By Elizabeth de la Vega
t r u t h o u t | Guest Contributor
Friday 06 July 2007
Knowing I could not listen to President Bush's actual voice on what is supposed to be a fun holiday, I turned to the White House web site to find his Fourth of July greeting. We continue to be, the president assures us, steadfastly committed to "America's founding truths" - including, of course, liberty and equality. I think it was the word "equality" that caused me to start choking on my corn on the cob.
Maybe there was some mistake. This web site posting did not even come close to reflecting the president's real Fourth of July message to the nation. That had been quite effectively delivered earlier in the week when Bush announced he was commuting I. Lewis "Scooter" Libby's sentence from thirty months to zero months. Apparently confusing his duties as president of the United States with those of a behind-the-plate umpire, President Bush called Libby's sentence "excessive" and threw the prison time out, as casually as if he were calling balls and strikes in a game of sandlot baseball. In so doing, President Bush sent a message to the American people that is as unambiguous as it is unprintable. Expressed verbally, the real message Bush was sending to the people of the United States could have been sent with just two words (the second of which is "you"); expressed physically, Bush's underlying message could have been conveyed with just one finger.
Either way, President Bush has again made it as clear as a Wisconsin lake that he has nothing but contempt for equality and the "rule 'a law" he is so fond of championing. Yes, a president has the constitutional power of clemency. He may pardon a criminal defendant, thereby wiping out the entire conviction and its consequences, or commute the sentence, thereby lessening it to some degree or entirely. But even this power, broad as it is, can be abused and, in the case of United States v. Libby, President Bush has done just that.
Just how egregious was the president's unapologetic and cavalier act of favoritism for a wealthy and powerful friend? To ask the question is to answer it, but to fully appreciate the extent of corruption inherent in the president's recent shameless exercise of noblesse sans oblige, one needs to know a bit about Bush and the Federal Sentencing Guidelines.
In the spirit of full disclosure, let me say that I, along with many others who have worked in the federal criminal justice system, have never been a fan of the sentencing guidelines. Formulated by a commission that was, in turn, created by the Sentencing Reform Act of 1984, the guidelines were specifically intended to promote fairness and remove unwarranted sentencing disparities. In practice, however, particularly in drug cases, application of the guidelines has led to draconian sentences - an inequity that federal judges, prosecutors and defense attorneys have attempted to address by applying various factors that could justify a downward departure from the prescribed range.
But, up until July 2, 2007, when he decided to take the law into his own hands, President Bush loved the sentencing guidelines. Bush and the Republicans have, for years, been insisting that the guidelines be applied rigidly - the president was simply not going to have any of this unseemly leniency that was beginning to infect the federal system under his watch. Indeed, in 2003, during the very same period that Bush, Cheney, Libby and the gang were scrambling to squelch the ever-increasing revelations about the president's fraudulent case for war, Bush's Justice Department, then under the leadership of John Ashcroft - and a posse of conservative Republican members of Congress - decided to take on these wimpy judges and make sure that neither they, nor any equally wimpy prosecutors, could exercise any discretion whatsoever with regard to sentencing. Tom DeLay told judges, "We are watching you" and the Bush administration tacked onto a child pornography law an amendment that required every downward departure from the guidelines to be reported to Congress.
Not surprisingly, this amendment, called the Feeney Amendment in honor of its titular sponsor, Representative Tom Feeney (R-Florida), caused a huge uproar, but its spirit lives on in the Department of Justice today. Right now, in July of 2007, prosecutors are required to oppose virtually all downward departures from the Federal Sentencing Guidelines, except those based on substantial assistance to the government. If a judge does grant a downward departure that was not sought by the government, the prosecutor has to report that to DoJ's appellate division for consideration of an appeal.
What does this mean in the context of the Libby case? With due consideration to the high likelihood that some of the people reading this may have had an extra beer or two the day before, I am going to make it very simple:
Scooter Libby was sentenced in accordance with the sentencing guidelines, to which President Bush has been insisting that prosecutors and judges slavishly adhere ever since he arrived in the White House. The sentencing range required by case law that Bush's own DoJ attorneys have routinely argued for, in cases throughout the country, was 30 to 37 months. Judge Reggie Walton gave Libby the lowest sentence within that range. Legally, the only way the judge could impose a sentence less than 30 months would have been if he had granted Libby's motion for downward departure. Libby had not provided substantial assistance to the government. Therefore, under the rules currently in effect within Bush's Justice Department, Libby had no legitimate ground for downward departure, and Patrick Fitzgerald was required to oppose his motion. If Judge Walton had actually departed downward based on any of these unapproved grounds, Fitzgerald would have been required, per the United States Attorneys' Manual, to report the downward departure so that issue could be evaluated for appeal.
So, forgive me if I started choking on my blueberry cobbler when I read Tony Snow's July 3 statement to reporters: "The President spent weeks and weeks consulting with senior members of this White House about the proper way to proceed, and they looked at a whole lot of options, and they spent a lot of time talking through the options and doing some very detailed legal analysis." Bush, we know, never spoke to any of the legal experts on the case, including, most notably, the prosecutor - even though Department of Justice clemency procedures call for such a consultation. He may well have spent "weeks and weeks" consulting with Dick Cheney and Karl Rove and their ilk in order to decide how to handle "the Libby issue," but they were only talking about how to sell an act of clemency ... what their talking points would be. Bush's statement betrays not a shred of legal analysis, which is not surprising, since there is none available to justify his decision.
The bottom line is that Bush's commitment to equality, the rule of law and uniform sentencing under the federal guidelines fizzled like a Fourth of July sparkler when it came to his friend.
Even more important, Bush, of course, never intended to allow Libby to go to prison at all. Indeed, his original plan was to avoid any investigation whatsoever into the unauthorized disclosure of Valerie Wilson's identity as a CIA agent. The president could have, and should have, begun an internal investigation when Robert Novak's column exposed the existence of the leak on July 14, 2003. He didn't; he waited. Once the investigation was announced in late September 2003, Bush was still constitutionally required to ferret out the miscreants in his shop, but he did not do so. Instead, he professed cooperation with the investigation in one breath, but undermined it in the next, commenting famously that he didn't think the leakers would ever be found. And then, most cynically, Bush used the criminal proceedings as a shield to avoid questions about the White House's conduct, a technique that served him well through two national election cycles.
The president of the United States watched and waited as an entire team of federal prosecutors, investigators and support personnel spent years and millions in taxpayers' dollars on an entirely justified and legitimate grand-jury investigation into whether members of that president's own White House had violated the laws of the United States. He watched and waited, hoping there would be no charges, as two grand juries (a total of about 40 US citizens) spent months of their valuable time listening to the evidence.
President Bush watched and waited, hoping the case would be dismissed, as millions of additional federal dollars and limited US District Court resources were expended on extensive pretrial litigation.
Hoping next - probably by this time praying - that Libby would be acquitted, the president watched and waited during a six-week trial that consumed additional court time and took twelve additional US citizens away from their daily lives. He watched and waited for the lengthy sentencing process to play out, and then, once the sentence had been imposed, he allowed additional federal resources - including the valuable time of three Court of Appeals judges - to be expended on Libby's motion for release on bond pending appeal.
In other words, well-knowing, despite his repeated assurances to the contrary, that he would never respect any adverse outcome of the criminal case against his and Vice President Cheney's top adviser and friend, the president simply and cravenly waited to reveal his true intentions to the American people until he could wait no longer, all the while hiding behind that very same criminal case.
This extended course of deception does not end the story: The statement Bush made when he emerged briefly from his Kennebunkport estate to issue a reprieve for the wealthy and powerful criminal defendant who happened to be his friend, was, of itself, a multilayered fraud. In his July 2 message, Bush, suddenly Solomon-like, attempted to convince the public that the matter he had been avoiding for four years on the ground that it was a pending legal case is, in fact, nothing more than a political dispute to be resolved through compromise. Clemency, Bush would now have us believe, is a decision to be made by weighing the arguments of "critics" and "supporters" of the investigation as if a pending criminal case could be decided by referendum, or maybe a call-in vote, the way we choose the American Idol. Working from this deliberately false premise, the president then purports to "weigh," as if they were equivalent, the arguments of Libby's defense team, which had already been rejected by Judge Walton and found insubstantial by the DC Circuit Court of Appeals, against the actual facts and law of the case.
Bush's decision to commute Libby's sentence was not a compromise between the positions of critics and supporters of the case. The president was not settling a dispute between those who wanted the sentence to stand and those who wanted a pardon. He was simply doing what he intended to do all along - keeping Libby out of jail. The only reason Bush did not pardon Libby was because he wanted Libby to be able to continue to plead his fifth amendment privilege not to testify against himself - most particularly before Congress - based on the fact that the case was still before the Court of Appeals.
From the beginning, with regard to the CIA leak investigation, the president has deceived the American people and abused his power in a manner and to a degree that would be awe-inspiring if it were not so disgraceful. His conduct has been a study in perfidy and disregard for the law - the willful betrayal of the confidence and trust of the American people. These are the very definition of impeachable offenses. It is not enough for Congress to ask the public to send petitions and call the White House to "send a message" that the president's conduct will not be tolerated. It is up to Congress to deliver that message, and they know exactly what they have to do.
Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the US Attorney's Office for the Northern District of California. Her pieces have appeared in The Nation, the Los Angeles Times and Salon. She writes regularly for Tomdispatch.com. She is the author of "United States v. George W. Bush et al." which has been optioned for a movie now in preproduction. (www.USvBushmovie.com). She may be contacted at ElizabethdelaVega@Verizon.net.
(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)
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