaneous. Timing matters.
It's politics folks, pure and simple, and something I think the founders realized was possible given the inclusion of the President's power to pardon in the Constitution (Art. 2, Sec. 2). And that, dear friends, is the beginning and end of my constitutional prowess.

Having power isn't the same as using that power in a principled way. If simply having the power to do something makes it ok to act on that power, any evil can be defended.

Per your request . . .

As that neutral observer Jonah Goldberg stated (when defending a particular party's actions) . . " "

You had me at Goldberg.
Would it be wrong to guzzle some Gomez tequila listening to some old Selena cassettes to celebrate the 4th?

Mi madre celebrates the 4th by making an Uncle Sam pinata . . .
I am not troubled by the Libby commutation simply because the law is less likely to be fairly applied when your friend is the President of the United States. That is the prerogative of power.

Politics and politicians have never been "fair" and it is naive to think that they ever will be. They never end up leaving office poorer than when they started, nor more ethical, nor closer to their constituency, nor more idealistic. Winston Churchill said that "history would be kind to me because I will write it." To the victor always go the spoils. (And, to add adage to adage...It ain't what you know, it's who you know.)

The saving grace of the sentencing guidelines you produce, and the body of law that indwell the courts is that the law is more ultimately more fair and reasonable for all of us who don't sit at the seat of power. Forget about trying to make sense of how unevenly it is applied, especially when it sits at the juxtaposition of politics and the "rightness' or "wrongness" of the act. I am sure most politicians cannot tell the difference, and fewer of them even care.

The good part about the law and your sentencing guidelines is that they apply broadly and equally to all of us with the possible exception of friends of the president and OJ Simpson. (Proving that we are all innocent until proven broke...apologies to the late Johnny Cochran.)

I agree with you. I think there are plenty of statistics that make your point. The disadvantaged get treated worse by the system. I'm all for making efforts to fix that. But I think there is this old point about two wrongs dont make a right that applies here. Just because the poor are treated unfairly by overly harsh sentencing guidelines doesn't mean we should be upset when others receive relief from those same overly harsh sentencing guidelines. Instead, I think it is an opportunity to say to people in positions of power, "obviously you now understand that the sentencing guidelines can be applied to harshly based on your handling of the Libby case."

I agree with you about the hypocrisy issue, timing is important, but look at Kerry in the 2004 elections. Half the country thought his stand on Iraq was courageous (or at least just an honest change of heart) while half the country thought he was a hypocrite and a "flip-flopper." Timing is important, but I think it is mostly a matter of who it is that is deciding whether to call it hypocrisy or a simple change of heart.
Amen, Amen. Today we confirm that Justice is peaking.

After many moons of being a clandestine peruser of this blog thingy, the "President" has forced me to burst my chains of silence by the commutation of "Libby, Libby, Libby's" sentence. My comments are as follows: 1) the early release of the "Snooperintendent" from the Sheriff's confinement deserves more commentary from this blog than this trivial affront to the Donkey, 2) Who decides what's on the buffet at the Harrington house?
This is sad but a loooong time ago like ten years ago I stopped working on political campaigns in in party politics in Michigan... I made4 a lot of great friends but honestly the politicians themselves.... a lot of them were just not SLIME so much as just so self absorbed and just Here is an example...

I worked on a campaign for a woman who was trying to be a community college trustee and she was passionate and said she really believed that she could make a difference in the county and at that school and I believed in her and hse was a friend so I worked my Arse off for her just TIRELESSLY.... lit drops, envelopes fundraisers... Get Out The VOte calls endless crap... I ddi it with all of my friends ( I was single) so you know its actually kind of fun too. At the end, she WON!!! It was a HUGE victory because she was a longshot. It was a six year term she was to serve, and it was great for her.

THen just two years into her 6 year term this other guy who was county commissioner at the time, decides to run for State Senate.
Instead of continuing to do good work in her position, she instead pretty much abandons her office and the work she was doing to spend FULL time running as a replace him as county commissioner.

NOT ONE Year earlier she SOOO dedicated and happy to have won this huge victory and now she was throwing it ALLL away. She had no experience to be a county commisioner, and she was up against some REALLLLY tough people because of recent redistricting... but because she was sort of well, GREEDY, she was determined to run.

She LOST, of course and she had also given up her Trusteeship...

which was a BUNCH of CRAP and I FINALLY saw the light... I worked my arse off til 2 and 3 AM EVERY WEEKEND for months and months FOR WHAT???? for the party? for the county?? NO!!! FOR THIS WOMAN's PERSONAL political career.

IT was then that I realized that not all of them but a LOT of them are in it FOR THEMSLEVES!!!! I thought I could really make a difference working on local races, but in the end she did not care a bit about the county or the college just about herself.

I NEVER worked on another campaign and this does not mean that no one should ever, but I think that these offices to get elected to them you have to do kind of slimy things... and maybe after so many slimy acts you yourself TURN INTO a slime.

I cannot imagine why "Dubya" commuted Libby's sentence and I cannot imagine why Clinton pardoned Marc Rich. Just because they CAN I guess, OR maybe because those guys know where the bodies are buried or some crap...

I think its cover up anyway because he was tried for PERJURY NOT for the outing of the CIA chick. SO Still no one really knows what really went down... I sort of am starting to thing that Bush is just a goof and that Dick Cheney is some kind of piece of work.

HOWEVER I still VOTE and a lot of people do not even do that... People who do not even vote get the government they deserve.
NPR had an interesting piece on this today. I can only give you snippets, but as one person pointed out, Libby is not a danger to society and there's little chance he's going to lie to another Grand Jury, so the only reason he was going to prison was as punishment. And he's getting plenty of other punishments.

What's unfair is that Justice is being applied unevenly. Other people, including Mr. Rita, are convicted of the same or similar thing, lying to a Grand Jury, yet still must do hard time.

If we're going to have strict sentencing rules, they should be applied strictly.

If the President is going to be merciful, he should be merciful and grant pardons regularly.

According to a couple of accounts I've heard and read, the way it was done until the mid 90's was the an office at DOJ handled this and the President, Bush I, Reagan, Carter, Nixon, Ford, et al. mostly just reviewed and granted the Pardons. Clinton supposedly changed all this and Bush II did not change it back.

But what do I know? I'm a trademark lawyer. Today I met with owners of a Pancake house who have been sued in Federal Court for Trademark Infringement. We discussed the "Dawn Donut" doctrine.
Oh, yes. I am quite familiar with the "Dawn Donut." Hehehe.
WOW have not heard of Dawn DOnuts since I left Michigan.

Hey get this.. Bill is on the road home but I talk to him on the cell occasionally to make sure he does not get sleepy and he told me today that Scooter Libby was. for a time, a lawyer for Marc Rich.

They are less than an hour away they are almost to Salem. Spencer is,. of course WIDE AWAKE, as he slept most of the day on the way home in the van hahaha

My single status is nearing an end. I have to mentally prepare myself for the testosterone infusion to come, to share the remote, actuALLY COOK ETC.
Uh, Tyd? That interesting fact about Libby being Rich's lawyer? It's actually in the post you are commenting on.
The Dawn Donut doctrine is the result of dispute between the Michigan Dawn Donut people and a donut shop in Rochester, NY. Dawn Donut of Michigan had a Federal Trademark Registration, but the people in Rochester had been operating since before the registration issued, so they got to continue using the name Dawn Donut.

The key case in the 4th Circuit, where my case is being heard, involved the Hot Shoppes chain formerly operated by the Marriott company.

You are right that two wrongs don't make a right. What makes me mad isn't the commutation, it is the consistent position that DOJ has taken in every other case-- that uniformity is paramount and the guidelines should be followed (except when they want an upward variance). I agree with what the president said about the guidelines being too harsh; it just angers me that in every other case they say exactly the opposite.
It is?

Maybe I need to find a new blog. Or maybe start my own... Maybe I can get one at www. I personify banality .com

But then I would miss all of those great pictures and what fun would my life be if I could not torture all of you brilliant legal minds with tales of Spencer, Riley, Bill the luthier and my trips to Target?

I have to go trim the dog's nails now.
Tyd-- yeah! The post says "For 15 years Marc Rich was represented by Lewis "Scooter" Libby (yes, that one) in trying to get rid of the arrest warrant. " Do u jump right to the comments section?

Don't leave us! Your soup recipe alone made it worthwhile for me. And I have to know what happens with Habib.
My dad says you should send this as a letter to the editor, for say, The Dallas Morning News.
Hey did you REALLY try my soup recipe???? nah I am not going anywhere. Until all of you kick me out.

No I do not jump right to the comments, but sometimes I do not read the ENTIRE post when it is about legal stuff, because it all just makes my brain hurt.

Habib.... I love Habib. He totally GETS me.
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