I agree with Josh Marshall at Talking Points Memo that this was the worst possible decision. Josh argues that a wrong, though consistent, argument could be made that the prosecution was misguided from the start and that the whole verdict should be overturned with a full pardon. But to acknowledge that the prosecutor was doing his duty, as Bush did, and that the jury did its, and to acknowledge that punishment should be meted out -- but then step in and insure that Scooter Libby serves less jail time than Paris Hilton defies logic. If Bush felt the 30 months handed out by his appointed judge, Reggie Walton, was excessive -- and it's not given the sentencing guidelines -- then he could have let Libby serve some time and then commuted the sentence.
Despite this, Bush is having some success in having this portrayed as a Solomonic decision. The rare, long White House statement, designed to give the impression of deep thoughtfulness. The leaks (!) about Bush having slogged through this alone, without the Justice Department's counsel are designed to make him seem agonized. Spare us. The statement is without two fundamental things: One, an apology to Valerie Wilson who saw her lifetime career at the CIA ended by the, at best, reckless and at worse, deliberately malevolent actions of Bush officials. Second, the whole case is treated with clinical detachment, as though Bush were looking at it from afar as if it were say some white-collar executive somewhere. Libby committed the crimes -- and Bush still acknowledges them to be crimes -- while he was working for Bush, not only as Dick Cheney's Chief of Staff, but as an "assistant to the president," the highest rank of any staffer in the White House. And the investigation was not one in which it was the off-duty crimes of a senior administration official, say Webb Hubbell's thievery from the Rose Law Firm, prior to his entering the Clinton Justice Department. Bush has decided that someone who works for him and commits what he acknowledges to be felonies on the job should not serve any jail time. It's that simple. Or maybe not: This afternoon, the White House left open the possibility of a full pardon at a later date.
There is one point on which, I think, Libby was treated unfairly and that's the imposition of sentence while he was still working his appeals. When I was in the CIA leak case I received several months worth of suspended sentences while my case worked its way to the Supreme Court. I had the agreement of the prosecutor, which made a huge difference in persuading the courts to allow me to stay out of jail. In Libby's case, Fitzgerald demanded immediate sentencing, which is what is usually doled out in criminal cases. Still, Fitzgerald cut me a break by allowing me to stay out of jail on appeal, citing with weighty constitutional issues involved, and it would be hypocritical for me to expect different treatment for Libby than for myself.
By the way, I was wrong -- in spirit if not in fact -- when I said that Bush would not pardon Libby. Technically, I was right. He hasn't pardoned Libby. But his commutation was an effective pardon making my prediction that Bush would treat Libby with, say, the disdain he treated death row inmate and evangelical cause celebre, Karla Faye Tucker, to be thoroughly wrong. Why spare the life of a contrite death row inmate when you can commute the sentence of a felon who continues to insist on his innocence?
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