Tuesday, July 03, 2007

Libby in Limbo and famed lawyer Dershowitz take on the case

Libby in Legal Limbo right now

WASHINGTON (AP) - President Bush forced the CIA leak case into uncharted legal territory when he commuted the prison sentence of former White House aide I. Lewis ``Scooter'' Libby, a federal judge said Tuesday.

Bush eliminated Libby's 2-year prison term and left in place his two years of supervised release. But supervised release - a form of probation - is only available to people who have served prison time. Without prison, it's unclear what happens next.

U.S. District Judge Reggie B. Walton posed the question to Libby's attorneys and to Special Prosecutor Patrick Fitzgerald: Does this mean Libby won't actually be required to serve supervised release? Should he just have to report to probation officials as if he spent time in prison?

The law, Walton said in court documents, ``does not appear to contemplate a situation in which a defendant may be placed under supervised release without first completing a term of incarceration.''

For now, it appears Libby is in legal limbo. Walton gave both sides until Monday to respond. (Guardian)

ALAN Mr. DERSHOWITZ wrote a `blog' spot on the Huffington post. While almost all bloggers on the Huffington Post argued and complained about the Presidents decision to commute Libby's sentence. Mr. Dershowitz believes this is not about anything but politics, and that the President was pushed into his decision.

The outcry against President Bush's decision to commute Scooter Libby's sentence is misplaced. President Bush acted hours after the U.S. Court of Appeals denied Libby bail pending appeal. That judicial decision was entirely political. The appellate judges had to see that Libby's arguments on appeal were sound and strong -- that under existing law he was entitled to bail pending appeal. (That is why I joined several other law professors in filing an amicus brief on this limited issue.) After all, if he were to be sent to jail for a year and then if his conviction were to be reversed on appeal, he could not get the year back. But if he remained out on bail and then lost the appeal, the government would get its year. In non-political cases, bail should have and probably would have been granted on issues of the kind raised by Libby.

But the court of appeals' judges, as well as the district court judge, wanted to force President Bush's hand. They didn't want to give him the luxury of being able to issue a pardon before the upcoming presidential election. Had Libby been allowed to be out on appeal, he would probably have remained free until after the election. It would then have been possible for President Bush to pardon him after the election but before he left office, as presidents often do during the lame duck hiatus. To preclude that possibility, the judges denied Libby bail pending appeal. The president then acted politically. But the president's action -- whether right or wrong on its merits -- was well within his authority, since pardons are part of the political process, not the judicial process. What the judges did was also political, but that was entirely improper, because judges are not allowed to act politically. They do act politically, of course, as evidenced by the Supreme Court's disgracefully political decision in Bush v. Gore. But the fact that they do act politically does not make it right. It is never proper for a court to take partisan political considerations into account when seeking to administer justice in an individual case.

The trial judge too acted politically, when he imposed the harshly excessive sentence on Libby, virtually provoking the president into commuting it.

This was entirely a political case from beginning to end. Libby's actions were political. The decision to appoint a special prosecutor was political. The trial judges' rulings were political. The appellate court judges' decision to deny bail was political. And the president's decision to commute the sentence was political. But only the president acted within his authority by acting politically in commuting the politically motivated sentence."

Poll shows most Americans in disagreement with the President's decsion

Most in USA Disagree with Bush Decision to Commute Libby Prison Sentence: 21% of Americans familiar with the legal case involving former White House aide Scooter Libby agree with President Bush's decision to commute Libby's prison sentence, according to a SurveyUSA nationwide poll conducted immediately after the decision was announced.

1,500 Americans were surveyed. Of them, 825 were familiar with the Libby case. Only those familiar were asked to react to the President's action. 17% say Bush should have pardoned Libby completely. 60% say Bush should have left the judge's prison sentence in place.

32% of Republicans agree with the President's decision, compared to 14% of Democrats and 20% of Independents.

26% of Republicans say Libby should have been pardoned completely, compared to 21% of Independents and 8% of Democrats. Conservatives split evenly: 31% say Libby should have been pardoned. 35% say the judge's sentence should have been left in place. 31% agree with the President's decision to commute the prison sentence, but to leave the fine and conviction in place.

Reaction to the President's decision may evolve over time. This poll attempts to measure a first reaction to the news, before many individuals would have had a chance to be influenced by political spin applied to the story. SurveyUSA

ALAN M. DERSHOWITZ is a Brooklyn native who has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,” and “America’s most public Jewish defender.” He is the Felix Frankfurter Professor of Law at Harvard Law School. Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.

While he is known for defending clients such as Anatoly Sharansky, Claus von Bülow, O.J. Simpson, Michael Milken and Mike Tyson, he continues to represent numerous indigent defendants and takes half of his cases pro bono.

Other currant stories about the Libby Case:

Bush Won't Rule Out Libby Pardon

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