A Pardon for Libby?

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tags: pardons

Mr. Crouch is author of the forthcoming book: The Presidential Pardon Power. He is an assistant professor at American University.

Will he or won’t he?

For anyone still paying attention to the Bush administration, that is the big question. Time is running out for President Bush to grant “Scooter” Libby a full pardon. Recall that the President commuted Libby’s 30-month prison sentence to zero time in July 2007. Speculation has continued that Bush might clear Libby completely on his way out the door before noon on January 20.

A Libby pardon, however wrong it might be, would not be the first time that a lame duck president pardoned an executive branch official who was implicated in serious wrongdoing. Indeed, this kind of action has become increasingly prevalent in the modern era.

Prior to Watergate, presidents had generally avoided using clemency to forgive aides or allies caught up in investigations into the executive branch. A brief look at a few key scandals bears out the point.

The Whiskey Ring was a Grant-era scandal that swept up the President’s close aide and personal secretary, Orville Babcock. Convinced of Babcock’s innocence, Grant vouched for him in a deposition at Babcock’s trial which, historians agree, saved the defendant from conviction. Grant later pardoned several major Whiskey Ring figures. Had Babcock been found guilty, it is reasonable to guess that Grant might have pardoned him, too.

Grant’s behavior in the Whiskey Ring – the first scandal in which an outside prosecutor investigated the executive branch – became the exception that proved the rule that was to follow: later pre-Watergate presidents did not interfere with outside investigations by pardoning scandal-tainted figures.

Decades later, President Theodore Roosevelt assumed a “hands off” approach and allowed a special prosecutor to thoroughly investigate the Oregon Land Frauds. Roosevelt kept his powder dry even while fellow Republicans Oregon Senator John H. Mitchell and U.S. Attorney John H. Hall were prosecuted – in the end, Roosevelt did not pardon them.

The Teapot Dome oil lease scandal of the Harding administration broke during the Coolidge years and snared Albert Fall, the Interior Secretary who became the first Cabinet member convicted of a felony committed while in office. Presidents Coolidge and Herbert Hoover (Hoover had been lobbied by friends of Fall) passed on pardoning him.

Harry Truman’s appointments secretary joined another Truman friend, an Internal Revenue collector, as subjects of the Income Tax Scandal of the 1950’s. Truman did not pardon any of the major figures himself, but took special pains to persuade Presidents John Kennedy and Lyndon Johnson to pardon these two allies.

Perhaps the most famous clemency decision ever made, Gerald Ford’s pre-indictment pardon of Richard Nixon, seemed at the time to be cronyism run amok: a president pardoning his predecessor before any legal process had begun. Still, the public eventually saw things Ford’s way: under the circumstances, it was viewed as the right thing to do.

One legacy of Watergate, the independent counsel statute, created an opening for presidents to cry foul when investigated by an outside prosecutor. By claiming to be victims of politically motivated witch-hunts, post-Watergate presidents have enjoyed political cover to use clemency to end investigations into executive branch wrongdoing.

Both Jimmy Carter and Ronald Reagan resisted the temptation to abuse clemency to protect their friends or associates. President George H.W. Bush did not. He pardoned six Iran-contra defendants, one of whom (former Defense Secretary Caspar Weinberger) was about to stand trial. The pardon essentially ended the Iran-contra investigation and virtually assured that Bush himself would never have to testify about the scandal.

Bill Clinton pardoned Puerto Rican Nationalists apparently to earn his wife and vice president votes in New York, and pardoned his half-brother, Roger, as well as fugitive financier Marc Rich, whose ex-wife had donated almost a half million dollars to the Clinton Library. Still, credit where credit is due: he did not use clemency to end an investigation into executive branch malfeasance.

All of which brings us to Scooter Libby. Here, Bush did not need to claim mistreatment by special prosecutor Patrick Fitzgerald or bias by Reggie Walton, the judge in Libby’s trial (both Bush appointees). All Bush had to do was characterize Libby’s sentence as “excessive,” hide behind conservative complaints about criminalizing political differences, and then use clemency to spare his vice president’s former chief of staff a prison stay.

If Libby receives a full pardon, as many expect he will, it only provides more evidence that post-Watergate, presidents are less afraid to abuse the clemency power than in the past. Unless the American public takes a stand against this behavior, we will likely be adding to this list of injustices four (or eight) years hence.

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Lorraine Paul - 1/27/2009

Bill, Gitmo will be closed down to the joy of every democracy lover and civil rights activist on the planet.

Bill Heuisler - 1/26/2009

Mr. Hughes,
I agree completely. The term, Special Prosecutor, admits to the incapacity of our unique political system and allows extraordinary powers not mentioned in our Constitution.
Bill Heuisler

Lawrence Brooks Hughes - 1/26/2009

Mr. Heuisler:

Would it not be best to permanently eliminate "Special Prosecutors," and mandate that all federal prosecutions come under the normal federal justice system and its chief officer, the Attorney General? If the AG failed to prosecute someone for an important crime, and it was deemed serious enough, the process could move into an impeachment trial of the Attorney General and perhaps the President as well, involving a clean fall of the government. (I think that is the way the Founders intended it to work.) And of course, when the accusations are trifling, or frivolous and politically generated, as in the Plame matter, Congress would never consider impeachments over them, and the aggrieved parties would have to wait until the next election to attempt redress.

Bill Heuisler - 1/25/2009

Mr. Hughes,
Your summation is excellent, but the real disgrace is that Fitzgerald knew before his investigation began that Deputy Sec. of State Richard Armitage had told the press (Novak and others)about Plame's part in Wilson's appointment to Niger.
It's also disgusting how Armitage and his buddy, Sec. of State Colin Powell, didn't tell President Bush, and how they let Libby and Rove take the heat from Fitzgerald for 2 years.
Bottom line: Fitzgerald knew the truth and put millions of our money in his pocket for nothing.

On a personal note, the reason I'm so hot on this issue is that the US government spent years in the mid to late sixties prosecuting members of the anti-Castro "Operation Mongoose" just because we had suddenly become politically incorrect after the LBJ administration altered its stance on Fidel Castro. If you're interested in more detail, my book Mercenary's Tale is shown on HNN's home page along with Rick's book and others.

Too bad we can't change the laws on so-called, prosecutor's discretion. If it did nothing else, it would save millions of taxpayer dollars.
Bill Heuisler

Lawrence Brooks Hughes - 1/25/2009

Bush should have pardoned Scooter Libby, and should have done so long before he commuted his sentence.

Libby did not do anything except contradict himself about something unimportant, after days and days of "entrapment" questioning by a diabolical Special Prosecutor who was attempting to justify his own bungling of a foolish political investigation--of no crime. There was no underlying crime in the situation, and there was no crime other than a contrived perjury charge after FitzGerald got through with squandering millions on it. Armitage had confessed to FitzGerald very early in the game that he was the one who "blew" Plame's "cover," except that Armitage committed no crime, either, because Plame had not been covert for so many years.

Our mammoth federal government needs talented executives now, and will need more of them in the future. Their pay will never be commensurate with the skills demanded, and to add the hazards of false arrest, false accusations, unjust damage to the reputation, and potentially enormous legal defense costs to the job requirements is obviously detrimental to the best interests of the United States.

The judge should have thrown the Libby matter out of court, and the President should have given him a full pardon before it even got that far. In fact, the President never should have allowed the appointment of Mr. FitzGerald. There was no crime.

Furthermore, Skooter Libby's name does not belong in this article, for he has nothing in common with all the assorted villains mentioned.

Bill Heuisler - 1/22/2009

Mr. Dantes,
As you well know, those of utmost evil often prosper in public prattle while the honorable are consigned to the vile dungeons of politic scorn.

An example will be obvious when Fidel Castro assumes room temperature and the paeans ring from from editorial groupies. My new book, "Mercenary's Tale" tells of Cuba's agony. Those who find Muslim terrorists a hoot will think Castro's DGI are hilarious.
Bill Heuisler

Edmond Dantes - 1/19/2009

Yes, Bill... everyone knows that it is Bush and his Zionist allies who poison village wells and eat Muslim children. What a hoot.

Bill McWilliams - 1/19/2009

Mr. Bill,

Boosh may be the absolute worst president ever, but when it comes to humor, you are a hoot and a half.

Maarja Krusten - 1/19/2009

The Washington Post reports that the President today has commuted the sentences of agents Compean and Ramos. This reportedly will be his last commutation or pardon. Newsweek reports that President Bush has decided not to pardon "Scooter" Libby: "In a move that has keenly disappointed some of his strongest conservative allies, President Bush has decided not to pardon Vice President Dick Cheney's former chief of staff, I. Lewis "Scooter" Libby, for his 2007 conviction in the CIA leak case, two White House officials said Monday."

For more on the decision, see
The article reports on some of the people who have been working the issues and includes reactions from a number of individuals. It notes that when the President spared Libby prison time with his clemency action in 2007, "Bush's statement also noted that those who defended the prosecution of Libby "Bush's statement also noted that those who defended the prosecution of Libby 'argue, correctly, that our entire system of justice relies on people telling the truth. And if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable.'"

As to historians' future examination of actions related to the Plame affair, it's hard to tell what archival records -- if there are any beyond those revealed in court -- may reveal. Of course, good historians rely on evidence rather than speculation or on their political leanings. Not all situations lend themselves to dispositive findings, however.

Today a federal judge ruled that the Vice President has broad discretion to decide what will and will not be preserved from his records. The Associated Press reports that "The ruling means that there is little room for the courts or the U.S. archivist to ensure that records are being protected." See

I've been pointing out in various forums for a long time that the Presidential Records Act differs from the Federal Records Act which covers most government records. Unlike with FRA-administered departmental and agency records, for which the National Archives and Records Administration and its records management professionals approve retention schedules, the PRA contains no role for NARA. Since the PRA places records management in the hands of the sitting President, it does not surprise me that a judge also held that Cheney (and his designees) could decide what records related to his executive functions and which do not.

The PRA went into effect in 1981. Since then, Reagan, Bush I, Clinton, and Bush II all have handled records management in the WH as they saw fit.

Andrew D. Todd - 1/19/2009

Webster took the basic plot of Duchess of Malfi from William Painter's _The Palace of Pleasure_ (1567), a sort of anthology of translations of short stories from the Classical and Italian writers. I gather that Ben Jonson was one of the few major Elizabethan playwrights who was sufficiently scholarly to be comfortable in a foreign language. The others, like Shakespeare and Webster, preferred to find themselves an English translation to recast into a play. The Duchess of Malfi story is at the start of volume 3.



Note that the character of Daniel Bosola does not figure significantly in the Painter version, and is thus substantially the playwright's own invention.

Andrew D. Todd - 1/19/2009

Last night, I was rereading John Webster's _The Duchess of Malfi_ (1612[1623]), a play about the archetypal political operative, which seems eminently relevant to the whole question of Scooter Libby. The title character of _The Duchess of Malfi_ is not very interesting, merely an innocent woman who winds up being garroted for being in the wrong place at the wrong time. The play, however, is really about the anti-hero, the professional assassin Daniel Bosola. Bosola keeps doing contract killings. In a kind of weird naivety, he keeps being surprised that his employers, once the deed is done, do not want to honor him, but merely want to be rid of him, by whatever means necessary. He eventually "wises up," and "takes out" his employers in a towering revenge. This is not so much a revenge at them for anything they have actually done, but a revenge at fate for having made him the kind of man he is.

Bosola would have been entirely at home working for the Bush administration. We still don't have the identity of the White House official who gave the order for the Anthrax Attacks, under whose direction Bruce Ivins at Fort Detrick manufactured and weaponized anthrax. Libby fits the profile for this unknown official, of course, and has been widely accused. Many people believe that this is the explanation for why Libby's sentence was commuted. You realize, of course, that all of this will have to be investigated by the Obama Administration... and that everything will come out in the end. A Libby pardon might very well be taken as a confession of the outgoing President's guilt in the Anthrax Attacks.

Libby's usefulness to his employers would seem to be at an end. I wonder what he will do if he should not get a pardon.


Bill Heuisler - 1/19/2009

Mr. McWilliams,
By torturers I will assume you mean those who stone homosexuals to death in sports arenas, or the masked men who sawed off a reporter's head on video or who bombed a teen-age soda shop or a disco in Bali or a grade school in Israel or sliced through a few stewardess' necks or threw a man off a cruise ship in his wheelchair.
Maybe you mean the Iraqui who tried to kill hundreds of thousands of New Yorkers with Cyanide gas in the first World Trade Center bombing in 1993.

Fitzgerald has no jurisdiction over those playful fellows, but you can be sure Gitmo will be closed down soon to loud applause from that "corporate media" and most UN delegates.
Bill Heuisler

Bill Heuisler - 1/19/2009

Mr. McWilliams,
By torturers I will assume you mean those who stone homosexuals to death in sports arenas, or the masked men who sawed off a reporter's head on video or who bombed a teen-age soda shop or a disco in Bali or a grade school in Israel or sliced through a few stewardess' necks or threw a man off a cruise ship in his wheelchair.
Maybe you mean the Iraqui who tried to kill hundreds of thousands of New Yorkers with Cyanide gas in the first World Trade Center bombing in 1993.

Fitzgerald has no jurisdiction over those playful fellows, but you can be sure Gitmo will be closed down soon to loud applause from that "corporate media" and most UN delegates.
Bill Heuisler

Bill McWilliams - 1/18/2009

Libby is very small fries.
What about
the torturers and their superiors? Will they be pardoned also? My bet is that they will be and the excuse that will be leaked to the corporate media will be that the biggest factor was pressure from the only "democracy" in the Middle East.

Bill Heuisler - 1/18/2009

Pardons are moot, but Prosecutor's whimsy should be the issue for those of us who care about the rule of Law.
The US Constitution, gives Presidents an absolute right to pardon exept in impeachment cases, but there is NO Constitutional provision for Special Prosecutors with broad Inquisitional Power.

I feel sorry for Libby. He apparently became the least objectionable goat for an ambitious Patrick Fitzgerald.

The way I understand the Plame leak,
Deputy Secretary of State, Armitage, was Novak's primary source. Further, since he was not an ally of either Cheney or Rove, he was not part of a White House plan targeting Wilson.

Fitzgerald found that Karl Rove only CONFIRMED the leak to Novak and that Ari Fleischer also CONFIRMED there was leaked info on Plame.

So there was a leak on a CIA agent who was classified. Fitzgerald did not charge Armitage or Rove or Fleicher...or Novak for that matter.
Why then prosecute Libby?

Right from the beginning FBI agents had told Fitzgerald that Armitage was Novak's first leaker. Days after the Novak column certain officials only confirmed that Valerie Wilson was a CIA officer. But nobody was charged for leaking classified information!

Libby was charged with obstructing an investigation that did not exist. This discretionary prosecution undermines our liberties, makes mockery of the Bill of Rights and harkens back to the days of Torquemada and Danton.
Bill Heuisler