E.J. Dionne announces that he’s enraged that President Bush commuted Scooter Libby’s jail sentence. Last week Dionne was enraged about the Supreme Court’s ruling that the McCain-Feingold Act is unconstitutional when applied to bar an ad asking folks to urge their Senator not to filibuster judicial appointments. As I noted here, Dionne’s column contained no legal analysis and betrayed no understanding of the decision that had him so worked up.
Similarly, Dionne’s latest outpouring of anger shows no understanding of clemency issues. Dionne tries to apply sentencing law to the commutation of Libby’s sentence. Thus, he writes that Bush’s action “left experts in sentencing law scratching their heads.” But sentencing law only applies when one is imposing a sentence; the sentencing guidelines have no applicability when the question is commuting a sentence. Dionne’s argument is a bit like complaining that Clinton’s pardon of Marc Rich over tax evasion charges had tax law experts scratching their heads, or that Carter’s pardon of draft dodgers showed an inadequate understanding of the selective service laws.
As part of his statement on clemency for Libby, Bush did state that the sentence was excessive. But he made it clear that other factors were at play (he mentioned Libby’s public service and the unusual nature of the prosecution). Bush never said that absent these other factors he would have commuted the entire jail sentence. (According to Andy McCarthy, though, there’s a case to be made under the sentencing guidelines for sentencing Libby only to probation).
Having failed coherently to analyze the merits, Dionne proceeds to drink the Kool-Aid of conspiracy theory. He cites approvingly the suggestion of left-wing blogs that, by not pardoning Dionne, Bush avoided the prospect of Libby testifying before Congress at this time. He also says that, by commuting the sentence, Bush removes the incentive for Libby to give the prosecutors new information.
As to the former point, Bush’s action merely delays any congressional appearance by Libby until his appeal is decided, which likely will occur next year. That’s a more advantageous time for the Democrats, whose interests are always Dionne’s paramount concern.
As to the latter point, whatever incentive Libby might have had to “help” the prosecutors vanished a while ago. In any case, nothing supports Dionne’s assumption that he had anything he honestly could offer them. Nothing, that is, other than Dionne’s partisan-based outrage.
UPDATE: Dionne isn’t the only one whose partisanship blinds him to a proper understanding of this matter. As one reader notes, Bill Clinton has asserted that it is inappropriate to commute the sentence of someone who has stood trial because “there are guidelines for what happens when somebody is convicted,” but it is fine to pardon a fugitive like Marc Rich to prevent the government from bringing him to trial. I had always thought there were guidelines for what happens when one is under indictment. And I had naively assumed that becoming a fugitive compounded the offense, not that it made one a better candidate for clemency.
In any case, our reader wonders, rhetorically, whether one can assume that Clinton would not have objected to a pretrial pardon of Libby.
JOHN adds: Here is a less scholarly take on Clinton’s hypocrisy, from cartoonist Glenn McCoy, via Townhall. Click to enlarge:
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