The Libby Commutation’s Political Fallout

Captain Ed finds that neither the right nor the left are particularly happy about it. That’s not surprising, as the left wants anything they can to destroy the Bush Administration and the right thinks that the Libby prosecution was nothing more than a politically-oriented witch hunt by an overzealous prosecutor that should have never happened.

In the end, Bush did what he thought was right. A jury convicted Libby of perjury, and perjury is a serious charge. Even though the case was weak, unless there is grave injustice the decisions of juries should be respected if the rule of law is to be preserved. One can argue that Libby deserves a full pardon, but the reality is that he was found guilty of a crime. A pardon is appropriate in cases where the jury should never have voted to convict and the appeals process has failed to rectify the error: which is why pardons should be relatively rare.

At the same time, a 30 month sentence is outrageous, and not allowing Mr. Libby to remain free until the appeals process was complete was entirely unnecessary. All those on the left arguing that Libby’s actions were injurious to national security forget that Libby was not the leaker, Richard Armitage was, and that no one has been charged with violating the Intelligence Identities Protection Act. Fitzgerald knew the entire time what had really happened and that there was no substance to the allegations. Furthermore, Libby’s case has to be taken into the context of someone like Sandy Berger, who stole documents from the National Archives and destroyed evidence so that the 9/11 Commission would not have access to it: an act which was unquestionably injurious to national security and for which Berger got a slap on the wrist. Justifying throwing Libby in prison on national security grounds is unwarranted by the facts: Libby wasn’t the leaker, he was never prosecuted as such, and the jury was never presented with any facts to that regard. It is a gross violation of due process to sentence someone based upon factors that were not presented to the jury. If Fitzgerald believed that Libby was the leaker he should have prosecuted him under the IIPA — which he did not because there was no evidence that anyone in the White House had leaked Plame’s identity.

The political fallout will undoubtedly hurt Bush, but he’s already politically irrelevant as it is. It no longer matters how much the President tweaks the Democrats, they’ve long treated him as their Emmanuel Goldstein and will go after him no matter what. The President tried to be judicious in rectifying an unjust sentence without contradicting the determination of a fair and open trial. Commuting Libby’s sentence is unquestionably bad politics from an Administration whose political standing could not possibly be lower, but as a matter of law and policy it was the correct choice. That may not mollify the President’s many critics on both the left and the right, but what is popular is not always right and what is right is almost never popular.