Former federal prosecutor William Otis has an interesting op-ed in the Washington Post today suggesting that President Bush should consider commuting Scooter Libby's jail term instead of pardoning him. I found it fairly convincing. It begins:
Scooter Libby should not be pardoned. But his punishment — 30 months in prison, two years' probation and a $250,000 fine — is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.
There is a legal principle at stake in this case greater than either Libby or the politics of the moment. It is a fundamental rule of law that the grand jury is entitled to every man's evidence. The grand jury cannot survive as the essential truth-finding tool it is if witnesses can lie with impunity. True, Libby committed a "process crime" — that is, so far as has been established in court or even alleged by the prosecutor, he committed no crime until after the government initiated its investigation of the underlying act (namely, the revelation of Valerie Plame's CIA employment). But for obvious reasons it is not for grand jury witnesses to determine when an investigation is legitimate. As the Supreme Court has noted, there are many ways to challenge questions one believes the government should not be asking, but "lying is not one of them."
I agree with Orin below that perjury and obstruction of justice are very serious crimes, particularly when committed by a high-level government official. I did not follow the trial closely enough to have a judgment on Libby's guilt, but he was convicted by a jury of his peers. Absent strong evidence he is truly innocent of the crimes for which he was committed, commutation seems more reasonable than a pardon. As Otis concludes:
To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal. Commutation offers a middle ground.
UPDATE: Edward Lazarus argues that, under the Federal Sentencing Guidelines, "Libby's 30-month sentence is justifiable, but that a more lenient outcome would also have been appropriate."
FURTHER UPDATE: Eric Muller thinks Otis' argument is "garbage" and hypocritical given Otis' defense of the sentencing guidelines (which, Muller notes, were followed in Libby's case). I readily confess that I probably know less about federal sentencing than either Muller or Otis has forgotten, but this also means I am not wedded to the idea (that Otis has apparently defended) that the federal guidelines produce fair and just outcomes.
Meanwhile, "X-Judge" Lee Sarokin has some "Interrogatories for Prosecutor Fitzgerald."