Commutation? Clemency? Pardon? Sorting Out Legalese in Libby Case

July 3, 2007 — -- President Bush spared former White House aide I. Lewis "Scooter" Libby from a 30-month prison term in the CIA leak investigation, calling the sentence too harsh.

The president announced his decision hours after a federal appeals panel ruled that Libby could not delay his prison term, meaning Libby was likely to have to report to jail soon.

The president has broad discretion to exercise presidential power to pardon convicted felons. In this case, the president did not pardon Libby; rather, he waived his prison term. What are the president's powers and how exactly were they used in the Libby case? ABC News consulted experts to sort out the legalese.

What Are the President's Clemency Powers?

Michael Waldman, executive director of the Brennan Center for Justice at the NYU School of Law

The president has the power to commute the sentence or pardon the crime. It is not reviewable and the president doesn't have to give a reason.

Christopher Schroeder, Duke University law and public policy professor

Commutations have always been a lesser included authority under president's power to pardon. Section II of Article II of the Constitution says the president has the power to grant reprieves and pardons for offenses against the United States. It does not mention commutations specifically, but they come under the pardon power.

What Is the Difference Between Commutation and a Pardon?

Randy Barnett, Carmack Waterhouse professor of legal theory at Georgetown University Law Center

Pardon is an "executive forgiveness of crime"; commutation is an "executive lowering of the penalty."

Waldman:

A "pardon wipes out the conviction while a commutation leaves the conviction intact but wipes out the punishment."

Barnett:

Commutation is a form of clemency, used often by governors. A famous example is Illinois Gov. Ryan commuting the death sentences of everyone on death row. By commuting the sentence, Bush was saying, "The crime wasn't forgiven, but the penalty has been reduced." In other words, Bush is saying the "punishment here does not fit the crime." On the other hand, a pardon is granted for a number of reasons: because the punishment doesn't fit the crime, the person is innocent or the prosecutors abused their discretion.

Schroeder

A pardon would have exonerated [Libby] from the crime and all its disabilities. Under a pardon he would have been able to practice law.

Beth Nolan, former Clinton White House counsel

The president's pardon power is either to pardon or commute. To commute he's saying, "I'm not pardoning the crime."

Impact on Libby

The conviction stays on his record.

He can't vote.

Libby may still appeal his conviction.

Howard Berman, sentencing expert at Ohio State

Re: Libby's Law License: Ultimately up to licensing board from wherever he got his bar. They have been known to make exceptions. He may be able to apply at another bar. It's fair to say most state bars have regulations against allowing felons.

What Does It Mean for the Judicial System?

Berman:

It's outrageous that Bush mentions the harm to his family when his own Justice Department goes into federal court every day and tells judges to disregard those kind of family considerations when deciding what kinds of sentences to impose. Will defendants in federal courts be able to use Bush's statement of reason for commuting Libby's sentence to bolster their own arguments for a less offense?

In the last few years the Bush administration has continued this "let's stay tough on crime" and now today we have the president deciding that the standards are too tough for his friend. Only his friends get the benefit.

Margaret Love: Justice Department pardon attorney, 1990-1997; now in private practice

To a large extent the meaning of this has to be drawn from the president's intent. Ordinarily there aren't many reasons given. You have to take Bush at his word. This statement does say implicitly that [Libby] will lose his license. But it depends on the court rules in the jurisdiction where he holds his law license.

If this means he will start pardoning people more generally then it is good news. I feel like he should use pardons more liberally. He is on track to becoming the most parsimonious president in history regarding pardons.

What Libby Had to Say about Pardons

In 2001, when Congress was looking into the controversy over former President Clinton's pardon of financier Marc Rich, Libby testified about it in front of Congress. He had served as a lawyer for Rich but had recused himself of anything regarding Rich's pardon. He said:

Sir, I never studied the pardon power, never looked at cases referring to the pardon power. I'm not a student of how it has actually been employed. My general position would be that the Constitution leaves the power of the pardon unfettered, virtually unfettered by the president, and I would be loath to sit here and second-guess the Founding Fathers.