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Perjury and Obstruction of Justice Not So Bad After All?: Back during the Clinton impeachment, I read a lot from conservatives about how perjury and obstruction of justice were dangerous crimes that struck at the very heart of our legal system. Given that, it's been interesting to see the recent conservative calls for Scooter Libby to be pardoned for his perjury and obstruction of justice crimes. As I understand the New Learning, the real question now is whether the witness was put under oath for a really good reason. If not, then lying and obstructing justice are understandable; the witness shouldn't have been put in the position to lie in the first place, so it's not really so culpable that he did. Poor Bill Clinton. I guess he was just ahead of his time.
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"Neither Prison Nor Pardon":

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."

FINAL(?) UPDATE: Ed Morrissey thinks Judge Walton may have gone easy on Libby. There's also lots more here at Sentencing Law & Policy.

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Free Paris!: Paris Hilton has been let out of jail after five days; her sentence was changed to home confinement in light of an "unspecified medical condition." I know all VC readers join me in urging Governor Schwarzenegger to pardon Paris Hilton immediately. The case against Paris was terribly unfair: she was jailed on a mere technicality, namely violating the terms of her probation. Shockingly, the prosecutors never came forward with a single iota of evidence that Hilton actually harmed anyone. None. Nada. And yet the prosecutors ran amok, piling charges upon charges against her. Our commitment to the rule of law -- not to mention homage to Alexander Hamilton and Federalist No. 74 -- demands that Paris must be set free from her cruel home confinement immediately.
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Broder Defends Judge Walton:

In today's Washington Post, columnist David Broder defends Judge Walton's decision to sentence Scooter Libby to 30-months in prison.

I think [conservatives] have a point. This whole controversy is a sideshow -- engineered partly by the publicity-seeking former ambassador Joseph Wilson and his wife and heightened by the hunger in parts of Washington to "get" Rove for something or other.

Like other special prosecutors before him, Fitzgerald got caught up in the excitement of the case and pursued Libby relentlessly, well beyond the time that was reasonable.

Nonetheless, on the fundamental point, Walton and Fitzgerald have it right. Libby let his loyalty to his boss and to the administration cloud his judgment -- and perhaps his memory -- in denying that he was part of the effort to discredit the Wilson pair. Lying to a grand jury is serious business, especially when it is done by a person occupying a high government position where the public trust is at stake.

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Judge Walton's Footnote:

Like others, I was initially struck by the footnote in Judge Walton's order granting the motion for leave to file an amicus curiae brief on whether Scooter Libby should be released on bail pending appeal.

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

"Ouch," I thought. Yet the footnote's sting subsides dramatically upon reading the actual motion in question. The snark hardly seems justified given that the amici law professors seek to address a serious constitutional question well within their academic expertise in a high profile case. More here.

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What Exactly Is Judge Walton's Beef Here?

I too found it hard to see any sensible justification for Judge Walton's footnote. Brief background:

Twelve current or former constitutional law professors — mostly conservatives, but also a libertarian (our own Randy Barnett) and two liberals (Vik Amar and Alan Dershowitz) filed an amicus brief arguing that (1) there are serious constitutional problems with special prosecutor Patrick Fitzgerald's appointment and (2) Scooter Libby thus has serious grounds for an appeal. This is relevant to the decision whether Libby should be let out on bail pending appeal, though the brief doesn't take a stand on this ultimate judgment, only on the inputs to that judgment (which is whether there's a close question about the appeal's merits). Four of the amici (Amar, Barnett, Dershowitz, and Judge Bork) also sign the brief as the lawyers.

Judge Walton allows the filing of the brief, but writes this odd footnote:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Yet this makes no sense. The point of amicus briefs is to express the signatories' views on some matter that they especially care about, in which they have a special interest or on which they have special expertise. A pro-abortion-rights organization, for instance, may file such a brief in an abortion rights case. Constitutional law professors who believe the Constitution, properly interpreted, supports abortion rights may do the same. No-one pretends that it's an "impressive show of public service," except insofar as any not terribly difficult action on behalf of a legal view that you think is the right view is a form of public service.

Such amici (whether advocacy groups or professors) surely incur no professional or moral obligation to start helping other litigants who raise other issues about which the amici don't are, or on which they lack expertise. Would you demand that a pro-abortion-rights professor who filed a pro-abortion-rights brief also file a brief in an assisted suicide case? Would you demand that he file such a brief even in an abortion rights case that raises a different issue? I would hope not — there's just no reason to think that because someone cared strongly about issue X he must now express his views about issue Y, or even that his views about issue Y would be helpful. The same applies here.

Now perhaps Judge Walton was suggesting that these amici would somehow have to file this brief only in cases that raise the same issue — the constitutionality of independent counsel. But while that's one way of interpreting his reference to "similar questions," it's not consistent with the rest of his footnote, in particular the preceding sentence: He's referring to "numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions" — but independent counsel prosecutions are not "numerous" (especially "throughout the courts of our nation"), and generally do not tend to involve litigants "who lack ... financial means to fully and properly articulate the merits of their legal positions." That's why I doubt that Judge Walton was only talking about the amici's supposed duty to file similar briefs only in independent counsel cases.

Yet even if he did mean this, what's the point of the sarcasm? I take it many of the signatories would be happy to express the same view in a future case raising the same issue. Some might not — and according to standard professional conventions, they are entitled to decide which litigants to speak on behalf — but many might. (Why would Amar or Dershowitz, to take the most obvious examples, treat a future Democratic special prosecutor target any worse than a future Republican?) The snideness thus seems at the very least premature.

Finally, as I understand it courts do have the power to require members of their bars (which may well not include many of the twelve amici) to represent some litigant, though that is a power that is rarely used today. But I doubt they have the power to require anyone to file a brief in his own name, a brief in which the person expresses his own view rather than just advocating on behalf of counsel — such a requirement would, I think, be a violation of the right to be free from speech compulsions.

And it seems to me that it would be unconstitutional for courts to require someone to shoulder an extra burden as punishment, retaliation, or other reaction to that person's past constitutionally protected actions, here the filing of a brief before the court. (The filing of briefs before courts is generally protected from retaliation by the Petition Clause, at least so long as the briefs comply with the proper court rules.) So if the court is threatening, or even sarcastically pretending to threaten, that he will "call for" assistance in a mandatory sense — rather than just suggesting he would offer a nonbinding invitation — then that strikes me as threatening to do something the court is not allowed to do.

Thanks to Leibowitz's Canticle for first pointing me to this.

UPDATE: Thanks to commenter Leo Marvin for pointing out an error in my original post; I wrote that the brief urged that Libby be let out on appeal — in fact, the brief declined to express a view on the subject, though the likely and probably intended (by many signatories) effect of the brief is to support the claim that Libby be let out on appeal.

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Libby Judge Insults Amicus Law Professors?

From the AP report:

A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis "Scooter" Libby in the CIA leak case, a ruling that could send the former White House aide to prison within weeks....

[U.S. District Judge Reggie B. Walton] never appeared to waver from his opinion that a delay was unwarranted. After 12 prominent law professors filed documents supporting Libby's request, the judge waved it off as "not something I would expect from a first-year in law school."

Maybe I'm missing the context, but this seems rather intemperate. I've read the motion, which is signed by leading constitutional law professors (Vikram Amar and our own Randy Barnett), leading criminal law commentator Alan Dershowitz, and Robert Bork, and which is signed as amici by the same people plus several other well-respected scholars. It's well-reasoned and extremely competent; I'm not sure I'd agree with it, but it makes a thoughtful and plausible case for its position. There seems to me no cause at all for the judge to react this way.

Thanks to Bill Patry for the pointer to the AP story.

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