Haven't a number of them, including dear old Fred, already publicly applauded it?

Rudy too I think.

Some will applaud it, and some would prefer a full pardon.

I agree that getting them on the record is important, but they'll do that anyway for the sake of the Republican primary voters.

So, during the general election campaign, we'll be able to effectively shame the Republican candidate with his disregard for the rule of law?

Yeah, I didn't think so either.

Rudy too I think.

Yes, which really pisses me off. The guy that sought RICO charges against insider traders is now simpering about a routine perjury conviction? Schmuck.

http://www.tpmcafe.com/blog/electioncentral/2007/jul/03/rudy_i_believe_the_decision_was_correct

i agree with joseph wilson, who's been quoted as saying that bush commuted libby's sentence so that libby wouldn't reveal administrative secrets once faced with jail - so he'd remain a loyalist.

creepy that this all happens in the open.

Yeah, this sounds like a question that's both likely to be asked and irrelevant, given that the candidates will answer it on their own.

Bah. They're all in a race to the bottom anyway, seeking to appeal to the most extreme constituencies within the GOP. Hell, even allegedly pro-choice Rudy told the WSJ that he'd model his SCOTUS picks after Roberts, Alito, Scalia and Thomas.

My guess is that Cheney prompted Libby to threaten Bush. Libby is protecting Cheney, not Bush. This does Bush no good. Libby probably would have taken a fall for Cheney, but Cheney didn't want that.

This does Bush no good.

It did him the good of presenting an opportunity to stick it to his political enemies, which is the sort of good I gather he cares about quite a bit. And given his already reduced political state, I doubt it did him any meaningful harm.

I really don't see the downside for Bush here. People will cluck, but nobody will change their minds about him because of this.

6-Not sure exactly what Wilson means, but singing at this point, I think, couldn't really do Libby any good, now that he's been convicted and sentenced.

Of course, there may well have been an arrangement that Libby didn't need to sing back when it could have helped him, because they'd have his back if he did get convicted.

10,11:I have been reading a lot about the unpopularity of the commutation. I again offer my radical analysis, that this may be about the politics of polarization and the building of a cadre.

What is important and useful in an era of radical politics is the relative committment of your followers, not, within reason, their numbers. If you have 10% willing to blow it all up or die trying, the 90% may get out of the way. Procedural liberalism helps the revolutionaries by inhibiting the reactionaries.

Then you compromise them wih illegal activities, bribes, rigging elections, violence, whatever where unquestionable loyalty and omerta is the only option.

Majoritarianism is always the enemy of revolution. Could be we have some very smart fascists, and not so smart liberals.

things I'd like: watching Democratic & Republican presidential candidates debate each other, one on one (chosen by random drawing), for 30 minutes at a time. Tom Tancredo v. Mike Gravel, baby.

11: I agree. This seems more likely to cement people's beliefs rather than change anyone's mind. It's legal for Bush to commute a sentence, so if you support him, you think 'He did something legal to help a guy who was taken down by a witchhunt.' If you don't support Bush, you think '[impotent rage]!'

What depresses me is realizing that this kind of thing makes me want to say stuff like "let's just bash all the Republican's heads in" or "with luck Alito and Roberts will both die in car crashes next year." Impotent rage, and completely unconstructive and stupid ideas of violence. Am I beginning to understand Ann Coulter? The horror.

It's legal for Bush to commute a sentence

Without suggesting you think otherwise, let me note that it's also legal (in the same sense of "legal") to impeach him for commutation with improper motive.

At the next Republican debate, for all the candidates to be asked how they feel about the Libby commutation

Thing I'd like: after they give their pat, mealy-mouthed responses (blah blah legal to commute blah blah witchhunt blah blah blown out of proportion blah blah), for journalists to ask specific follow-up questions until candidates are forced to articulate clear statements of principle -- statements which can then be used to confront them when they inevitably turn out to be bullshitting.

I'd walk away from it. But I'm not a GOP candidate. (Sigh.)

Does Libby bother people worse than most Presidential pardons? (Marc Rich?) I don't like or understand the idea of the Presidential pardon at all. What legitimate purpose is it supposed to serve?

And that would be my answer, were I a Republican candidate being interviewed by LB.

Does Libby bother people worse than most Presidential pardons?

Duh, yes. Because it's not just pardoning a buddy; it's pardoning a buddy as a reward for the buddy's covering your ass, and in order to ensure that your ass remains covered.

20:Court of Last Resort & Justice Tempered by Mercy. These thousands of years old, and common in a cultures.

The problematic difference from the Mark Rich pardon is that the Libby pardon is essentially the obstruction of justice and immunity for criminal acts ordered by the President. Discussin around blogs on how a President could get away with murder, by having his successor pardon him.

Also interesting discussin on the Founders awareness of the problem, and that maybe President can be suspended from office pending impeachment, said Madison.

Tho not with this Congress.

it's also legal (in the same sense of "legal") to impeach him for commutation with improper motive.

Is this like lusting in one's heart?

20: The legitimate purpose it's supposed to serve is allowing the President to extend mercy to people he believes were treated harshly by the criminal justice system. I would argue that using pardons to pardon the President's direct employees for crimes they committed in the course of obeying his orders is peculiarly wrong.

The worst thing you could possibly say about the Rich pardon is that (1) Rich was undeserving, and (2) it was granted out of personal corruption*. It didn't affect the workings of government, as this does, at all.

* There's a pretty good argument that Rich was deserving -- he was prosecuted for taking a tax position that the IRS disagreed with. At the level of money we're talking about, the tax law is complex enough that good-faith disagreement is possible, and as a result both before and after the Rich prosecution, the Justice Department had a policy of not pursuing such matters criminally, instead seeking only civil penalties. Giuliani walked away from that policy in the Rich case, and then the office returned to it after Rich was prosecuted.

Is he a saint? No, he's a rich guy who was at the least taking an aggressive tax position, and he stayed out of the country rather than take his medicine when Giuliani decided to prosecute him. But the prosecution really was abnormal.

And there's not much in the way of evidence that Clinton benefited personally from the Rich pardon. Bush, on the other hand, obviously benefits from commuting Libby's sentence.

Presidential pardons, Governor Landers, are meant to allow for a reprieve for the wrongly convicted -- they derive from an ancient tradition of clemency on the part of sovereigns. If I may ask a follow-up -- so you're saying that you disagree with the decision to pardon, and if you were President, you would have let the sentence stand?

See, like that.

21: yeah, I can see a reasonable argument that one is worse than the other, but, you know, they're both bad. If someone has been convicted by a jury of a serious crime, why do we allow them to go free just because they happen to be friends with the President? I just don't get it.

I've partially defended him here previously, so I'd just like to say, fuck Alan Dershowitz. Show me the numbers on release on bail pending appeal in similar cases, explain why the majority Republican appeals court unanimously thought that the appeal didn't have a substantial chance of success, explain why Republicans have apparently been conspiring against themselves since the investigation began.

26: I think presidential pardons are also used to clear records. So if someone has a conviction in the past and has demonstrated exceptionally good behavior since then they can apply for a pardon and have their conviction erased even thought they have already served their time.

24: that's not how Limbaugh told the Rich story, and I don't really remember hearing about the details anywhere else. If you're right, I'll grant that it's pretty different. But that just makes it a bad example: I still don't get why the President should have this power. I understand it's an ancient tradition blah blah blah, but what insight does the president have into these cases (other than those of his close friends)? Do we want him spending his time acquiring insight into these cases? I think not, but why the hell do we want him making decisions about them, then? The pardon power makes sense for chiefs of tribal villages, and maybe some sense for governors of small states (maybe....), but the president?? It seems like it must either be completely useless or a pure political tool. I'd rather do away with it.

25: yes, absolutely.

And: pardon the President's direct employees for crimes they committed in the course of obeying his orders

Sorry, I obviously haven't followed this as closely as I should have, but there's no real evidence that Libby was obeying Bush's direct orders, is there?

I'm honestly not trying to defend Bush, if that's how this is comign across. I just think the whole idea of the presidential pardon is bullshit.

Next question for the constitutional scholars: can a President pardon himself?

29: I don't think it would be a terrible thing for it to go away -- it doesn't get used well IMO. But any system is going to run into weird situations it's not equipped to handle, where the system's answer is just not right, and it makes sense that there should be some outlet where human judgment can fix things outside the rules.

I've forgotten most of everything I've ever knew about habeas law, but there are procedural stages after which convincing evidence of the prisoner's actual innocence doesn't get considered. Doesn't it make sense that, if the evidence is really convincing, that there should be some way to take an end run around the rules?

26: Brock, "they're both bad" is irrelevant, and inevitably sounds like an excuse. In this case, an excuse for Bush covering his own ass by protecting his cronies (or Cheney's). If you want to say that that's okay because, hey, everyone does it, or because hey, other people do bad things too, then go ahead but recognize that that's what you're doing.

30: I was trying to put that delicately enough that I wasn't committed to a position on that. I don't know that it can be established that anyone told him to commit the crimes he committed, but he certainly committed them as part of his job, rather than out of a personal motive. At the least it's a "Will nobody rid me of this turbulent priest" situation.

can a President pardon himself?

The only textual limit on the pardon power is for cases of impeachment, and I'm reasonably certain there's never been an attempt by a U.S. President to pardon themselves, so there's no precedent on it.

can a President pardon himself?

I've been wondering this myself. AFAIK, pardons cannot be granted to people under impeachment -- so yet one more argument in favor of impeachment.

that's not how Limbaugh told the Rich story

Hmmm.

Well, pardons are a check-and-balance type issue. They give an executive a tool to use when courts screw up egregiously - as courts do now and then.

The problem is the pardons that take place as the executive is walking out the door.

In Tennessee, they literally sped up the inauguration for Gov. Ray Blanton's successor, Lamar Alexander, because Blanton was believed to be selling pardons. (He later got convicted of something else.)

w/d-pwn3d.

it makes sense that there should be some outlet where human judgment can fix things outside the rules

Well right, but that's why I was opposed to the switch from judges and juries to computer programs in our justice system. But if for efficiency's sake it's going to be run all by machines (call them "procedural rules", if you must), I'd still argue that we ought to put the "outlet for human judgment" into the hands of someone who knows something about what they're doing, or has the time to acquire that knowledge. In other words, if there's some problem with the procedural rules, why not fix them? And if you really think it's important to have something closely akin to our current pardon system, shouldn't we have something like a tenth dedicated Supreme Court Justice (the "Chief Pardon Officer") who (1) knows what he's doing and (2) does nothing but review these petitions day in and day out? Putting this in the President's hands is insane.

30: Can we presume that "President" means "Dick Cheney"?

35, 36. Oh great, another gentleman's agreement this President's attorneys will advise him not to be constrained by. Some days I just wish pianos really did fall out of the clear blue sky, like in the roadrunner cartoons.

39: There's an office in DOJ which considers requests for pardons and commutations (at least in death penalty cases) and makes recommendations to the President.

42: I understand that. But with it in the President's hands, things like Libby also happen.

Again, I don't think the system is used terribly well now, but exactly because it's for exceptions -- cases where the normal procedures are unjust or inequitable -- it's important that it be done openly. A CPO could do all sorts of corrupt stuff, and there wouldn't be important consequences because the CPO wouldn't be anyone important. Imagine if Bush could say "Hey, I wasn't involved. Harriet's the CPO, and she's an expert. She's the one who thought that Scooter should walk."

Yes, I was answering your "'put the outlet for human judgment' into the hands of someone who knows something about what they're doing, or has the time to acquire that knowledge" objection.

40: No. Cheney is operating as Chancellor, or Prime Minister, but without needing the confidence of the Congress. The separation from Bush, Bush's rather pathetic combination of venality and non-responsibility is an essential part of the current situation.

This post by Scarecrow at FDL expresses my opinion on impeachment pretty well. Democrats were intimidated long ago into ruling out impeachment, which in situations of this kind is the only possible remedy. As a result, the possibility has never been on the table, public opinion has not been prepared for the possibility, and no one is aware that many things that Bush has done have arguably been impeachable. So the argument now has to start from scratch, and there's no possibility that it will go anywhere.

This requires the repression of a significant sector of Democratic (and American) opinion. And once again the Democrats are blindsided as a result of their habit of never thinking further than six months into the future, and never taking any risks at all.

44: presumably the Senate wouldn't confirm Harriet as the CPO any more than they were willing to confirm her as a Justice. But we're arguing hypotheticals.

CPO = Pardon Attorney.

Bush didn't consult him about the Libby commutation.

A Constitutional amendment creating a CPO (presumably in the judiciary with life tenure) would put someone else with even less accountability than the President in charge of the pardon power and would be worse in almost all cases then having someone nominally responsive to public opinion holding the power.

So the argument now has to start from scratch, and there's no possibility that it will go anywhere.

The 90s Republicans were talking impeachment all the time, and demonstrated that after laying the proper groundwork, you can impeach a president for pretty much anything.

I dunno, though. I still think it's not too late for Congress to at least bring up the subject.

50: why? I'd prefer it be a less politicized position.

Digby provides some arguments against attempting impeachment.

A part of the story of the Rich pardon that Rush probably does not dwell on is that Scooter Libby was Rich's lawyer. Not that it matters.

What sluggards, what cowards have I brought up in my court, who care nothing for their allegiance to their lord. Who will rid me of this meddlesome CIA agent and her husband.

And the somewhat reckless slogan against the repub candidates that rings best for me is:
Republicans - Soft on Treason. (from Oaktown Girl)

30: Brock, here is emptywheel Marcy Wheeler of Next Hurrah and FDL on the probable complicity of Bush & Cheney. She has done better-than-professional work, which is too intricate and detailed and documented for me to follow, but which is available in toto in book and website.

I simply trust her judgement.

I came over to vent about the link in 27. Damn you for preempting my rant, dreyer! And fuck Dershowitz with a rusty spoon, man.

Atrios reminded us today that Marc Rich's lawyer was...Scooter Libby.

So did Stormcrow.

53: as a legal matter, on the torture stuff, the MCA is not quite the retroactively-legalize-everything silver bullet that it's often described as. The Bush DOJ was guaranteed to interpret it to allow everything; Congress doesn't have to.

As a political matter, of course she's absolutely correct that the House Democrats who voted for that law will never vote to impeach based on the torture stuff.

IMO, she is also correct that even if the Democrats are the zealous, uncompromising, shrill investigators that we want them to be, we probably cannot get the necessary evidence to justify impeachment before 2009. But loudly asking for all the evidence, and protesting when we get stonewalled, makes it politically easier to do a thorough accounting when a new President takes office....

Instead I read today that the administration is considering asking for a law legalizing indefinite administrative detention in the continental United States in return for closing Guantanamo. I will just bet you that if they do this, the Washington Post endorses it, and some Serious Democratic Senators will give the proposal Serious Thought.

Speaking of congressional action:

After voting to authorize subpoenas for information on the NSA spying program last week, the Senate Judiciary Committee has now officially issued them.

"Chairman Leahy issued subpoenas to the Department of Justice, the Office of the White House, the Office of the Vice President and the National Security Council for documents relating to the Committee's inquiry into the warrantless electronic surveillance program. The subpoenas seek documents related to authorization and reauthorizationof the program or programs; the legal analysis or opinions about the surveillance; orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC) concerning the surveillance; agreements between the Executive Branch and telecommunications or other companies regarding liability for assisting with or participating in the surveillance; and documents concerning the shutting down of an investigation of the Department of Justice's Office of Professional Responsibility (OPR) relating to the surveillance."

(Source, and subpoenas).

For all that I bitch about the Congressional democrats Leahy's actually pretty great. He and Feingold are probably my two favorite Senators.

Part of the problem, I think, is that the Dems were not actually prepared to take power. Certainly not in the Senate. That's why I'm harping *now* about how there must be investigations & if a Democratic president takes power (which I realize must sound like an admission of defeat)--because if we want that to happen, the time to pressure them is during the primaries, when they are competing for liberal support.

Now this is the road that i much prefer to impeachment. No votes are going to be lost because of zealous investigation, especially not in the hands of the likes of Leahy and Waxman. Bad facts will continue to spill out, and all the Admin has to keep giving up ground -- I think people underestimate the harm having a Gonzales around does. (Imagine if the Pres had had to keep Rumsfeld, rather than trading him in for Gates. That's where he is with the AG.) Meanwhile, the steady trickle out of DOJ continues, and various bugs are scrambling out from under various rocks in the other departments.

I was kind of struck this morning listening to C-Span on the way in to town: caller after caller mad about the Libby thing, and they were wingers. How could I tell? they went on about how unfair it is that those two Border Patrol guys are stuck in jail while the President's friend is going free.

And Katherine, I have an immigration question. Suppose the government brings a Gitmo prisoner into the US. Suppose the prisoner has a well founded fear of persecution in the country of his citizenship, and applies for asylum. Now I guess the government might seek to deny on account of material support of terrorism, but they're going to have to prove that, aren't they?

63: yes, though it's not that hard for them to prove that, as the laws on "material support" are extremely stupid (and one of my hobbyhorses, so email me if you want the long version).

63,64: They might not even have to go that far as asylum is hard to get in a lot of cases anyway. They could probably avoid the terrorism angle and just argue that (say) while the person's country is a war zone, they're unlikely to be personally persecuted.

64 -- Yeah, but they'd need admissible evidence, right? And there would be confrontation? And a right against self-incrimination?

65 -- Documenting the threat isn't a problem, in plenty of cases.

The immigration courts don't follow the Federal Rules of Evidence & IIRC they don't follow the exclusionary rule, but you could certainly argue that gov'ts evidence wasn't probative/was obtained through coercion/etc. & shouldn't be admitted. IJs have all kinds of discretion.