It turns out that a president can't make the unprecedented move of commuting a former aide's prison sentence without some consequences.
On Capitol Hill, House Judiciary Chairman John Conyers (D-MI) has already called for hearing next Wednesday at noon titled "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials." According to a committee aide, the hearing will have an eye to the future as much as the past. President Bush thinks jail time is "excessive" for an administration official convicted of lying to protect higher administration officials. In his statement announcing the hearing, Conyers worried about such a precedent: "Taken to its extreme, the use of such authority could completely circumvent the law enforcement process and prevent credible efforts to investigate wrongdoing in the executive branch." The aide told me that potential witnesses for the hearing include legal scholars, pardon experts, and administration officials.
That's not all. The president's order has created some confusion for Judge Reggie B. Walton, the Bush appointee who was responsible for that "excessive" 30 month sentence. Walton's scratching
his head over Bush's move to remove the incarceration portion of the sentence while retaining the two-year period of supervised release which was to follow Libby's jail time, something not technically possible. He's asked both sides to weigh in on what should be done.
But the biggest impact is likely to come on the broader legal front. As The Los Angeles Times showed
yesterday, Libby's prison sentence was not "excessive" by legal standards, but such a statement by the president is sure to be embraced by defense lawyers all around the country (experts have already dubbed
such an argument "The Libby Motion"). They're also sure to mention Bush's assertion
that Libby's sentence as it stands after the commutation ($250,000 fine and two years probation) is "harsh." Meanwhile, the Times
reports, "Federal prosecutors said Tuesday the action would make it harder for them to persuade judges to deliver appropriate sentences." This from an administration that's continually and inflexibly pushed for truly harsh penalties. The New York Sun reports
that the first such invocation of Bush's order might come from an alleged Hamas operative convicted of obstruction charges.