Cynthia Astle, editor of the invaluable publication UM NeXus, writes in a July 5 blog post that George W. Bush — all by himself — “has deleteriously transformed the American legal system” by commuting the sentence of former White House aide I. Lewis Libby, in direct contradiction to the teachings of Jesus Christ and the principles of the United Methodist Church (of which President Bush is a member).
There is just one problem with this analysis: In commuting Mr. Libby’s sentence, the president has not only exercised the power given to him by the supreme law of this nation, not only has he righted a wronged individual, he has acted properly throughout this sordid affair. If anyone has comported themselves in a Christ-like manner when it comes to this case, it is George W. Bush.
Ms. Astle commends articles by journalists such as Dana Milbank and the late David Halberstam to inform the events of this case and President Bush’s conduct in general. The former is a regular guest on Countdown with Keith Olbermann, so one may take that for what it’s worth — Mr. Olbermann steadfastly refuses contrary opinions within his broadcast fiefdom. The late Mr. Halberstam caused irreparable mischief and mayhem during his stints in Vietnam, and was no more qualified to make historical or legal judgments than David McCullough is qualified to discuss mechanical engineering.
But that’s fine — if you want to rely on the opinions of these people and others like them, keep in mind that they are or were not attorneys at law. Yet for every snark-filled dispatch with creative quoting from Mr. Milbank and every revisionist article or book by Mr. Halberstam, there are five articles by individuals such as Clarice Feldman, who happens to be an attorney at law in Washington, D.C. No, Ms. Feldman has not appeared unchallenged on television every night, nor was she feted at Rao’s whenever she wanted, but she knows the law and has been a steadfast observer of the proceedings involving Mr. Libby and this entire non-scandal from the start.
As Ms. Feldman has written, “It is always a challenge to describe legal proceedings for a general audience and accurately capture clearly the gist of the arguments without oversimplifying them or making them utterly boring and incomprehensible to non-lawyers.” Conversely, it is easy for Mr. Milbank, Mr. Halberstam, and other non-attorneys to opine on things they do not understand nor have the capability to explain at any rate.
There were serious questions about Patrick Fitzgerald’s appointment as special prosecutor to begin with, as well as the trial court judge’s exclusion of crucial evidence and witnesses specifically and his general lack of impartiality. This is to say nothing of the fact that Mr. Libby never “outed” a covert agent, since the covert agent in this case was not a covert agent under any circumstance according to the law.
Mr. Libby should have never faced trial. Many times during the course of his investigations and, indeed, in the closing arguments of Mr. Libby’s trial, the special prosecutor overstepped his charge and engaged in wildly false speculation regarding the conduct of the White House toward political opponents. On the specific assignment he was given, the special prosecutor found nothing. No law was broken and any investigation into Mr. Libby should have stopped there. Rather than acting properly, he chose to punish a member of the White House simply because he personally believed a member of the Bush Administration should be punished. Consequently, a good man’s name has been stained unnecessarily.
The criminalization of political ideology or affiliation is unacceptable and will not be tolerated.
To some, Mr. Libby is guilty of perjury because his memory did not square with that of Tim Russert’s, whose didn’t square with David Gregory’s, and so on and so on. Perjury? Perhaps. But the question is far from settled. How could it be when two jurors were so wrought up over convicting Mr. Libby that they immediately pleaded for President Bush to pardon him?
If anything, President Bush’s decision to commute Mr. Libby’s sentence is magnanimous to most everyone involved: Mr. Libby avoids the totally unjust punishment of prison, yet he remains — in the eyes of the law and many misguided citizens — a convicted perjurer and guilty of obstruction. Mr. Libby faces paying a fine of over a quarter of a million dollars if his appeals are unsuccessful, on top of what must be crushing legal fees that will remain even if he clears his name. This is the transformation of equal justice under the law?
By refusing to issue a full pardon, as is his prerogative, the president has allowed the legal process to continue, not grind it to a halt or magically alter it into a safe playground for his cronies to joke about while counting their oil money. Mr. Libby has the opportunity to have his conviction overturned without any exercise of legal power by President Bush, who it should be noted said nothing about this entire exercise and consistently refused to interject himself, his staff, and the influence of the bully pulpit into the proceedings.
Should Mr. Libby’s sentenced be overturned without interference from President Bush, will this qualify as a valid exercise of justice, or will it too be seen only through a partisan lens? Will President Bush be seen as prescient? Will President Bush then be seen as a man who saw a wrong and actually did try to right it, while being as fair to his political nemeses as he was to his associates?
What President Bush has done in commuting the sentence of an unjustly punished individual is merciful and Christian. It is the exact opposite of an abuse of power, for the president has taken the most cautious course within his power. How tempting it must have been to pardon Mr. Libby and make the whole thing go away. Yet he demurred and leaves Mr. Libby on the hook for his “transgressions.” How could it be said that President Bush’s approach is against the tenets of Methodism?
Here’s the short answer: It’s not.
Matt May welcomes comments at email@example.com