Scooter Doesn't Meet the Criteria

There are well-established criteria for the consideration of executive clemency, and Scooter Libby doesn't meet them. (But then again, there were well-established standards for the use of force against a foreign sovereign, and Iraq didn't meet those.) The established rules appear to take Scooter out of the running for various reasons.

One of the first things which the guidelines say to take into consideration are the opinions of the United States Attorney who prosecuted the case, and the judge who sentenced the applicant. The rules say thatthose opinions should be weighted heavily. From the Department of Justice guidelines for the consideration of clemency petitions:

"The Pardon Attorney routinely requests the United States Attorney in the district of conviction to provide comments and recommendations on clemency cases . . . .The views of the United States Attorney are given considerable weight in determining what recommendations the Department should make to the President. . . . The Pardon Attorney also routinely requests the United States Attorney to solicit the views and recommendation of the sentencing judge."

Since the sentencing judge followed the recommendation of the prosecuting attorney on the sentence, I'm guessing that neither of them will make a favorable recommendation on any clemency petition.

The rules generally do not anticipate that clemency would be granted immediately after conviction. Instead, they favor waiting to see evidence of rehabilitation, among other things.

Again, from the DOJ guidelines: "In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence. . . . The Department's regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 C.F.R. § 1.2)."

Perhaps a word about terminology is here appropriate. "Executive Clemency" refers to the President's power to, among other things, commute a sentence or to pardon (and thus restore all legal privileges) someone for a crime for which they have already been punished. Until Scooter actually finishes serving his sentence, he would be looking for commutation, not a pardon. The language in the immediately prior paragraph about waiting five years comes from the section of the guidelines dealing with pardons.

In that section (on pardons), Scooter's application would be fried -- pardons are not granted unless there is an acceptance of guilt (that was Gerald Ford's argument on the Nixon pardon, remember?): "The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication."

Similar considerations are at play in considering requests for commutation. Indeed, the guidelines strongly discourage even accepting applications from people who dispute their conviction or who are appealing their case: "Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding."

Commutation is very rare, and the guidelines recognize that: "Generally, commutation of sentence is an extraordinary remedy that is rarely granted."

The Department of Justice guidelines point out that the rationale for granting a commutation of a sentence is usually pretty limited, and the only one arguably applicable to Scooter would appear to be "undue severity" of the sentence. But, under the guidelines, one doesn't even reach that point until Scooter admits, shows remorse, and has served a portion of the sentence.

The guidelines, keep in mind, are just that -- they are, in effect, a collection of the well established principles followed over much of the last couple of hundred years. Having more force are the regulations governing the submission of clemency petitions.

And they provide, among other things, that before Scooter could even make application and thus put the White House in the position of having to decide, he'd have to drop all of his appeals: "No petition for commutation of sentence, including remission of fine, should be filed if other forms of judicial or administrative relief are available, except upon a showing of exceptional circumstances."

But, as I suggested above, this is a White House which has acted from the start as if the rules don't apply to them . . . . indeed, they acted that way before the start (Florida) . . . . and it is entirely consistent with the assumed privilege and lack of accountability which characterize everything this cabal of criminals has done since stealing the office, that they will exit on a similarly ungraceful note, once again shoving their privilege up the ass of law, propriety, and civil expectation.