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. Last Updated: 07/27/2016

Bush's Reasoning on Libby Sparks Debate

NEW YORK -- In commuting I. Lewis "Scooter" Libby's 30-month prison sentence on Monday, U.S. President George W. Bush drew on arguments about the federal sentencing system often made by defense lawyers -- and routinely and strenuously opposed by his own Justice Department.

Critics of the system have a long list of complaints. Sentences, they say, are too harsh. Judges are allowed to take account of facts not proven to the jury. The defendant's positive contributions are ignored, as is the collateral damage that imprisonment causes the families involved.

On Monday, Bush made use of every element of that critique in a detailed statement setting out his reasons for commuting Libby's sentence.

Given the administration's tough stand on sentencing, the president's arguments left experts in sentencing law scratching their heads.

Calling Libby's sentence "excessive," Bush spared the former chief of staff to Vice President Dick Cheney from serving his 2 1/2-year sentence for obstructing a CIA leak investigation.

Bush's decision to grant a commutation rather than an outright pardon has started a national conversation about sentencing.

"By saying that the sentence was excessive, I wonder whether he understood the ramification," said Ellen Podgor, who teaches criminal law at Stetson University in St. Petersburg, Florida. "This is opening up a can of worms about federal sentencing."

The Libby clemency will be the basis for many legal arguments, said Susan James, an Alabama lawyer representing Don Siegelman, the state's former governor, who is appealing a sentence he received last week of 88 months for obstruction of justice and other offenses.

"It's far more important than if he'd just pardoned Libby," James said, as forgiving a given offense as an act of executive grace would have had only political repercussions. "What you're going to see is people like me quoting President Bush in every pleading that comes across every federal judge's desk."

Indeed, Bush's decision may have given birth to a new sort of legal document.

"I anticipate that we're going to get a new motion called 'the Libby motion,'" Podgor said. "It will basically say, 'My client should have got what Libby got, and here's why.'"

No one disputes that Bush has the authority under the Constitution to issue pardons and commutations for federal crimes. But experts in the area, pointing to political scandals in the Reagan, Truman and Grant administrations, said Bush acted with unusual speed.

Experts in federal sentencing law said a sentence of 30 months for lying and obstruction was consistent with the tough sentences routinely meted out by the federal system.

"On what legal basis could he have reached that result?" said Frank Bowman, an authority on federal sentencing at Columbia University said of the commutation. "There is no legal basis."