Biden: Bush administration flip-flops on perjury sentencing
Nick Juliano
Published: Wednesday July 4, 2007
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When President Bush decided this week that longtime vice presidential aide I. Lewis "Scooter" Libby would not face jail time for perjury, his primary justification was that Libby's 30-month sentence was "excessive."

In commuting Libby's sentence, Bush directly contradicted an opinion outlined in a friend-of-the-court brief filed last year by his administration arguing that a 33-month sentence for perjury was "reasonable," a Democratic presidential candidate said.

"The questions we should all be asking ourselves today are: Why is the President flip-flopping?" asked Sen. Joe Biden, D-Del., pointing out the previous case. "Why does Scooter Libby get special treatment?"

In the case, which was decided last month, the Supreme Court upheld the nearly three-year sentence handed down to Victor Rita, a 25-year military veteran, who was convicted of perjery and obstruction of justice. The court ruled that prison sentences falling within federal guidelines established in the mid-1980s can be presumed to be reasonable, as the Bush administration advocated in its brief.

Libby's 30 months fell within the same guidelines, and an appeals court found the sentence to be reasonable and ordered the neoconservative war architect to prison, before Bush's 11th-hour intervention ensured he would never spend a day behind bars.

The Justice Department brief, written by Solicitor General Paul D. Clement, argued in Rita's case that because his crimes were "serious" and he "expressed no remorse at sentencing" the defendant could not show his sentence "is outside the range of reasonableness."

The Supreme Court decision in Rita v. United States only applied to courts' evaluations of prison sentences. President Bush is not bound by the same standard of "reasonableness." He is free to pardon or commute the sentence of any federal inmate, although he has exercised that power less than any of his predecessors.

Libby was convicted of lying to investigators examining the exposure of covert CIA agent Valerie Plame's identity by members of the Bush administration. His was the only conviction handed down in the probe. Bush also cited Libby's "years of exceptional public service" in justifying his decision to commute the sentence.

Rita was convicted of perjury because of his role in an investigation by the Bureau of Alcohol, Tobacco and Firearms, when he spoke to agents about buying gun-parts kits from the target of their investigation, according to a Medill News Service article. During testimony before a grand jury, he gave answers that were "contrary to his literal actions" and was convicted of perjuy. In his Supreme Court appeal, Rita's lawyers argued his sentence was unfair because the appeals court, bound by sentencing guidelines, failed to take into account other aspects of the case, such as Rita's military service.

The New York Times reported Wednesday that Bush's commmutation of Libby's sentence could throw a wrench into federal sentencing decisions nationwide because the sentence was consistent with those often handed down in perjury and obstruction cases.

“On what legal basis could he have reached that result?” asked Frank O. Bowman III, an authority on federal sentencing who teaches law at the University of Missouri-Columbia, according to the Times. “There is no legal basis.”