The Department of Justice maintains published standards for clemency orders like the one George W. Bush gave Scooter Libby Monday.
Under those standards, a request for commutation is supposed to go the Department of Justice's "pardon attorney," who "initiates and directs the necessary investigations and prepares a report and recommendation for submission to the president in every case." As part of those "necessary investigations," the pardon attorney "routinely requests the United States Attorney in the district of conviction to provide comments and recommendations" on the case. As the DOJ standards explain, "The views of the United States Attorney are given considerable weight in determining what recommendations the department should make to the president."
The standards also state that that the pardon attorney "routinely requests the United States Attorney to solicit the views and recommendation of the sentencing judge."
Oh, and as for timing? The standards are very clear on that: "Requests for commutation generally are not accepted unless and until a person has begun serving that sentence. Nor are commutation requests generally accepted from persons who are presently challenging their convictions or sentences through appeal or other court proceeding."
Did the president follow any of these guidelines in commuting Scooter Libby's prison sentence Monday? Not so far as we can tell. He didn't refer the case to the Department of Justice pardon attorney, who therefore didn't consult with Patrick Fitzgerald and didn't ask for an opinion from Judge Reggie Walton. And Bush granted Libby's request -- wait, did Libby even make a request? -- before Libby began serving his sentence and while he was still challenging his conviction.
Why didn't Bush follow the guidelines set by his own Justice Department -- guidelines that were meant to put into action the rules laid down by presidential executive orders? Maybe he didn't know they existed. As the Washington Post reports today, the president's gift to Scooter Libby represents the first time he has ever commuted a sentence without consulting the Justice Department at all.
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