The problem with President Bush's decision to commute Lewis "Scooter" Libby's prison sentence is not that it leaves us with a dangerous criminal on the streets instead of behind bars, where the judge thought he belongs.
It's the message that it sends about what really counts in the criminal justice system, and the hypocrisy it exposes among those who now praise the president's action after having condemned lying under oath as a high crime worthy of impeachment less than a decade ago.
Any serious student of criminal law knows that "equal justice" is a goal and not a reality, but as this case makes clear, particularly coming on the wake of the Paris Hilton debacle, for too many people, it's not even that.
Would you rather be a rich and guilty or poor and innocent, I used to ask my criminal law students every year. After O.J. Simpson, everyone thought they knew the right answer. When Paris Hilton was freed from prison after three days, the question seemed to answer itself. The problem is that the right answer is all wrong.
I have written before about my discomfort with the government using the laws against perjury and false statements to convict those who have committed no underlying crime. Particularly in the hands of a special prosecutor, or a terrorism task force in heat, these laws can result in creating crimes rather than solving them, in the punishment of the most trusting, not the most dangerous.
The savvier you are in dealing with prosecutors, the less likely you are to make the mistake of answering the question rather than offering another "I don't recall" or invoking the Fifth Amendment. The fact that Scooter Libby was convicted while those who appeared far more responsible for the destruction of Valerie Plame's career were never even charged is as much a reflection of his naivete as his criminality.
But if that's the reason for commuting Scooter Libby's prison sentence, it applies with even greater force to any number of Muslims around the country who have been charged with no crime other than making false statements that caused far less harm than the underlying disclosure that triggered the Libby prosecution.
In Cleveland, the widely respected leader of the Muslim mosque, active for years in interfaith cooperation, was convicted of a single count of making a false statement on his immigration papers, sentenced to prison and then deported. The Appeals Court affirmed, in United States v. Damrah, and last time I checked, the cleric who had rabbis testifying in his defense was being held in a Palestinian prison.
The same tactic is being used against other Muslims across the country who have never provided aid to terrorists, never supported terrorist organizations and have even less reason than Mr. Libby, a lawyer with the best counsel money can buy, to know that the way to avoid prosecution is by simply not answering a question.
I would like to believe that Mr. Bush would be equally sympathetic to their pleas of innocence, to their concerns about the effects of prison on themselves and their families, much less respect for the rule of law among law-abiding Muslims, but I am not so naive as to think that.
Nor do I expect those who are now dismissing Mr. Libby's misdeeds as not worthy of punishment, or even conviction, to recognize the inconsistency between their current position and the one they took when it was Bill Clinton who was accused of not telling the truth under oath.
In Libby's case, to hear my conservative friends tell it, a commutation of sentence is hardly enough to make up for a mistaken prosecution; only a full pardon will do. Yet these are the very same people who were screaming for Bill Clinton's head just a few years ago because another special prosecutor, Kenneth Starr, claimed that he had not been honest about an adult consensual relationship.
A foolish consistency may be the hobgoblin of small minds, but if ever there were a case where lying is wrong, it's when what is at issue is the identity of an undercover CIA operative whose exposure could endanger the lives of those serving our country; and if ever there were a case where a misstatement should be considered noncriminal, it is when we're dealing with the embarrassing and personal details of someone's sex life.
But every time I go on television and dismiss the Clinton scandal as a bit of harmless nostalgia, viewed from today's perspective, I am inundated with e-mails reminding me that it wasn't about sex, it was about lying, and no one is above the law. What's good for the goose should be good for the gander.
The problem with commuting Scooter Libby's sentence, or pardoning him, is not that we now have a dangerous criminal in our midst, but rather that it confirms a most dangerous view of the criminal justice system and its unfairness. The president's decision will almost certainly be understood by those without friends in high places as further proof, if any were needed, that what matters is not what you've done but whom you know, that the punishment fits the criminal and his connections, not the crime and its consequences, and that justice, far from being blind, is clear-eyed in its bias toward the powerful and against the powerless.
It's not the lesson we should be teaching our kids on this Fourth of July.
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Susan Estrich is the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was Professor of Law at Harvard Law School and the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System” and "Making the Case for Yourself: A Diet Book for Smart Women.”
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for FOXNews.com.