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Scholar: A longer jail term for Libby would be 'reasonable'
Michael Roston
Published: Wednesday July 11, 2007
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In a House Judiciary Committee hearing Wednesday on the commutation of the jail sentence of former top White House adviser I. Lewis "Scooter" Libby, a top scholar of federal sentencing policy argued that a longer jail sentence for Libby would have been reasonable, contradicting President Bush's claim that it would have been 'excessive.'

"The stated reasons that President Bush gave for commuting all of Libby's prison time are hard to understand, perhaps even harder to justify," argued Douglas Berman, a law professor at Ohio State University who also produces the Sentencing Law and Policy blog..

"Under existing precedent, the DC Court of Appeals would have considered Mr. Libby's 30 months prison term, and even a longer term set within the guidelines presumptively reasonable under appeal," he added.

Berman made his statement in a session that probed the President's clemency authority under the Constitution, hearing from a group of witnesses both inside and outside of government.

Conyers: Wish Fitzgerald and the White House were here

Rep. John Conyers (D-MI), the committee's chairman, warned that the President was creating a new class of people protected from justice by commuting Libby's sentence.

"The idea that no man or woman is above the law is firmly embedded in our nation's founding documents and underlies the entirety of the criminal justice system," said Conyers.

The Michigan Democrat added, "When clemency is granted outside the normal pardon system, and particularly when it's issued to the President's own administration, that fundamental concept is called into question."

He went on to note that the hearing was missing key witnesses, such as Special Counsel Patrick Fitzgerald who prosecuted Libby and declined to attend the hearing, as well as White House officials who were involved in the decision to commute Libby's sentence.

The Michigan Democrat also rejected the idea that President Bill Clinton's pardons at the end of his administration, particularly of financier March Rich, established precedent for President Bush's action.

"I did not support that action, but whatever its demerits were, it was investigated in four separate hearings in the Senate and the House, and it did not implicate someone who worked in the White House," he said.

Rep. Lamar Smith (R-TX), the ranking minority member of the committee, appeared to brush off Conyer's statement, providing a laundry list of what he believed were illegitimate pardons by Clinton. But after calling Clinton the 'Prince of Pardons,' he said the Congress's power could not interfere with the clemency power under the Constitution.

"Neither I, nor any Congress, can limit that power," the Texas Republican insisted.

Instead, he accused the Congressional Democrats of distracting the committee from "the people's business."

"Here we are spending time and resources that could be better used focusing on the needs of the American people," he argued. "Protecting our country from terrorist attacks....securing our borders and reducing illegal immigration, investigating gang violence and violent crimes which is on the rise, and protecting our children from sexual predators on the internet."

Wilson: President Bush is obstructing justice

Ambassador Joseph Wilson, whose wife Valerie Plame's status as a covert CIA agent was outed by various Bush administration officials, criticized the President strongly for commuting Libby's sentence to 30 months in prison for committing perjury, obstructing justice, and making false statements to a federal investigation.

"In commuting Mr. Libby’s sentence, the President has removed any incentive for Mr. Libby to cooperate with the prosecutor," he argued. "The obstruction of justice is ongoing and now the President has emerged as its greatest protector....The President, at the very least, owes the American people a full and honest explanation of his actions and those of other senior administration officials in this matter, including, but not limited to the Vice President."

Roger Adams, an career government attorney in the Office of the Pardon Attorney the Department of Justice also testified. His remarks outlined the standard procedure for presidential consultation with the Pardon Attorney prior to issuing clemency to criminal convicts. He seemed to hint that the President's commutation of Libby's sentence was unusual.

"The President is free to grant a pardon or commutation without the involvement of the pardon attorney or anyone else in the Justice Department," he stated. "However, my testimony outlines a more common situation when my office is involved."

Adams was followed by Tom Cochran, a public defender who represented Victor Rita, who recently had his 33 month prison sentence upheld by the Supreme Court. Cochran noted that Rita was convicted of perjury, obstruction, and making false statements under similar circumstances with Libby.

But, he noted, "Despite all these similarities, Mr. Rita is in jail, and Mr. Libby is not."

He criticized Bush, adding, "The Presidents actions placed his absolute presidential pardoning powers at odds with his own Solicitor General's successful arguments before the Supreme Court.

David Rivkin, a private attorney who worked in the George H.W. Bush administration and has often defended the current president in the press, argued that the president's clemency authority was an important corrective for injustice.

"It is an extraordinary remedy that the President exercises when he believes it to be in the best interests of justice," he argued. "This does not by the way impugn our criminal justice system, which I believe is the most defendant friendly in the world, and certainly fairest. But any rule-based system inevitably produces aberrant results."

He went on to argue that the Libby prosecution was 'irredeemably tainted' because the appointment of independent special prosecutors always leads to skewed results.