The Crossed Pond

In a post at the Corner, Andy McCarthy answers Rich Lowry’s reservations relating to the fact that Lewis Libby only got a commutation rather than a pardon. His argument is basically that the sentence was excessive given sentencing guidelines; McCarthy is a formery attorney from the Justice department and I’m not, so I can’t comment on the severity of the sentence as per the guidelines (except that I’ll note that McCarthy says that with the Libby team’s reading of the guidelines, and some additional slack cut to Libby by the judge, probation was a ‘possibility’). He ends with this:

The President’s thoughtful commutation decision pays deference to the jury’s verdict, which was supported by lots of evidence. I am chagrined to have to point out what used to be a given around here, but high public officials must not obstruct investigations, no matter how much we may like the defendant and no matter how much we think the investigation should never have happened. The president’s decision respects that proposition, yet it corrects an excess — which is what the pardon power is there for — by fixing the penalty in accordance with the true facts (no underlying crime) rather than as inflated by suspected crimes that never actually happened.

I have some problems with McCarthy’s post:

• Does the president commute away the prison time of everyone that gets a higher-than-normal sentence? Does he do it when they get prison time when they merely might have gotten probation?
• In any event, should a President not be holding members of his own staff (assuming that Cheney is not outside the Executive altogether) to a higher standard, particularly when they perjured themselves during an investigation ordered by the Whitehouse and in which the President instructed Executive Branch staff to cooperate with the investigation (a claim repeated in the third paragraph of Bush’s statement commuting Libby’s sentence)?
• McCarthy says that no crime was committed. Presumably he means that the prosecutor, who has been admirably close-mouthed, did not judge that there was sufficient evidence for there to be a reasonable probability of a conviction? Armitage certainly wasn’t guilty of the crime being investigated, but I am not convinced that everyone thinks that no crime actually was committed. This is important, to my mind, because of the problem of rewarding perjury with lesser or no charges; if, hypothetically, someone perjures or obstructs well enough that the prosecuting attorney believes that the crime can’t be prosecuted, the perjury is automatically less serious because it worked? That doesn’t make any sense to me, although McCarthy may well be right that the Federal guidelines on sentencing fall that way; I just don’t agree that they should and, given that the pardon and commutation power is in some sense about what’s ‘right’, I don’t agree that the sentence should have been conveniently commuted to ‘no prison time’. The idea that it was about what the Prosecutor suspected at the beginning of the investigation isn’t so unreasonable when you consider that the people commiting perjury also knew what was being investigated and could judge their actions accordingly.

My position is that he shouldn’t have been pardoned and also that his sentence shouldn’t have been commuted; if his sentence was to be commuted, it shouldn’t have been commuted to probation, which was only a possibility even if the reading of the guidelines laid out by McCarthy is correct (and he could well be right).