A different approach to freeing Lewis Libby

My friend Bill Otis is a career prosecutor, and served as member of the Attorney General’s Advisory Committee on the Sentencing Guidelines under both parties. As a special counsel to the first President Bush, Bill worked on issues relating to the pardon of Casper Weinberger. Thus, I was eager to get his views on whether the current President Bush should pardon Scooter Libby.
It turns out I didn’t need to ask. In an op-ed in today’s Washington Post Bill argues that Bush should not pardon Scooter Libby, but that his sentence is excessive and should be commuted. Specifically, the prison term should be eliminated and Libby should pay the fine.
Bill opposes a pardon because he wants to uphold the “fundamental rule of law that the grand jury is entitled to every man’s evidence.” However, the sentence seems quite excessive. As Bill notes:

This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime. Sandy Berger, national security adviser to President Bill Clinton, was not sentenced to prison for sneaking documents out of the National Archives, destroying them and then lying to investigators. For his actions, Berger received no jail time, a fine one-fifth of that imposed on Libby and 100 hours of community service.


[Libby] is by no stretch a danger to the community, as “danger” is commonly understood. He did not commit his crime out of greed or personal malice. Nor is his life one that bespeaks a criminal turn of mind. To the contrary, as letters to the court on his behalf overwhelmingly established, he has been a contributor to his community and his country.

In my view, the fact that Libby’s process crime seems to have occurred during a senseless and arguably abusive process — the special prosecutor already knew the answer to the question he was supposed to be investigating — would, when coupled with Libby’s service to the country, support a pardon should Bush decide to grant one. However, Bill’s suggested “middle ground” also has much to recommend it.
JOHN adds: I agree that there is much to be said for Otis’s approach. I think the manner in which Fitzpatrick conducted his investigation, culminating in the indictment of Libby, was a disgrace. At the same time, Libby’s conduct has always seemed incomprehensible. President Bush directed members of the executive branch to cooperate with Fitzgerald’s investigation, and they did. But Libby’s testimony was at odds with that of other executive branch witnesses, as well as journalists. The jury found that he was lying, though for what purpose is hard to understand. Sadly, the evidence seems to support the verdict. So commutation of his jail sentence may be the fairest possible result.
UPDATE by JOHN: At the Corner, Andy McCarthy, a former federal prosecutor, writes thoughtfully about the case, and concludes that Libby’s defenders may not be doing him any favors. While criticizing Fitzpatrick’s handling of the investigation, he defends the jury’s verdict:

The evidence that Libby lied, rather than that he was confused, was compelling. And the jury was dilligent: 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.

While McCarthy doesn’t specifically address the suggestion that President Bush should commute Libby’s jail sentence, I think his analysis is very much consistent with that conclusion.
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