Libby loses another appeal

July 2, 2007

If Scooter Libby is counting on a pardon to keep him out of jail, he’ll need Bush to act very quickly.

Lewis “Scooter” Libby, Vice President Dick Cheney’s former chief of staff, must go to prison while appealing his conviction for obstructing a CIA leak probe, a U.S. appeals court said.

Libby may be behind bars within weeks after a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today denied his request for release. The decision will increase pressure on President George W. Bush to decide soon whether to pardon Libby, 56, as the former White House official’s supporters have urged.

Libby “has not shown that the appeal raises a substantial question” under federal law that would merit letting him remain free, the court said.

It apparently wasn’t too close a question for the appeals court panel — it was a unanimous decision dismissing the appeal with a one-paragraph order.

For those who keep track of such things, Bloomberg reported, “The three-judge appeals panel that issued today’s order included Judges David Sentelle, nominated by President Ronald Reagan; Karen LeCraft Henderson, nominated by President George H.W. Bush, and David Tatel, nominated by President Bill Clinton.”

For those keeping score, Libby was charged by a prosecutor appointed by a Republican administration, he was sentenced by a judge appointed by a Republican president, and his appeal was heard by two more judges appointed by Republican presidents. Naturally, this will lead Fox News and the Wall Street Journal’s editorial page to decry the “partisan” prosecution.

Is a pardon likely? Bloomberg spoke to P.S. Ruckman Jr., a political science professor and an expert on presidential pardons, who explored the options.

The focus on a Libby pardon is obscuring other options available to Bush, including conditional pardons, commutations, remissions of fines and amnesties, Ruckman said.

One possibility would be to issue a respite directive, which simply delays carrying out a sentence and lets passions cool, he said. George Washington first granted respites in June, 1795, delaying the executions of two men involved in the Whiskey Rebellion; they were later pardoned, Ruckman said.

“Bush can keep Libby out of jail without exercising a pardon,” Ruckman said.

As a rule, if you’re relying on a precedent from 1795, it’s a bit of a stretch.

Nevertheless, expect the pressure on the White House to get quite intense.

Isn’t relying on a precedent, any precendet from ANYTIME, a lot better than what Bush and Cheney normally do?

  • I guess it’s time for the beltway gang to remind us yet again that exposing a CIA agent who was trying to keep WMDs out of the hands of terrorists isn’t a big deal. No underlying crime and all that.

    BTW his name is Irv Lewis Libby. Please don’t use the name “Scooter”, it makes him sound like a small kid who got caught stealing cookies. This is a man who worked for a criminal, who covered up a serious crime, who also wrote a novel that included scenes where bears rape small girls in cages and hunters have sex with dead animals.

  • Of course Liddy Libby gets a pardon from King George. He has been a loyal subject of King George’s court after all.

  • Any Whiskey Rebellion scholars out there? I wonder if those respite directives were simply issued to prevent the two individuals from being killed, or to keep them from being killed AND out of jail pending ultimate resolution of the matter. I have a feeling, which may be entirely erroneous, that these two people were not out free pending further resolution of the matter (short of actual execution). As such, it could be argued that such directives are inapplicable to the Libby case.

  • I can see the headlines now…
    “President appoints Libby as Special assistant to the Vice-President and then declares that imprisoning him violates executive privilege. White House spokesperson Dana Perino insisted that this was in no way a pardon and that the White House in no way condones Libby’s behavior. Immediately after her statement Ms. Perino burst into flames, apparently do to acute cognitive dissonance.”

  • “I don’t know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. . . . And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have.”
    – Sen. John Cronyn, (R-Wingnut), on the Senate Floor, April 4, 2005

  • From wikipedia, on the Whiskey Rebellion: “The rebels “could never be found,” according to Jefferson, but the militia expended considerable effort rounding up 20 prisoners, clearly demonstrating Federalist authority in the national government. The men were imprisoned, where one died, while two were convicted of treason and sentenced to death by hanging. Washington, however, pardoned them on the grounds that one was a “simpleton,” and the other, “insane.””

    Sounds like the directives only abated the execution of the two convicted scape-goats, but did not act as get out of jail free cards.

  • “Simpleton” or “insane.” I guess that lets Bush off the hook.

  • No. No. No. You don’t have to go all the way back to George Washington for a respite/reprieve. Bill Clinton issued a couple himself.

    And the punishment that is delayed is entirely irrelevant. The respite/reprieve isn’t the power to delay executions. It is the power to delay sentences – of any kind. If you want to see “get out of jail” free examples, see my National Reivew piece.

    best,

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