Benson Weintraub [Benson Weintraub is a sentencing lawyer is Of-Counsel to the Law Offices of Robert David Malove, P.A.,in Fort Lauderdale and former Visiting Professor of Law at Hofstra University. While in law school, he worked on the Hoffa litigation under the direction of civil rights lawyer, Leonard Boudin.]
The political implications of Lewis Libby’s commutation of sentence by President Bush continue to reverberate, but this case summons memories of the suspicious circumstances under which President Nixon commuted the sentence of former Teamsters President, James R. Hoffa, 1971.
Hoffa and Libby were both convicted of obstruction of justice, but Hoffa had already served part of his thirteen-year sentence. That was enough to encourage exposure of the links between organized crime, the old International Brotherhood of Teamsters [IBT], and the intersection of such ties with money and politics.
Similarly, Bush and Cheney also appeared to fear that Libby’s imminent incarceration would lead him to cooperate with the Special Prosecutor, perhaps engendering a political scandal making Watergate look like a misdemeanor.
E. Howard Hunt, one of the convicted Watergate burglars and a member of the “Plumber’s Unit” that committed other crimes in order to plug government “leaks” to the media, advised this writer during Senator Sam Ervin’s Select Committee hearings investigating Watergate that Charles Colson, another counsel to Nixon, received a $1 million dollar bribe from Frank Fitzsimmons, Hoffa’s handpicked successor whom he believed would serve only as a “caretaker” while Hoffa was in prison. The intended benefit was to appease the union membership by getting their beloved leader released from prison, while Fitzsimmons, now fully accustomed to the glorious view of The Capitol building from the Teamster president’s office, got the condition that Hoffa be prohibited from holding union office to ensure the continuity of his own reign.
These allegations were plead in federal court as Hoffa— unaware of the condition placed on his commutation when released from prison in 1971— challenged its legality. Though the District Court in Washington, DC initially upheld Nixon’s authority to impose the condition in July 1974 notwithstanding its clear threat to the First Amendment, the US Court of Appeals was poised to issue a decision in Hoffa’s appeal at the time he was assassinated by the mob in July 1975.
The parallels between the Libby and Hoffa cases are clear: both were spared prison time stemming from fear that they would testify against the highest White House officials, and in Libby’s case President Bush, asserting his knowledge of the recent case, failed to follow established protocol prior to the grant of Libby’s clemency after the same US Court of Appeals ordered Libby to report to prison.
Hoffa’s case, in contrast, the correct procedures were followed: the Pardon Attorney, Lawrence Traylor, issued a favorable and unconditional recommendation for the commutation, the Attorney General endorsed it, but when it reached White House counsel John Dean’s desk, the lower court found that on the very date Hoffa was to be released from prison, “Dean instructed Traylor to prepare a new warrant commuting plaintiff’s sentences and further containing the condition” barring him from running for union office. This, the District Court noted, was based on Hoffa’s assertion “that the condition was formulated and imposed as a result of a conspiracy between the President, one of his advisors, Mr. Colson, the president of the [IBT], Mr. Fitzsimmons, and unknown others.”
Though the Constitution confers power in the President to “Grant Reprieves and Pardons for Offences Against the United States,” the law also provides a complex administrative procedure for the President, prior to exercising such powers, to consult with the Office of Pardon Attorney in the Department of Justice as well as the Attorney General. These rules are codified into law.
In Libby’s case, neither the Pardon Attorney, Special Prosecutor, nor sentencing Judge— all required by these regulations to give their positions in advance of presidential action— were ignored and shocked, especially given the questionable legality of whether Libby’s term of Supervised Release, in the absence of service of imprisonment, is itself lawful; for now a moot issue.
Once again, the fear of exposing corruption and illegal activity in the White House appears the actual reason for exercising the presidential power of granting clemency in Libby’s case. Though Bush deemed Libby’s sentence “excessive,” it was consistent with the prevailing federal Sentencing Guidelines and engenders the kind of disparity created between rich and poor, black and white, and the distinctions between higher penalties for inner city crack cocaine users than for the powder consumed by their suburban counterparts.
The Libby commutation— viewed through the historical Hoffa prism—is yet another example of this administration’s dual standards which undermine rather than strengthen confidence in the administration of justice.