Sentencing Experts Perplexed by Libby Commutation
RENEE MONTAGNE, host:
The House Judiciary Committee had a hearing yesterday into the president's authority to issue pardons. The focus was former White House aide Lewis Scooter Libby. Last week, President Bush didn't give him a pardon but he did commute Libby's two-and-a-half-year prison sentence for lying about the leak of an undercover CIA agent's identity.
NPR's Ari Shapiro reports.
ARI SHAPIRO: Ohio State University law professor Doug Berman is sometimes called the guru of sentencing law. And yesterday he seemed a bit perplexed.
Professor DOUG BERMAN (Ohio State University): The stated reasons that President Bush gave for commuting all of Mr. Libby's prison time are somewhat hard to understand and perhaps even harder to justify.
SHAPIRO: President Bush didn't take issue with Libby's conviction, but he said the sentence of two and a half years was too harsh. It was well within the federal guidelines, and Berman said among thousands of appeals in recent years...
Prof. BERMAN: No federal appellate court has declared a single within guideline sentence to be unreasonably long.
SHAPIRO: Berman said the president and his surrogates have consistently argued in favor of upholding sentences like Libby's. So, Berman said, Mr. Bush's actions undermine the notion of equal justice under law, and the American people are left thinking that the president's mercy only falls on his friends inside the Beltway.
Prof. BERMAN: This president has pardoned more turkeys at Thanksgiving than he has shown mercy with respect to other offenders in our federal criminal justice system.
SHAPIRO: That's three pardons, plus the Libby commutation, out of roughly 4,000 applications. Republican Congressman Dan Lungren said that's the president's prerogative.
Congressman DAN LUNGREN (Republican, California): The president could have done other things but he didn't. And the big difference is he's the president, you're not.
SHAPIRO: David Rivkin, who served in previous Republican administrations, testified that pardons are inherently selective.
Mr. DAVID RIVKIN (Attorney): It does critics no good to complain that thousands of people seek it but only a few obtain favorable results. This is inherently discretionary. And it is the extraordinary amity that the president exercises when he believes it to be in the best interest of justice.
SHAPIRO: Since there's nothing Congress can do to change the president's pardon authority, Congressman James Sensenbrenner asked why Democrats called this hearing in the first place.
Representative JAMES SENSENBRENNER (Republican, Wisconsin): What's going on here today is more braying at the moon by my friends on the other side of the aisle, who spend more time looking into real or imagined misconduct on the part of the Bush administration rather than doing the job that we were elected to do.
SHAPIRO: The committee chairman promised lawmakers that they could talk about any controversial pardons, not just the Libby case. So Democrat Sheila Jackson Lee decided to clear the air.
Representative SHEILA JACKSON LEE (Democrat, Texas): Let me quickly speak to the 800-pound gorilla that is in the room, and that is Marvin Rich.
SHAPIRO: Actually, Marc Rich, the fugitive financier President Clinton pardoned on the last day of his presidency. Rich's ex-wife was a big Clinton donor and yesterday the Republicans on the committee used the Rich case as evidence that controversial pardons are a bipartisan phenomenon. But Democrat Robert Wexler said the Libby case is worse because Libby obstructed an investigation that could have incriminated the very president who commuted his sentence. Wexler described the commutation as a politically motivated quid pro quo.
Representative ROBERT WEXLER (Democrat, Florida): To reward Libby for halting further investigation into the White House's failure to protect the confidential identity of a CIA operative.
SHAPIRO: Other Democrats maintained that because President Bush didn't pardon Libby altogether, Congress can't grant Libby immunity and force him to testify. During the hearing, the committee chairman announced that he'd just received a letter from the White House saying that once again the president has invoked executive privilege and decided not to give Congress documents and testimony about the commutation.
Ari Shapiro, NPR News, Washington.
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