Bush Refuses to Rule Out a Full Pardon for Libby

Jeralyn Merritt: Bush's arrogance is apparent from the extent to which Scooter's clemency decision departs from Justice Department guidelines on pardons and clemency.
This post, written by Jeralyn Merritt, originally appeared on The Huffington Post

UPDATE: Bush says he hasn't ruled out a full pardon for Libby. For footage of the Decider scroll down and click "read the rest of this post on the flip side" at the end.

President Bush's commutation of I. Lewis "Scooter" Libby's sentence is simply stunning, both in its hypocrisy and its arrogance.

His spokespersons had assured the public he would not interfere in the judicial process until the appeals court had decided the merits of his appeal.
"Scooter Libby still has the right to appeal, and therefore the president will continue not to intervene in the judicial process," said White House spokeswoman Dana M. Perino. "The president feels terribly for Scooter, his wife and their young children, and all that they're going through."
Here's Tony Snow, asked about a pardon at his press briefing yesterday: "What the President has said is 'Let the legal process work itself out.' We're just not engaging in that right now."
Yet, hours after the D.C. Court of Appeals denied an appeal bond for Libby, the President acted, not by granting Libby a pardon, but by commuting his jail sentence.

His stated reason for the commutation reeks of disingenuity.
Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.
I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.
Bush didn't just reduce Libby's prison term to a lesser amount that was not, in his view, excessive. He eliminated it altogether.

While the Probation Report itself is not public, my review of the pleadings referencing it and the sentencing hearing transcript in the case indicates the Probation Department didn't recommend that Libby spend no time in jail. It found his sentencing guideline range to be 15 to 21 months (instead of 30 to 37 months) and it found the presence of factors that warranted the Judge considering departing below the guidelines. It stated that if the Judge agreed those factors were present and warranted a lesser sentence, the final sentencing range could (not should) drop to a level allowing for either a split sentence of prison and home detention or straight probation.

Judge Walton, in sentencing Libby, carefully considered the grounds for departure before concluding they didn't negate the need for a prison sentence. He's the Judge, that's his call. His decision was subject to review by the Court of Appeals. Bush's decision to short-circuit the process rendered both the Judge's sentencing decision and appellate review of it meaningless.
Jeralyn Merritt is a criminal defense attorney in Denver. She served as one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City Bombing trial. She has been a television legal analyst since 1996, most frequently appearing on MSNBC and Fox News, and is the creator and principal author of the weblog, TalkLeft: The Politics of Crime.)
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