'tis not immensely likely to be
greeted with an open-armed waiver,
but important to make the historical
record for what is shaping up to be
the biggest test of whether "we are
a nation ruled by men, or by laws. . ."
(as archibald cox so succintly put
it, during the pendency of the nixon-
watergate showdown, a third of a century
ago, now. . .)
President George W. Bush
The White House
1600 Pennsylvania Avenue N.W.
Washington, D.C. 20500
Dear President Bush:
Like many Americans, I was troubled to learn of your decision to commute the sentence of Vice President Cheney's former Chief of Staff Scooter Libby. Mr. Libby was convicted of serious crimes and sentenced by a fair and well-respected federal Judge who termed the evidence of Mr. Libby's guilt "overwhelming." It was surprising indeed to learn that you had deemed Mr. Libby's sentence "excessive" even before any of his appeals had run.
As you may know, my committee is holding a hearing this Wednesday titled "The Use and Misuse of Presidential Clemency Power for Executive Branch Officials." At this hearing we hope to learn about some of the consequences of Mr. Libby's misconduct, and we will hear from sentencing experts and people affected by federal sentencing laws as to whether or not Mr. Libby's sentence can fairly be considered "excessive." We will also explore the grave questions that arise when the Presidential clemency power is used to erase criminal penalties for high-ranking executive branch employees whose offenses relate to their work for the President. While I recognize that the clemency power is a Presidential prerogative, your decision to commute Scooter Libby's sentence has proven highly controversial, with commentators suggesting that this act may have had the effect of removing any further incentive that Mr. Libby may have had to provide more complete information about the leak of information on Valerie Wilson's work as an intelligence agent and the role that your Vice President and you yourself may have played in that leak.
When President Clinton's pardon of Marc Rich stirred its own controversy back in 2001, former President Clinton took the forthright step of waiving Executive Privilege and permitting some of his closest aides to testify about the facts of the matter. On March 1, 2001, President Clinton's former Chief of Staff John Podesta, his former Counsel Beth Nolan, and one of his closest counselors Bruce Lindsay testified before Chairman Burton's House Government Reform Committee on this matter. As Chairman Burton acknowledged in his opening statement: "We asked the president not to claim executive privilege so his aides could testify, and he's done that, and that's a positive step." (Transcript of March 1, 2001 hearing of the House Government Reform Committee.)
It is in this spirit that I call on you too to waive Executive Privilege and provide the relevant documents and testimony of any relevant aides regarding the decision to commute Mr. Libby's sentence. Given that then President Ford testified before our committee in 1974 about his pardon of President Nixon, there is ample additional precedent for your taking such a step. Many questions remain unanswered. For example:
What role if any, did Vice President Cheney play in the decision to commute the sentence of his own former aide? On what basis did you conclude that Mr. Libby's apparently ordinary sentence was "excessive"? Was any consideration given to the impact commutation would have on the possibility that Mr. Libby might yet decide to cooperate with the Special Prosecutor? Had any assurances previously been given to Mr. Libby - either before or after his false testimony - that he would be protected from jail time through clemency? What outsiders lobbied the administration for clemency, and was there any improper quid pro quo?
Thank you very much for responding to this request. I hope you will be able to provide the relevant documents and allow your aides to testify at our hearing next week or at some time in the near future.