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Playing Politics with Libby

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The outcry against President Bush's decision to commute Scooter Libby's sentence is misplaced. President Bush acted hours after the US Court of Appeals denied Libby bail pending appeal. That judicial decision was entirely political. The appellate judges had to see that Libby's arguments on appeal were sound and strong -- that under existing law he was entitled to bail pending appeal. (That is why I joined several other law professors in filing an amicus brief on this limited issue.) After all, if he were to be sent to jail for a year and then if his conviction were to be reversed on appeal, he could not get the year back. But if he remained out on bail and then lost the appeal, the government would get its year. In non-political cases, bail should have and probably would have been granted on issues of the kind raised by Libby.

But the court of appeals' judges, as well as the district court judge, wanted to force President Bush's hand. They didn't want to give him the luxury of being able to issue a pardon after the upcoming presidential election. Had Libby been allowed to be out on appeal, he would probably have remained free until after the election. It would then have been possible for President Bush to pardon him after the election but before he left office, as presidents often do during the lame duck hiatus. To preclude that possibility, the judges denied Libby bail pending appeal. The President then acted politically. But the President's action -- whether right or wrong on its merits -- was well within his authority, since pardons are part of the political process, not the judicial process. What the judges did was also political, but that was entirely improper, because judges are not allowed to act politically. They do act politically, of course, as evidenced by the Supreme Court's disgracefully political decision in Bush v. Gore. But the fact that they do act politically does not make it right. It is never proper for a court to take partisan political considerations into account when seeking to administer justice in an individual case.

The trial judge too acted politically, when he imposed the harshly excessive sentence on Libby, virtually provoking the president into commuting it.

This was entirely a political case from beginning to end. Libby's actions were political. The decision to appoint a special prosecutor was political. The trial judges' rulings were political. The appellate court judges' decision to deny bail was political. And the President's decision to commute the sentence was political. But only the President acted within his authority by acting politically in commuting the politically motivated sentence.