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Tuesday, July 03, 2007

# Posted 4:00 PM by Taylor Owen  

BEST LIBBY RELATED LINE YET?: And there have been some serious whoppers. For my money, so far, Snow has to be in the running:
Shortly thereafter, a reporter asked Tony Snow during a press briefing, "If there are more than 3,000 current petitions for commutation -- not pardons, but commutation -- in the federal system, under President Bush, will all 3,000 of those be held to the same standard that the president applied to Scooter Libby?"

Snow replied, "I don't know."
With a bit more seriousness, it seems to me as if Josh pretty much nails it:

There is a conceivable argument --- a very poor one but a conceivable one --- for pardoning Scooter Libby, presumably on the argument that the entire prosecution was political and thus illegitimate. But what conceivable argument does the president have for micromanaging the sentence? To decide that the conviction is appropriate, that probation is appropriate, that a substantial fine is appropriate --- just no prison sentence.

This is being treated in the press as splitting the difference, an elegant compromise. But it is the least justifiable approach.

ps. A propos, from the Byron York none the less:
What's remarkable about it, since the Libby clemency was basically a political act, is Bush's reluctance to embrace any political argument to explain his action.
pps. Hmmm:
"I don't believe my role is to replace the verdict of a jury with my own," - George W. Bush on why he signed death warrants for 152 inmates as governor of Texas"- GWB, in a "A Charge To Keep."

UPDATE: It seems to me that what is getting lost here is that Libby was OBSTRUCTING an investigation. Not into WHO was the end point leaker, as Justice knew it was Armitage two months before it called on Fitgerald to start the investigation. But rather on who ordered it, and whether they in so doing broke the National Identities Protection Act. They couldn't prove this, in part anyways, because Libby OBSTRUCTED the investigation. This means that Cheney, along with Rove, was almost certainly in Fitzgerald's sights. That is why Fitzgerald went after him, and it seems to me to not only be perfectly reasonable, but exactly what one would want federal prosecutors to do.
(33) opinions -- Add your opinion

Comments:
pps. Hmmm:
"I don't believe my role is to replace the verdict of a jury with my own," - George W. Bush on why he signed death warrants for 152 inmates as governor of Texas"- GWB, in a "A Charge To Keep."


I think you and Andrew need to be reminded that death sentences in the States are passed by juries.
 
Maybe Bush was getting worried that he wouldn't go down in history as the absolute worst president ever.

Now he's demonstrated that he believes he and his cronies are above the law. Lord knows what the next 18 months have in store for us.
 
United States v. Libby was also a jury trial, so Taylor's parallel is correct.
 
United States v. Libby was also a jury trial, so Taylor's parallel is correct.

Wrong. The Jury in Libby's Trial only made a finding of guilt, they did not pass any sentence. In Death Penalty cases, the Jury not only decides on the verdict but also on whether the death penalty is warranted. It is the jury's decision on the death penalty which George Bush was referring to.
 
http://www.tnr.com/blog/the_plank?pid=122237
 
I think you and Andrew need to be reminded that death sentences in the States are passed by juries.

Apparently the president believes that it's his role to replace the decision of a judge whose sentence was well within the sentencing guidelines for the crime for which Libby was convicted.

Apparently, President Bush also believes that his rule is to usurp 6-3 decisions by the Supreme Court:

The Supreme Court made it harder Thursday for most defendants to challenge their federal prison sentences.

Appeals courts that review prison terms imposed by trial judges may deem them reasonable if they fall within federal sentencing guidelines adopted in the mid-1980s, the high court said.

The justices upheld a 33-month sentence given to Victor Rita for perjury and making false statements. Rita is a 25-year military veteran and former civilian federal employee.
[my emphasis]

I bet Victor Rita wishes he knew the president and vice=president.
 
Randy Paul,

That the president set aside the opinion of the Judge is not the issue. Taylor and Andrew S. were mocking him for having previously stated that he was unwilling to set aside the verdict of the jury and implied that he was being hypocritical for doing so with respect to the Libby verdict. If one wants to criticize Bush, it would help if the criticisms were factually based rather than being hit-and-run snark that failed to even hit the target.

As for the sentencing guidelines, you failed to notice that the Judge took the position that the disclosure of Plame's covert status was an aggravating factor when it hadn't even been raised at the trial, something which recent supreme court decisions have considered to be unconstitutional. Libby's lawyers could have won an appeal against the sentence on this if the sentence hadn't been commuted.
 
but here is what the NYT said about the case:
"The judges who sentenced the two men increased their sentences by taking account of the crimes about which they lied. Mr. Rita’s perjury concerned what the court called “a possible violation of a machine-gun registration law,” while Mr. Libby’s of a possible violation of a federal law making it a crime to disclose the identities of undercover intelligence agents in some circumstances.

When Mr. Rita argued that his 33-month sentence had failed adequately to consider his history and circumstances, the Justice Department strenuously disagreed."
 
When Mr. Rita argued that his 33-month sentence had failed adequately to consider his history and circumstances, the Justice Department strenuously disagreed."

That's good for the DOJ. How is it meant to support your accusation that Bush was being hypocritical by overturning a Judge's sentence when he refused to overturn the jury's decision on numerous occasions (and which he has also refused to do so here)?


UPDATE: It seems to me that what is getting lost here is that Libby was OBSTRUCTING an investigation.

As judicial findings stand, Libby was indeed guilty of obstruction. But what precisely did he prevent Fitzgerald from finding out? That Armitage was the leaker? Fitzy knew that. That Karl Rove was guilty of some crime? Fitzy had evidence of discrepancy in Rove's testimony and could have sought an indictment on that. He could have also indicted Armitage for concealing his conversation with Bob Woodward but chose not to do so.

As things stand, the thing that you are implying that Libby lied about (Evil Cheney conspired with Libby and Rove to leak Plame's status), you don't actually have any evidence that such a conspiracy existed or that Libby and Rove were lying about it. All you have is the fact that Libby was convicted about lying on a separate matter.

As for violation of the Intelligence Identities Protection Act, Fitzy had ample evidence to indict any leakers except for the dubious nature of Plame's covert status (as defined by the IIPA). Libby's lies do not obscure anything on this issue.
 
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As judicial findings stand, Libby was indeed guilty of obstruction. But what precisely did he prevent Fitzgerald from finding out? That Armitage was the leaker? Fitzy knew that. That Karl Rove was guilty of some crime?

We'll probably never know because he obstructed justice, whcih is why obstruction of justice is a serious crime.

As for the sentencing guidelines, you failed to notice that the Judge took the position that the disclosure of Plame's covert status was an aggravating factor when it hadn't even been raised at the trial,

Irrelevant - and incorrect. It was introduced as part of the sentencing recommendation. The trial determines guilt or innocence. Once guilt is established, then each side is allowed to present evidence to back up its sentencing recommendations. Libby's side used letters from friends, Fitzgerald used the fact that Plame was covert.

You're simply wrong here. The jury did not sentence Libby, the judge did. One of the relevant facts presented to the judge was the fact that Plame was covert.
 
The only thing is that there are two problems with the way Sullivan is using the quote.

1) In issuing a commutation, Bush did not substitute his judgment for that of the jury. The conviction remains intact, only the sentence (handed down by a judge, not a jury as in a death penalty case in Texas) is modified. Besides, a number of the jurors even called for a presidential pardon of Scooter Libby on the same day that they convicted him.

2) The governor of Texas doesn't have the power to pardon or grant a commutation any criminal without an affirmative recommendation fo the state's Board of pardons and Parole. This has been the case in Texas since the current constitution was adopted in 1876. Any attempt to stop the executions would therefore have been an impeachable offense -- and I believe that Texas law allows for the executions to proceed even without the signature of the governor.

So if you consider the pathetically inept analysis put forward by Andrew Sullivan, aside from the fact that the mechanisms by which the sentences were issued are completely different and the fact that the powers of the President and the Governor of Texas are completely different, the situations are exactly the same!
 
Randy Paul (9:32AM) sez "One of the relevant facts presented to the judge was the fact that Plame was covert" and I presume everybody understands the argument about there being two meanings to "covert" which may coincide, a CIA-common-usage meaning and an IIPA relevant-to-the-case meaning. So...

On the question of Plame's "covert" status, I am curious about any follow-up to Novak's widely published 'Covert' Confusion at the CIA article, which claimed conflicting stories and then:
On March 21, Hoekstra again asked the CIA to define Mrs. Wilson's status. A written reply April 5 from Christopher J. Walker, the agency's director of congressional affairs, said only that "it is taking longer than expected" to reply because of "the considerable legal complexity required for this tasking."
When I first saw that, it seemed to me that the same request must have come in years ago, not only from Fitzgerald but from Plame herself in clarifying grounds for lawsuit; also, I suppose, from Cheney with assistance if needed from the Declassifier-in-Chief. "longer than expected" is a very puzzling answer to such a request. It sounds a lot like "we're hoping that the issue goes away before we actually have to commit to a response." It really does. Right-wing conspiracists have no problem interpreting this, they know for certain that the CIA (Walker) is trying to conceal Plame's non-covert status, but I have a problem because it's hard to believe that Cheney has not demanded and (with help from Bush) received copies of her pay-stubs.

It is of course possible that a CIA response to Hoekstra's request has come since; has anyone seen one? Or maybe Novak is misrepresenting the request and/or the response, but there's been plenty of time for Hoekstra and/or Walker to object, and I haven't seen it. I would like to see a plausible theory of this response, preferably one other than "it's a really hard problem, we're not sure who would win such a case."

Is there something obvious here that I'm missing?
 
Tom Myers,

Read the article to which I linked:

"An unclassified summary of outed CIA officer Valerie Plame's employment history at the spy agency, disclosed for the first time today in a court filing by Special Counsel Patrick Fitzgerald, indicates that Plame was "covert" when her name became public in July 2003.

. . .

"The unclassified summary of Plame's employment with the CIA at the time that syndicated columnist Robert Novak published her name on July 14, 2003 says, 'Ms. Wilson was a covert CIA employee for who the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.'

"Plame worked as an operations officer in the Directorate of Operations and was assigned to the Counterproliferation Division (CPD) in January 2002 at CIA headquarters in Langley, Virginia.

"The employment history indicates that while she was assigned to CPD, Plame, 'engaged in temporary duty travel overseas on official business.' The report says, 'she traveled at least seven times to more than ten times.' When overseas Plame traveled undercover, 'sometimes in true name and sometimes in alias -- but always using cover -- whether official or non-official (NOC) -- with no ostensible relationship to the CIA.'"

In other words, the CIA did supply this information to Fitzgerald. My guess is that they were stalling as they wanted to be sure that this wouldn't be tainted by publicity before it was given to the judge.

In any event, Fitzgerald would not risk presenting this to the judge if it wasn't true. Note the following:

When overseas Plame traveled undercover, "sometimes in true name and sometimes in alias -- but always using cover -- whether official or non-official (NOC) -- with no ostensible relationship to the CIA."

I don't know how much clearer it can be.
 
Me:As judicial findings stand, Libby was indeed guilty of obstruction. But what precisely did he prevent Fitzgerald from finding out?

Randy Paul:We'll probably never know because he obstructed justice, whcih is why obstruction of justice is a serious crime.

I would have thought that it was customary to require evidence before postulating vast conspiracies rivaling that of the Elders of Zion. All that has been shown is that Libby lied about a specific matter. How do his lies prevent Fitzgerald from finding anything about an evil Cheney conspiracy?

Me:As for the sentencing guidelines, you failed to notice that the Judge took the position that the disclosure of Plame's covert status was an aggravating factor when it hadn't even been raised at the trial,

You:Irrelevant - and incorrect. It was introduced as part of the sentencing recommendation.

Which is not the trial the last time I looked. It was a disputed fact at the time of the trial and so should have been thrashed out in the trial itself.
 
Randy:

The communication from the CIA to the Congress referred to in one of the latest Star Chamber hearings was vague. It did not mention Plames status in relation to the relevent law. This says to me that the CIA is still playing fast and loose with the facts.

As far as the vedict goes - The comments of the jurors make me wonder how they could have reached the decision they did.

I do not understand why the court would not let Libbey stay out on bail while appealing the verdict.
 
In any event, Fitzgerald would not risk presenting this to the judge if it wasn't true. Note the following:

Fine. Let's not have trials at all. Let's place our complete trust in prosecutors because they wouldn't say anything to the judge unless it were completely and absolutely true.

Once I would have said the same about Intelligence agencies presenting "slam dunk" assessments and former ambassadors to Niger who with a long and distinguished history of state service would have no reason to lie. But ever since the facts in this tawdy little affair have been dribbling out, placing trust in a piece of paper produced by an inept agency intent on covering its exposed ass is too much of a leap of faith for me.
 
Randy,

Thanks. Your answer to my question, then, seems to be that Walker (in April) could have given a "yes, she was definitely covert under the IIPA, not just as the term is used within the CIA" answer to Hoekstra (effectively, to the House Select Committee on Intelligence), but he refrained from doing so. He refrained, as a way of cooperating with Fitzgerald, who did not want this simple fact revealed so that "this wouldn't be tainted by publicity before it was given to the judge." The CIA was so eager not to have "she was definitely covert under the IIPA" tainted by publicity (tainted by publicity?) that Walker lied to Hoekstra, a soon-to-be-revealed lie about "considerable legal complexity" because, umm, frankly, I don't understand this model.

The alternative model I hear about, in case you weren't keeping up on such things, is not that Fitzgerald said anything false to the judge in the statements reported in the article you linked. The alternative model is that he stated facts and pushed an inference but that the IIPA, which understandably failed to define the term "service", as in "service outside", has never had the meanings of its terms litigated, and that her trips abroad really truly honestly may not qualify -- or then again, they may. The law was apparently passed in a context of protecting agents posted abroad from a specific kind of threat from a specific guy named Agee, and deciding what a law actually covers can be difficult. (I can accept this last point.)

I don't much like this model either, but at least it makes some sense of Walker's non-response, and of Fitzgerald's long-ago maneuvers to have the "covert" issue left off the table through the trial. (At the time, I thought these might mean that he knew that she wasn't covert, but it could also mean that he wasn't sure how it would be decided, and didn't need to bet. I still don't see anything about his May 29, 2007 remarks on this subject that couldn't have been introduced early in the trial.)
So far as I know, (and I just spent a little while looking), Walker has still not responded to Hoekstra; he is still under the "longer than expected" due to "considerable legal complexities" excuse. On your model, I guess this means he's still lying, which really makes very little sense to me.

So...I dunno. If you feel like elaborating on your view of the [CIA, Select Committee, Fitzgerald, publicity-tainting] relationship, to explain Walker's apparently continuing lie, I'd love to read it. I would say this could be a whole lot clearer. As one who has paid many legal bills, I'm accustomed to the notion that legal phrasing often doesn't carry its apparently obvious meaning. So I dunno; I'd like a theory of the behavior of the people in question.

This is an unbelievably long-winded comment. If you fell asleep before reaching this point, don't answer it.
 
As things stand, the thing that you are implying that Libby lied about (Evil Cheney conspired with Libby and Rove to leak Plame's status), you don't actually have any evidence that such a conspiracy existed or that Libby and Rove were lying about it. All you have is the fact that Libby was convicted about lying on a separate matter.

You should read more deeply. No one said a conspiracy existed. I don't think anyone outside the players know the specifics of this case. All he said is that Rove and Cheney were in his sights. What would have come from further investigation is anyone's guess. We'll never know.

If this was entrapment, as the right is claiming, I'd like to see a case made to support that claim. So far, I haven't seen any.
 
Fine. Let's not have trials at all. Let's place our complete trust in prosecutors because they wouldn't say anything to the judge unless it were completely and absolutely true.

Now you're just whining. Fitzgerald didn't make the argument, the CIA did. Fitzgerald relied on the CIA for that information.

Which is not the trial the last time I looked. It was a disputed fact at the time of the trial and so should have been thrashed out in the trial itself.

For the charges that made up the indictment against Libby, it was irrelevant. He was not charged with blowing her cover.

How do his lies prevent Fitzgerald from finding anything about an evil Cheney conspiracy?

Ignoring your hyperbole, apparently the judge and jury at the trial were convinced.
 
Just a footnote on the actual post, up at the top there (almost forgotten?): "Josh nails it" with "But what conceivable argument does the president have for micromanaging the sentence?"

Hmm...If you take the defense seriously, they may actually believe their claims that, on various grounds, Libby didn't get a fair trial; and that he may have his name legally cleared via an appeal. The President may believe it too; for all I know, it's true. Such things do happen. The Presidential commutation doesn't rule that out, does it? The appeal continues, and if it wins then the outcome is much better for Libby (and Bush, and Cheney, and Rove) than a pardon which would have simply ended it.

Of course, if the appeal loses then the outcome may be worse than a pardon from a political standpoint, and from Libby's financial and career standpoint. But if the Presidential advisers think that the trial actually was unfair in an appealable sort of way, then "keep him out of jail, but don't stop the appeals process" may make sense.
 
If you scroll down the page on the article I linked to, you'll see a link to a copy of Fitzgerald's summary of Plame's employment history with the CIA. Read it for yourself.

Do you believe that a career Federal prosecutor would present a false filing to a Federal judge for sentencing someone for perjury? if you do, then there's no convincing you.

Secondly, ask yourself this: surely Libby's lawyers would have known that Plame's covert status was an aggravating factor. If they didn't, he might have a case for malpractice. If they did, then surely it would have behooved them to cast doubt upon this fact.

Instead, they merely got a bunch of his friends to send the judge letters saing he was a nice guy.
 
The whole Wilson/Plame/Libby affair is a joke. Wilson, indicative of the incompetent CIA, conducts an amazingly inept investigation ("Hello, Nigerian minister, you wouldn't by any chance want to admit trying to sell uranium to Iraq. No? Works for me. Have some more green tea."). Then he lies about his findings in the New York Times. (The 9/11 Commission actually found that Wilson's findings supported the assertion that Iraq was seeking these material in Africa and that Wison was not honest about them, and the British investigation concluded that their original report was accurate). That's not even to get into whether Plame was a "covert agent", which in contemporary CIA terms means sitting at a desk at Langley while braving the DC cocktail party circuit. However if you're truly "covert" it doesn't help to have your feckless husband run around spouting nonsense in the NY Times. Because at that point, "covert" or not, just why Wilson was sent becomes absolutely fair game and the original statute was not created to use as a sword against political rivals. In any event, with no underlying crime to speak of, and already knowing that Armitage had "outed" (if she was ever actually in) Plame, Libby is comvicted of lying to investigators where no actual crime occurred. Then the judge throws out the sentencing recommendation and slams Libby to the wall. So in the end this was a Washington farce, a psuedoscandal that only interested journalists and bloggers. If anything it shed light only on what the CIA actually is, an organization very short on intelligence but which jealously protects its political influence. It also showed the worthlessness of contemporary journalists, who could not even get the basic facts right when the smell of scandal was in the air. Sorry boys and girls. Get angry about Clinton pardoning terrorists who murdered innocent people in NYC, an act which Congress condemned. This is just too inside baseball to waste time over.
 
The right wing Washington Times denounces Bush's decision to commute the prison sentence.

That's right, they DENOUNCED it.

http://www.washingtontimes.com/article/20070704/EDITORIAL/107040022/1013/editorial
 
(The 9/11 Commission actually found that Wilson's findings supported the assertion that Iraq was seeking these material in Africa and that Wison was not honest about them,

Well, that's one lie. Anyone want to point out the others?

Seeing as how the 9/11 Commission spent its time probing the September 11th attacks (hence the name "9/11 Commission", duh) and specified QUITE CLEARLY that they gave no attention whatsoever to the Iraq war, I find it hard to believe they could have made a comment about Saddam seeking materials in Africa.

Maybe you heard it on Fox News.
 
Still wondering why this was considered "entrapment".
 
cc@11:30, the mistake (I would be astonished if it were a "lie") made by anonymous@10:24 is simply saying "9/11 Commission" rather than "Senate Intelligence Committee"; see factcheck if you're interested, or the actual report (via gpoaccess.gov) with the Niger subsection at SSCI:Niger; the section on "Former Ambassador" starts on page 4.

But of course you're right, it's not the 9/11 Commission.
 
Actually it was a finding by both the 9/11 Commission based on Wilson's testimony and the bipartisan Senate Intelligence Committee Report which has also correctly been mentioned. Even limiting the statement to the Senate Report, its still very accurate.
 
anonymous@1:42, are you sure that the 9/11 commission covered this? I'm looking at their report; 585-page PDF and I see that Niger is mentioned on page 75; it does mention Wilson Lowery and Thomas Wilson, but no other Wilson (at least by name); uranium is mentioned on pp. 77, 397 and in the bibliography, but it's only about Al Qaeda. I know it's a minor nit, but I think that the 9/11 Commission had plenty to worry about without ever getting to Ambassador Wilson's credibility issues. (I spend my life on minor nits, anyway.)
 
I went back and picked up my 9/11 Commission Report with all the monographs and staff statements. Sure enough I didn't see it in the report. I remember reading that members of the 9/11 Commission did reach some conclusions about Wilson's credibility but that this was never included in the report. However I can't verify this so I'll just concede the point and stick to the Senate report, which is more than enough. I will say that the most fascinating bit of evidence in reevaluating this issue was a letter written by Wilson to the Senate Committee in which he stated that "I never claimed to have 'debunked' the allegation that Iraq was seeking uranium from Africa." Now I really want to know what the hell this brouhaha was all about.
 
Anonymous@8:52PM, Wilson did write an LA Times Op-Ed (Oct 29,2005 I guess) that is now gone from "http://www.latimes.com/news/opinion/commentary/la-oe-wilson29oct29,0,4988049.story?coll=la-news-comment-opinions" but you might find it via the internet archive, if you want to; within it, he said that he
knew that the statement in Bush's speech — that Iraq had attempted to purchase significant quantities of uranium in Africa — was not true. I knew it was false from my own investigative trip to Africa (at the request of the CIA) and from two other similar intelligence reports. And I knew that the White House knew it.
I don't know whether this is an issue of the meaning of "is" (or "served", for that matter), or whether he has Libby-style memory issues, or what.
I sympathize with all of them, as it happens, because I really do have the experience -- maybe every couple of years -- of realizing that I've been saying (and believing) something for hours or days that really was a mismemory. It happens...and a rational observer might well conclude that I was lying. We all constantly rebuild our memories according to our theories of the world, and we all have multiple theories of the world and all the theories are wrong. Some of us mess up more than others, and that's me...but also, I think, Wilson. And Libby. And maybe they both lied, maybe one of them lied, maybe neither of them lied. Life is difficult, and I wish I knew why I wish I knew whether Plame was or was not covert, but I do wish and I don't know and I suspect I never will know because it will not be litigated. So it goes.
 
So, everyone has now forgotten that the original report tying Saddam Hussein with Niger was based on forged documents? How convenient.
 
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