Congress Wants Fitzgerald to Testify

Truthout (Reuters):

Washington - The Senate Judiciary Committee may seek testimony from controversial prosecutor Patrick Fitzgerald about the obstruction of justice case against vice presidential aide Lewis 'Scooter' Libby, two senators said on Sunday.

Sen. Arlen Specter of Pennsylvania, the ranking Republican member of the committee, said he wanted to hear from Fitzgerald because, 'I still haven't figured out what that case is all about.'"...

[Committee Chair Patrick] Leahy said he saw no point in summoning Libby himself because "his silence has been bought and paid for."

Interesting question how far Fitzgerald should go, politics aside, in discussing what he has learned from his investigation, and the basis for his decisions not to prosecute Karl Rove (and perhaps the VP). He has chosen to remain largely silent (in marked contrast to some prior special / independent prosecutors, and has foregone issuing a report. There are solid arguments this is more fair to those investigated but not indicted--a serious problem in some prior high profile investigations. Does, and should, being called to testify for Senate or House inquiries affect those judgments? There is certainly an argument that Congressional oversight implicates somewhat different, and more far-reaching, considerations than a criminal prosecution, which might justify a different judgment.

Fellow law professors: on what basis might Fitzgerald refuse to answer Congressional questions (assuming we don't get to the 5th amendment!)

Conyers Urges Bush to Explain Libby Move

New York Times: WASHINGTON (AP) -- House Judiciary Chairman John Conyers exhorted President Bush Monday to allow top aides to explain to Congress why Bush commuted I. Lewis ''Scooter'' Libby's prison sentence.

In a letter to Bush on Monday, Conyers said the commutation was troubling and could eliminate Libby's incentive to provide information about the administration's role in leaking the identity of former CIA officer Valerie Plame Wilson. ...Conyers, D-Mich., urged Bush ''to waive Executive Privilege and provide the relevant documents and testimony of any relevant aides regarding your decision to commute Mr. Libby's sentence.''

The congressman said that his committee on Wednesday will hold a hearing to ''explore the grave questions that arise when the Presidential clemency power is used to erase criminal penalties for high-ranking executive branch employees whose offenses relate to their work for the President.''

Was Bill Clinton smart to pick a fight with the White House?

Slate Magazine:By John Dickerson

For Democrats, this little episode highlights the promise and peril of a Hillary Clinton presidency. On the one hand, President Clinton spoke for many in the party who are furious about the Libby decision. As Hillary Clinton's team is quick to point out, she and her husband know how to fight. This is proof of it. On the other hand, Clinton has given the White House and Republicans an opportunity to muddy the issue by dredging up his past. Whatever you may think about the merits of the Rich pardon versus the Libby commutation, the debate is one the Bush team wants. The White House would rather have everyone debating the relative merits of the two than debating the inconsistencies in the Libby decision alone.

If Hillary Clinton is elected president, how often will this phenomenon be repeated? With each piece of legislation Hillary Clinton proposes or each assertion she makes, Republicans will offer an analog from the Clinton years. They'd do the same with any Democratic president, of course, but another Democratic president would have an easier time walking away from such attacks. The Clintons will be compelled to answer them. ... The question for Democrats is how much of this friction they will want in the machine in the next Democratic administration.

Where Democrats come down on this question is very important to Barack Obama, who is trying to use Bill Clinton to paint Hillary as a woman of the past. Talking about Clinton, Obama said the country needed to move past the "harsh partisanship and old arguments."

Reviving censure

Needlenose:

A motion to censure the President, however, might be the right tool to cut through the clutter. It would make a simple declaration -- that even if Bush has the technical right to commute Scooter's sentence, in the view of the Congress, he has sent the most corrupting message a president can possibly send to his administration ('If you break the law while working for me, I'll make sure you never spend a day in jail'), and it was morally wrong for him to do it.

It's a message that needs to be sent for future generations, so that Dubya's pseudo-pardon isn't treated as an accepted precedent. On a practical basis, it begins to lay out a public case for a possible impeachment. And on a purely political level, it would firmly establish Bush and his apologists (including the craven supplicants campaigning for the 2008 Republican nomination) on the wrong side of a clear moral divide -- an absolutely essential step in debunking the essential GOP mythology of firm, paternal rectitude.

Rich Pickings: A Profile in Cowardice

New York Times: By FRANK RICH

THERE was never any question that President Bush would grant amnesty to Scooter Libby, the man who knows too much about the lies told to sell the war in Iraq. The only questions were when, and how, Mr. Bush would buy Mr. Libby’s silence. Now we have the answers, and they’re at least as incriminating as the act itself. They reveal the continued ferocity of a White House cover-up and expose the true character of a commander in chief whose tough-guy shtick can no longer camouflage his fundamental cowardice." ...

The only people clamoring for Mr. Libby’s freedom were the pundits who still believe that Saddam secured uranium in Africa and who still hope that any exoneration of Mr. Libby might make them look less like dupes for aiding and abetting the hyped case for war. That select group is not the Republican base so much as a roster of the past, present and future holders of quasi-academic titles at neocon think tanks like the American Enterprise Institute.

What this crowd never understood is that Mr. Bush’s highest priority is always to protect himself. So he stiffed them too. Had the president wanted to placate the Weekly Standard crowd, he would have given Mr. Libby a full pardon. That he served up a commutation instead is revealing of just how worried the president is about the beans Mr. Libby could spill about his and Dick Cheney’s use of prewar intelligence. ...

Asked last week to explain the president’s poll numbers, Andrew Kohut of the Pew Research Center told NBC News that “when we ask people to summon up one word that comes to mind” to describe Mr. Bush, it’s “incompetence.” But cowardice, the character trait so evident in his furtive handling of the Libby commutation, is as important to understanding Mr. Bush’s cratered presidency as incompetence, cronyism and hubris....

In the end, it was also this president’s profile in non-courage that greased the skids for the Iraq fiasco. If Mr. Bush had had the guts to put America on a true wartime footing by appealing to his fellow citizens for sacrifice, possibly even a draft if required, then he might have had at least a chance of amassing the resources needed to secure Iraq after we invaded it.

But he never backed up the rhetoric of war with the stand-up action needed to prosecute the war. Instead he relied on fomenting fear, as typified by the false uranium claims whose genesis has been covered up by Mr. Libby’s obstructions of justice. Mr. Bush’s cowardly abdication of the tough responsibilities of wartime leadership ratified Donald Rumsfeld’s decision to go into Iraq with the army he had, ensuring our defeat.

One keeps thinking the Administration will simply collapse on its own internal rot, which is increasingly evident to even those who prefer not to look.

Except David Brooks, who is quickly walking over the cliff...

For Libby, Bush Seemed to Alter His Texas Policy

New York Times:

“As governor, Bush essentially viewed the clemency power as limited to cases of demonstrable actual innocence,” said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates.

“The exercise of the commutation power in Libby,” Professor Steiker continued, “represents a dramatic shift from his attitude toward clemency in Texas, and it is entirely inconsistent with his longstanding, very limited approach.”...

As president, Mr. Bush has commuted three sentences in addition to Mr. Libby’s and denied more than 4,000 requests, said Margaret Colgate Love, the pardon lawyer at the Justice Department for most of the 1990s. He has also issued 113 pardons and denied more than 1,000 requests. “His grant rate is very low compared to other presidents’,” she said. ...

Even in cases involving juvenile offenders and mentally retarded people, Mr. Bush allowed executions to proceed, saying that he was satisfied of the inmates’ guilt and that they had received a fair hearing.

The United States Supreme Court has since barred the execution of juvenile offenders and mentally retarded people as a violation of the Constitution’s ban on cruel and unusual punishment.

Sacrifice Is for Suckers

New York Times: By Paul Krugman

Back when the investigation into the leak of Valerie Plame Wilson’s identity began, Mr. Bush insisted that if anyone in his administration had violated the law, “that person will be taken care of.” Now we know what he meant. ...

Mr. Bush says that Mr. Libby’s punishment remains “harsh” because his reputation is “forever damaged.” Meanwhile, Mr. Bush employs, as a deputy national security adviser, none other than Elliott Abrams, who pleaded guilty to unlawfully withholding information from Congress in the Iran-contra affair. Mr. Abrams was one of six Iran-contra defendants pardoned by Mr. Bush’s father, who was himself a subject of the special prosecutor’s investigation of the scandal.

In other words, obstruction of justice when it gets too close to home is a family tradition. And being a loyal Bushie means never having to say you’re sorry.

A suitable response by Paul Krugman to David Brooks' insufferable column earlier this week.

Bush and Cheney walk, too

Salon.com: By Sidney Blumenthal

By confessing that Libby was engaged in a cover-up -- after all, that was the verdict -- Bush establishes his own motive. In brief, Bush's act ratifies Libby's cover-up. The 'cloud over the vice president' that the prosecutor decried will never be dispelled. Cheney -- and Bush -- walk, too.

Libby had to have understood, without a word ever being passed, that leniency of some sort would be granted. His steadfast cover-up was encouraged by his intimate knowledge of the methods of Cheney and Bush. The fine he must pay -- $250,000 -- is meaningless because he will certainly not be paying it himself. His legal defense fund, supported by the friends of the president and vice president, boasts a treasury of $5 million. He has been well taken care of.

The pardon is the one monarchical power that the framers of the Constitution assigned the presidency. But they placed one restriction, that it could not be exercised for impeachment. In other words, the president could not use his power to pardon himself. Bush is entirely within his narrow right to use the pardon power in the Libby case. But it violates the spirit, if not the letter, of the law governing that power because it is a consummate gesture of self-exoneration, at least if the vice president is an 'entity within the executive branch.' Bush rewards Libby's cover-up, thwarting the investigation into Cheney's and perhaps his culpability. Bush's commutation is the successful culmination of the obstruction of justice.

Not my favorite source, or my candidate for the most reliable one. But on the subjects of perjury and White House conniving, he presumably knows whereof he speaks.

Now I have to listen to Bill's discourse on Bush's abuses of the pardon power.

I'm tired of these ruling families. Let's try someone else.

A thought for July 4: Prince Charles might be less monarchical.

Soft on Crime

New York Times (Editorials):

When he was running for president, George W. Bush loved to contrast his law-abiding morality with that of President Clinton, who was charged with perjury and acquitted. For Mr. Bush, the candidate, “politics, after a time of tarnished ideals, can be higher and better.”

Not so for Mr. Bush, the president [for whom...] untarnished ideals are less of a priority than protecting the secrets of his inner circle and mollifying the tiny slice of right-wing Americans left in his political base. ...

[I]n this case, Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell.

We have hit bottom

"Superman Scooter"

Harper's Magazine: By Scott Horton

...Moreover, this episode tells us one of the most deeply guarded truths of the Inner Party of the Neocon movement, namely: the ends justify the means. That is, to accomplish a goal accepted by the Inner Party, you are entitled to do anything—break the law, by all means, and indeed set the law into oblivion if you can. That explains the fate of the Geneva Conventions, which were, alas, simply inconvenient—they got in the way of the notion that no rules can stand between us and the accomplishment of our objectives. For the Nietzschean Neocon man (let’s call him Übermensch or perhaps even better, Scooter Libby), there are no rules; they exist for the people of the herd. And that explains the indignation when the rules for the herd are applied against Scooter. ...

I remember one afternoon sitting with Elena Bonner, the doyenne of the movement, in her apartment on Moscow’s Chkalova Street, turning over the case of a poor refusenik who was being persecuted by the KGB. And Bonner lectured me: “You need to remember one tactic of the totalitarian mindset, a tactic that belongs to the basic training of KGB cadres. They frequently accuse their victim of doing exactly what they, in fact, are doing. Why? It has a double utility. It forces the victim to use his meager resources defending himself from false challenges. But more importantly, it deflects attention from their own scheming and plotting.” Well, that turned out to be exactly the case in the matter we were discussing.

And the more I think of the charge of “politics” and the case of Scooter Libby, the more it strikes me that the charge is absolutely true. There is no question whatsoever that the prosecutorial function in the United States has been radically politicized. The Neocons have provided the ideological rationalization for it, and the White House has overseen the process from the beginning. Now Bush’s deus ex machina intervention to save Libby from time in prison should be taken as the ultimate proof of exactly that politicization.

I guess I can't resist observing...

...that Scooter Libby will spend less time in jail than Paris Hilton.

Then again, Paris is apparently less entitled (although she has, cultural pollution aside, caused less serious harm in the world).

Olbermann | White House "Corrupt to the Core," Says Joe Wilson

Olbermann | White House "Corrupt to the Core," Says Joe Wilson

Was Commuting Libby an Impeachable Offense?

Truthout: By William Rivers Pitt

Hovering above all this is one all-encompassing question: did George W. Bush commit a dead-bang impeachable offense by commuting Libby's sentence?

A wise man once said that the life of the law is procedure. There are processes to be undertaken, papers to be filed and forms to be obeyed. In this commutation, no procedures whatsoever appear to have been followed. The haste in which this action was undertaken smacks of fear, desperation, and of a cover-up in process.

Consider the factors.

Libby's legal defense from the first day of his trial was that he was a fall guy taking the rap for others.

Fitzgerald pointedly stated that the details surrounding Libby's actions put a cloud of suspicion over Vice President Dick Cheney.

Combine these two details and you wind up with Libby standing as a patsy taking the rap for Cheney.

Bush has the constitutional power to offer commutations, of course. But if this commutation was granted to Libby in order to derail a criminal investigation, if it was granted to cover up prior or ongoing criminal activities, that is itself a crime meriting the impeachment of George W. Bush.

This, more than anything else, must be investigated.

Senator Leahy, Representative Waxman, Representative Conyers and any other Congressional chairmen must absolutely and actively work to get to the bottom of this. If doing so requires immunizing Libby to secure his testimony, so be it. Calling Patrick Fitzgerald to testify on these matters is likewise required; the idea that he can safely continue to refuse comment must be dismissed. Fitzgerald cannot make statements about clouds over Cheney, in light of this new situation, and still be allowed to stand in silence. The lawyers assembling Joe Wilson's civil suit should subpoena Libby into a deposition room and grill him, whether or not he stands on his 5th Amendment rights.

It would appear that I am not the only crackpot thinking in these terms.

The Opinionator on the Commutation

The Opinionator - New York Times Blog:

As George Washington law professor Orin Kerr writes at The Volokh Conspiracy, “President Bush has set a remarkable record in the last 6+ years for essentially never exercising his powers to commute sentences or pardon those in jail. His handful of pardons have been almost all symbolic gestures involving cases decades old, sometimes for people who are long dead.” Ohio State law professor Douglas Berman wonders whether Bush’s empathy for Libby’s plight could, just maybe, lead Bush to reconsider his support for long prison terms for all people not named Scooter Libby who have been convicted of federal crimes. On his Sentencing Law and Policy blog, Berman writes of President Bush:

I now hope that he will instruct all members of the Department of Justice to demonstrate similar compassion for other defendants sentenced under the federal sentencing guidelines. After all, it seems the President views a significant fines and probation and harm to reputation and family as “harsh punishment.” I am sure a number of defendants now appealing punishments that include also a prison term will be glad to have the top executive now defining what sorts of alternatives to imprisonment are sufficient in his view.

Impeach the Bastards

So, yes, the President has an undoubted Constitutional power to grant pardons and commutations of sentence.

But suppose, just hypothetically, a pardon or commutation is offered as part of a conspiracy to secrete information relevant to an ongoing criminal investigation, or an investigation into actions that may provide the basis for impeachment of one or more high public officials (say, again hypothetically, a Vice President).

To get (very slightly) less hypothetical, suppose Mr. Libby's conviction rests on perjury and obstruction of justice aimed to cover up potentially impeachable actions of The Dick and/or his nominal boss, he of the initial "W". Suppose further that Mr. Libby's commitment to remaining silent was thought to be tested by his (rapidly) impending change of address. (Perhaps his wavering commitment was even communicated to persons allegedly serving in the "Executive Branch".) Finally, suppose that the commutation of Mr. Libby's "excessively severe" 30-month prison term (reduced to a somewhat less severe zero, perhaps with additional understanding that a full pardon would follow after the 2008 elections) would be understood to enhance the likelihood that Mr. Libby would not be inclined to discuss these matters further.

My understanding, as a non-specialist, is that the undoubted Constitutional authority of legislators to cast votes on matters before Congress does not in and of itself (pesky matters of the "speech or debate clause" aside, to avoid complicating matters in the purely legislative--and, of course, Vice-Presidential-- contexts) immunize such persons from investigation and conviction of bribery charges.

There remain, of course, some matters of evidence to be pursued. But isn't that what the House Judiciary Committee's investigative authority (pursuant to an impeachment inquiry) are for?

Or did I miss something in Civics class?

Impeach them all...

WASHINGTON (AP) -- President Bush spared former White House aide I. Lewis ''Scooter'' Libby from a 2 1/2-year prison term on Monday, issuing an order that commutes his sentence.

This is a breaking news update. Check back soon for further information. AP's earlier story is below.

Court Rejects Request to Delay Libby’s Sentence

New York Times:

WASHINGTON (AP) -- A federal appeals court refused on Monday to step in and delay former White House aide I. Lewis ''Scooter'' Libby's prison sentence in the CIA leak case. ...

''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.''

File under, "Possible new uses for Gitmo."

Enron Internet Chief Gets 27-Month Prison Term

From The New York Times:

HOUSTON (AP) — The former chief of Enron Corp.’s high-speed Internet unit, who turned government witness and testified in the trial of former Enron CEO Jeffrey Skilling and company founder Kenneth Lay, was sentenced Monday to 27 months in prison.

Before sentencing, Rice apologized for his role in the corporate scandal.

“I’m sorry. I wasn’t raised that way and I’m ashamed of that,” he said, beginning to cry. “I’m committed to turning my life around.”

Lay and Skilling were convicted last year for their roles in the company’s collapse. Skilling is serving a sentence of more than 24 years. Lay’s convictions for conspiracy, fraud and other charges were wiped out with his July death from heart disease.

Enron, once the nation’s seventh-largest company, entered bankruptcy proceedings in December 2001 after years of accounting tricks could no longer hide billions in debt or make failing ventures appear profitable.

The collapse wiped out thousands of jobs, more than $60 billion in market value and more than $2 billion in pension plans.

27 months in prison! And Lay didn't even go to jail. What an injustice.
12 famous constitutional lawyers are lining up to write a brief.
Pardon now!

Naming names: I have the 12

Professors Back Libby on Appeal - The New York Sun:

Mr. Dershowitz's presence on the brief is perhaps most notable because the Harvard professor has been viewed in many quarters as political liberal, at least until recently. Many of the other scholars who joined in are known libertarians or conservatives, such as a failed Supreme Court nominee of President Reagan, Robert Bork, who taught at Yale.

The remaining professors joining the brief were Vikram Amar of the University of California Hastings, Randy Barnett and Viet Dinh of Georgetown, Douglas Kmiec and Robert Pushaw of Pepperdine, Richard Parker of Harvard, Gary Lawson of Boston University, Thomas Merrill of Columbia, Earl Maltz of Rutgers, Robert Nagel of the University of Colorado.

The legal question centers on whether a 1988 Supreme Court decision, Morrison v. Olson, which upheld the constitutionality of a now-expired independent counsel statute, renders Mr. Fitzgerald's appointment lawful. Mr. Fitzgerald was appointed to resolve potential political conflicts of interest in the Justice Department. He was subject to removal by the acting Attorney General, but was not under the department's day-to-day supervision.