Double Instinct

With the ruling by a three-judge panel that Scooter Libby cannot defer his jail sentence pending appeals, the pressure on President Bush to pardon his VP's former Chief of Staff is about to increase astronomically. The panel was majority Republican (as was the prosecutor and the trial judge), so it will be difficult to label this a partisan move (though I have no doubt people will try).

So, will Bush pardon Libby? I think so.

Two instincts, I think, are in play here. The first is loyalty. Many of Libby's prominent defenders have tried to impress upon Bush's reputed sense of loyalty to his subordinates to press for a pardon:

“I hope it puts pressure on the president. He’s a man of pronounced loyalties and he should have loyalty to Scooter Libby,” said former Ambassador Richard Carlson, a member of Libby’s defense fund. “It would be a travesty for him to go off to prison. The president will take some heat for it. So what? He takes heat for everything.”

Bush's famous loyalty is not unlimited--while he expects unconditional support from his underlings, he has been willing to throw some of his people to the wolves if it would help him with his base (e.g., Harriet Miers). But nonetheless, the President has stood by many of his appointees and associates long after most administration's would have given them the heave-ho. Alberto Gonzalez and Donald Rumsfeld would be the most prominent names here, but there are others.

The second instinct, which I think conditions the first, is the President's vindicative attitude towards Democrats. If there is one governing principle of this administration, it is that he loves to stick it to the Democratic Party at every possible opportunity. It overrides his national security interest (e.g., Department of Homeland Security), it overrides his political interests (his targeting of friendly, moderate Democrats in the 2002 election)--whatever the situation, Bush loves to cause pain to the left. And with his poll numbers in the low 20s with no hope of resurrection, I believe this bitterness will only increase his lashing out.

That's what makes the pardon more likely than not. Bush cuts loose his subordinates only when they draw anger from his right flank. Libby's crimes are being trumpeted by the left. But Bush doesn't care about what the left thinks. Hell, at this point, he doesn't care what anybody thinks--the dead-end 25 percent who still supports him probably would still stand by him if al-Qaeda occupied New York. So what's to stop him? Bush revels in seeing impotent liberal rage. Now that the Democrats control Congress, that rage is not so impotent anymore. But a pardon is something they can't do anything about. Pardoning Libby gives Bush one last hit of the heady, early days. And that's why he'll do it.

It Was The Drugs, Man

William Otis on the 30 months sentence for Scooter Libby:

Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison. He 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.... This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime.

Eric Muller calls this argument "garbage", noting that in other manifestations Otis is a strong proponent of strict adherence to sentencing guidelines--in which case 30 months was at the bottom of the suggesting sentencing range. It's funny how the "fairness" of the system becomes suspect when the powerful are the one's ensnared.

But for my part, I wish to point out the seeming outlier in the passage "first offender convicted or a nonviolent and non-drug-related crime." There really is no standard of justice in which a "first offender convicted of a drug-related-crime" should substantially increase the sentence over comparable, non-drug-related crimes. To be sure, there are some non-violent but drug-related-crimes which arguably should carry prison sentences (dealing, perhaps), but then, there are some non-violent non-drug-related crimes which should do the same (fraud, money laundering). However, the sentence enhancements we see for mere possession crimes are ridiculous bordering on absurd.

In general though, it galls me to think that a public servant's breach of the public trust on an issue not of sex, but of national security, should be considered less serious than, say, a first time crack possession offense (which, FYI, carries a mandatory sentence double that of Libby's). I don't believe in mandatory sentencing guidelines, because I believe context is a serious component of all criminal cases, and I think it's important to take it into account. Certainly, I've seen cases where judges use their discretion to assign absurdly low or high punishments. But far scarier than abuses of discretion that lead to injustice is the possibility that judges won't be able to avoid an injustice that is before their and every observer's own eyes. That's the promise of mandatory sentencing guidelines, and in the case of Crack Cocaine (among other crimes) it is the everyday reality.

Help Wanted

Vikram Amar, Randy Barnett, Robert Bork, Alan Dershowitz, Viet Dinh, Douglas Kmiec, Gary Lawson, Earl Maltz, Thomas Merrill, Robert Nagel, Richard Parker, and Robert Pushaw--a very notable set of legal luminaries--have all petitioned to file an amicus brief in the Scooter Libby case, arguing that the appointment of Special Prosecutor Patrick Fitzgerald is a close constitutional call. In granting the request to file the brief, Judge Reggie Walton wrote the following footnote:

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. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Heh.

For what it's worth, Dershowitz and Amar would probably call themselves liberals, while Bork, Dinh, & Kmiec are definite conservatives, and Barnett is a libertarian. I know nothing of the others.

The Big News

Okay, I blogged it--Scooter Libby found guilty. Honestly, if you heard it here first, there's a problem. Us small bloggers have a problem in stories like this--there's little for us to add, but it feels weird to just ignore the issue.

This issue of Libby as the fall guy is a little more interesting, at least. The meme floating around the liberal blogosphere is that Libby was protecting Cheney, and it seems the jurors are of that mind as well.

Oh, and the National Review's immediate response was to demand a pardon. Because (I swear I'm not making this up), the only thing Libby was guilty of was being part of an executive branch that wasn't "unified" enough.