Scooter Libby and Paris Hilton as icons of the American legal system

Sandy Levinson

The two most visible legal miscreants in the country today are Lewis "Scooter" Libby and Paris Hilton, and both for the very same reason: Is it just to make such persons go to jail, perhaps at all, let alone for up to 30 months (or, as in Ms. Hilton's case, for 23 days)? Ms. Hilton, of course, received a temporary reprieve from the LA sheriff's office, though the almost unanimous condemnation of the remarkably special treatment given the young heiress suggests that she might find herself back in jail very soon, serving out the remainder of her sentence. According to the NYTimes,

The city attorney’s office also asked that the sheriff’s department show why it should not be held in contempt of court for letting her go, or “reassigning” her, in the first place. “We cannot tolerate a two-tiered jail system where the rich and powerful receive special treatment,” said Mr. Delgadillo, the prosecutor who handled the case.

I presume Mr. Delgadillo's statement rings true to most of us, even if it exhibits a certain degree of descriptive naivete. And I suspect that one of the few things that may unite the contemporary right and left, liberals and conservatives, Democrats and Republicans, may be the illegitimacy of Ms. Hilton's receiving special treatment,

But then, of course, we come to "Scooter," who is being supported for an immediate pardon by such denizens of law-and-order as the National Review, the Weekly Standard, and, of course, the editorial page of the Wall Street Journal (along with the New York Post, incidentally, so the takeover of the WSJ by Rupert Murdoch would create no dissonance on this issue). For the general lineup of anti- and pro-pardon editorials and articles, with hyperlinks), see Dan Froomkin's blog in the Washington Post.

The "moderate" position is being taken by William Otis, who wrote a Washington Post column suggesting a third way:

"Scooter Libby should not be pardoned. But his punishment -- 30 months in prison, two years' probation and a $250,000 fine -- is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine. . . .

"To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal."

I'm not personally acquainted with Mr. Otis, described by Froomkin as a member of the Federalist Society and by the Post as a former federal prosecutor [who] was a member of the Attorney General's Advisory Committee on the Sentencing Guidelines under administrations of both parties. He was special counsel for President George H.W. Bush. At the very least, though, I'd be curious to know if he agreed with most members of what I presume is his political party that William Jefferson Clinton was guilty of a "high crime and misdemeanor" by his own playing fast and loose with the truth in a deposition and, arguably, before a federal grand jury. I suspect that whole lot of people thought that Clinton was "guilty" of something that "most people would, or should [not], think of as criminal." At that time, of course, I remember being treated to lots of lectures about the necessity to uphold the "rule of law" even against the highest official in the land, come what may. These were not in fact silly lectures. I have concluded, from the perspective of almost a decade later, that an honorable man would have resigned the presidency rather than forced his supporters to engage in the kind of legal casuistry that we were exposed to. (To be sure, my belief in this outcome is strengthened by the near certainty that we would thereby have been saved from the presidency of George W. Bush.)

"Scooter" may indeed be a fine, upstanding person, just as, for all I know, Paris Hilton is a real sweetheart if one gets to know her. But they are now strange (metaphorical) bedfellows in an important test of whether we continue even to pretend to believe in the notion of "equal justice under law." Stay tuned to your local cable outlets as we play out these national psychodramas.

[LATE BREAKING DEVLOPMENT: Ms. Hilton has been ordered back to jail.]