No Commutation of Sentence For Scooter Libby

The Destruction of Law and Order In America

By: The People’s Defender

 
 
Recently, President George W. Bush commuted the sentence of Lewis “Scooter” Libby.  Libby was indicted, prosecuted and convicted of perjury regarding an investigation by a special prosecutor in the outing of Valerie Plame Wilson, a CIA covert operative.  Scooter as friends affectionately call him was Vice President Dick Cheney’s chief of staff at the time of the offense.   Valerie Plame Wilson is the wife of Joseph C. Wilson, a former U.S. ambassador and critic of the Bush administration’s weapons of mass destruction illusion that open the door to Iraqi war.

Libby’s trial was presided over by Judge Reggie Walton, who sits on the Federal District Court For the District of Columbia.  George W. Bush appointed Walton to that position in 2001.  Prior to this appointment, Walton had sat on the bench of the DC Superior Court.  President Regan appointed Walton to the Office of the Drug Czar reporting to William Bennett.  Bennett resigned when George Herbert Walker Bush became President.  Bob Martinez, the former governor of Florida and Mayor of Tampa, Florida became the Drug Czar under Papa Bush.  Walton left that office soon after Martinez’s appointment and was reappointed to the D.C. Superior Court bench by George Herbert Walker Bush.  Judge Walton remained there until his appointment to the Federal Bench.  Judge Walton established a reputation as a fair jurist and would sentence a defendant based on the law. 

Libby was convicted and sentenced to 2 ½ years in prison, and two years of supervised probation beginning after serving the 2 ½ years along with a $250,000 fine.  Libby was facing 6 years in prison and the special prosecutor Patrick Fitzgerald recommended 3 years.  Libby asked that he remained free on bail pending his appeal.  Fitzgerald opposed the request, and after considering briefs from both sides, Judge Walton denied the request.  After losing an appeal to remain free, Libby was heading to prison until President Bush stepped in and commuted the 2 ½ years prison sentence.  The President felt that the sentence was excessive.  The fine and probation however remained intact.

The question is whether the President has the power to commute the sentence.

In this country we have three branches of our government: The Executive Branch (The President, Vice President and the president’s cabinet); The Legislative Branch (Congress) and the Judiciary Branch ( U. S. Supreme Court and all inferior courts as congress shall, from time to time, ordain and establish.)  These three separate yet interdependent branches are charged with the running of our federal government.  In allocating governmental authority among three separate branches the Framers of the U.S. Constitution ensured that the principal powers of the government, (legislative, executive and judicial), were not concentrated in the hands of any single branch and it also prevented the formation of too strong a national government capable of overpowering the individual state governments.

One of the basic doctrines in the U.S. Constitution is the Separation Of Powers.  Under this doctrine the executive, legislative, and judicial branches are to be independent and not infringe upon each other’s rights and duties.  In other words, The Constitution prohibits one branch of the Government from encroaching on the central prerogatives of another.

Article III of the U.S. Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States and gives the Federal Judiciary the power, not merely to interpret the law including the Constitution and rule on cases, but to decide them, subject to review only by superior Article III courts.

According to article II section 2 of the same Constitution, the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”However, the word “commute” does not appear.   As stated above, the Judiciary is vested with the power to interpret the law including the Constitution.   In interpreting article II section 2 the Supreme Court has stated that the jurist must look at the plain meaning of the words it contains.  Whether President George W. Bush has the authority to commute a sentence turns on the meaning of the word commute as it relates to the words reprieves and pardons.  
Black’s Law dictionary defines a reprieve as “temporary relief from or postponement of execution of criminal punishment or sentence.  It does no more than stay the execution of a sentence for a time, and it is ordinarily an act of clemency extended to a prisoner to afford him an opportunity to procure some amelioration of the sentence imposed.  It differs from a commutation, which is a reduction of a sentence and from a pardon which is a permanent cancellation of the sentence”.  In other words, reprieve or pardon of a sentence is not the equivalent of commutation of a sentence. 
It appears that President George W. Bush does not have the power to commute Scooter’s sentence under article II section 2 as he contends.  The President’s action amounts to an unauthorized encroachment upon the powers of the judiciary and therefore violates the constitutional principle of separation of powers.  
Good news is that George W. Bush is in his last term as President.  Bad news is we have several candidates who are supposedly learned in the law as a result of studying and graduating from Ivy league schools such as Yale and Harvard, and not one seems to be aware that article II section 2 of the US Constitution does not give the President the power to commute a sentence.   If they are aware, I would certainly like to know why they have not mentioned it.  They have had plenty of opportunity to do so.  The subject came up during the Democratic Presidential debate on Howard University’s campus.  All of those candidates felt that George W. Bush had abused his powers.   The republican candidates appear to support Mr. Bush’s decision to exercise a power he does not have.  This was disturbing coming from Rudy Giuliani who prides himself as a law and order guy.  Former Senator Fred Thompson who has not entered the race also supports the decision.  Although he was just playing a law and order guy on television he is a former lawmaker and should know better.
It’s also disappointing that the media has not addressed the issue.  Last month the media was all in a frenzy, over Paris Hilton (who is not running for President) being released to home detention after serving two days of a 23 days sentence for violating probation of a DUI conviction.  One of the issues reported on extensively by the media was whether the sheriff running the detention center had the authority to release her for medical reasons.  Here we have a sentence commuted of a convicted perjurer regarding the act of treasons whereby a CIA covert operative was outed and the media assumes that the President has the authority to do so.    Instead researching and reporting on the unauthorized encroachment of the separation of powers, the media has chose to focus on Hilary Clinton’s response in order to regurgitate her husband’s pardon of fugitive financier Marc Rich.  In one case you have an unfettered pardon which smells of abuse of power but nevertheless is conveyed by the Constitution and in the other case the clear violation of the separation of powers doctrine whereby our leader, The President asserts a power not conveyed on him by the Constitution in order to prevent a liar and a treasonous former vice presidential chief of staff from serving his prison sentence.  By no means am I advocating support of Bill Clinton’s decision to pardon Rich.   It was definitely disgusting but it was within his powers.   Instead of focusing on one of the many short comings on former President Clinton, the public might be better served in knowing why Hilary Clinton as well as the other candidates is not revealing the President’s unauthorized usurpation of judicial power.
The country must elect a new President.   In doing so, we might want to make sure that we elect one that will not only obey the U.S. Constitution, but is actually familiar with it.   We must also do some research on our own, and not depend on the media to report on pertinent news that will allow us to make an informed decision.  We have to start thinking for our selves, and not allow the media and the government officials to dumb us up. Otherwise it will be business as usual.  In the meantime, the Judiciary must address George W. Bush’s lack of power.  The ball is in Patrick Fitzgerald’s court.     Fitzgerald must give Walton a chance to rule on Bush’s apparent lack of authority.  Should Walton make a finding that Bush has such authority, an appeal to the Federal Court, and the Supreme Court would settle the question of a President’s power to commute a sentence.  Failure of Fitzgerald to oppose Bush’s action in the form of an opposition brief and an appeal if necessary would amount to a derelict of duty. 
Let’s not let Judge Gladys Kessler be the only jurist dispensing justice (D.C.madam case) in The District Court For the District of Columbia.