The United States Court of Appeals for the D.C. Circuit today rejected Lewis Libby's request to remain free on bail while pursuing his appeals for the serious convictions of perjury and obstruction of justice. As a result, Mr. Libby will be required to turn himself over to the Bureau of Prisons to begin serving his prison sentence.
I have said throughout this process that it would not be appropriate to comment or intervene in this case until Mr. Libby's appeals have been exhausted. But with the denial of bail being upheld and incarceration imminent, I believe it is now important to react to that decision.
From the very beginning of the investigation into the leaking of Valerie Plame's name, I made it clear to the White House staff and anyone serving in my administration that I expected full cooperation with the Justice Department. Dozens of White House staff and administration officials dutifully cooperated.
After the investigation was under way, the Justice Department appointed United States Attorney for the Northern District of Illinois Patrick Fitzgerald as a special counsel in charge of the case. Mr. Fitzgerald is a highly qualified, professional prosecutor who carried out his responsibilities as charged.
This case has generated significant commentary and debate. Critics of the investigation have argued that a special counsel should not have been appointed, nor should the investigation have been pursued after the Justice Department learned who leaked Ms. Plame's name to columnist Robert Novak. Furthermore, the critics point out that neither Mr. Libby nor anyone else has been charged with violating the Intelligence Identities Protection Act or the Espionage Act, which were the original subjects of the investigation. Finally, critics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury.
Others point out that a jury of citizens weighed all the evidence and listened to all the testimony and found Mr. Libby guilty of perjury and obstructing justice. They argue, correctly, that our entire system of justice relies on people telling the truth. And if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable. They say that had Mr. Libby only told the truth, he would have never been indicted in the first place.
Both critics and defenders of this investigation have made important points. I have made my own evaluation. In preparing for the decision I am announcing today, I have carefully weighed these arguments and the circumstances surrounding this case.
Mr. Libby was sentenced to 30 months of prison, two years of probation and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.
I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend 30 months in prison.
My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant and private citizen will be long-lasting.
The Constitution gives the president the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.
Was a 2 1/2 year prison sentence excessive?
As John Dean, former White House counsel to President Richard Nixon notes:
"There is a historical parallel to certain Watergate-related convictions. For example, former Nixon Attorney General John Mitchell, White House Chief of Staff H.R. Haldeman and Assistant to the President for Domestic Affairs John D. Ehrlichman were each sentenced to 30 to 96 months for perjury and obstruction of justice - two of the three crimes of which Libby was convicted (They each served some 18 months before they were released.)
Providing a closer parallel to the Libby situation, Presidential Appointment Secretary and Deputy Assistant to the President Dwight Chapin was convicted for lying about his involvement in the 1972 Nixon campaign "dirty tricks" operation. Chapin was not convicted for involvement in the dirty tricks per se, but rather for making false statements to the grand jury about his activities. Chapin was sentenced to 10-to-30 months in prison, with the judge required that he serve not less than 10. Similarly, Libby was not convicted for leaking information about Valerie Plame Wilson's covert status at the CIA, but rather for lying about his efforts to leak the information.
Comparing the price of fines (adjusted for inflation) between 1974 and 2007 ($45,000/$250,000), Libby seems to be getting off cheaply, but I think it's fair to conclude that no matter what it had been, the secret fund set up for Libby (see Barbara Comstock) would have had enough to cover it.
All those convicted during Watergate who were attorneys lost their licenses to practice, and should Libby fail to prevail on appeal, he will lose his license, too.
Unless, on his way out of town in 2009, Bush grants Libby a full pardon, in addition to this interim stop-gap measure to keep Libby out of prison. (I wouldn't be surprised if there is a pardon for Libby on January 19, 2009, given Bush's visit with his father at Kennebunkport this past weekend and Dad's own history of preventing investigations with pardons.)
There is, however, nothing to prevent a prosecutor in the future, in the next administration, from opening up a new investigation. Should a new investigation uncover evidence of a conspiracy, Libby, et al, could face a whole new set of charges. (What would Bush-Cheney and Republicans do to make sure that doesn't happen?)
Libby prosecutor Patrick Fitzgerald couldn't get to charging Libby (or anyone else) with conspiracy because Libby's lies obstructed the investigation:
FITZGERALD: This grand jury's term has expired by statute; it could not be extended. But it's in ordinary course to keep a grand jury open to consider other matters, and that's what we will be doing.
Let me then ask your next question: Well, why is this a leak investigation that doesn't result in a charge? I've been trying to think about how to explain this, so let me try. I know baseball analogies are the fad these days. Let me try something.
If you saw a baseball game and you saw a pitcher wind up and throw a fastball and hit a batter right smack in the head, and it really, really hurt them, you'd want to know why the pitcher did that. And you'd wonder whether or not the person just reared back and decided, "I've got bad blood with this batter. He hit two home runs off me. I'm just going to hit him in the head as hard as I can."
You also might wonder whether or not the pitcher just let go of the ball or his foot slipped, and he had no idea to throw the ball anywhere near the batter's head. And there's lots of shades of gray in between.
You might learn that you wanted to hit the batter in the back and it hit him in the head because he moved. You might want to throw it under his chin, but it ended up hitting him on the head.
FITZGERALD: And what you'd want to do is have as much information as you could. You'd want to know: What happened in the dugout? Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you'd want to know.
And then you'd make a decision as to whether this person should be banned from baseball, whether they should be suspended, whether you should do nothing at all and just say, "Hey, the person threw a bad pitch. Get over it."
In this case, it's a lot more serious than baseball. And the damage wasn't to one person. It wasn't just Valerie Wilson. It was done to all of us.
And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. Cooper? And was this something where he intended to cause whatever damage was caused?
FITZGERALD: Or did they intend to do something else and where are the shades of gray?
And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.
As you sit here now, if you're asking me what his motives were, I can't tell you; we haven't charged it.
So what you were saying is the harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.
I also want to take away from the notion that somehow we should take an obstruction charge less seriously than a leak charge.
This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.
During closing arguments at Libby's trial, Fitzgerald told jurors that "there is a cloud over the vice president. ... a cloud over the White House over what happened," according to a copy of the transcript of Fitzgerald's statements. "We didn't put that cloud there," Fitzgerald said. "That cloud's there because the defendant obstructed justice. That cloud is something you just can't pretend isn't there."
Prior to Libby's sentencing, Fitzgerald filed a sentencing memorandum (filed on May 25) in which Fitzgerald asserted that "[i]t was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press."
Moreover, as Media Matters points out: ...in a May 29 filing, Fitzgerald included an "unclassified summary" of Plame's CIA employment, which established that she had headed a counterproliferation operation focused on Iraq and had traveled overseas in an undercover capacity in the five years prior to the disclosure of her identity. From the document:
On 1 January 2002, Valerie Wilson was working for the Central Intelligence Agency (CIA) as an operations officer in the Directorate of Operations (DO). She was assigned to the Counterproliferation Division (CPD) at CIA Headquarters, where she served as the Chief of a CPD component with responsibility for weapons proliferation issues related to Iraq.
While assigned to CPD, Ms. Wilson engaged in temporary duty (TDY) travel overseas on official business. She traveled at least seven times to more than ten countries. When traveling overseas, Ms. Wilson always traveled under a cover identity -- sometimes in true name and sometimes in alias -- but always using cover -- whether official or non-official cover (NOC) -- with no ostensible relationship to the CIA.
At the time of the initial unauthorized disclosure in the media of Ms. Wilson's employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.
It was hoped that once facing time in the slammer, Libby would have a "come to Jesus"-moment and spill his guts for a reduced sentence. Bush saved the day for them all by sparing Libby from prison.
Of course it stinks, but did we expect anything else from this president or anyone in this administration?
The question that remains is, Can Bush and Cheney afford to risk another investigation by a future administration?
Impeachment may be the only way that Democrats take the White House in 2008.