What About the Rule of Law?
By Dan Froomkin
Special to washingtonpost.com
Wednesday, June 6, 2007; 1:00 PM
Suppose President Bush pardons Scooter Libby.
How will he explain it to the American people?
Will he say Libby's prosecution, conviction and sentencing were all a terrible miscarriage of justice? How could he say that without eroding the rule of law? Special counsel Patrick J. Fitzgerald is considered beyond reproach by career federal prosecutors, the jury was of Libby's peers, and the judge -- a Bush appointee -- said the proof of Libby's guilt was "overwhelming."
Will Bush say Libby just had an unfortunate memory lapse caused by the strain of pressing national security work? That's an argument that strains the credulity of all but the most die-hard Libby supporters. After all, Libby didn't just fail to recall something -- he assertively made up a story that was resoundingly contradicted by the evidence.
Will Bush say Libby's unfortunate mistake is forgivable considering the public service he performed as the vice president's chief of staff? That might be the easiest rationale for the public to swallow. But Libby has never admitted he made a mistake. He's expressed no remorse. Can Bush forgive someone who is not asking for forgiveness?
Will Bush say that he doesn't believe Libby should be punished since all he did was fall on a dagger aimed at the vice president? That's possibly the most honest approach -- though also the least likely.
Or will Bush say nothing at all, and stick to the strategy of stonewalling on this case? It's a strategy that, in part because of the press corps' lack of tenacity, has served him well thus far.
Washington is abuzz with pardon talk. The thinking appears to be that Bush will grant one before Libby has to go to prison, which could be as soon as the end of July. The pardon will cause Bush a little political damage -- but what's a little more political damage these days?
But this kind of thinking may underestimate the potential fury of the American public.
Pardoning Libby would send the public the message that this White House thinks it is above the law. It's a point critics have made time and time again, whether it relates to the treatment of detainees, warrantless wiretapping or the purge of insufficiently partisan U.S. attorneys. But this time, the charge just might really stick.
Because Libby's lies came in the context of a White House campaign to defend its actions in the run-up to war, pardoning him would inevitably call renewed attention to the most tragic and least forgivable mistake of Bush's presidency: misleading the American people into a disastrous war. It could send the anti-war movement into overdrive.
And pardoning Libby -- a lawbreaker who may have been acting under orders from his superiors -- would finally and fully associate Bush in the public's mind with the one transgression that has forced a president out of office in the modern age: A cover up.
Pardon Him?
Peter Baker writes in The Washington Post: "The sentence imposed on former White House aide I. Lewis 'Scooter' Libby yesterday put President Bush in the position of making a decision he has tried to avoid for months: Trigger a fresh political storm by pardoning a convicted perjurer or let one of the early architects of his administration head to prison.
"The prospect of a pardon has become so sensitive inside the West Wing that top aides have been kept out of the loop, and even Bush friends have been told not to bring it up with the president. In any debate, officials expect Vice President Cheney to favor a pardon, while other aides worry about the political consequences of stepping into a case that stems from the origins of the Iraq war and renewing questions about the truthfulness of the Bush administration. . . .
"
ome White House advisers said the president's political troubles are already so deep that a pardon might not be so damaging. Those most upset by the CIA leak case that led to the Libby conviction already oppose Bush, they noted. 'You can't hang a man twice for the same crime,' a Republican close to the White House said."
Neil A. Lewis writes in the New York Times: "If Mr. Libby goes to prison, he will be the first senior White House official to do so since the days of Watergate, when several of President Richard M. Nixon's top aides, including H. R. Haldeman and John D. Erlichman, served prison terms. . . .
"Several Republicans advisers close to the White House, speaking on condition of anonymity, said Tuesday that they were perplexed as to why Mr. Bush seemed reluctant to acquiesce in pardoning Mr. Libby. Mr. Bush has pardoned more than 100 people so far, but none have been prominent.
"An intriguing question for many is what role Mr. Cheney will play in pressing Mr. Bush to grant a pardon."
Bryan Bender writes in the Boston Globe: "'The question of the pardon is not if but when,' said Stephen Hess, a professor at George Washington University. 'The pressures from [Republican] loyalists and in the administration will be enormous. From the loyalists' point of view, Libby was falling on his sword for the vice president.'"
But Paul Bedard writes for U.S. News: "Even as top Republicans are pressing President Bush to pardon former top vice presidential aide Lewis 'Scooter' Libby for his conviction and sentencing in the CIA leak investigation, many party leaders and strategists say the whole case is a loser for the party.
"'It's just another nail in the Republican coffin,' says GOP pollster and message guru Frank Luntz. 'It makes the chances of winning back Congress bleak.'"
And Pete Yost writes for the Associated Press: "While expressing support for I. Lewis 'Scooter' Libby, Cheney and President Bush are also in the position of being officials sworn to uphold the law, running the branch of government that prosecuted Libby.
"'It's a disappointment whenever a person who occupies a high office and takes an oath doesn't respond to a demonstrated serious criminal event in a serious governmental way,' former Iran-Contra prosecutor John Barrett said Tuesday night.
"'It's an adversary process and I understand the personal dimension, but the United States is the side of the case that President Bush and Vice President Cheney are on. Those are their jobs,' said Barrett, now a law professor at St. John's University in New York City.
"In the Valerie Plame case, Bush and particularly Cheney are more than mere friends of Libby, and more than mere disinterested public officials. Their actions are within the scope of the criminal investigation. Both were witnesses who underwent questioning by Special Counsel Patrick Fitzgerald."
Cheney's Statement
Here is the text of Cheney's written statement in response to the sentencing. Cheney expresses his support for Libby, calls the episode a tragedy, and comes very close to calling the verdict a miscarriage of justice.
"Scooter has dedicated much of his life to public service at the State Department, the Department of Defense and the White House. In each of these assignments he has served the nation tirelessly and with great distinction. I relied on him heavily in my capacity as Secretary of Defense and as Vice President. I have always considered him to be a man of the highest intellect, judgment and personal integrity -- a man fully committed to protecting the vital security interests of the United States and its citizens. Scooter is also a friend, and on a personal level Lynne and I remain deeply saddened by this tragedy and its effect on his wife, Harriet, and their young children. The defense has indicated it plans to appeal the conviction in the case. Speaking as friends, we hope that our system will return a final result consistent with what we know of this fine man."
As Yost writes for AP: "Cheney's statement is unusual historically, says presidential scholar Stanley Kutler, author of a well-known book on the Watergate scandal.
"'I know of no time in Watergate where someone who was convicted got the warm embrace of those in power,' said Stanley Kutler, author of 'The Wars of Watergate.'"
Bush's View of Pardons
Michael Isikoff and Mark Hosenball wrote for Newsweek in March that "there's one significant roadblock on the path to Libby's salvation: Vice President Dick Cheney's former chief of staff does not qualify to even be considered for a presidential pardon under Justice Department guidelines.
"From the day he took office, Bush seems to have followed those guidelines religiously. He's taken an exceedingly stingy approach to pardons, granting only 113 in six years, mostly for relatively minor fraud, embezzlement and drug cases dating back more than two decades. Bush's pardons are 'fewer than any president in 100 years,' according to Margaret Love, former pardon attorney at the Justice Department."
The Justice Department regulations"require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application,' according to the Justice Web site."
Isifoff and Hosenball noted: "Moreover, in weighing whether to recommend a pardon, U.S. attorneys are supposed to consider whether an applicant is remorseful. 'The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to . . . victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication,' the Justice Web site states."
At his very first press conference in February 2001, Bush was asked about President Clinton's controversial last-minute pardons and responded that when it came to his own granting of pardons, "I'll have the highest of high standards."
In a Feb. 1 interview with Fox News's Neil Cavuto, Bush was asked about pardoning two Border Patrol officers convicted of civil rights violations, and reaffirmed his intention to follow the guidelines:
"BUSH: You know, I get asked about pardons on a lot of different cases. And there's a procedure in place. And what I told members of Congress who have written me or called was to just look at the case, look at the facts in the case.
"And people need to understand why these folks were sent to trial and why a jury of their peers convicted them. And that's, of course, what a president does on any pardon request.
"CAVUTO: So, what are you saying?
"BUSH: I'm saying, I would look at all the facts. And -- but there is a process in any case for a president to make a pardon decision. In other words, there is a series of steps that are followed, so that the pardon process is, you know, a rational process."
The Sentencing
I wrote a bit about Libby's sentencing in yesterday's column, No Remorse, No Mercy.
David Corn blogs for the Nation: "Special prosecutor Patrick Fitzgerald had asked Walton to incarcerate Libby for 30 to 37 months. At the hearing, prior to Walton's ruling, Libby's defense attorneys -- Ted Wells and William Jeffress Jr. -- contended that Libby should get off with probation. They threw several arguments at the judge. First, they claimed that the toughest sentencing guides should not be applied to Libby, echoing an argument put forward by Libby's champions in rightwing circles: Nobody was ever charged with leaking the identity of Valerie Plame Wilson, so the whole case was not such a big deal. Walton did not bite. Citing appeals court decisions, he noted that in an obstruction of justice case it's the investigation that counts, not the ultimate outcome of the investigation. 'Your position,' Walton told Jeffress, 'would seem to promote someone aggressively engaging in obstruction behavior.'"
Another defense argument was that Plame, who the CIA has identified as covert, nevertheless was not.
Carol D. Leonnig and Amy Goldstein write in The Washington Post: "'My take on it,' [U.S. District Judge Reggie B. Walton] said, is that the trial did not prove Libby knew that Plame worked in an undercover capacity when he disclosed her identity to several reporters. Still, the judge added, 'anybody at that high-level position had a unique and special obligation before they said anything about anything associated with a national security agency [to] . . . make every conceivable effort' to verify their status before releasing information about them.
"'While there is no evidence that Mr. Libby knew what the situation was, he surely did not take any efforts to find out,' Walton said. 'I think public officials need to know if they are going to step over the line, there are going to be consequences. . . . [What Libby did] causes people to think our government does not work for them.'"
The Scene
Dana Milbank writes in The Washington Post: "You knew Scooter Libby was in trouble at yesterday's sentencing hearing when his lawyer decided to read the judge a character reference -- from Paul Wolfowitz. . . .
"Libby was pale and expressionless after the judge pronounced the 30-month sentence. Libby's wife, Harriet Grant, lowered her head. The two left the courthouse ignoring shouted questions from reporters ('Are you disappointed?') and taunts from demonstrators ('You're a criminal!').
"The only public display of emotion the couple allowed themselves was at the start of the day, when Grant wept while greeting Mary Matalin, a former colleague of her husband's, with a tight hug."
The Letters
Walton released all the letters he had received regarding Libby's sentencing.
Here are excerpts compiled by the New York Times, highlights from The Smoking Gun, and a PDF of all 373 pages from the AP.
Michael Abramowitz writes in The Washington Post: "The writers included some of the most prominent names in conservative thinking about foreign policy, as well as current and former senior government officials -- Donald H. Rumsfeld, Paul D. Wolfowitz, Gen. Peter Pace and Henry A. Kissinger."
Josh Gerstein writes in the New York Sun: "The highest-ranking current official to weigh in on Libby's behalf was the chairman of the Joint Chiefs of Staff, General Peter Pace. He called Libby a 'selfless' official who always sought out 'the right way to proceed -- both legally and morally.'
"Absent from the sheaf of nearly 200 letters was any entreaty from Vice President Cheney, who was Libby's boss from 2001 to 2005."
Former senator Alan K. Simpson (R-Wyo.), may have been more revealing than he realized when he wrote: "During my years of friendship with Scooter, I found a single attribute which will always remain undiminished in my mind. That is the attribute of Loyalty -- unswerving, unselfish, unwavering loyalty. One could also almost superimpose upon his brow the accolade 'The Good Soldier.'"
Stonewall Continues
Bush sat down for an unscheduled and highly unusual roundtable interview today with the reporters traveling with him on his European trip. He spoke for 45 minutes. And astonishingly, there was only one brief exchange related to Libby.
"Q Do you think it says something about you and Vice President Cheney, that you continue to embrace a man who has been convicted and sentenced?
" THE PRESIDENT: No, it's a sad day for him, and my heart goes out to his family. And it wouldn't be appropriate for me to discuss the case until after the legal remedies have run its course. "
Terence Hunt writes for the Associated Press about what Bush did talk about, little to none of which was apparently new.
Yesterday, White House spokeswoman Dana Perino said Bush would have no comments on the Libby case until the legal process had run its course.
"Q When do you consider the process over?
"MS. PERINO: Well, I think when those appeals are exhausted is when it would be over.....
"Q Does the President think at some point it would be appropriate just to speak out about this? The guy has been sentenced. I mean, is he going to run out the clock and wait for all the appeals to be done before the President of the United States speaks about a pretty important matter that was perpetrated by a member of his staff?
"MS. PERINO: What I can tell you is how the President reacted today, which is to say that he does feel terrible for them, he thinks they're going through a lot right now, they've been through a lot. But given the fact that the judge has set up a process for appeal and given the way that the President has handled this for the past year or so, he's not going to intervene. . . .
" Q Has justice been served in this case?
" MS. PERINO: Brendan, I think that as regards to anyone, any American who has the right to see out a criminal justice procedure, I think that we have to afford him the same rights, just as we would give to anybody else and allow them to exhaust those appeals."
Opinion Watch
The New York Times editorial board writes: "The jail sentence and fine imposed on Scooter Libby, the former chief of staff for Vice President Dick Cheney, are an appropriate -- indeed necessary -- punishment for his repeated lies to a grand jury and to F.B.I. agents investigating a possible smear campaign orchestrated by the White House. Although Mr. Libby plans to appeal, as he has every legal right to, the judge ought to send him to jail now as a lesson that such efforts to frustrate justice will not be tolerated. . . .
"At a time when high administration officials routinely dissemble and claim lapses of memory, immediate jail time for Mr. Libby, a convicted felon, is the best way to send a message that obstruction of justice will be severely punished."
http://www.washingtonpost.com/wp-dyn/content/linkset/2005/04/11/LI2005041100879.html
