Editorial: The Pardon Problem

I. Lewis "Scooter" Libby, formerly the Chief of Staff to Vice President Richard Cheney, was convicted last week on four counts of lying to FBI investigators and a grand jury about when he disclosed to outside sources that Valerie Plame was a non-official cover CIA operative. The most serious of the charges upon which he was convicted was obstruction of justice in the investigation of the circumstances that led to the outing of Ms. Plame, whose husband, Joseph Wilson, had investigated and publicly debunked claims by the Bush Administration that former Iraqi President Saddam Hussein had tried to procure partially processed uranium from Niger.

The White House had been using the mainstream media, particularly certain reporters like Judith Miller of The New York Times, to promote a largely false case for waging war on Iraq based upon claims by Administration officials that Saddam was seeking to procure, develop, and deploy nuclear, chemical, and biological weapons of mass destruction. Evidence put into the record at Mr. Libby's trial confirms long-standing suspicions and open allegations that the White House, faced with challenges to the credibility of its representations regarding the Iraqi dictator, engaged in a systematic pattern of revenge upon critics who had evidence or belief that the Administration's case was, at best, overblown and, at worst, entirely fabricated. The outing of Ms. Plame sent a strong signal to the intelligence community that taking public exception to the White House would be at the high risk of professional and possibly even personal harm: an exposed undercover operative, as well as his or her contacts, faces permanent, possibly life-threatening dangers after being revealed, and few career employees, especially those working in law enforcement at the national or international level, would be willing to bear such dangers merely to express a judgment in dissent to the highest ranks of a powerful, single-minded, vengeful Executive Branch.

Mr. Libby has vowed through his attorneys to seek a retrial and, failing to obtain such, has vowed to appeal his conviction in federal court. In fact, the appeal of the conviction is automatic; but the point of Mr. Libby's stance is that he will not take the adverse judgment of the federal jury lying down. The arguments he will set forth in seeking retrial are still to be fully formed, as are the arguments that will be placed before the Court of Appeals. As a matter of statistics, the likelihood of Mr. Libby being granted a retrial are slim, and the prospect that an Appeals Court will find substantive error in the trial is even more so.

In the absence of relief in retrial or appeal, Mr. Libby faces a maximum of 25 years in prison and a fine of one million dollars. While it is unlikely that the presiding trial judge, Reggie Walton, will "throw the book" at the convict, it is equally unlikely that Mr. Libby will altogether avoid serving prison time and paying a huge amount of money in fines. As a so-called "white collar criminal," and especially one who served at the behest of a sitting President of the United States, Mr. Libby's prison term would be served in a minimum security facility (with thanks to Richard Crane for pointing out that the camp originally suggested in this article is now closed). While nothing like living as a free person, the convict serving time in such a facility certainly does not suffer many of the deprivations and physical dangers that those serving in higher-security prisons face day in and day out. Although references to 'minimum security golf resorts' abound (one prison administrator describes his minimum security facility as "Camp Cupcake"), Mr. Libby would probably prefer to choose his own golf courses and foursome partners, so he'll make every effort to avoid what would otherwise be a stint in the gilded confines of a minimum security federal prison, comfortable as it might be.

Absent the retrial or overturn of his conviction on appeal, Mr. Libby's only chance of avoiding the certain, permanent stain of being a convicted felon and the near-certain, fairly long pain of confinement is an official pardon for his criminal acts by the President of the United States. Article II, Section 2 of the U.S. Constitution reserves to the sitting President the privilege of "Power to Grant Reprieves and Pardons for Offenses against the United States except in Cases of Impeachment." The language is clear, simple, and without recourse by those who might object to any particular case in which the President has granted clemency. Presidents, including the incumbent, have used this power with greater or lesser liberality, particularly in the waning days of their Administrations, when personal political backlash would be minimal or when legacy of mercy was being burnished. The constitutional provision is given procedural specificity by Part 1 of Title 28 of the Code of Federal Regulations, which sets forth the way in which a convict may seek, through the Pardon Attorney in the Department of Justice, clemency from the President. While quite specific, the statute is entirely non-binding upon the President, who may, at his or her discretion, choose to partially or wholly circumvent the process set forth therein. Even at that, though, it is quite likely that Mr. Libby, having exhausted all personal avenues of possible exoneration, would follow the steps prescribed in Title 28, provided President Bush had not already pardoned him.

While many commentators have expressed the opinion that a Presidential pardon (the highest of possible grants of clemency) is almost certain for Mr. Libby, such mercy granted by Mr. Bush would be highly problematic for those in an Administration hoping that the conviction of Mr. Cheney's former Chief of Staff is the official end of the so-called "Valerie Plame Scandal."

Any pardon Mr. Bush would grant Mr. Libby would have to be broad in scope, expressly protecting the latter from future prosecution on charges related to, but separate from, those for which he was just convicted. Such protective wording of a pardon would be along the lines of "...any and all acts carried out in the course of duties." While not rising to the level of so-called "blanket" immunity (exempting the individual from prosecution for any prior acts), such a pardon would have the effect of being an extraordinarily broad "use" immunity to keep any future investigation from leading to charges against Mr. Libby for what he did for and at the behest of higher White House officials. In other words, in any future trials involving White House officials who were part of the smear campaign against Valerie Plame and her husband, Mr. Libby's pardon would have to ensure that he would not face "jeopardy" in both the common and legal senses of that word.

But therein lies the problem: in any future legal proceeding, be it at the level of a federal grand jury, in a District Court, or before a congressional commmittee, Mr. Libby could not decline to respond to any question by invoking the Fifth Amendment, which would otherwise protect him from being compelled to give self-incriminating statements. Mr. Libby could, in fact, not incriminate himself in any manner that would lead to jeopardy for him.

Worse, if he were to decline to speak fully and truthfully anyway, he could at a minimum be charged with contempt of court and quite probably also be charged with obstruction of justice; and no such charges against him would be covered by the Presidential pardon because they were ex post acts in transgression of law and were committed subsequent to his "official duties" since he is no longer an officer of the Executive Branch.

Even future claims by Mr. Libby of defects in his memory of certain events would surely lead to punishment because that defense had already been rejected at trial and could not be revisited by Mr. Libby in future proceedings. To do so would virtually ensure a finding of contempt of court were he to persist in representing that he could not remember when events occurred.

Granted a Presidential pardon, then, Mr. Libby would be an extraordinary legal danger to those in the White House who directed, participated in, or subsequently obstructed the investigation of the Valerie Plame Scandal. A Presidential pardon broad enough to protect Mr. Libby would turn him into a veritable treasure trove of information awaiting responsible congressional and law enforcement authorities willing and able to fully extract from him what he most certainly knows about the possible criminal acts of Administration officials who, in their wildly imaginative case for war, used the power of their offices to wreck those who knew they were lying.

Key, however, to Mr. Libby's possible future role as an informant with no meaningful right against self-incrimination is a thorough investigation, followed by a comprehensive prosecution of all involved. That federal prosecutor Patrick Fitzgerald was inadequate to that large, grave, and necessary work must not disabuse other officials of what is not merely their constitutional duty, but is more to the point their moral obligation to right this one of many wrongs committed by an Administration unfettered by any internal sense of its own responsibility to adhere to the rule of law.



The Dark Wraith encourages President George W. Bush, in the spirit of mercy and friendship, to pardon I. Lewis "Scooter" Libby.