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July 09, 2007


It doesn't make me bitter at all. The absolute worst case scenario at this point is that Fitz is just documenting for historians how brazenly unethical this President has been. You can see it in all of the news reports about the commutation. Even Fred Fielding can't find anything wrong with the verdict.

And like I said, that's the worst case scenario. And that still requires Reggie Walton to simply grin and bear it. I don't think that's going to happen. I think Walton is either going to haul Libby off to jail (not likely) or state flatly that you can be on supervised release if you never went to jail in the first place. I suspect that he will do this and state his total disgust with the commutation.

Yes, this is a bitter pill to swallow.

Reading this makes my heart really go out to Fitz and his associates... I mean in addition to what's been done to the rule of law and our Constitution.

This has all been so hard to fathom in terms of all the diligence and years of hard, frustrating work they put into this.

The passing of 7 days has done nothing to soften the blow in my mind at all. I do understand your feelings on this.

Not to mention Judge Walton, too.

Thanks for posting the filing. And for all that you do.


"The filing makes me more bitter than I was even last Monday. That's what we've come to--arguing diligently to sustain the scrap of punishment Libby still has."

Like you we are all pissed about the abuse of power and finger to the rule of law. However, did you really believe that Scooter would go to jail - with the enormous and powerful "Free Libby" campaign that included many of the Beltway heavies and the fact that Cheney is known to run the Administration?

In the same vein do you believe that Cheney or AbuG or Bush will be held to account for their abuse of power and obstruction of justice?

Now it's time for any patriots in the DOJ to give Bush and his thugs the finger by protesting this flagrant violation of justice.

Ab --
Perhaps not, though I still hope and pray "God is not mocked," in the words of Sen. Sam Ervin. But even if no one (well, no one other than Abramoff and Cunningham and Safavian and Ney and ... well, a heck of a lot of other people) else walks the perp walk, that's no reason to stop screaming in agony as the Constitution is shredded.
It's a bitter reality, but arguing diligently is our only alternative. Rest assured (just look at the poll numbers) there are lots of listeners out there who know the score.
Kudos to EW as always for her diligence, rain or shine.

I didn't see any scraps of snark. There was non of the customary twinkle of good humor.

I think the tone I would apply to that memo would be "bitter irony".

And tiredness. Exhaustion. Emotionally, if not physically.

Now I am depressed.

"Hi. Fred Fielding here. No one's asked OUR opinion of our grave interference in the process of law, but here it is. We rule. You suck."

Clearly no one cares what you think, Fred.

Just to get things rolling a bit, I am going to repost something I said a couple of days ago on a related thread here.

"Both the White House and their literal partners in crime, the Libbyistas, knew full well the ramifications on Scooter's sentence to supervised release that the pardon (commutation) would create. This was an intentional and designed play all the way. Pretty much any good criminal lawyer doing a lot of trial, and therefore sentencing, work knows quite well the jurisdictional and operational parameters of the probation office. You have to know things like this in order to be effective and creative in negotiating and drafting favorable plea agreements and cooperation/plea agreements. The Claude Rains/Captain Renault pretension of shock was simply theater at its best."

While Fitz is correct that there is scant case law (really none) on the issue, that does not mean that the opening for this argument by Libby was not a mile wide, nor obvious. It is just something that would immediately come to mind for a practicing criminal attorney. There are always issues regarding the jurisdiction and operation of the Probation Office. Let me give an imperfect analogy. Have you ever noticed that the DOJ and the courts almost always postpone sentencing on defendants "cooperating" and "working" for the government? One of the reasons for this relates to concerns about doing so on release under the auspices of the Probation Office. This relates more in the traditional criminal setting, but bear with me. The basis of thought is that supervision of defendants by the Probation Office contemplates that they must be law abiding and not associate with known criminals. That is antithetical to the government having their cooperating defendant work undercover as a mole, confidential informant etc. For this reason, sentences are deferred, supervised release is omitted as a sentence element, and other work-a-rounds found. So, my point is, that you learn to affirmatively look for issues regarding supervised release, and there is little question but that they did just that here. Eliminating Scooter's supervised release was not an unforseen byproduct, it was an engineered desired outcome.

Kinda exemplifies the problems with today's Washington Post -- this is from today's politics chat

Washington: What can possibly be gained by congressional hearings into the Libby commutation? Clearly Bush had the authority to do this, and he did it. Q.E.D. I'm old enough to remember when President Ford appeared before a congressional committee to explain his pardon of Richard Nixon. But Bush is no Ford, and unlike the Ford pardon, I don't think this action is going to look better over time.

Shailagh Murray: YAAWWN. That's my view of the Libby flap. What on earth did people expect Bush to do?

Could Shailagh be any more clueless? Or irresponsible? Or stupid?

Fitz may not have made snark in his filing. I am really curious to see what Reggie imposes on Scooter now. Remember, he is pissed.

It isn't over 'til it's over, and this isn't over yet.

Even Fielding argues for probabtion.


"It's a bitter reality, but arguing diligently is our only alternative"

Yes, we can't give up as that would provide the authoritarians the complete victory they are seeking.

Their whole strategy has been to confuse the public and draw moral equivalence - the Dems are corrupt too, then to obfuscate their wanton abuse of power and obstruction of justice and then keep at it with the expectation that the people will tire and let them continue their abuse and obstruction. And know that the Dems are highly unlikely to stoop to their level and fight back and as a result they can always skate. Unfortunately acquiescence and appeasement of "tyrants" only begets even worse authoritarianism!

Maybe some day the people and their representatives will not stand for it any longer.

A question that has bugged me for a while that I have not seen addressed, perhaps the sharp minds here can help me. If Libby's jail time is commuted, what then would be any penalty is he was to breech his conditions of probation/supervised release? Can he be sent to jail to finish his time in that circumstance, or does the commutation remove that too?


Unfortunately, I'm stuck with tea leaves, rather than a crystal ball. Nevertheless, my anecdotal tea leaves can be summed up by the reaction of a devoted Drudge Reader I know -- he was already fed up with the BushCheney administration, but his reaction to the Libby 'pardon' was identical to mine: the Libby 'commutation' confirms that GWB had a hand in outing Valerie Plame. Time to talk about 'the i word' and we didn't mean iMac, iPod, or iMovie.

I find it interesting that from such different locations on the political spectrum, the Drudge Reader and I arrived at identical conclusions about The Meaning And Significance Of The Libby Commutation: Bush = Guilty. (FWIW, we both followed Plame with enormous interest and attention.)

Among the now-former Republicans at my 4th of July picnic, the Libby commutation elicited a degree of hostility and contempt that Yours Truly found breathtaking. My sense was that they're shellshocked by the daily evidence of the degree, extent, and brazen criminality of the BushCheney administration.

EW, you surmised in a recent post that the Libby 'commutation' would prove to be the 'Saturday Night Massacre' of PlameGate. Although I have no crystal ball, your surmise is consistent with what I see, read, and hear. It's still playing out, but -- anecdotally -- the degree of contempt that I see is certainly notable and suggests that the Libby 'commutation' was, in fact, a Tipping Point.

Bmaz - I have to agree with you that the issue of commutation and its effect on supervised release was not the product of a hasty capitulation on the part of Bush to Cheney to avoid a "fracture", and sloppy legal work in the commutation - it may seem a bit too contrived to the non-lawyers here, but the calculation of when a sentence ends, eligibility for parole, the potential of illegal sentences ie fines plus probation without a term of imprisonment (a Canadian issue), what exactly are the preconditions for a transfer to the Probation from the Correctional people - these are all in a days work for any competent criminal lawyer, and I do not doubt for a minute that Team Libby was prepared to make this argument as part of its analysis, particularly since they suggested house arrest as a possibility at sentencing (or at least quoted the PSR to that effect). The fact that Judge Walton seized so quickly upon the issue is evidence that this is not a spontaneous opportunity for Libby to exploit. It's just not credible that this would be a "loophole" that opened suddenly which they are seeking to take advantage of.

Libby's position statement just popped up too - all input to Judge Walton agrees - there is no "adversarial" relationship on this issue, the parties all agree, and they agree for the same underlying reason.

EW -re your Update #2 - I'm surprised that there was apparently such a disconnect between the political types at the White House and Tema Libby on the supervised release issue. Clearly Scooter or Mrs. Scooter or Big Dick were only going to be happy with a fine, with no other restrictions on Scooter's liberty or the power of the Probation Service to continue to monitor Libby for two years (ie beyond Shrub's term). Fielding, as usual, is thinking ahead, beyond Scooter's problems, to bolting down the lid on a increasingly bubbling pot of discontent and political disgust that the pardon has created, so as not to create enough of a public or institutional revolt (DOJ perhaps?), that could damge his careful obfuscation and obstrution strategy. Team Libby seems to be getting greedy, perhaps knowing that Big Dick is really calling the shots.

Ab --
I wasn't disagreeing with you.
My Dad was an inside fighter in losing battles through his entire career in DOJ -- he retired when a congressman named Bush told Mitchell to get him the hell off a case.
But I do remember his counsels of patience and continued effort when I would become irate and impatient and so angry I would cry at the way things were going, back in the days of the '68 convention and Kent State and the war in Vietnam. And I guess that's what I come back to, when things look particularly bleak -- an abiding faith that the truth will ultimately out. And that we surely don't want to learn the tactics of our opponents.


Yeah, that's what it looks like to me--Libby got greedy, Fred weighed in (I'm curious about the legality of the fashion), and then Libby backed off.

I wonder if that means Libby might still be pressured in some way. Time to start brainstorming the most humiliating community service possible for him.

Scotian - That is an outstanding question and I don't really know the answer to it. My off the cuff guess is that, since the prison sentence has been pardoned(commuted) in full, there is no availability to remand to custody for a material violation of terms and conditions of supervised release. Generally, for a probation violation, the court can re-sentence you to serve some or all of the prison time that was not being served as a result of probation. For the last twenty years or so, since the advent of the Sentencing Guidelines process, the only time not being served is the "good time" credits you accumulate while incarcerated and cannot exceed about 15% of the set term. Since Scooter is not incarcerated, and accumulated none of the custody credits, I don't know what the mechanism would be to order him further confined for a violation. Maybe LHP or another has a better answer for your question; that is the best I have on initial contemplation.

EW and Ishmael - I absolutely agree that Team Libby got greedy, but it will take more than this series of events to convince me that said greed wasn't the plan from the outset, both by Team Libby and the White House. They simply made the subsequent determination that they should walk their greed back a little because of the uproar.

Bmaz - I have to agree with you that the issue of commutation and its effect on supervised release was not the product of a hasty capitulation on the part of Bush to Cheney to avoid a "fracture", and sloppy legal work in the commutation -

Ishmael -- I think you and Bmaz are giving too much credit to Fred Fielding's legal skills. He's not a criminal defense lawyer, and for the past 25 years at least, he's been a partner practicing civil law in a megafirm. That means that he depends on zealous underlings (young, overpaid associates) to write up long memos that tell him what the law is before he makes any decisions. As far as we can tell, this commutation idea was thought up by a very small group inside the White House (Bush, Fielding and a couple of flunkies, with Fielding being the only lawyer) and it was done in haste. Fielding is not an expert in federal sentencing law and it looks as though -- pressured Cheney -- he wrote up this commutation order by himself, in secret (if Cheney's role were revealed, so would both Fielding's and Cheney's obstruction of justice) with no input from anybody who knew the pitfalls that await when D.O.J. input from professionals is ignored. As with everything that's done by this White House, the result is a clusterfuck caused by the rampant incompetence that afflicts even shrewd lawyers like Fielding whenever they get close to Bush.

EW - I really believe that Scooter is not so much afraid of the community service aspect (although I'd love to see him emptying bedpans at Walter Reed) - it is the obligation to comply with lawful orders, be of good behaviour, etc., which could be interpreted to provide for cooperation with an ongoing investigation. He has his 5th amendment rights while he continues to appeal, but that could run out in a few months, and then SCOTUS would have to decide whether to intervene - which I see as a real long shot. I think this is really interesting given your thoughts on the potential Novak-Scooter meeting, there could be a lot more to come to light here.

Bmaz - re supervised release infractions - are you saying that there are no independent penalties for a breach of conditions? Under our Criminal Code, you can be sentenced to jail for breaches, although usually not for the first breach.

Basharov - I do think that Fielding is a master strategist in all this, but I don't think that Fielding acted alone in his interpretation of the law and preparation of the commutation order. I'm absolutely sure that the commutation issue was analyzed to death by Team Libby, who are experts in federal criminal proceedings, of the white collar variety in any event. If I can speak for Bmaz, I think we are both saying that Team Libby made absolutely clear what they wanted for Scooter, in exchange for backing off from calling Big Dick to the stand at trial, and having essentially gone into a defensive clinch at Libby's trial without Dick and without Scooter in the box, would have known exactly what the consequences of all the possible clemency outcomes were - Bmaz and I previously speculated on the conseqences of respite, release from custody a la Lt. Calley, full pardon, etc, so if we were doing this is our spare time, Im sure Team Libby had a handle on it as well.

I think I get it. All the high powered lawyering lining up for Libby was about managing a concession from Cheney that no jail time would ensue including the issuing of the subpoena to testify at trial. Nothing like a little harball among friends to assure an outcome. The advocacy purchased was not to convince the the judge and jury, but a collateral process to pressure the executive.

What Ishmael said. As to your question on penalties for breach of supervised release, no I am most certainly not saying that. The question seemed to ask about incarceration as a penalty for breech. Without researching it or chewing it over with others, my guess is that Bush's pardon (commutation) of Libby's prison sentence means that there is no further potential for incarceration as a result of those convictions. Other elements for violation penalty are probably still in play, such as extra fine imposition, extended monitoring, imposition of additional community service (assuming supervised release is still in place).

It is possible that Bush is truly in some sort of moral dilemma here. Why go to the trouble to state that the commutation was given to avoid a rift with the Vice President.
I think the shadow of the rift is there. Perhaps there is a penumbra of a rift.

Bush probably feels an inherent compunction to acknowledge the craven nature of outing an intelligence agent, but Cheney has him by the short hairs. Its scorced earth all the way down, at least to Scooter. In other words the threat of a scorched earth exists all the way up to the top. Not unheard of to hold a failing deal together. Cheney probably needed only to remind Bush that he was authorized to do what was "necessary" by Bush and so cast a fear of complicity where W just wanted to say something that appeared to have some gravity.

This trop maybe is repeated over and over again with respect to multiple issues. Once Bush acquiesed to Cheney acting as the de facto executive any failure or illegality could be used to levarge Bush in the face of the destruction of his presidency into more craven postures.

Its all speculation but it seems to fit on some psychological level for me.

J. Thomason - I'm afraid I can't give Shrub any credit for any greater moral dilemma than saving his own ass. I recall during the death and destruction of Katrina, and the national uproar over Brownie's incompetence, Bush was quoted to the effect that "Well, if they're shooting at Brownie, it means they won't be shooting at me". I don't see Shrub having any greater moral problem here, especially when Bush, perhaps goaded by Cheney in an Iago-like moment, appealing to Bush's essentially bullying and vindictive character, decided that Joe Wilson was an enemy and had to be destroyed.

The oedipal dimensions are where I see what I would call a moral dilemma arising with respect to Plame. But if, as we seem to agree, that his greatest motive is to save his own ass, then this is a weakness, a venality, that both Cheney and Rove could play on to enjoy the game of taking their shennagins to the hilt.

I am just responding to the back story here, that perplexes me, that the commutation was made to save a relationship with the VP. The need to press this perception must arise from something.

The hardball played by Team Libby would have been expected by the WH. Arguably, they played fast-pitch softball. They didn't use most of what they had; they just earned a lot of money getting ready to do so. This may have been welcomed by Cheney as an aid in getting Shrub's other advisers to back off and let him convince Shrub to do "the right thing", even if indirectly.

For a fictional version of how complex negotiations can take place while seeming not to, consider The Godfather II scene where Tom Hagen chats with the Don's old friend who is in FBI custody and about to spill the beans to Congress about Michael's career as a mob boss. They talk about ancient history, the consequences of opposing the emperor and failing, of committing suicide in exchange for the emperor protecting the suicide/rebel's surviving family. Cigars half-smoked, Tom shakes hands and goes home, mission accomplished. Next day, there's no more star witness, and the Don takes care of the guy's family, which is still living in his dad's old house. Fiction, sure, but a lot of business in DC gets done in similar ways.

I agree with those who say that the strategy all along has been to shut Libby up, to keep him from the ignominy of even a single night alone in the cell with Bubba, and to minimize accountability/visibility for all. If there's a gap in the law about imposing supervised release on a felon who's prison sentence was commuted by presidential decree, which may negate imposing the supervised release, it was anticipated or desired. Fielding is good, and confident enough to strategize with those who are more skilled at a task than he is.

Last thing. These guys revel in payback, the pettier the better. If they can stick it to Judge Walton by forcing him to nix the supervised release, so much the better. But Reggie's a stand-up guy - a few weeks ago he stopped his car on a DC traffic circle to break up a fight when he could have sped past like a Cheney motorcade. If he can do right by the people and their verdict, he will. If not, I would not want to be the next public official accused of a crime while in office to show up in his court room.

Bush's pardon of Libby is not a matter of doing it to protect Cheney irrespective of whether Cheney "has something" on Bush; it is a matter of Bush protecting HIMSELF, and then Cheney and others in the process.


"A question that has bugged me for a while that I have not seen addressed, perhaps the sharp minds here can help me. If Libby's jail time is commuted, what then would be any penalty is he was to breech his conditions of probation/supervised release? Can he be sent to jail to finish his time in that circumstance, or does the commutation remove that too?"

I've wondered about that too, Scotian. IANAL, but my take is that a breach of the probabtion/supervised release guidlines would be a separate, additional offense, and therefore subject to prison penalties.

However, it's probably a moot point, since Shooter & Tooter would no doubt step in once again to commute or pardon the sentence.

I have just wanted to explore this. It seems odd the the WH would float a story that the commutation was to save a relationship with the VP. This seems like an unusual gesture for a President, incongruent. In a way it gives rise to an inference that a scorched earth threat is in play. At this point we really don't factually know what motives were in play especially if the commutation is an obstruction of justice.

The dynamic strikes me as one that has interest from a speculative point of view. We really don't know where the greater culpability rests at this point. But to explore weaknesses certainly is germane to moving ahead. That's all.

"bitter duty"

that's an interesting and powerful phrase.

i've never heard or read it before.

I'm absolutely sure that the commutation issue was analyzed to death by Team Libby, who are experts in federal criminal proceedings, of the white collar variety in any event.

I have no doubt that Team Libby analyzed the commutation issue to death, but if they turned over their analysis to Fielding, then they'd be in very grave danger of being charged with obstruction of justice if any documentation or testimony surfaced that they'd done so. Maybe I'm giving Team Libby's lawyers too much credit for having ethics, but I have difficulty believing that the lawyers on the Team would be so reckless as to do something that illegal. It seems more likely to me that Fielding and his small coterie were confronted sooner than they expected by the appellate court's ruling that Libby should go to jail while his case was on appeal (I'm sure they expected Sentelle to be a good boy and save Scooter), and they pulled this commutation gambit because it was easy to sell to Dubya, who's not the brightest bulb on the block, as a compromise that would protect Libby for the time being, and at the same time make sure his Fifth Amendment rights would still protect them. I figure that Libby was sending semaphore signals (probably through Toensing or DiGenova) threatening that he'd drop a dime on the whole Bush Crime Syndicate if he had to spend a day in the joint. After all, that's how Cap Weinberger convinced Poppy to pardon him just before he was about to go on trial for perjuring himself during Iran-Contra when he denied that Poppy knew what was going on.

Basharov - I agree completely that Libby's lawyers themselves would not have been making contact, but rest assured there was some designated interface. Despite Cheney's denial to the press, I would be shocked if he doesn't covertly talk to Scooter every now and then. There was no legal reason for the hurry you describe however. To the best of my knowledge, no report date to custody had been set for Scooter, and at the earliest, it would likely not be until early August. There was plenty of time to allow the final step of application to the Supreme Court for review of the Circuit Panel's decision to affirm Walton's ruling, and if you will recall, Bush stated point blanketly several times that he would not even consider the issue until ALL legal appeals were finished. Well, that was a lie wasn't it. Scooter told them to get on with it and they sought the cover of the Fourth of July holiday week lack of a complete news cycle. Maybe you are right and I am wrong as to whether Fielding et.al. knew of the potential problem vis a vis supervised release. Quite frankly, it is almost more damning if you are right and they didn't know, as that would mean it was such a toxic and unconscionable move that Fielding couldn't even consult and involve others in his office and/or the DOJ in executing it. Either way, it is a pretty ugly picture.

Well, if there's one thing we know about this bunch it's that if there's a way to screw something up, they'll manage to do so -- and that includes supposedly savvy lawyers like Fielding. I can't prove it, of course, but I think they panicked when the D.C. Circuit rejected Libby's request to keep out of the crossbar hotel while he appealed his convictions. Their arrogance is such that I'm sure they thought the fix was in as soon as they saw that they'd lucked out by having Sentelle on the panel. When even Sentelle flicked them aside like lice on a hooker's cooch, and they could tell that Cheney was signalling from deep in his bunker that Libby was going to crack, and -- since they were operating in secret without anyone on the outside to calm them down -- they went into panic mode. Fielding wrote up the commutation order on his own (big mistake, Fred, especially when you haven't done a lick of your own work in years) without taking the time to have an associate work up a memo to explain the ramifications of eliminating the prison sentence but not the "supervised release." He probably preened to Dubya about what a slick maneuver this would be, and how any fuss would die off in a few days, just as happened with Poppy's pardons of Weinberger and the other Iran/Contra criminals. I'm hoping he's wrong, but with the Inside-the-Beltway punditocracy and Fred Hiatt doing their best to protect poor Scooter, they may get away with it.

I've been following Fielding's career sporadically ever since he worked for Nixon and I just don't think he's all that smart -- and especially he's not smart enough to have worked out this scheme in any real detail. We know that they think they can mold reality to resemble their fantasy world, and people like that don't do much thinking ahead, since they always assume that they can force events to happen by sheer will.

Then again, it's always a mistake to misunderestimate them.

Basharov - I agree completely that yours is a quite plausible scenario, I think mine is too. As I said above, it is pretty damning and ugly either way. One way they are more incompetent and panicky; the other, more evil and unethically manipulative. A putrid Catch 22/Hobson's Choice.

I tend to think of them as incompetent, panicky and evil and manipulative -- Mayberry Machiavellis, as DeIulio would have it in his memorable phrase.

If Shrub is Barney Fife, who's Cheney?

Basharov - It's not Mayberry, but Bedford Falls that I think of when I think of the Machiavellis. Cheney always reminded me of Mr. Potter in Its a Wonderful Life - I don't know who George Bailey is right now, but I think the comparison of the movie is apt - we found out what happened if Al Gore had never been elected in 2000 (which of course he was!)

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