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Libby Prison Commutation Elicits Anger, Applause

July 3, 2007 at 6:10 PM EST
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GWEN IFILL: Wiping out Scooter Libby’s prison time, the president’s reasons, and the arguments against them. Judy Woodruff has our coverage.

JUDY WOODRUFF: President Bush’s move to spare former White House aide Lewis “Scooter” Libby from a 30-month prison term has set off a barrage of criticism, mainly from Democrats. Speaker of the House Nancy Pelosi issued a statement arguing the president’s decision does not serve justice, condones criminal conduct, and is a betrayal of trust of the American people.

Senate Majority Leader Harry Reid called the commutation of Libby’s sentence “disgraceful.” And Illinois Senator Dick Durbin said, “Even Paris Hilton went to jail. No one in this administration should be above the law.”

Presidential candidate Hillary Clinton, whose husband was criticized for pardons he made as president, weighed in during a campaign stop last night in Iowa.

SEN. HILLARY CLINTON (D), New York: What we saw today was elevating cronyism over the rule of law. And what we saw today was further evidence that this administration has no regard whatsoever for what needs to be held sacred. And when I’m president, we’re going to get back to cherishing the Constitution, upholding the rule of law, and putting forth the best values of America for the entire world to see again.

JUDY WOODRUFF: Libby, Vice President Cheney’s former chief of staff, was sentenced to two-and-a-half years in prison for his conviction in March on charges of perjury and obstruction of justice in connection with the leaked identity of CIA operative Valerie Plame. During today’s White House briefing, spokesman Tony Snow defended the president’s decision.

TONY SNOW, White House Press Secretary: The president has the power to commute, and he used it, and he used it in a manner that he saw fit. That’s not trying to have it both ways. What the president said is that he is not going to go in and overturn what the jury did. On the other hand, again, he thought that the penalty was excessive.

He is certainly permitted to do that. You’ll concede that the president does have that power constitutionally and, furthermore, that this president has done it very carefully. If he had decided that he wanted to commute the sentence and get rid of all punishment but still keep intact the felony, he could have done that.

But instead what he did was he said that he believes that, when somebody is convicted of this punishment, it is worth having — I mean, of this crime, it is certainly worth respecting the jury’s decision and having significant and severe punishment. And I guarantee you a quick show of hands, how many people in this room think that $250,000 is a wrist slap or that two years in probation or, in fact, the loss of your career is somehow a trivial punishment? This is serious punishment.

Two views on the decision

Bill Otis
Former Special White House Counsel
I think, unless the formal presidential paper of clemency provides that there will not be probation, which is not my understanding of it, and it's not consistent with what the president has said, there probably will be probation.

JUDY WOODRUFF: For his part, Patrick Fitzgerald, the special prosecutor in the case, says Libby's sentence was consistent with the applicable laws. However, Fitzgerald would not comment on the president's action, which he acknowledged is a prerogative provided by the Constitution.

Now, differing views of the president's action, from Bill Otis, a former special White House counsel to the first President Bush, he also served as a federal prosecutor under both Republican and Democratic administrations; and from Margaret Love, who served as the president's pardon attorney in the Department of Justice from 1990 to 1997.

Thank you both for being with us.

And, first, I want to bring up a new wrinkle. Today we heard this afternoon from Judge Walton in this case that maybe Scooter Libby will not be asked to serve probation because it is technically only available to people who have served prison time. Margaret Love, how significant is all this?

MARGARET LOVE, Former Pardon Attorney, Department of Justice: Well, I haven't seen anything about what this particular issue is about, but I can say that it is a technicality that betrays, I think, the fact that this case -- that the pardon case, that the commutation case was not staffed through the Justice Department, and there may be some confusion about that issue.

JUDY WOODRUFF: Any thought on this, Bill Otis?

BILL OTIS, Former Federal Prosecutor: I think the judge has asked for briefs on the question. Generally, in my experience, as a prosecutor, it was possible for the judge to sentence the defendant to straight probation. And I think, unless the formal presidential paper of clemency provides that there will not be probation, which is not my understanding of it, and it's not consistent with what the president has said, there probably will be probation.

President has pardoned sparingly

Margaret Love
Former President's Pardon Attorney
There are hundreds of applications, and because this president has used the power so sparingly, it's really hard for me to justify it. That's my take on it.

JUDY WOODRUFF: Margaret Love, based on your extensive experience, was the president justified in this decision to commute the sentence?

MARGARET LOVE: Well, it's kind of hard for me to justify it. In light of the fact that he has used the power so very sparingly for ordinary people -- there are many, many people who apply for pardon and for commutation of sentence. There are hundreds of applications, and because this president has used the power so sparingly, it's really hard for me to justify it. That's my take on it.

On the merits of the Libby case, he says that the sentence is excessive, but there are many, many people who have far longer sentences.

JUDY WOODRUFF: Based on your experience, Bill Otis?

BILL OTIS: I think this act of presidential clemency that is a partial commutation of the overall sentence was justified. Mr. Libby is a first offender for a nonviolent, non-drug-related offense. In my experience, as 18 years as an assistant U.S. attorney, two-and-a-half-year prison sentence for an offense like that would be extremely unusual.

And there were a number of other very unusual factors about this prosecution and sentence that also argue in favor of clemency. For example, as many people have pointed out, Mr. Libby did not commit a crime until after the investigation of the underlying misbehavior had already started. That's called a process offense. In addition, apparently, the special prosecutor, Mr. Fitzpatrick, already knew that Mr. Armitage was the source of the leak at the time he asked Libby these questions.

JUDY WOODRUFF: Margaret Love, should those things have made a difference in the president's decision?

MARGARET LOVE: I think that those kinds of factors can always come into a clemency decision. And, again, I can understand how the president would have thought that this case was a sympathetic one. However, I think it is really difficult to do things only for the people who are closely involved with you without doing all of the other cases that are similarly situated.

JUDY WOODRUFF: How many other cases are we talking about?

MARGARET LOVE: Well, there are about 2,500 pending commutation applications at the Department of Justice that have not been decided and about 1,000 pending pardon applications that have not been decided. And this president has pardoned more sparingly than any president in 100 years. He has only done three other commutation cases, and they were all cases where the person had spent at least 10 years in prison.

Looking at each individual case

Bill Otis
Former Special White House Counsel
What they said attested to Libby's contributions to his community and his country. And it's the substance of what they say, rather than the identity of the authors, that I think makes the difference.

JUDY WOODRUFF: Bill Otis, so should the frequency or lack of frequency be an issue, be a factor here?

BILL OTIS: I think each case should stand on its own merits. When I was in the U.S. attorney's office, we tried not to look at what had gone on in previous cases or take a guess about what would happen in future cases. We felt like each defendant was entitled to justice based on the facts of his individual case, individually considered.

And individually considered, again, I think this case is quite unusual in a way that does justify presidential commutation. For example, in the 18 years I was in the U.S. attorney's office, I never had a defendant who had, what, 150 letters from prominent and accomplished people...

JUDY WOODRUFF: As Scooter Libby did.

BILL OTIS: ... as Scooter Libby did, issued to the sentencing judge, attesting to the defendant's considerable, you know, accomplishments and contributions to the community. That by itself would make this an extremely unusual case, and it does argue for leniency.

MARGARET LOVE: Well, I have a view on that. I don't think that pardon or commutation ought to be reserved for people who are wealthy and well-connected and have a lot of letters from very famous people. I think that's all very well and good, but I happen to believe that the president's mercy ought to be available to people who live in trailers, as well.

And I've always thought that. And I think the equal application of the president's pardon power has always been something that historically has been very important to the Justice Department that's administered the power and to most presidents exercising it.

JUDY WOODRUFF: What do you say to that?

BILL OTIS: I agree with Margaret that justice should be available irrespective of the financial status of a defendant or his connections. What I meant in saying that 150 letters had been submitted in Mr. Libby's behalf is not so much that the authors of those letters are prominent or well-connected, but the actual substance of the letters. What they said attested to Libby's contributions to his community and his country. And it's the substance of what they say, rather than the identity of the authors, that I think makes the difference.

The possibility of full pardon

Margaret Love
Former President's Pardon Attorney
I think it would be hard for him to pardon him in a year-and-a-half, which is all he has left, particularly given his comments about the jury verdict today.

JUDY WOODRUFF: Very quickly, much is being made today comparing this decision to commute with President Clinton's decision to pardon a number of individuals, Ms. Love, at the very end of his administration, including Marc Rich, the fugitive financier. Is it appropriate to make these kinds of comparisons?

MARGARET LOVE: Well, I'd actually compare it more closely, for example, with the pardon of the Iran-Contra defendants at the end of the first President Bush's tenure. I think that the final Clinton pardons were a large sort of mish-mash of odd cases, to tell you the truth. And they, too, were not staffed through the Department of Justice.

JUDY WOODRUFF: As the Libby decision was not.

MARGARET LOVE: Apparently was not, yes.

BILL OTIS: I think that a comparison with previous pardons, in particular the Clinton pardons, is inevitable. It's going to happen. And one thing I would point out is that the Clinton pardons were pardons; that is, they wiped away the conviction and any kind of a sentence. That's not the case here with Mr. Libby.

JUDY WOODRUFF: Well, speaking of that, President Bush today seemed to leave open the door. He said he would neither rule in nor rule out the possibility that he could decide in the future to issue Scooter Libby -- to grant him a full pardon.

BILL OTIS: I suppose one should never say never, as they say. But on the information available to me, I think a pardon would be excessive leniency.

As I said in an article I wrote in the Washington Post, lying to the grand jury is a serious offense. The grand jury is an important tool of the prosecution to protect the public, and it should have the right to insist on getting the truth and to enforce its right to get the truth.

So I think a pardon is not the way I would go, but I do think the sentence, as existed, was excessive and that the president did the right thing.

MARGARET LOVE: I think it would be hard for him to pardon him in a year-and-a-half, which is all he has left, particularly given his comments about the jury verdict today. If he were going to do a pardon after service of sentence, he would have to wait for a while. And so I don't think he's going...

JUDY WOODRUFF: Because he said in his statement yesterday he respected the decision of the jury, the role of the jury, and he praised the prosecutor in this case.

MARGARET LOVE: I think he sort of backed himself a little bit into a corner with respect to a future pardon.

JUDY WOODRUFF: Well, we are going to leave it there. Margaret Love, we thank you for joining us. Bill Love -- Bill Otis, I'm sorry. Margaret Love, Bill Otis, we thank you both very much. Appreciate it.