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HJC Hearing on Libby’s Get Out of Jail Free Card, One

conyers.jpgAs a reminder, here are our witnesses today:

  • Joe Wilson: You guys know him, I think. I suspect he’ll talk about how Bush and Cheney are thugs and so is Libby.
  • Roger Adams, US DOJ Pardon Attorney. He’ll end up talking about the normal process for commutation. Hopefully, some smart Congressperson will ask him about the measures Congress put into place to prevent bogus insta-commutations after the Clinton pardons–you know, the ones that Bush ignored?
  • Douglas Berman, Fancy Law Professor, who also blogs at Sentencing Law and Policy. Presumably he’ll explain about how Libby had a light sentence within the guidelines and probably about how Libby’s sentence may be used by defense lawyers in the future to argue for leniency.
  • Tom Cochran, Victor Rita’s lawyer. This is great theater. Rita, of course, just lost a SCOTUS challenge on the appropriateness of his 33 month sentence. SCOTUS said 33 months sounded about right for a guy convicted of perjury. I’m sure Cochran will have a lot to say about how his client’s bid to have his sentence lowered because he’s a long-term serviceman didn’t work. I guess he doesn’t have the goods on the Vice President, though.
  • David Rivkin. Rivkin is the designated Victoria Toensing of this hearing. He will tell you about how Fitzgerald was a runaway prosecutor. Uh huh.

Jane is being a pain in the ass right now, trying to turn me into a Mac person because her damn card wouldn’t work on my damn PC. Mac people, you know what I mean?

We’re getting started now. Not quite the billion cameras that were here when Valerie testified before Waxman’s committee, but there’s a good photo op going on between Conyers and Joe Wilson right now.

Conyers: On the use and misuse of Presidential pardon. Few principles more important than equal justice. Respect power to grant clemency. Coequal branch of government. Duty to conduct oversight. Part of oversight responsibility. Obtain answers to questions on Libby’s get out of jail free card. Was this consistent with Bush’s other pardons? Was DOJ consulted? Was the process fair and available to similarly situated individuals. Was it consistent with sentencing guidelines. President evidently believed the 30 month sentence was too harsh. Is Libby’s ultimate sentence consistent with the guidelines? If not, do we need to reconsider the guidelines? What impact will this have on Congress’ ability to learn how Ms. Plame was outed? Was her outing an inadvertent slip of the tongue, or was it part of a larger conspiracy to besmirch the Wilsons? Does the fact taht Libby as received a commuted sentence inhibit Congess’ ability to learn the truth.

Some have muddied the facts of the Fitzgerald investigation. For example: that there was never an underlying crime, or that Libby should never have been charged. Several individuals, including Mr. Libby leaked classified information not just to Novak, but also to NYT. Some have tried to turn attention to Marc Rich.

Sid Blumenthal is sitting right next to me–looking forward to the mean Republicans.

Conyers: Fitzgerald declined our invitation to participate today, but we hope to still have him.

I’ve asked Bush not to invoke Executive Privilege, just as Clinton did not. I’ve not heard back yet.

Lamar Smith: We are a nation of laws. If any matter is abuundantly clear under our Constitution, it is that President has power to grant clemency. blah blah blah Fort Dix. Protecting our children from sexual predators (like Foley, Smith?) What is it about Democratic Presidents and pardons? By waiting until the end of his term to announce pardons, he escaped any political pressures. Marc Rich Marc Rich Marc Rich.

[Hey, what about Rich lawyer Libby? Isn’t he a schmo? Why no mention of him, Smith?]

[Btw, we’ve now got a full Republican house here, not as many Dems. They’re drooling a little bit, at having an opportunity to take on Joe Wilson. it’s not pretty.]

Joe Wilson Thank you for the opportunity to appear before you, Libby convicted on four counts. I have followed the case closely. Involves a betrayal of Nat Security. Leaking of identity of a covert officer as a vicious means of political retribution. After it became clear one of the key justifications to go to war was not based on fact. In NYT article, I disclosed deliberate deceptions regarding invasion of Iraq. 8 days later Valerie’s status made public in Novak column. End product of process initiated by Vice President Cheney. [reviewing bio, including staring down Saddam and his thugs] Proud to serve in both Republican and Democratic Administrations. Proud to be President Bush’s team in Iraq. Members remain among my closest colleagues and friends. Launched by VP and carried out by Chief of Staff. Ruiuned my wife’s career along the way. Always about the Administration’s case for war, in order to protect original falsehoods. Libby sought to blame press. Willing to allow Judy to remain in jail, a cowardly act. Trial of Scooter Libby proves Rove involved–he still works at office. President Bush declassified national security material. Willingness to subvert rule of law. Make no mistake–his actions cast a pall of suspicion over his office and Vice President Cheney. PatFitz has said repeatedly that Libbys lying throwing sand in the eyes.

Professor Berman

Commutation was fundamentally a sentencing decision

Prison sentence in Libby’s case not product of sentencing guidelines

Walton thought 30 months—bottom of prison term—no federal appellate court has decided a single sentence within guidelines as unreasonable. Even if one accepts, that it’s excessive. Hard to understand why to commute in entirety. Keeping in mind

Members have emphasized guidelines to be enforced in such a way so that all people are applied equally. Particularly concerned that Bush Administration argues in court that other persons should not be considered

Roger Adams

Usually consulted before clemency request. Pardon Attorney has always been a career employee. Lays out the normal times when someone can apply for clemency (ie, you gotta wait). Reviewing all the reviews that happen, basically the grounds on which it is done.

Victor Rita’s Lawyer, Cochran Rita sought to have his sentence vacated. Rita asked me to thank you. Rita required to report to BOP to begin his service. This was the same day that Bush commuted Libby’s prison term, concluding his sentence is excessive. Nearly identical in many aspects. Neither man truly target of investigation. Repeating the similarities between Libby and Rita. Like Libby, described as dedicated family man. Rita’s personal background very different, grew up partly on his own. Exhausted all his funds in his defense. Libby had his own legal training, a large defense team, and a legal defense fund. In addition, Rita suffers from hypertension, type 2 diabetes, exposure of Agent Orange. Mr. Rita brought before GJ once, Libby, interviewed four times. Incredibly, President’s justification contradicted Solicitor General’s successful argument before SCOTUS. I spoke by telephone to Rita on Monday. How can Exec Branch argue that my reasons were wrong, and then use my same arguments to justify wiping out prison time for Libby.

Rivkin: Do appreciate chance to appear before you to address this Constitutional issue. Let me stipulate that perjury and obstruction are serious. Pardon power presupposes ability to pardon serious as well as minor crimes. Framers understood justice under the laws. Conyers mentioned in the opening statement, framers believed that branches should be driven by equity, not rules. President’s pardon power is one notable example. Several reasons why this prosecution did not involve the way criminal justice is supposed to work. [Hey Rivkin–then why didn’t Bush say that???] To me the whole process was iredemably problematic from the beginning. Appointment of Spec Pros–shouldn’t have been done, FBI knew about Armitage. [Hey, Rivkin, if you had read the unsealed documents, you would know taht Fitz was still figuring out whether and how he could charge Armitage.] Spent years and millions of taxpayer dollars, all because he believed Libby may have lied. I do not see how aside from his memory, Fitzgerald could have known for sure taht Miller’s and Cooper’s conversation did not accord with theirs. Not going to raise discussion about Berger. [Um, didn’t you just raise it?] Here we have two senior officials, accused of similar conduct. REceived dramatically different treatment from Criminal Justice system. Why wasn’t Libby exonerated by jury–it has everything to do with how Fitzgerald presented case to jury. The key thing is the narrative presented to the jury. There was a nefarious effort to destroy Valerie’s career. I believe this narrative to be fundamentally false. [How about Wells’ argument, that there was a nefarious case, on the part of Rove–do you believe the Defense narrative, MR. Rivkin?]

Conyers: Any other example of pardon involving possible wrongdoing involving members of his administration?

[Um, how about Cap Weinberger???]

Adams: All familiar of cases of pardon of people who have formerly been in exec branch.

Conyers: Berman: under sentencing guidelines, would a privileged life, service, be a mitigating factor?

Berman: Guidelines say prior military service, good work, not ordinarily relevant. Guidelines provide a range, usually fairly narrow. The fact that Walton took the sentence at bottom, Walton attended at some level. [Yup–he said so clearly]

Conyers: Amb Wilson: Would you want to share anything with our committee In connection with what you’ve heard so far.

Wilson: I’m not a lawer, even though half the lawyers not employed by Libby employed by me. Struck by nature of underlying crime. Very clear from testimony that came out, a number of senior officials were involved. Mr. Fitz suggested that cloud over vice president. These people were in direct chain of command in VP. Keeping them employed, even after it became known that Rove was one of the leakers. Casts a cloud. I’d like to see them come clean to American people. They owe that to American people. I’d like to see cloud lifted.

Berman: President’s statement: Encourage Federal judges to disregard guidelines. Libby motions. Suggesting taht guidelines not be followed whenever a person of high position of privilege, there may be circumstances that those things ought to come to bear. Guidelines do not enable judges to consider these factors.

Lamar Smith: Make part of record all pardons of Bush and Clinton.

[Why are Dems not using this to point out that Bush NEVER pardons?]

None of the majority witnesses mentioned any previous administration.

[Okay. Let’s talk about Cap Weinberger. I’m curious about him.]

Did any of the other majority witnesses take alook at the pardons of other individuals from past administrations?

Berman: [Who for the record did mention Clinton] I’m particularly disappointed that Clinton didn’t take a more proactive role in bringing justice to those people. Clemency power exists not just for wrongful prosecution. Rigid sentencing rules particularly can lead to extraordinarily long sentences. I

Smith: Rivkin: What do you say to Mr. Cochran’s client?

Rivkin: there is something unique about the pardon power. My view would be that Pres did not dwell in it in his remarks. He’s really trying to say, it’s not that it’s inherently excessive to sentence someone to 30 months. It was excessive in this circumstance. [You mean, because Bush had ordered Libby to leak this information? Is that what you’re saying Rivkin?]

Smith [Hey Rivkin, you’re not folowing the script]: What about special prosecutors?

Rivkin: whenever a prosecutor is appointed outside of normal guidelines, it’s an endless prosecution, DOJ knew that individual involved was not a supporter of the war. It was ludicrous to appoint a SC. It’s unfortunate it went on. [Hey Rivkin, if this is what Bush meant, why didn’t he say it???]

Jerry Nadler: Hey, what about Cap Weinberger??? THe pardons arguable frustrate a legitimate investigation. Investigations in each case of wrongdoing by the Administration, and possibly by the President. This undermines trust in govt.

[Thanks Jerry]

My question will be structured by Rivkin’s statement. [reads about Rivkin’s claim that Fitz shouldn’t have investigated] Investigation seeks to determine which administration official, motive, whether any violations of law committed. Investigation not limited to disclosures to Novak. Broader investigation, seems to negat ethat point.

Nadler: Mr. Wilson: was Ms Plame a covert agent.

Wilson: Ms. Plame’s actual name is Mrs Wilson. The case was referred by CIA to DOJ bc CIA believed a crime had been committed, she was a classified officer should have been protectd under relevant law. My wife was covert, classified officer, member of CIA who served her country for 20 years, both in cover positions and NOC positions. In response to the question raised by Smith. When I took a look at pardons and other presidential actions, my concern was about ongoing obstruction of justice. I looked at Nixon, who did not pardon or commute Haldeman or Erlichman.

Nadler: Reads from Cheney’s exoneration of Libby. It is clear from the record that Libby Rove Fleischer, get the word out. Mr. Wilson is that a correct reading of data.

Wilson: Fitz said that it was hard to conceive that there was not a conspiracy to discredit.

Sensenbrenner: This is a waste of time. Article II gives president authority, not reviewable [except in impeachment, per Madison, Mr. Sensenbrenner] Bush will continue to have power to grant clemency. This Congress is rapidly becoming a do even more nothing. About 80% that we passed  had to do with renaming post offices. Seems to me that what’s going on, more braying at the moon. We’ve got jurisdiction over private bills. Every private bill is a way of bending rules, to provide equity to people that majority of people of congress decide to provide equity to.

Mr. Adams: at end of Clinton Administration. A bunch of pardons. Consulted on Marc Rich? Roger Clinton. John Deutch. Dan Rostenkowski.

Adams: Rostenkowski not pardoned on last day, not consulted on that, not on Rich, not on Roger Clinton. My only involvement in Deutch, technical assistance in how to pardon for offenses he hadn’t been acquitted.

Sensenbrenner makes a snotty comment.

Conyers: I was just reviewing activities of 110 and 109th Congress, and the 110th Congress has passed to House 37 measures, and 109th sent 15 bills during the period from 1/1/05 to 1/1/2007 [Booyah]

Scott:  Allegation we’re considering is scheme to punish Wilson from telling the truth. We’re in war today. no one spoke up. Someone should have known before Admin came before Budget committe, someone must have known that wasn’t true. Seems to be pattern if you don’t follow a political line. Surgeon General, Top officials repeatedly tried to suppress public health reports, Why is he just speaking out now? What would happen?

Is there any question revealing her name would endanger her life?

Wilson: Very clear–there have been threats, some credible, some not. Those have all been investigated. More to the point, the  compromise of her  identity–what other assets were compromised. Her job was to ensure that nukes wouldn’t appear on our shores. I’ll just refer you to the books. As soon as her identity is compromised, you assume that every asset have in one way or another been compromised.

Scott; this affected her career?

Wilson: yes, she could no longer do those things

Scott; Armitage–any question that others revealed her name to otherse.

Wilson: Libby, Rove, Armitage, all leaked of members of the Press.  [And Ari, Joe]

Scott: Supervised release?

Adams: It is not uncommon for Pres to commute sentence to leave supervised release.

Scott: Is that now in question?

Adams; Judge has asked an opinion.

Scott: remorse is factor in downward departure?

Adams: Don’t know anything about facts of case.

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