Libby, the President and a 1,000-Year-Old Song

President Bush's decision to commute the 30-month prison sentence for former White House official I. Lewis "Scooter" Libby does not generate or beggar intense legal analysis. Like a pardon, a president's decision to commute punishment may have legal consequences -- in this case, Lucky Libby won't have to set foot in prison while he fights his convictions on appeal -- but at bottom it's a purely political maneuver pushed along by motivations and calculi that are beyond my pay grade. It's the president's call to make, and no one can do anything about it once it's made.

So, ultimately, you will have to judge whether you agree with President Bush's assessment that the interests of fairness and justice have been served by allowing this convicted felon, Libby, the sort of leniency that eluded Martha Stewart and hundreds of other folks who have been convicted of obstructing justice and committing perjury during a federal investigation. Me? All I could think about when I heard Libby's good news was the old spiritual song "Dayenu," sung at Passover dinners for more than 1,000 years. "It would have been enough for us" is the theme. Here goes.

Had President Bush commuted Libby's sentence and not allowed the Vice President's office to avoid its reporting responsibilities to the National Archives' Information Security Oversight Office, it would have been enough for us.

Had the president allowed Dick Cheney to contend that the Vice President's office is not part of the executive branch and not asserted executive privilege to block a Congressional investigation into the firing of U.S. Attorneys last year, it would have been enough for us.

Had the president asserted executive privilege to protect Karl Rove and former White House counsel Harriet Miers from offering truthful, relevant testimony about the prosecutor purge and not protected his incompetent attorney general Alberto Gonzales, it would have been enough for us.

Had the president protected his hapless Attorney General and not allowed unauthorized domestic surveillance in violation of the Foreign Surveillance Intelligence Act it would have been enough for us.

Had the president permitted and encouraged the use of warrantless domestic surveillance and not permitted his subordinates to rely upon the 2002 torture memo to abuse terror suspects, it would have been enough for us.

Had the president allowed the military to employ torture methods when interrogating terror suspects and punished all of those responsible for the terrible abuses at the Abu Ghraib prison in Baghdad, it would have been enough for us.

Had the president protected all those responsible for the cruelty and depravity at Abu Ghraib and closed down the detention facility at Guantanamo Bay, it would have been enough for us.

Had the president kept Gitmo open and ensured that the detainees there get reasonably fair trials, it would have been enough for us.

And had the president blocked the detainees from getting reasonably fair trials and punished those responsible for leaking Valerie Plame Wilson's name to the public, it would have been enough for us.

By Andrew Cohen |  July 3, 2007; 10:09 AM ET
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This article was listed under Obama.....I do not see his name mentioned in the article...or am I in the Twilight Zone....LOL

Posted by: LOST | July 3, 2007 10:31 AM

No, it would not have been enough.

Posted by: | July 3, 2007 10:51 AM

That's just what we know now. I'm sure there's much more to be aired later. Sad thing is, we have over another year of it. It won't be hard for our next president to rise above this one. Who elected this idiot?

Posted by: ADW | July 3, 2007 11:11 AM

Enough is enough.

Posted by: katman | July 3, 2007 11:23 AM

What i find interesting is that the President said this was too ahrsh a sentence.

When he was governor of Texas he had no qualms about executing criminals and was quite proud of not coddling criminals.

I guess none of the criminals in Texas had suffering families or were friends of GW

Posted by: Annandale, VA | July 3, 2007 11:28 AM

It doesn't matter what Bush does anymore. His and his administration's credibility is shot. He keeps wanting to be compared to Winston Churchill. Well, now terrible Presidents will be compared to G.W. Bush.

Posted by: Sarah | July 3, 2007 11:35 AM

Thanks for a break from a solid day of completely predictable remarks from all sides.

Not that I agree that any of it would have been enough for me.

Posted by: Chris Fox | July 3, 2007 11:36 AM

Isn't it true that Bush had the option of reducing Libby's prison time rather than zeroing it out completely?

Posted by: TexLex | July 3, 2007 11:44 AM

And to add the most heinous insult to injury, he had a number of prominent law school professors who apparently cobbled together a not well-written brief in support of Libby, which the court immediately and angrily rejected, BUT ALL HIS MILLIONS IN LEGAL FEES, THE MOST DAMNING ISSUE FOR SOMEONE WHO HAS DONE WHAT HE HAS DONE-OBSTRUCTED JUSTICE-ARE BEING PAID OFF IMMEDIATELY, BY PERSONS WHO ARE LAWYERS AND CANDIDATES FOR PRESIDENT.

And now, Libby will take a job in a think tank (or go back to the one he was working in AFTER he was indicted) and it will be business as usual-as if his conviction never occurred, for all the real world effect and consequences it will have on him.

Where IS the rationale for having lied to a Grand Jury and then having all the powerful and mighty state what a great and dedicated public servant you are? There is truly a disconnect in that rarefied atmosphere of Republican power and money politics.

Posted by: | July 3, 2007 12:09 PM

One of the ironies here is that Libby was a key player in the Marc Rich pardon in 2000--something that I view as stain on the Clinton presidency. A number of Americans--of both parties--felt that the Rich pardon was the wrong course, and that there was no principle that could be applied to justify the decision other than some incredibly perverted sense of entitlement. And yet, this supposedly highly ethical Libby, who apparently is the ultimate hanger-on to Washington's rich and ethically compromised, gets a job in the White House--a position of public trust . . .

Posted by: JP2 | July 3, 2007 12:13 PM

It belabors the obvious to reiterate how this action demonstrates this administration's utter contempt for the rule of law, when it is meant to be applied to themselves.

As a legal matter, for Bush, Cheney and Libby, the beauty of a commutation rather than a pardon, is that with the latter, since he couldn't be reprosecuted for the same crimes, Libby would lose his fifth amendment protection against self-incrimination if he were called before another grand jury.

Once again, he could be forced to decide whether to commit perjury or tell the truth about his boss's, or bosses', smear of Joe Wilson.

With the appeal still pending, however, he doesn't have to answer to anyone for anything regarding this "pending" case.

Does anyone, anywhere doubt that the pardon will be forthcoming in, say, December 2008?

Posted by: Assistant DA | July 3, 2007 12:24 PM

People, just remember who the crooks and liars were these last seven years next November.

Posted by: | July 3, 2007 12:29 PM

As with Iran-Contra, the coverups have succeeded.

While the press and the nation continue to pat themselves on the back for uncovering Watergate, the GOPpers focused for the past 35 years on sealing those leaks in their dreadnought armada, and have managed to deeply wound the Constitution in the process.

True conservatives weep. Authoritarians and other non-democratic anti-republican (in the deep non-partisan meanings of those words) rejoice.

-- stan

Posted by: Stanley Krute | July 3, 2007 12:44 PM

"TITLE 18 > PART I > CHAPTER 73 > § 1512

§ 1512. Tampering with a witness, victim, or an informant.

Section C

Whoever corruptly--
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object's integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than
20 years, or both"

Seems to me that the in Bush's action is itself a crime.

Posted by: wrb | July 3, 2007 12:48 PM

The American people who voted for "W" got what they deserved: someone in their own image.

Posted by: MJH | July 3, 2007 01:03 PM

There was not rationale for any grand jury, which is why the sentence was commuted. As to the rest, time will tell.

Posted by: Michael Bindner | July 3, 2007 01:06 PM

Thanks for mentioning Martha, why now for deciding that a punishment is too harsh. Now will every Tom, Dick and Harry come asking to have a sentence commuted?

Posted by: Chris M | July 3, 2007 01:09 PM

Michael Bindner-

Why do you say there was no rationale for a grand jury. The CIA asked for it because one of their undercover agents had been outed. That was why the grand jury was called.

Posted by: Chris M | July 3, 2007 01:46 PM

> There was not rationale for any grand jury,

Really? Then what was the rationale for appointing a special prosecutor three months after DoJ began the investigation?

For that matter, why did the DoJ continue the investigation a whole three months before bringing in Mr. Fitzgerald?

And how is a prosecutor supposed to proceed if there is no grand jury to issue subpoenas?

Posted by: TexLex | July 3, 2007 02:14 PM

To the guy who asked about Bush "Who elected this idiot?": Need I remind you? Clarence Thomas did!

Posted by: | July 3, 2007 02:25 PM

The DC Circuit judges who unanimously affirmed that Libby should go to jail were Sentelle, Henderson and Tatel -- Reagan, Bush Sr. and Clinton appointees, respectively. A solid, balanced panel. They did not think that Judge Walton had been too harsh.

Also, I noted yesterday that Bench Conference was going to take some time off this week. Thank you for emerging from your vacation in order to write this piece.

Posted by: TMoore | July 3, 2007 03:23 PM

It's not so surprising that Bush has continued his 2-term policy of not simply lying but lying with arrogance and impunity. But it does continue to be heartbreaking that the American public continues its habit of swallowing every falsehood, bending over for every bold-faced attack on the best American values and traditions, and quickly forgetting every heinous and unethical act committed by this administration -- long before the next election cycle allows them to vote the scoundrels in again.

What would be enough to provoke the sleeping giant to something resembling outrage? What crime would be enough to tear us away from our iPhones and narcotic TV shows and pay attention to what is happening around us long enough to remember that citizenship is also an obligation?

What will future historians make of the astounding capacity of the American people to sit quiet and obedient and drugged, as our so-called "leaders" commit atrocities against the planet, against civil liberties, against working people, against civilian non-combattants and detainees? The question is not "what would have been enough?" The question is "have we Americans simply lost the ability to think for ourselves and draw a line in the sand past which we will not allow these criminals to step?"

Or: Have we grown so alienated from, and therefore indifferent to, the notion that this is supposed to be some kind of democracy that citizenship finally means nothing at all?

The answer, sadly enough, is that this story too will drop from the headlines, we will forget, and things will go on, tragically and shamefully status quo.

Posted by: Giraut | July 3, 2007 04:26 PM

Kind of depressing. Nothing changes. Even the thugs are convinced of their own righteousness. I think Thomas Swift wrote about this way back in the 1600s. As I watch the fireworks tonight, I'll be reminded of the principles this country was founded on. But I won't be able to brush away the thought that if we had stayed a colony of Britain, perhaps we wouldn't have had a civil war (war of northern aggression), as the British abolished slavery in the 1830s. After all, George Washington wanted very badly to receive a British commission. Spite is the most powerful motivator, e.g., Geo Bush feeling spiteful towards Saddam and damn the costs! On the other hand, if you don't fight the good fight, you end up with a Nazi Germany. But I prattle on.

Posted by: Dave | July 3, 2007 04:46 PM

Had the president allowed the elections after those bombings in the summer of 2008, and not kept his faction in power indefinitely in the name of "continuity of government," that would have been enough for us...

Found written under a blood stain inside a metal shipping container in a Homeland Security Camp, circa July 4, 2010.

Posted by: Bukko in Australia | July 3, 2007 09:09 PM

Assistant DA points out that a pardon would cost Libby his right to refuse to answer questions under the 5th Amendment since there would no longer be any risk of prosecution. It would also end all legal procedings related to the prosecution which would deprive Messrs. Bush and Cheney of their oft-repeated mantra re declining to answer any questions about the matter 'while legal proceedings' are occurring. The Bush/Cheney/Libby tream will keep the appeal process going through the Court of Appeals as long as possible and then, assuming an affirmance, appeal to the U S Supreme Court or file a petition for a writ of certioriarim with Bush and Cheney all the time refusing to answer any questions about the disclosure of Plame's identity. Thus the same game is going on regarding the Libby/Plame matter as is going on regarding the firing of the US attorneys and refusal to honor congressional subpoenas. It's all about cover-up and running out the clock till they are out of office. I wonder when Bush is going to assure us "I'm not a crook."

Posted by: P. Bosley Slogthrop | July 4, 2007 06:50 AM


The civil suit filed by the Wilsons will proceed. Thanks to Clinton v. Jones, Cheney will have to give a deposition whether he is still VP or not. At that point, we may see something interesting.

Meditations on Independence Day:

I am tempted to set up a booth at my township's celebrations and ask people to sign a petition for the impeachment of the President and Vice President. They have taken this country's good name,dragged it through the mud and soiled it beyond recognition. There is a tribunal in the Netherlands that will bear their names if there is any justice in the world.

Posted by: Nellie | July 4, 2007 08:21 AM

> Assistant DA points out that a pardon would cost Libby his right to refuse to answer questions under the 5th Amendment since there would no longer be any risk of prosecution.

Wouldn't that just apply to the crimes he was pardoned for? I.e., couldn't he still take the 5th on other matters? Or, for that matter, if he told the same lies again, wouldn't that constitute a separate set of crimes?

Posted by: TexLex | July 4, 2007 11:38 AM

I won't be satisfied until Cheney/Bush/ Rove et al. are wrangling with the legal system following their indictments. To merely have them in the system will be enough for me.

Posted by: Gardenia | July 4, 2007 06:40 PM

These guys are the winner take all society, laws and everything else does not apply to the regular peopleat all. Is there any honor left in the kingdom ,VOTE OBAMA 08

Posted by: the real one | July 5, 2007 05:50 AM

Thanks, Nellie and TexLex. I wasn't thinking of the private civil suit as providing any justification for the Leader of the Free World and his Vice (what an apt shorthand term for this one) to refuse to speak to the issue of the circumstances of the leak, but of course Nellie is correct. Whether or not it is a justification of the same ilk as the pending criminal case (which is not to concede that that case provided justification for the stonewalling by the highest elected officials in the nation,) they will continue to refuse to discuss the matter. Bush, Cheney and Libby are refusing to talk, and they think of themselves as the guys who were or are bringing "democracy" to the rest of the world. Ironic.
Regarding the impeachment booth at the 4th of July Parade, it's certainly easy to understand this desire. I suspect, however, that you, like probably millions of other Americans, don't push harder on the impeachment issue because it is so complicated in the case of Bush and Cheney. No one wants to impeach Bush only to end up with Dr. Strangelove in the Oval Office and going for an historic "twofer" would surely take the balance of the term. And, if the House Judiciary Committee hearings on the US attorney mess are an example of what we could expect in an impeachment inquiry in the House, where the Articles of Impeachment would have to originate, this Congress is not up to the task of taking on Bush and Cheney. John Conyers is no Peter Rodino and although Senator Leahy is a lot more aggressive and 'on the ball' than the courtly Rep. Conyers, I susect that he doesn't have the same kind of 'stuff', both bipartisan credibility and gravitas, that Sam Ervin brought to the hearings before the Senate Select Committee on Watergate. I think we're stuck with the Bush mob for the balance of the term. It is interesting to remember, however, that the three articles of impeachment against Nixon were (1) obstruction of justice, (2) abuse of power, and (3) contempt of congress. Would not impeachment articles against the Bush guys be the same.

Posted by: P. Bosley Slogtrop | July 5, 2007 07:29 AM

If you Democrats would look at the killers Clinton pardoned as well as his business associates that didn't pimp him out, you wouldn't be writing crap about President Bush. Clinton was impeached you fools.

Posted by: Sarge | July 5, 2007 07:59 AM

Hello Everyone,
We all know there is more to the whole story than what is let out. A lot of things are kept secret from all of us for reasons of security and national or international interest. I believe President Bush has done a good job initially but, lately, he has taken us down the road that will ultimately damage our country in the long run.
I lose a piece of myself for EVERY single service person killed in Iraq and Afganistan.
Still something funky in this whole Libby thing though!
On the other hand, even though I FIRMLY believe we have to take the fight to the enemy, (terrorists), we have to maintain our integrity while doing so. We need to do whatever we have to, to keep our brothers and sisters across this country of ours safe from harm. If that means sending in hit squads to take out terrorist leaders, well, by golly, lets do it!
In my belief, it all actually boils down to this, the US government no longer belongs to the people. It belongs to interest groups and lobbyists. Our "elected" politicians do what ever it is that the lobbyists pay them to do.
They ALL think of themselves before us. Case in point, vote a pay raise for themselves but not increase minimum wage for the working class before they do.
There is SO much they could do for all of us. Americans, no matter what color, gender, sexual preference, religion or political view.
So before you go bashing, you need to VOTE, VOTE and VOTE. Think about this, who will be best for us? Will it be someone with "tons" of political experience? Or maybe someone that has some experience but is not overpowered by power alone. Someone who "still has all of us little" people in the forefront. Somone who REALLY believes in America, what WE stand for and what our forefathers intended us to be.

Thanks for listening.

Posted by: 20 year Navy veteran | July 5, 2007 07:59 AM

birds of a feather........... And this surprises Who!!!!!!!!!!

Posted by: D.smith | July 5, 2007 08:06 AM

birds of a feather........... And this surprises Who!!!!!!!!!!

Posted by: D.smith | July 5, 2007 08:07 AM

birds of a feather........... And this surprises Who!!!!!!!!!!

Posted by: D.smith | July 5, 2007 08:07 AM

Navy veteran: I like your last paragraph but since this isn't "Perfectville" who did you have in mind that meets your criteria. Certainly not Osama Bama, with his 20 minutes of experience. Hillary couldn't run the white house the last time she was in it and tried. This election crap is all about money, the system is broken and we need to take money out of the equation and put common sense back into it. Back in the beginning of our country people respected our Presidents. Now both sides just put up there most noticeable face (or two faces) and attack the other sides candidate and we get stuck with whomever has the most money. We're screwed either way it goes. This has nothing to do with duty, honor, country, so these people can't imagine the military supporting their Commander-in-chief no matter what politicians have to say.

Posted by: Sarge | July 5, 2007 08:15 AM

If we spent the 100s of millions of dollars wasted on the elections on the American people all of our poor could have health care and food. One candidate only got $11+ million so he has no chance of being President. We waste tax payer money and the Secret Service to protect Osama Bama, from who????? Since the retired military people have to pay for all of their free medical care, zero vision care, zero Dental care, I couldn't afford to take a bus to Iowa to see Obama politic in his hotel room with knife wielding stalkers outside laying in wait. If that is the best headline for today, this election crap is so unimportant compared to the casualties of war. How many armored hummers can you buy with the money wasted on this political crap??? How many military members could you save??? This countries thinking is up side down.

Posted by: Sarge | July 5, 2007 08:55 AM

Jonathan Swift

Posted by: D | July 5, 2007 09:32 AM

To Sarge,
I have thought for a long long time, what this country needs is another revolution. Take back our government!!! Imagine that happening.
I kind of like Mcain but he's gone, Fred is my next choice. Too bad that they can't all just get the same amount and go on merit. Would that be a perfect world or what?

Posted by: 20 year Navy veteran | July 5, 2007 11:51 AM

Andrew, I know I'm being slow, but I don't quite get it; none of these stanzas is anything I'm grateful for as opposed to Dayenu, and each of them combines a violation he did with refraining from another one (it certainly wouldn't "have been enough" to have done the bad thing as long as he restrianed on something else). Good though you didn't include some of the vindictive stanzas to be grateful for that are in "Dayenu".

Posted by: Amr | July 5, 2007 02:20 PM

Navy veteran, how can you still after all this time say that stuff about in order to keep our own safe here we have "to take it to" the terrorists abroad. Yes, I know terrorists (not necessarily Moslem)exist. We also had hijackers in the 80's.

Posted by: Corporal | July 5, 2007 02:23 PM

Hey Nellie's petition would at least have had my signature. Holland has been one of the best and longest democratic bastions (of course not impeccable) we have in the world.

Posted by: | July 5, 2007 02:47 PM

No Dave, you don't fight the good fight, I guarantee you nothing even resembling Nazi Germany on even an astronomical/geological scale, or even Quadaffi 's Libya will happen (sorry, shows not having a clue how Nazi Germany happened; figure it out). Guaranteed. How deeply ingrained and assumed this crapola is in voting Americans who think they are being moderate truly frightens me.

Posted by: True blue patriot | July 5, 2007 02:53 PM

Yes, be frightened. Join the crowd. Astronomical/geographical scale? Titter titter.

Posted by: Dave | July 5, 2007 07:17 PM

I agree, it is the perogative of the President to commute, pardon, or whatever buzzword suits ones fancy. So, here is the deal, as we learned when Bubba Clinton pardoned nearly 200 on his last day ... gotta protect that legacy ... there is absolutely naught to do but wail and gnash thy teeth. It was not even enough when we learned Hilly's brother collected a boatload of cash, and money poured in to the Clinton Library fund; nope it was the right of the President to do that stuff. Now, friend, the shoe is on the other foot. Eat crow.

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Posted by: rlbedhjop pvztwlamh | July 10, 2007 01:12 AM

Bush II had no problem executing innocents on death row in Texas as he pardoned noone even when the Pope intervened for a female death row inmate. Yet he parses words to spare Scooter Libby any prison time even though he lied to a grand jury and could not remember anything Cheney had told him. That is a real obstruction of justice.

Posted by: mascmen7 | July 24, 2007 12:02 PM

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