Defense Lawyers Would Be Stupid

I mentioned in my celebration of Jeralyn my friend whose clients never get the luxury of Presidential commutations. Well, he says this is an accurate quote, so I thought I’d let him have his say on Libby’s commutation.

David Moran, associate dean of the Wayne State University Law School,said Libby’s commutation directly contradicts the Justice Department’sposition in the case of Victor Rita, a highly decorated veteranimprisoned for perjury under circumstances strikingly similar toLibby’s.

U.S. Supreme Court justices recently upheld Rita’s prison sentence, andit’s that decision, not Bush’s commutation rationale, that federalcourt judges are bound to follow.

Still, Moran said, "Defense lawyers would be stupid not to latch onto the contradiction.

"The president made an elaborate argument for leniency, and I’d besurprised if we don’t see judges who want to hand out more lenientsentences citing the president’s statement specifically," he said.

I’ve heard a lot about the folks Dave represents. I suspect he’ll be making those elaborate arguments with little effect. Not that he’s not smart as all get out–and persuasive too (and since we’ve been talking about ultimate frisbee–he’s got a mean lefty huck that I used to be able to put to good use). But his clients, generally, are not protecting the President. Which, I suspect, still makes all the difference.

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  1. Anonymous says:

    For the most part you are quite correct that little will come of this newly minted argument; however, across the whole country, there will be more than a few cases where there really is a compelling basis for significant downward departure for the defendant, coupled with a judge with the cojones to make it so. For the judges that do avail themselves of this cover for exercise of their discretion, it is a two-fer. They get cover for a significant discretionary sentencing and stick it to bellicose politicians that have mindlessly tied their hands and infringed on their authority relentlessly for the last twenty years.

  2. Anonymous says:

    It’d be fun to see AGAG called to HJC to testify about this–he has to take the lead calling for mandatory sentencing–but how can he, now???

  3. Anonymous says:

    Q. â€And Mr. Gonzales how does the availability of this argument either comport or differ from your experience in a criminal courtroomâ€? A. â€I don’t recall….â€.

  4. Anonymous says:

    What would it take to get a special prosecutor appointed?

    The law or special prosecutors or independent counsels expired in 1999 and was replaced by Department of Justice regulation 28 CFR Part 600.

    Abu is not going to investigate anything, and there is a case to be made for a new independent counsel law to get someone who will investigate. I don’t think impeachment is first course of business. I think we need someone specifically charged with going in and finding out what the hell is going on and to secure the records before Rove shreds them.

  5. radiofreewill says:

    What if sealed vs. sealed is US v Bush for the IIPA violation?

    And now that Bush has commuted his bag-man’s sentence…?

    …the bully may have rope-a-doped himself.

    We’ll have to wait and see, but wouldn’t that be poetic Justice?

    The People wouldn’t allow even the Unitary Executive to lie in so many ways…

  6. AlanDownunder says:

    Counsel: We raise the Libby objection to compliance with sentencing guidelines.

    Judge: Noted. What does the defendant have on the President or his superiors?

  7. marcyisaman says:

    Seriously, is marcy wheeler a man? A lesbian? Not that there’s anything wrong with that. But she just comes across like a man and she sounds so full of her(him)self sort of like a high school jock who just won the regional wrestling tournament.

    Also, how many women do you know who can suck their own dicks?

  8. marcyisaman says:

    Seriously, is marcy wheeler a man? A lesbian? Not that there’s anything wrong with that. But she just comes across like a man and she sounds so full of her(him)self sort of like a high school jock who just won the regional wrestling tournament.

    Also, how many women do you know who can suck their own dicks?

  9. Neil says:

    Posted by: marcyisaman | July 07, 2007 at 01:51

    She doesn’t make me feel insecure.

  10. Neil says:

    Froomkin, WaPo, 7/3/7

    It’s true that the Constitution grants the president unlimited clemency and pardon power. But presidents have generally used that power to show mercy or, in rare cases, make political amends — not to protect themselves from exposure.

    The Framers, ever sensitive to the need for checks and balances, recognized the potential for abuse of the pardon power. According to a Judiciary Committee report drafted in the aftermath of the Watergate crisis: â€In the [Constitutional] convention George Mason argued that the President might use his pardoning power to ’pardon crimes which were advised by himself’ or, before indictment or conviction, ’to stop inquiry and prevent detection.’ James Madison responded:

    â€[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty. . . .

    â€Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected.â€

    Impeachment is off the table for congressional Democrats. But the political toll of Bush’s choice could still be considerable. Besides Iraq, corruption was probably the one issue that most hurt Republicans in last year’s election. And what is more corrupt than using the powers of the presidency for personal benefit?

    link

  11. Jodi says:

    emptywheel,

    I just don’t buy your argument that Libby is protecting Bush. I know that that argument is nice because then it says that Bush is protecting himself with the Commutation. But I didn’t believe it before the Commutation, and I don’t believe it now.

    There is just way to much conjecture there.

    Yes it could be possible that Libby thought to keep Cheney from being bothered by all this, but I still think that it is more reasonable that Libby was putting on a Political Goody, Goody Front (we don’t leak) , and ended up without a chair when the music stopped.

  12. Neil says:

    â€[T]he real effect of Bush’s actions is to prevent Libby from revealing the truth about Bush’s — and vice president Cheney’s — own actions in the leak. By commuting Libby’s sentence, Bush protected himself and his vice president from potential criminal exposure for their actions in the CIA Leak. As such, Libby’s commutation is nothing short of another obstruction of justice.â€

    Froomkin, WaPo,7/3/7 quoting M.Wheeler in The Guardian, link

  13. Anonymous says:

    Jodi,

    I didn’t believe it before the Commutation, and I don’t believe it now.

    Why should one pay attention to what you claim to believe or not believe, when the way you present your opinions differs so dramatically from post to post? One day you write as if you have wisdom, expertise, and inside knowledge. The next day you write like a wide-eyed and naive innocent who doesn’t have a clue. So I think it is more reasonable to ignore what you believe than to view it as worthy of consideration.

  14. Boo Radley says:

    Jodi, if Scooter would have agreed to spend at least some time in jail, it would have been exponentially easier for Bush to commute the remainder of his sentence. It’s also obvious that Bush caved in completely to Scooter’s drop dead date, the DC Circuit’s decision. Scooter didn’t care what kept him out of jail, just that he did not serve even ONE day. Those facts have clued everyone but you into just how terrified Bush and Cheney were that Scooter was going to cut a deal with Fitzgerald for a reduced sentence.

  15. pdaly says:

    other convicts include Bob Ney and Abramoff et al.
    Wondering if they won’t try to avail themselves of lighter sentences.

  16. P J Evans says:

    neil, freepatriot has been on vacation, and checked in on the preceding thread.

    The beat-on-marcy troll is very annoying, not to mention extremely rude. Maybe it would like one or more of us to come over and be extremely rude to it where it blogs, just for the experience?

  17. Anonymous says:

    Ah haa haaa, â€marcyisaman†(how do you pronounce that and what ethnicity is it?). I was just telling my female cousins (who are only a little younger than me) that I was always jealous of athletic women since I didn’t have the opportunities as a child to hone that skill. But now I’m in my midforties, I’m not so jealous when I watch them complain about their aches n pains after playing softball.

  18. mighty mouse says:

    Marcy does womanhood, peoplehood proud. She is giving us all a gift–her time, her intelligence, her concentration on the nitpicky to support dazzling and cogent arguments. What is this ad hominem (wominem?) stuff done? If you (try to) make a point so grossly, why would anyone think you have the intelligence to deserve any attention whatsoever? Where were their mothers? Have they no manners?

  19. Marie Roget says:

    You’ve got that right, Sharon! Being on the tennis & swim teams up through university makes for tennis elbow & joint problems @ age 46 (although it’s nice that I can still beat the bf in straight sets).

    Moderator on this thread should really delete the ugly sexist posts upstairs from whatsisname…

  20. KLynn says:

    EW,

    A continued thanks for your cogent and intelligent writing. I am still awaiting the blog broadcast show which is like Washington Week In Review only better. Marci, Jane, Christy, Glen, Josh, Jeralyn, C&L… And all your news and research contacts rolled up into one media piece. Maybe more 60 minutes’ish in terms of more indepth and yet fact-based. Even throw in your â€snark†editorial piece (of a John Stewart genre). Perhaps have guest pieces by Bill Moyers because he is such a blog fan of you and Josh.

    Anyway, you are the news I depend on. I have sent more people to this site when they start having questions or are uninformed about everything and realize they need some â€democracy in action†tutoring regarding the protection of rule of law. And then I send them to my other top sites to back you up! My favorite part is how the community works together. When one gives a great piece of evidence or insight on current political concerns, there are a cooperating group who quote, post or link. The American spirit we grew up with in action -working together for the good of our country.

    And a thanks to all who constructively contribute to TNH, FDL and TL… with gracious, intelligent and cogent contributions. The many bringing their professional backgrounds together to create a concise view on the state of our democracy (or lack there of) and what WTP need to do to bring accountability in an effort to uphold our Constitution, DOI and Bill of Rights. Information which effectively guides us as we write our letters to our reps, senators and newspapers. Constitutionally effective leadership does not have â€swiftboating tactics†as their MO. Such leadership speaks (or in this case writes) truth to power.

    Keep leading EW and friends.

    Again, thanks.

  21. KLynn says:

    BTW- I know it’s Marcy!

    A dear friend is Marci. My mistake. You do not come off as the ending in â€i†type! Let alone â€ieâ€. Ah, those terrible â€name†generalizations!

    But some of them fit so well sometimes like for instance………..Bush…

    Especially when paired with the word â€leagueâ€.

  22. Neil says:

    …if Scooter would have agreed to spend at least some time in jail, it would have been exponentially easier for Bush to commute the remainder of his sentence. It’s also obvious that Bush caved in completely to Scooter’s drop dead date, the DC Circuit’s decision. Scooter didn’t care what kept him out of jail, just that he did not serve even ONE day. Those facts have clued everyone but you into just how terrified Bush and Cheney were that Scooter was going to cut a deal with Fitzgerald for a reduced sentence.
    Posted by: Boo Radley | July 07, 2007 at 05:46

    That’s right Boo.

    And talking about â€women who can suck their own dicksâ€, Judy Miller spent just short of three months in jail protecting Scooter, his Dick, and Dick’s boss W… all the while pretending our free speech and her own confidentiality pledge were the issues at stake.

    It’s just a little ironic that Judy would go to the mat and do jail time for Scooter, Dick and W while Scooter when given his chance would refuse – like a dog being dragged to the vet.

    What compelling incentive did Scooter pose to get his way? What incentive would be sufficient for W to roll the dice on a problematic commutation that an honest DOJ asked for an opinion would never approve? I think Scooter threatened to turn states evidence rather than spend one night in jail. I suspect that when he initially agreed to be the fall guy, it was with the understanding that he would not be expected to endure jail time. Therefore, his threat to sing was merely reinforcing a prior agreement rather then a direct confrontation with the most powerful man in the world.

  23. William Ockham says:

    Neil,

    I’ve been wondering how Judy Miller must feel about the commutation. Actually, the entire Washington press corps ought to draw a lesson from this. Thugs protect their own, but they won’t waste anything protecting their useful idiots.

  24. William Ockham says:

    I have a question for the community. I’ve got most of this weekend free. I’ve been considering trying my hand at writing a Jodi-bot. A Jodi-bot would be a computer program designed to post comments in the style of a certain charming concern troll. The idea would to be perform a sort of reverse Turing test to see if it is possible for people to tell the difference between the presumably human troll and my synthetic counterpart. Or maybe I’ll just throw this idea out there to make people wonder…

  25. Anonymous says:

    WO, your novel twist on AI could even spawn a new field of study — â€AS†maybe?

  26. Neil says:

    WO, great idea. Don’t waste your time on shit stain.

    â€You are in a maze of twisty litlle passages, going nowhere.â€

    Instead, after you write your Congressmen in support of impeachment but not censure, get involved in a physical activity and enjoy the best of what summer has to offer. I’m going swimming. See you guys in a week. Don’t forget to play the lottery today, it’s 7/7/7.

  27. William Ockham says:

    bmaz,

    No, but for me, this would be more fun. I know, that makes me a complete geek, but there it is. Seriously, writing a bot to imitate the typical troll (like marcyisaman above) is no challenge at all. Jodi shows enough variability (not to mention faux politeness) to create some interesting programming challenges.

    I actually got the idea from Kevin Drum’s blog where there was ongoing battle in the comments between:

    apparently paid (at least I hope so, if they were doing it for free I really pity them) trolls who could be counted on to spew the latest talking points from the Rove machine

    and

    imitators who deliberately posted under the same or similar psuedonyms trying to outdo the inanity of the trolls.

    The conflict was at once amusing and sad. There were occasional moments of Colbertian hilarity when it was unclear who was the fake and who was real.

    Rather than have anyone here waste their time impersonating Jodi, I thought I could save folks the trouble by automating the process. Of course, my ultimate goal is not to silence Jodi, but to convince everyone to ignore her.

  28. Anonymous says:

    WO – I didn’t realize you frequented Kevin’s spot. If so, then you probably know one of my blogmates, BlueGirl (Global Citizen). She is convinced that a couple of the trolls there, â€Norman Rogers†for one, are actually fine upstanding progressives stirring the discussion pot on purpose.

  29. Jodi says:

    That was an interesting and actually revealing discussion.

    Have you ever known of a case where someone who was being talked about on a forum or a blog became a participant in the discussion under another name.

    That could be a real mind blower. To take a really, really close up look at people examining you in minute detail.

    http://micro.magnet.fsu.edu/pr…..owersof10/

    Some here have mentioned Nietzsche.

    I quote
    Friedrich Nietzsche’s Beyond Good and Evil (Jenseits von Gut und Boese)
    Part 4
    146
    â€Whoever fights monsters should see to it that in the process he does not become a monster. And when you look into the abyss, the abyss also looks into you.â€

    I would also offer
    â€Out of the High Mountainsâ€
    â€Aftersongâ€

    but it is long.

  30. P J Evans says:

    JodiTroll

    They shut down a blog at the LA Times for exactly that reason. The blogger was sock-puppeting at another blog, using several names including its own.