Now that Libby has been sent to jail by Judge Walton, we will learn whether we are a government of laws and not of men. I’m not talking about a possible pardon, which would only confirm what we all know: that Bush and his gang are a bunch of petty criminals. Libby will ask the court of appeals to stay his imprisonment. The court’s response to that request will tell us a lot about how far we have gone toward losing our Republic and how far we must go to win it back.
No matter how personally liberal or radical a lawyer may be, most of us are essentially conservative in one respect. We do believe in the rule of law. Not only because it has been ingrained in us by training, but because we need it to function in our jobs. It’s the rule of law that allows us to give reasonably good predictive advice to our clients. I won’t pretend the system is perfect. I’ve been on the receiving end of more than one decision that I had good reason to believe went against me because it was me it was against. But for the most part, the system works, and it works because most of the participants understand the rules and understand that it is in everyone’s best interests that we go by those rules. Even when the Supreme Court departs from past precedent (at least in the past) it does so in a more or less coherent and predictable fashion, and it does not do so because of the identity of the lawyers or litigants before it. (Brown v. Board of Education overruled Plessy v. Ferguson, but the justices didn’t do it as a personal favor to Oliver or Linda Brown). Justice may not always be smart, but she does work best when she remains blind.
That’s why so many lawyers and judges, of all political stripes, were so incensed by the decision in Bush v. Gore. It flew in the face of precedent, made no sense on its merits, and was explicitly limited to its own facts. It was a one time expansive reading of the equal protection clause done for the sole purpose of benefitting one man-George Bush. It called the legitimacy of the Court and our legal system into question.
We will now see whether this sort of preferential treatment will be extended beyond Bush. The D.C. Court of Appeals has been carrying water for the Republican right for years. They let Oliver North off the hook, they hung Clinton every chance they got, they have upheld Cheney’s secrecy, etc. But none of their prior decisions has been totally lawless. In order to free Libby, they will have to match the Supreme Court’s actions in Bush v. Gore. In fact they will have to go beyond the Bush v. Gore court, because, at least in theory they are absolutely bound by applicable Supreme Court precedent, while the Supreme court can reverse itself whenever it sees fit. They will have to reject relevant Supreme Court precedent, invade the province of the trial court judge, and buy into arguments so flimsy on their face that it is impossible to believe anyone could take them seriously. If they do this it will be because of the identity of the defendant, and not the merit of the arguments. This fact will be blatantly obvious, no matter how much the Beltway enablers attempt to ignore it.
We can’t survive as a Republic with a corrupt executive, a powerless Congress, and a corrupt judiciary.
Personally, I’m not optimistic. I would put the chances of the court freeing Libby at 50-50. If they refuse to do it, they will at least have preserved the semblance of judicial independence and integrity. That’s not to say that if they refuse to free him, they will do so out of noble motives. Given the contempt with which Bush has treated the law and the courts, they may just be protecting their turf, or they may feel that this time Bush will have to do his own dirty work. If they do free him, they will be sending an unambiguous message: there’s one set of rules for high placed Republicans, and an entirely different set of rules for the rest of us.
Speaking of Libby, Bill Moyer’s, a beltway pariah, no doubt, has a good column at Truthout. An excerpt:
One Beltway insider reports that the entire community is grieving – “weighted down by the sheer, glaring unfairness” of Libby’s sentence.
And there’s the rub.
None seem the least weighted down by the sheer, glaring unfairness of sentencing soldiers to repeated and longer tours of duty in a war induced by deception. It was left to the hawkish academic Fouad Ajami to state the matter baldly. In a piece published on the editorial page of The Wall Street Journal, Ajami pleaded with Bush to pardon Libby. For believing “in the nobility of this war,” wrote Ajami, Scooter Libby had himself become a “casualty” – a fallen soldier the president dare not leave behind on the Beltway battlefield.
Not a word in the entire article about the real fallen soldiers. The honest-to-God dead, and dying, and wounded. Not a word about the chaos or the cost. Even as the calamity they created worsens, all they can muster is a cry for leniency for one of their own who lied to cover their tracks.
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