Law, Justice, and Libby

Last night, President Bush partially commuted Lewis “Scooter” Libby’s sentence for perjury and obstruction of justice, dispensing with the prison term but leaving intact the fine, probation, and other sanctions that go with being a convicted felon. He did so mere hours after Libby’s request to remain free on bail while his appeal was being prepared was rejected, and the former vice-presidential aide was getting ready to go behind bars.

There was a LOT of heat in the piece I posted last night announcing it, and at the time I refrained from expressing an opinion. I wanted to sleep on it, to let my subconscious toss it around and work at it and come up with tangible reasons to justify my gut reaction.

And that reaction was agreement.

I didn’t follow the Libby case as closely as many did, but I did come away with a few impressions from the whole hullabaloo.

First up, I think that Special Prosecutor Fitzgerald’s investigation went on far, far longer than necessary. The two key elements that needed uncovering were: 1) who first revealed Valerie Plame’s identity as a CIA operative, and 2) was that a crime. Once those two facts were established (“Richard Armitage” and “apparently not” were the two answers), the investigation should have folded. After all, prosecutors exist to prosecute crimes and criminals, and here there apparently wasn’t a crime at the root of the matter.

Libby’s crime, as I understand it, was that his accounts of conversations he had conflicted with those of other witnesses, and those other witnesses’ accounts were deemed more credible. Further, several of those witnesses had contradictions in their own accounts that Libby’s lawyers were not allowed to explore.

Libby’s career is pretty much over. A convicted felon, he still has to serve his probation, pay his fine, and live the rest of his life unable to cast a vote or do so many other things that we all take for granted.

Under the law, Libby’s sentence was valid. It was within the established legal guidelines, and there were no gross errors in his trial. (There were many lesser details that are prime fodder for his appeals, but nothing flagrantly, indisputably wrong.)

But “legal” and “just” are not always synonymous. In our legal system, I believe, they come closer than any other system in the world today or ever, but they are not perfect. And I don’t believe that Libby’s deeds merit prison time.

When the law crosses paths with those in high office, things get very muddy. There are many conflicting principles.

The first is that the law must be enforced equally, to all people.

The second is that those who hold high office must be held to much higher standards than ordinary citizens. They are entrusted with great power, and the temptations to abuse that trust are commensurately greater. Therefore, the penalties for violating them should be that much greater.

The third is that the law is considerably more complex and convoluted when it comes to those who hold high office. Whether or not something is legal or not is often very difficult to determine; it depends on fine details such as “intent” and just who is doing the deed. For example, if a person gives a reporter a highly-classified report, that is a crime — unless that person has been told to do so by the president, who has the authority to declassify anything at his whim.

And then there is the issue of precedent. The courts put tremendous stock in what has gone before, and use those prior cases as guidelines in dealing with current matters. And the legal sanction of politicians has a very, very erratic history.

Just in the last 40 years, a lot of politicians have run astray of the law — and some who probably should have didn’t.

Some of what Lyndon Johnson did probably merited some criminal penalty — but instead he retired in disgrace, seen by many as the most reviled president in history (at that point).

Richard Nixon was most likely guilty of crimes that should have put him behind bars, but Gerald Ford believed (and rightly, in my opinion) that the nation was best served by his resignation in disgrace and ending the matter there. Quite a few of his top aides did go to prison, though, and I think that they deserved it.

In the last days of his presidency, Ronald Reagan issued pre-emptive pardons to many figures in the arms for hostages scandal. In that case, I agreed. Unlike in Watergate, their deeds were aimed at freeing Americans held prisoner, unlike the Watergate figures, whose motives were purely venial.

And let’s not forget Bill Clinton’s lying under oath in a civil disposition, a lie designed solely to protect his own ass and prevent Paula Jones from receiving the justice she was due. He was not convicted by the Senate after the House impeached him, but the facts are indisputable — he DID lie under oath, he has admitted as such, and was disbarred for doing so.

In more recent times, former congressman Randy “Duke” Cunningham was convicted and sent to prison for 8 1/3 years for gross corruption. I disagree with that sentence; it should have been longer.

Representative Mark Foley was forced to resign in disgrace, but escaped prosecution because he was careful enough to keep his predations just barely within the letter of the law. Had he been put behind bars, I would have cheered.

Representative William Jefferson Clinton has yet to be convicted, but the evidence I’ve seen is damning — considerably more damning than that against Foley, but Jefferson’s crime is far less morally offensive than Foley’s deeds. Should he be convicted, he needs to spend as much time as possible as a guest of the government — preferably, turning big rocks into small ones.

And if any political figure deserved to spend some time behind bars in recent years, it has to be former National Security Advisor Sandy Berger, who stole documents from the National Archives related to the Clinton Administration’s handling of terrorism. I still believe Berger committed espionage during a time of war, and got off with a slap on the wrist. And he’s never given any explanation for his deeds, silently accepting sanctions and penalties instead of speaking in his own defense. I would dearly love to see him brought forward under a grant of immunity, compelled to speak or face jail time under a threat of contempt, to explain just what he did, what he took, and why — but that, alas, will never happen.

Another factor in the Libby case is the sheer hysteria that has surrounded the Bush administration since the 2000 election. There have been cries for the arrest, impeachment, and even lynching of pretty much the entire administration. The criminalization of politics has been a horrifically corrosive element, and a logical consequence of decades of those who can not win their way at the ballots turning to the courts for relief. (Another effect of this was gay marriage advocates in Massachusetts first bypassing the people and getting the state’s supreme court, by a 4-3 vote, to institute gay marriage, and subsequently using every means and mechanism to prevent a popular vote on the issue — so far, successfully.) At some point, the “boy who cried wolf” factor comes into play, and the public will grow tired of they shrill cries of “indict Karl Rove!” and “impeach Bush!” and “impeach Cheney!” — lord knows I did a long time ago.

The cynic in me wonders if one factor driving the hysteria is the need to draw attention from the misdeeds of the administration’s political foes. For example, Dianne Feinstein had to resign from a very influential committee after it was revealed that she had voted literally billions of dollars to companies controlled by her husband — but you never hear about that these days. And while everyone is talking about Fred Thompson’s son being a lobbyist, it’s not discussed that Harry Reid’s son is in the same business — and was involved in a few questionable deals that involved his father, and could stand some scrutiny as well.

Anyway, Bush did not pardon Libby. He only set aside a portion of his sentence. The sole real consequence of his deed is that Libby will remain free while he seeks his appeal. He is still a convicted felon today.

And I think that is just.

(Update: Sandy Berger paragraph added half an hour after first publication)

(Update 2: and somehow I did manage to overlook Bill Clinton’s perjury — thanks, jmr, for calling attention to my flagrant oversight.)

Bless the Beasts and the Children
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