the obstructionist’s obstructionist

There are many fine and forceful reactions to Monday’s announcement by President GW Bush, explaining how this decision violates sentencing law, flies in the face of precedent, and even ignores the recent opinion of the United States Supreme Court. While it has been clear for some time that the Bush cabal has little respect for the law, it also appears clear that few of their choices to flout the law are made randomly or impulsively. So, while men and women of conscience across the board express outrage at the presidential order to commute the 30-month sentence of I. Lewis “Scooter” Libby, I am left with a nagging question: Why commutation—why not a pardon?

While the establishment media is content to settle on the notion that this commutation is some sort of grand compromise crafted by a White House seeking to mollify Bush’s hard-right base while blunting the bigger backlash that would be expected from a full pardon, this strikes me as a nuance that might be lost on both sides. Sure, there is now an additional talking point for the Libby lobby—this idea that he will still live with the shame (Scooter? Shame?) and pay a fine (though, in reality, his defense fund will likely pick up the tab)—but as Scooter’s lawyers continue to pursue their appeals, and Patrick Fitzgerald continues to defend the conviction, the “base” will continue to push for a pardon. And, though admittedly without the reaction to such a pardon by which to measure it, Monday’s blistering rebukes—including Representative John Conyers’ suggestion that hearings on the leak and commutation are imminent—hardly seem blunted.

So, what’s in a commute? I am not an expert on the law here, but from clicking around, this is how I understand it:

The heart of the matter lies in the crime. Scooter Libby was convicted on obstruction charges for interfering with a federal investigation into the leak of the name of a covert CIA operative as retaliation against her husband for exposing some of the lies that comprised the administration’s case for the invasion of Iraq. The annals of the Libby investigation make it pretty clear that Vice President Dick Cheney, likely with the knowledge of President Bush and his top aids, engineered the vengeful leak. Were Libby to stop obstructing and speak truthfully as to what he knows, he could likely complete the federal case against the Vice President (at the very least).

With the dreaded time in hoosegow looming, federal prosecutors could hold out the possibility of a reduced sentence in exchange for Libby’s cooperation. Such truthful testimony would clearly be unacceptable and, indeed, threatening to Cheney, Rove, and Bush.

So, why not a pardon, then? Well, to the best of my understanding, a full pardon would eliminate Scooter’s claim to Fifth Amendment protections against self-incrimination.

. . . but would leave intact possible jeopardy for contempt of court and/or new charges of perjury. The result is that Libby could be required to testify under oath -- and under penalty of perjury and contempt -- about what others in the administration knew and when they knew it.

I also think, by extension, Libby could not take the Fifth if called to testify under oath before a congressional committee investigating the original leak. (I am making an inference here, though. If someone has a clearer understanding of this part of the law, please chime in.)

Without Libby’s Fifth Amendment rights, a large chink in the armor of VP Fourthbranch could be left exposed. And a potential witness for the prosecution stewing with his incriminating thoughts in a federal prison would be more risk and stress than this administration likely deems acceptable. Thus, commutation of Scooter’s sentence looks less like the fence-sitting compromise of a weak president, and more like the conniving plan of his powerful veep.

Motives aside, the circumstances remain the same: I. Lewis Libby’s obstruction is deemed by this lawless administration as less worthy of punishment because he obstructed on behalf of his friend and boss, Dick Cheney. Where I might differ from establishment outlets, as well as from TPM’s Josh Marshall, is that Monday’s commutation was not “the minimum necessary to keep the man silent”—it was the exact amount needed to keep the nation in the dark.

(cross-posted to capitoilette and Daily Kos)