Bush's Saving of Insider Libby Destroys Tradition, Abuses Presidential Power

By Erwin Chemerinsky

      The unmistakable message of President Bush's commutation of I. Lewis Libby's sentence is that breaking the law is fine so long as you work in the White House. Bush's action is one of the worst uses of the pardon power in American history because it excuses a serious abuse of government power.
      Libby was convicted by a jury in the District of Columbia of lying to a federal grand jury that was investigating the actions of top government officials in revealing the identity of covert agent Valerie Plame Wilson. Testimony at the trial showed that Libby, his boss Dick Cheney, and Karl Rove orchestrated the outing of Valerie Wilson to punish her husband, Joseph Wilson, for revealing that key aspects of the president's State of the Union message which stated that Iraq had attempted to obtain uranium from Africa were false.
      Libby lied about this to a grand jury. He was convicted of perjury and obstruction of justice. Jurors interviewed after the trial expressed sympathy for Libby but made clear that they had no doubt that he had acted illegally.
      In sentencing Libby, U.S. District Judge Reggie Walton emphasized that he had abused his office by destroying the career of a secret operative and lying about it to the grand jury. President George H.W. Bush once said that nothing is more despicable than revealing the identity of a secret operative and putting that person and others in danger. But that is exactly what Libby and others did. In part because of the egregiousness of this conduct, Walton imposed a sentence of 30 months in prison, to begin almost immediately.
      On July 2, 2007, the federal appeals court affirmed Walton's order that Libby report to prison. Bush immediately commuted Libby's sentence so that he would never spend a minute imprisoned as punishment for his crimes. In fact, on Tuesday, Walton issued an order requesting clarification, including from the president, about whether the effect of commuting the sentence is also to void the punishment of two years of supervised release.
      The president unquestionably has the power under the constitution to pardon anyone accused or convicted of a federal crime. This includes the ability to commute sentences. But rarely have presidents used such authority to pardon or commute sentences for their aides. For example, none of the many people convicted in the Watergate cover-up was pardoned by President Nixon. G. Gordon Liddy was pardoned by President Carter after having spent 4½ years in prison for refusing to testify. But not one of the individuals involved in the Watergate break-in or cover-up received a pardon. Nor did those convicted in the Teapot Dome scandal of the 1920s. There has always been a sense that the president is wrong to use the pardon power to protect aides from punishment for illegal acts.
      Nixon was pardoned by President Ford, but that was different. Ford understandably believed that pardoning Nixon could help heal a nation that had been divided by the Watergate scandal for two years and help to move the nation forward. Libby's pardon serves no such purpose. It is nothing more than an attempt to keep a loyal White House official from going to prison. This is wrong because those who abuse government authority should receive significant punishment in order to deter their successors from using their tremendous power to harm innocent people.
      Commuting Libby's sentence sends the clear message to those working at the top levels of the White House, now and in the future, that they can violate the law to advance the political goals of the administration, secure in the knowledge that punishment can be avoided through a pardon or commutation of the resulting sentence.
      Bush said that 30 months in prison was too harsh and that Libby had been punished enough. To my knowledge, this is the first time that Bush has objected to a criminal sentence as being too harsh. A few years ago, I lost a case in the Supreme Court on behalf of a man who received a sentence of 50 years to life for stealing $153 worth of videotapes from K-Mart stores in California. Lockyer v.Andrade, 538 U.S. 63 (2003). He received this sentence even though he had never committed a violent crime. The Bush administration did not object to such harsh punishments but filed a brief urging the Supreme Court to uphold life sentences for shoplifters. Bush has never expressed concern for the thousands and thousands of individuals receiving Draconian sentences for minor crimes under the federal Sentencing Guidelines.
      In fact, those convicted of the same crimes as Libby usually receive prison sentences, generally much longer than the one imposed on him. Three-fourths of those convicted last year of obstruction of justice (one of four crimes for which Libby was found guilty) received prison sentences, with the average sentence for that offense alone being 70 months.
      Republicans were justifiably outraged when President Clinton issued a pardon for Mark Rich before leaving office. The appearance was that the president's friends and contributors were being protected from the legal system. But the pardon for Libby is much worse because Rich was not accused of improperly abusing government power. Unlike Libby, Rich did not put anyone's life in danger.
      Bush's commuting of Libby's sentence is nothing but a cynical exercise of naked power. A jury convicted Libby, a federal judge sentenced him and the appeals court ordered him to report to prison. The president's action makes all of that irrelevant and spares Libby prison because he was a White House insider.
      President Bush should be ashamed.
     
      Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University. He was the attorney for Valerie Plame Wilson and Joseph Wilson in their civil suit against I. Lewis Libby, Dick Cheney, Karl Rove and Richard Armitage.