People v. Scooter (update)

Was the prosecution of Scooter Libby nothing more than some purely political effort to bring down the Bush administration? Orin Kerr, a professor of law at George Washington University, finds this argument "seriously bizarre." He dismantles the notion of the prosecution being an attack job -- there is much more involved here in proper sentencing and punishment.

In the wake of Bush's decision to commute Libby's two-and-a-half-year prison sentence for perjury and obstruction of justice in the CIA leak case, Kerr explains his point on the Volokh Conspiracy group blog.

The Sentencing Law and Policy Blog has been especially active these past few days, with links to posts and articles examining Bush's decision to commute Scooter's sentence. Douglas A. Berman, an Ohio State law professor and a blogger, says one theme emerging is how often the decision will be used to ask judges for lower sentences than guidelines suggest. (The New York Sun suggests that an alleged Hamas operator may be among the first to make the argument.) Stay tuned, now that Bush has opened this door of questioning harshness...

The Libby Pardon, the Federal Sentencing Guidelines, and the Ashcroft Memorandum: Articles in both the New York Times and Slate suggest that Bush's decision to commute Libby's sentence was hypocritical because of the Administration's views on sentencing law. Specifically, Bush relied on arguments about what should be relevant to a sentence that his own Justice Department has rejected in the context of legislation and litigation over the Federal Sentencing Guidelines. While I'm critical of Bush's decision, I find this particular criticism to be weak because it overlooks the vital differences between executive and judicial power. I think the better criticism would be based on the differences between Bush's commutation and DOJ's charging policies announced in the Ashcroft Memorandum of 2003.

The problem with the comparison to sentencing law is that there are two very different branches of government at work here. On one hand, we have the politically-accountable elected Executive branch. And on the other hand, we have the life-tenured unelected Judicial branch. The criminal justice system traditionally gives those two branches very different roles. The Executive branch decides what cases it will investigate and what it will charge. The Judicial branch plays the role of umpire and adjudicates guilt and imposes sentences pursuant to Congress's statutes (checked by the Constitution).

Given those differences, I'm not sure why a President's reasons for exercising his Executive power to commute or pardon need to mirror that President's views about what power judges should have to adjust sentences. The two branches are different and play different roles; I don't know why a President has to choose between both branches having a particular power and neither of them having it. A President's decision to commute or pardon is much more like a prosecutor's decision to charge a case in a particular way or to decline prosecution altogether than it is a judge's decision handing down a sentence.

Now, with that said, Bush isn't off the hook. The real problem then is the inconsistency between Bush's apparent reasons for commuting Libby's sentence and DOJ policy on charging cases. Under current policy, federal prosecutors have the power to decline to charge cases altogether — a power roughly analogous to a pardon, albeit on the front end of the process rather than the back end. There are considerations that they are supposed to use as well as considerations they cannot use, but the power itself is pretty broad.

On the other hand, there's a very different picture for the power to charge a case in a tailored way to make sure the sentence isn't excessive — a power roughly analogous to commuting a sentence, albeit on the front end of the process rather than the back end. Under the Ashcroft memorandum, DOJ's policy announced in 2003, once prosecutors agree to charge a case they have very little discretion on how to charge it. The basic notion is that prosecutors are not permitted to charge a case only part of the way out of a sense that this best reflects the interests of justice in that particular case.

So, there is a contradiction here between setting up a process where prosecutors will follow their mandate and interferring with that mandate after the process has been completed when you set it in motion in the beginning. Perhaps someone should explain how the legal process is supposed to work to Bush. Oh wait, what am I thinking? Nevermind.