In light of Scooter Libby’s scandalous commutation this week, here’s an apples-to-apples comparison that the White House may struggle to spin.
[I]n a case decided two weeks ago by the United States Supreme Court and widely discussed by legal specialists in light of the Libby case, the Justice Department persuaded the court to affirm the 33-month sentence of a defendant whose case closely resembled that against Mr. Libby. The defendant, Victor A. Rita, was, like Mr. Libby, convicted of perjury, making false statements to federal agents and obstruction of justice. Mr. Rita has performed extensive government service, just as Mr. Libby has. Mr. Rita served in the armed forces for more than 25 years, receiving 35 commendations, awards and medals. Like Mr. Libby, Mr. Rita had no criminal history for purposes of the federal sentencing guidelines.
The judges who sentenced the two men increased their sentences by taking account of the crimes about which they lied. Mr. Rita’s perjury concerned what the court called “a possible violation of a machine-gun registration law”; Mr. Libby’s of a possible violation of a federal law making it a crime to disclose the identities of undercover intelligence agents in some circumstances.
When Mr. Rita argued that his 33-month sentence had failed to consider his history and circumstances adequately, the Justice Department strenuously disagreed.
Both Rita and Libby are first-time offenders; both were convicted of the exact same crime. One lied about gun registration; the other lied about his role in outing a covert CIA operative during a time of war.
The president believes the prior should be away for nearly three years, but believes the latter shouldn’t spend a single moment behind bars.
I anxiously await the explanation from White House sycophants about Bush’s deep and abiding respect for a justice system in which all Americans are equal under the law.
A few other commutation notes to keep in mind today:
* No one can remember anything like this ever happening before.
Sentencing experts said Bush’s action appeared to be without recent precedent. They could not recall another case in which someone sentenced to prison had received a presidential commutation without having served any part of that sentence. Presidents have customarily commuted sentences only when someone has served substantial time.
“We can’t find any cases, certainly in the last half century, where the president commuted a sentence before it had even started to be served,” said Margaret Colgate Love, a former pardon attorney at the Justice Department.
* Defense attorneys can’t wait to take advantage of the can of worms the president has opened.
The Libby clemency will be the basis for many legal arguments, said Susan James, an Alabama lawyer representing Don E. Siegelman, the state’s former governor, who is appealing a sentence he received last week of 88 months for obstruction of justice and other offenses.
“It’s far more important than if he’d just pardoned Libby,” Ms. James said, as forgiving a given offense as an act of executive grace would have had only political repercussions. “What you’re going to see is people like me quoting President Bush in every pleading that comes across every federal judge’s desk.”
Indeed, Mr. Bush’s decision may have given birth to a new sort of legal document.
“I anticipate that we’re going to get a new motion called ‘the Libby motion,’ ” Professor Podgor said. “It will basically say, ‘My client should have got what Libby got, and here’s why.’ “
* “According to federal data, the average sentence for those found guilty of obstruction of justice was 70 months, not zero.
* Bush’s decision has no basis in law.
Mr. Bush repeated yesterday that he had found Mr. Libby’s punishment to be too severe. But experts in federal sentencing law said a sentence of 30 months for lying and obstruction was consistent with the tough sentences routinely meted out by the federal system.
“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, said of the commutation. “There is no legal basis.”
* And Bush couldn’t even thumb his nose at the rule of law competently. In his commutation order, the president said Libby should still get two years probation. The law says that “supervised release,” as it is called, can only follow an actual prison sentence. Now, Judge Walton doesn’t know how to reconcile Bush law with real law.
It takes a special kind of president to screw up his own efforts to obstruct justice.