The Blue State

Fitzgerald responds to Bush's claim that Libby sentence was "excessive"

While stopping short of challenging the legality behind Bush's commutation of Scooter Libby's jail sentence, Special Prosecutor Patrick Fitzgerald responded to part of Bush's statement:

Wefully recognize that the Constitution provides that commutationdecisions are a  matter of presidential prerogative and we do notcomment on the exercise of that prerogative.

We comment only on the statement in which the President termed thesentence imposed by the judge as “excessive.”   The sentence in thiscase was imposed pursuant to the laws governing sentencings which occurevery day throughout this country.  In this case, an experiencedfederal judge considered extensive argument from the parties and thenimposed a sentence consistent with the applicable laws.  It isfundamental to the rule of law that all citizens stand before the barof justice as equals.  That principle guided the judge during both thetrial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence ofimprisonment, Mr. Libby remains convicted by a jury of seriousfelonies, and we will continue to seek to preserve those convictionsthrough the appeals process.

Many White House critics are hoping that Bush's decision will motivate Patrick Fitzgerald to open a broader case into whether the Administration deliberately obstructed the CIA leak investigation.

Back to the commutation for a moment.  An Administration source that spoke to the Washington Post on condition of anonymity said there is "comfort" at the White House because the case will probably not hurt the President politically.  Then again, when you are at 26%, it is hard to get any less popular.  Bush is approaching his approval rating floor, which is about 23%.  In other words, there are some people that will support this Administration no matter what.

Lastly, this was the first time under the Bush presidency that the Justice Department was not consulted before commuting someone.

Bush's pardoning of Libby violates pardoning rules

This is a continuation off the previous post about the Libby pardon.

It's interesting how the White House is not calling this a "pardon."  Instead, they are choosing to use the word "commute."  Nonetheless, it still is at least a partial pardon -- and it is illegal, according to the Justice Department's own web site:

They “require a petitioner to wait a period of at least five yearsafter conviction or release from confinement (whichever is later)before filing a pardon application,”  according to the Justice Web site.

Moreover, in weighing whether to recommend a pardon, U.S. attorneys aresupposed to consider whether an applicant is remorseful. “The extent towhich a petitioner has accepted responsibility for his or her criminalconduct and made restitution to ... victims are importantconsiderations. A petitioner should be genuinely desirous offorgiveness rather than vindication,” the Justice Web site states.

As we have seen with the ongoing battle over Executive privilege, the White House thinks it is above the law.

Useful links:

• Bush justifies Libby pardon
• Harry Reid's office releases statement

US Bureau of Prisons gives Libby his inmate number

Though Scooter Libby is still fighting to overturn his jail sentence, regardless of the fact he was found guilty on four counts by a grand jury, the US Bureau of Prisons has issued Cheney's former Chief of Staff an inmate number.  Libby will be inmate No. 28301-016:

The U.S. Court of Appeals for the District of Columbia Circuit has notindicated how quickly it will rule. Lawyers in the case said Libby hadnot yet been assigned to a prison or given a date to surrender.

Special Prosecutor Patrick Fitzgerald opposes Libby's bid to delay hisprison term. He says Libby does not have a good chance of having hisconviction overturned and should begin serving prison time immediately.

If Libby does go to jail, it is still uncertain where he will serve out his prison sentence.  Usually, according to this same article, inmates tend to serve within 200 miles of their home.  So we're probably looking at him serving somewhere in Virginia or Maryland.

Still, this does not stop conservative newspapers from asking the President to pardon Libby, and in one case even giving Bush advice on how to play it.

Libby sentencing tomorrow

At the moment, we find ourselves engulfed in a late-spring presidential campaign preview.  The Democratic debate was last night.  Today, the Obama, Edwards and Clinton will attend a forum on religion.  It all ends tomorrow with the Republican debate.  But there is another important story going on tomorrow that is worthy of some notice (depending on how you feel about government officials that lie to a grand jury).

Lewis "Scooter" Libby, who was already found guilty in March, will be sentenced tomorrow.  Special Prosecutor Patrick Fitzgerald wants Libby to serve three years in prison.  Libby's lawyers want him to do community service instead.

As Time Magazine's Reynolds Holding reveals, last week Fitzgerald released proof of Valerie Plame's covert agent status as a trump card to convince the judge that Libby deserved a harsher sentence:

Thanks to Fitzgerald's brief advocating a stiff sentence for Libby, wefound out last week that the CIA did indeed consider Plame's identityclassified, at least for 18 months. The prosecutor has brought this upnow in apparent support of a remarkable claim: Libby should serve 30 to37 months in prison -- about twice what the federal probation officerecommends and way more than the probation favored by thedefense -- because the underlying (and uncharged) crime was so serious.

The Libby defense team issued one last plea for forgiveness:

"Mr. Libby is known for his fairness and generosity," the defense lawyers write, and "for his caring and unselfish nature."

One thing is for sure: there will be a lot of angry people at the CIA if the judge lets Libby off the hook.  It will have sent a dangerous precedent that it is tolerable for the Executive to bully our agents in the field.

Fitzgerald came close to viewing Rove email account

The Senate Judiciary Committee is continuing its fight to obtain the emails on Karl Rove's RNC account to settle once and for all the White House adviser's roll in the U.S. Attorney firing scandal.  Robert Luskin, Karl Rove's lawyer, is refusing to hand them over because he claims "there’s nothing on there that’s relevant" to the investigation.

But back in 2004, as Special Prosecutor Patrick Fitzgerald was in the middle of the CIA leak case, he came very close to seeing Rove's email account first-hand:

Back in April of 2004, Rove and Luskin had allowed the prosecutor in that case, Patrick Fitzgerald,to obtain images of the hard drives of a home computer, a personallaptop, a Republican National Committee laptop and a handheld device,all being used by Rove at the time. After Fitzgerald combed through theinformation, he returned the hard-drive images to Luskin in sealedcontainers, as part of an agreement on evidence handling. That way,Rove’s personal information could get greater protection from pryingeyes.

Of course, this was prior to when the Justice Department fired the nine U.S. Attorneys.  It was also before Alberto Gonzales became Attorney General.  However, that episode with Fitzgerald and Luskin does show how difficult it is to investigate Karl Rove without getting bogged down in the legal process.

If Fitzgerald was unable to gain complete access to Rove's email account, then it will be near impossible for Congress to do just that.

Libby won't see a day of federal prison

Sorry for the pessimism.  It's only reality though -- at least until we get a new president.

Scooter Libby was convicted on four of the five counts, meaning he could get up to 20 years in prison.  But don't count on it.  Instead, Cheney's former Chief of Staff will likely get a reduced sentence -- which could work out to between one and a half and three years of jail time.  But again, don't count on it.

Even though Libby is a guilty man, a few things are about to happen.  Libby's lawyer, Theodore Wells, is asking for a new trial.  Although he may not ultimately get his wish, according to the Wall Street Journal, Libby's legal team is expected to delay the sentencing process as long as possible -- even past November of 2008.  And remember, before this President leaves office, one final round of executive pardons will be handed out.  Even if Libby is sentenced in the waining hours of the Bush presidency, expect this commander-in-chief to get one last laugh at the expense of Joe Wilson, Valerie Plame and our rule of law.

What the title says is true: Scooter Libby will not see a day of federal prison.  This President is above the law.  He has been above the law ever since his daddy's friends won him a White House vacation in court.  It is only fitting that this President would ride off into the sunset in 2009 in that same fashion.

Patrick Fitzgerald stared a giant in the face and, with the public by his side, refused to back down.  But if the Administration can get away with firing eight federal prosecutors with the snap of the hand, then they can sure ignore one as well.

Ari Fleischer and Richard Armitage leaked Plame's name to the press

Credit Scooter Libby's defense team with one thing: they are uncovering a lot of dirt today about how the Administration became obsessed with Joe Wilson's wife, Valerie Plame -- and were determined to out everything they could about them.

Here was how former White House Press Secretary Ari Flescher outed Plame's name to Washington Post reporter Walter Pincus in July of 2003:

Pincus, a veteran national security reporter, said he was talking toFleischer for a story about weapons of mass destruction. He saidFleischer "suddenly swerved off" topic and asked why Pincus continuedto write about Wilson.

"Don't you know his wife works for the CIA as an analyst?" Pincus recalled Fleischer saying.

Then, Deputy Secretary of State Richard Armitage did the same thing -- this time during a taped interview with Bob Woodward.  This happened in June of 2003:

Armitage mentioned several times, in sometimes explicit terms thathad to be redacted, that former Ambassador Joseph Wilson's wife was aweapons of mass destruction analyst for the CIA.

"His wife is at the agency and is a WMD analyst," Armitage said on the tape.

Both of these leaks occurred before the well-known article by Robert Novak.

Libby lawyers giddy over Andrea Mitchell testimony

If Scooter Libby has any chance of not being found guilty, it would be because of Andrea Mitchell's testimony this week.  Mitchell is a Foreign Affairs Correspondent at NBC.  Libby's lawyers claim Mitchell said in an interview a few years earlier that she knew about Plame's identity before Robert Novak wrote his infamous column on Valerie Plame.  But recently, Mitchell retracted her statement.  She is fighting the effort by Libby's lawyers to get her to testify.

Why is that important?  Scooter Libby said he learned about the identity of Valerie Plame from the media.  Fitzgerald, on the other hand, is trying to prove that Libby learned about Plame from official government sources.  The AP summarizes the pivotal week ahead in the Libby case:

Plame was outed in a July 2003 syndicated column. Three monthslater, Mitchell said in a television interview that she had known Plameworked for the CIA before the column.

"It was widely known among those of us who cover the intelligence community," Mitchell said.

Mitchell has since recanted those comments and has said she can't explain them.

Though the comments seem to bolster Libby's case, it's unclearwhether his attorneys will be allowed to play them for jurors.Attorneys are not normally allowed to present hearsay evidence or callwitnesses simply to do so.

Mitchell is challenging a subpoena to testify in the case. A federal judge said he will hear arguments on the issue Monday.

In addition to Mitchell, attorneys have said several otherjournalists are expected to testify this week: New York Times managingeditor Jill Abramson, Newsweek assistant managing editor Evan Thomas,and Bob Woodward, Walter Pincus and Glenn Kessler from the WashingtonPost.

John Aravosis over at AmericaBlog uncovers what the Libby trial has told us about Cheney's role in the run-up to the Iraq war.

(Video) Cheney deeply involved in CIA leak

David Shuster of MSNBC described Patrick Fitzgerald's testimony today, which revealed the extent of Cheney's involvement in the intentional outing of CIA operative Valerie Plame:

Scooter Libby even destroyed a note that proved Cheney's role in the leak.  Libby was definitely out to protect his boss.

Interestingly, Libby's lawyers in their opening statement blamed Karl Rove -- an effort to make Libby look like a victim:

Attorney Theodore Wells said Libby went toCheney in 2003 and complained that the White House was subtly blaminghim for leaking Plame’s identity to columnist Robert Novak.

“They’retrying to set me up. They want me to be the sacrificial lamb,” Wellssaid, recalling the alleged conversation between Libby and Cheney. “Iwill not be sacrificed so Karl Rove can be protected.”

Sorry, but that is not a good defense.  Fitzgerald obviously had the upper hand today.

Fitzgerald could dismiss case against Libby

The judge is giving Patrick Fitzgerald a way out of the case (even though the case should be a slam dunk).

Think of it this way: no matter what, Scooter Libby will not be going to jail.  If Special Prosecutor Patrick Fitzgerald wins the perjury case against Scooter Libby, then President Bush is expected to pardon Libby.  Or, Mr. Fitzgerald could just wimp out.  This week, the judge gave the prosecutor that option, allowing him to dismiss the case if it jeopardizes national security:

The judge in the CIA leak case ruled Thursdaythat if Special Counsel Patrick Fitzgerald feels that admitting certainclassified documents at the upcoming trial of I Lewis "Scooter" Libbycan jeopardize national security, Fitzgerald can then move to dismissthe perjury charges against Libby.

JudgeReggie Walton cannot automatically allow classified materials to beadmitted at trial. He first must go through a series of closed hearingsunder CIPA regulations. CIPA, the Classified Information ProceduresAct, protects and restricts the discovery of classified information ina way that does not impair the defendant's right to a fair trial. Italso allows the government to propose a redacted version of aclassified document as a substitution for the original, having deletedonly non-relevant classified information.

Fine then.  Give the grand jury a "redacted version" of the classified information.  Either way, this trial shouldn't end, otherwise it sets a lawless precedent.  Any charged public official whose case deals with classified information would be deemed too "nationally sensitive" and could "jeopardize national security."  Is that a good precedent to set?

In other words, the judge is saying that protecting all classified information -- even though some is less important than others -- is more important than fully prosecuting those who misuse an institution of trust.