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Did Libby Make a Deal?

By Dan Froomkin
Special to washingtonpost.com
Thursday, March 8, 2007; 1:20 PM

One of the abiding mysteries of the Scooter Libby case has been why his defense so dramatically changed tactics in mid-trial.

The former vice presidential chief of staff was found guilty on Monday of obstruction of justice and perjury in a case related to the outing of a CIA operative's identity to discredit her husband, an administration critic.

In pretrial hearing, Libby's defense team had indicated that they would call Vice President Cheney as a witness and that Libby himself would take the stand as well. Testimony from either of them, but in particular from Cheney, could very well have opened up an enormous can of worms for the White House. And the spectacle alone -- that of a vice president being cross-examined in a criminal case -- was something the administration wanted devoutly to avoid.

Then, in his opening statement, Libby defense lawyer Theodore V. Wells Jr. shocked pretty much everybody by promising jurors that he would show them evidence that his client felt scapegoated in favor of White House golden boy Karl Rove.

All of a sudden, it appeared Libby had declared war against the White House. It looked, at that point, like he had thrown any idea of getting a presidential pardon to the wind. (See my Jan. 24 column, A Lurid Look Behind the Curtain.)

But then on Feb. 13, after barely two days of defense testimony, Libby's team abruptly announced that neither Cheney nor Libby would take the stand. (See my Feb. 14 column, The Libby-Cheney Bummer.)

What happened in between? Why did Team Libby suddenly decide not to call such essential witnesses? Why would Wells put forth such a dramatic narrative -- Libby as scapegoat -- without offering one word of testimony to back it up? And what led some of the finest defense lawyers in the country to rest so quickly, having left the prosecution's meticulous case substantively unrefuted?

A possible hint comes today in the 14th paragraph of Peter Baker's and Carol D. Leonnig's Washington Post story about the fevered speculation regarding the prospect of Libby pardon:

"Despite the defense's trial argument that Libby was made a scapegoat by the White House, aides and advisers said there is no anger toward him in the West Wing. Libby's defense team reached out to an intermediary after its opening statement to reassure the White House about its strategy, according to a source close to the situation."


In what form did this reaching out take place? Was it two-way? Was Team Libby's threat to attack Rove, call Cheney to the stand and potentially spill plenty of White House secrets just a bargaining chip in some sort of negotiation? Was their decision to rest their case in any way related to any promises from the White House?

Could Libby have made some sort of a deal with the White House to ensure a presidential pardon?

Bush was asked about the Libby case in an interview with Univision yesterday before leaving today on a week-long trip to Latin America.

Asked whether he might pardon Libby, Bush replied: "I'm pretty much going to stay out of it until the course -- the case has finally run its final -- the course it's going to take."

Was Bush just talking about his weak and transparent excuse for not commenting on the case as a whole? Or was he hinting that he might well get involved, only later? In either case, he certainly appeared to leave the door to a pardon wide open. White House spokesmen have also not ruled anything out.

Bush, of course, can pardon anyone he wants to under any circumstance. The Constitution gives him that power -- although, as a Newsweek story below indicates, pardoning Libby would violate his own personal policy.

But agreeing to a pardon as a quid pro quo? That wouldn't meet anyone's moral standards.

If there was some sort of agreement between the Libby team and the White House, you can be sure neither of the parties will ever admit it. But if further evidence emerges that something along these lines may have taken place, it seems to me that the only way Bush could fully assure the public that it didn't happen would be for him to pledge that no such pardon will be issued.

Bush's Personal Pardon Policy

Michael Isikoff and Mark Hosenball write for Newsweek 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.

"Following the furor over President Bill Clinton's last-minute pardon of fugitive financier Marc Rich (among others), Bush made it clear he wasn't interested in granting many pardons. . . .

"The president has since indicated he intended to go by the book in granting what few pardons he'd hand out -- considering only requests that had first been reviewed by the Justice Department under a series of publicly available guidelines.

"Those regulations, which are discussed on the Justice Department Web site at www.usdoj.gov/pardon, would seem to make a Libby pardon a nonstarter in George W. Bush's White House. They '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.

"Moreover, in weighing whether to recommend a pardon, U.S. attorneys are supposed to consider whether an applicant is remorseful."

And as Isikoff and Hosenball point out, Bush himself publicly reaffirmed his policy in a Feb. 1 interview with Fox News anchor Neal Cavuto, when he was asked about pardoning two former U.S. Border Patrol agents convicted of criminal civil rights violations.

"You know, I get asked about pardons on a lot of different cases. And there's a procedure in place," Bush said. "There is a process in any case for a president to make a pardon decisions. In other words, there is a series of steps that are followed, so that the pardon process is, you know, a rational process."

The Pardon Furor

In their Post story, Baker and Leonnig write: "President Bush said yesterday that he is 'pretty much going to stay out of' the case of I. Lewis 'Scooter' Libby until the legal process has run its course, deflecting pressure from supporters of the former White House aide to pardon him for perjury and obstruction of justice.

"Libby's allies said Bush should not wait for Libby to be sentenced, and should use his executive power to spare Vice President Cheney's former chief of staff the risk of prison time for lying to a grand jury and FBI agents about his role in leaking the name of an undercover CIA officer. But the prospect of a pardon triggered condemnation from Democrats and caution from some Republicans wary of another furor.

"Defense lawyers for Libby said they are focused on seeking a new trial and appealing Tuesday's jury verdict, while making clear that they believe the president should step in. 'Our number one goal is to see Scooter's conviction wiped out by the courts and see him vindicated,' attorney William Jeffress Jr. said in an interview. 'Now, I've seen all the calls for a pardon. And I agree with them. To me, he should have been pardoned six months ago or a year ago.'"

The urgency of the calls for a pardon would certainly be greater if Libby were actually in jail. He was freed pending sentencing after his conviction Monday.

In a separate Post article, Leonnig and Michael D. Shear write: "As ... Libby's attorneys began mapping his appeals yesterday, legal experts predicted that Vice President Cheney's former top aide has an excellent chance of avoiding prison time for his perjury convictions until late 2008, perhaps until after the presidential election."

But, as the Baker and Leonnig story points out, "if Special Counsel Patrick J. Fitzgerald insists that Libby begin serving his sentence right away and Walton agrees, it could force the question sooner."

Scott Shane writes in the New York Times: "The pardon speculation, political and financial, is inspired in part by the example set by President Bush's father, who shortly before leaving office pardoned six federal officials who had been charged in the Iran-contra scandal, which involved the funneling of money to the Nicaraguan contras from the proceeds of arms sales to Iran. Those pardoned included Caspar W. Weinberger, who was President Ronald Reagan's secretary of defense; and Elliott Abrams, who is a senior official on the National Security Council.

"In a Dec. 24, 1992, proclamation granting the six men clemency, the first President Bush offered a three-page justification making assertions already being echoed by proponents of a pardon for Mr. Libby. . . .

"Lawrence E. Walsh, the independent prosecutor in the Iran-contra affair, denounced the pardons at the time, saying they 'undermined the principle that no man is above the law.'"

Michael Duffy and Brian Bennett write for Time: "Bush may have an incentive to at least keep the door open to a possible pardon, rather than foreclosing it now, as Democrats insist. In his first comments after the verdict, Special Counsel Patrick Fitzgerald hinted that he might argue for leniency in Libby's sentencing if Dick Cheney's former aide decided to cooperate with the government now that he's been convicted. "Mr. Libby is like any other defendant. If his counsel or he wish to pursue any options, they can contact us," said Fitzgerald. Without the possibility of a Presidential pardon, Libby would presumably have more incentive to strike a deal. And since Fitzgerald would clearly be seeking more information about the role of other Administration figures, including Vice President Cheney, it might not be something Bush would want to encourage."

John Podhoretz, writing in his New York Post opinion column, predicts with assurance: "In his last days as president, George W. Bush will pardon Scooter Libby -- that is, if the convictions secured yesterday don't get overturned on appeal.

"For political reasons, Bush can't pardon Libby earlier than that. His responsibilities as head of the Republican Party, heading into an election year, would preclude such action.

"But Bush won't leave office without issuing that pardon.

"Why? Because if Bush fails to pardon Libby, he will implicitly be accepting the contention that Scooter Libby was part of a White House conspiracy at the highest levels to destroy the career of a CIA agent whose husband had proved Bush & Co. had lied us into the Iraq War."

It seems to me a pardon would actually make the opposite statement, but what do I know?

Robert D. Novak, not surprisingly, calls for a pardon in his syndicated column.

Ken Dilanian writes for USA Today that calls for a pardon "have come from longtime critics of the Libby prosecution, including pundit William Kristol, former federal prosecutor Victoria Toensing and George Mason University Law professor Ronald Rotunda."

David G. Savage writes in the Los Angeles Times: "The perjury conviction of former senior White House advisor I. Lewis 'Scooter' Libby was condemned as a 'travesty' and a 'politicized prosecution' by much of the conservative media Wednesday. . . .

"Amid this fervor, some veterans of an earlier political drama -- President Clinton's impeachment in the late 1990s -- were amused by their political opponents' new views of the significance of perjury and obstruction of justice.

"'They thought it was OK for prosecutors to pursue the president for lying about sex, and now they think it's unfair to prosecute someone in the White House for lying to a grand jury about outing a CIA agent,' Lanny J. Davis, Clinton's special counsel during that time, said Wednesday. 'This is not just hypocritical. It is comical.'

"If nothing else, the reaction to the Libby verdict shows again that it's hard to separate law and politics in Washington's dramas."

Lessons Learned

Amy Goldstein writes in The Washington Post about the "many tantalizing insights the trial offered into a White House culture in which even the top aides who surrounded the president were not entirely open with one another.

"At the Bush White House described in the Libby trial, news media advisers were frozen out of decisions about how to respond to a crisis, colleagues kept from one another which reporters they had talked with, and the president declassified parts of a highly significant national security document without the knowledge of his chief of staff. . . .

"Thomas S. Blanton, director of the National Security Archive at George Washington University, a research group promoting access to government records that has combed through the Libby trial exhibits.... said the evidence presented at the trial that ended Tuesday in Libby's conviction demonstrates that 'this administration's obsession with secrecy' extends to the way Bush's aides interact with each other. In particular, Blanton said, 'the Cheney office seems to have raised information-hoarding ... to a real fine art.'"

Goldstein also notes: "Time and again, witnesses gave fresh details of a zeal to manipulate and monitor the administration's portrayal in the news media that reached the top echelons of the White House."

Adam Liptak writes in the New York Times that "the institution most transformed by the prosecution, and the one that took the most collateral damage from Patrick J. Fitzgerald's relentless pursuit of obstruction and perjury charges against Mr. Libby, may have been the press, forced in the end to play a major role in his trial. . . .

"'Every tenet and every pact that existed between the government and the press has been broken,' said Theodore J. Boutrous Jr., a media lawyer who represented Time magazine and one of its reporters in their unsuccessful efforts to fight subpoenas from Mr. Fitzgerald, the special counsel in the Libby case.

"Others say that sort of talk is alarmism tinged with self-importance."

Liptak writes: "An earlier generation of reporters had maintained that there were no circumstances under which they would testify against their sources and that the flow of important information to the public could only be guaranteed by taking an absolutist position."

But then he quotes Jane Kirtley, who teaches media law and ethics at the University of Minnesota, noting that the earlier journalists who set that standard "'were proudly outsiders.' By contrast, the journalists who testified at the Libby trial were Washington insiders, and they gave the public a master class in access journalism. It was not always a pretty sight."

Mark Feldstein, a journalism professor at George Washington University, opined to Liptak that the reporters involved were "not fearless advocates ... but supplicants, willing and even eager to be manipulated."

Also, as I wrote yesterday in a post on the Nieman Watchdog Blog, Fitzgerald went to some lengths on Monday to say that, when it comes to the issue of reporters and confidential sources, he considers the Libby investigation unique -- and hardly a precedent to allow government investigators to go after journalists who protect whistleblowers.

Eyes on Cheney

"Dick Cheney in Twilight" is the cover story in the new issue of Time. Michael Duffy writes: "Cheney has become the Administration's enemy within, the man whose single-minded pursuit of ideological goals, creaking political instincts and love of secrecy produced an independent operation inside the White House that has done more harm than good. . . .

"[M]ore Republicans with each passing week have acknowledged privately what is felt across Washington when it comes to the Vice President: his time has passed.

"And what a time it was."

Indeed, the heart of this big, two-fisted piece is a look back at Cheney's heyday, when "aides to Cheney loved to regale journalists with tidbits about the scope of the Vice President's influence and the intensity of his commitment to protecting the U.S. from a terrorist attack. He was so driven and hands-on, the aides would say, that he and Libby would routinely ask to see raw intelligence rather than the processed analysis put together by the CIA and other agencies. 'He's a voracious consumer of intelligence,' said an admiring aide to the Vice President. 'Sometimes he asks for raw intelligence to make his own judgment. He wants it all.'

"He may have come across as deferential to the President in public, but friends and advisers in the fall of 2002 described Cheney as nothing less than the engine of the Administration. 'There's no way in which he is not driving the train on this,' said one, referring to Cheney's role in pushing Bush and the Administration inexorably toward an invasion of Iraq. 'Analysis, advocacy -- it's all done by Cheney or his proteges or his former mentor [Secretary of Defense Donald Rumsfeld]. It's about context. It's reflective not so much of Cheney's direct influence on the President as it is of his influence on-his dominance of-the decision-making process. It's about providing the facts and analysis to the decision maker that the decision maker needs. Bush is making the decision, but the Veep is directing the process toward the decision that he thinks is the right one.' In other words, Cheney had so rigged the process that important decisions were foregone conclusions, ones that had been reached by the Vice President well in advance.

"So when the verdict against Libby came down, it was also a rebuke to that hermetic power-sharing arrangement at the top of the White House."

Thomas M. DeFrank, James Gordon Meek and Kenneth R. Bazinet write in the New York Daily News: "The White House rallied around Vice President Cheney yesterday, dodging repeated questions about evidence implicating him in the leak of a CIA agent's identity.

"A day after ... Libby was convicted of lying and obstructing a federal probe into the leak, White House spokesman Tony Snow insisted the veep 'remains a trusted aide.'

"'The vice president is somebody on whose counsel the President depends,' Snow said. 'Any idea that the vice president has been in some way diminished, no.' . . .

"Cheney has been embarrassed and damaged by Libby's conviction, but there is zero discussion of his departure.

"'Of course this isn't good at all for him,' said a Bush insider, 'but he'll no more resign than Bush will get out of Iraq. It's not going to be volunteered and he isn't going to be asked.'"

Jim Hoagland writes in his Washington Post opinion column: "Is the vice president losing his influence, or perhaps his mind? That question, even if it is phrased more delicately, is creeping through foreign ministries and presidential offices abroad and has become a factor in the Bush administration's relations with the world.

"'What has happened to Dick Cheney?' That solicitous but direct question came from a European statesman who has known the vice president for many years. He put it to me a few days ago -- even before the discovery of a blood clot in Cheney's leg and the perjury conviction of Scooter Libby, his former chief of staff, brought headline attention to the volatile state of the vice president's physical, emotional and political health."

Hoagland concludes somewhat elliptically: "However beleaguered, Cheney will not resign over the president's refusal to take his advice. The only force that could drive him to that dramatic step would be that unshakable sense of loyalty to Bush, who desperately now needs a vice president in stable physical, emotional and political health. That is the equation you want to be watching."

On Openness

Richard Wolffe and Holly Bailey write in Newsweek that "current White House officials (none of whom would speak on the record) understand that their claim that they can't comment for legal reasons is weak. Prosecutor Patrick Fitzgerald initially warned White House officials not to speak publicly or privately about the investigation because it might serve as evidence of a conspiracy to obstruct justice. But that was before he indicted Libby. Once the wheels of the trial began to move, officials heard from their own defense lawyers that they should avoid commenting on the issue. Several White House officials (current and former) feared they could get sucked into the trial right up to the moment that Libby's defense rested. But all those legal cautions have now passed their expiration date. Fitzgerald says he's going back to his day job; the private lawyers can stop charging by the hour. Since there's only an appeals court judge to worry about (rather than a jury), there's not much plausible concern that the White House might prejudice any legal proceedings.

"So why the stonewall? According to one former White House official with close ties to the current staff, there's a sense that Libby deserved his fate--and nobody wants to look like they are defending him. 'What you saw was a vice president's office that was out of control,' said the official, who declined to be named while talking about the case. 'I felt that way as somebody inside the White House. I think Karl [Rove] and Ari [Fleischer] weren't guilty. They went up to the line and didn't cross it. But the vice president's office crossed it.'"

I suppose that could be one explanation.

In a back-and-forth for the Los Angeles Times opinion pages, Byron York suggests that "the Bush White House's handling of the Fitzgerald probe has been astonishingly open."

Jeff Lomonaco responds that "cooperation is hardly equivalent, as you seem to assume, with being open. Open means George W. Bush, Karl Rove and Dick Cheney would not still be hiding behind the pretense of the Libby trial--for goodness sake, the trial is over--to refuse to explain their own roles in the case. Or to explain why, in light of Bush's pledge to get rid of anyone involved, Rove still has a job now that we know he did leak Plame's CIA identity to at least two reporters, serving as Novak's confirming source for the original public outing of Plame in his July 14, 2003 column, and retailing the information at greater length to Matt Cooper of Time magazine a few days later. Maybe Bush should explain how he was parsing his words in fine casuistic fashion and didn't really mean he would fire anyone involved in leaking about Plame, only that anyone who was convicted of knowingly leaking classified information would be fired. (Maybe he should rehire Libby on those grounds?) Or maybe Bush can explain that when his people promised to restore honor and dignity to the White House, they just meant they wouldn't be indicted."

At yesterday's press briefing, reporters didn't make any headway with Tony Snow about the preposterous position that the "ongoing criminal case" precludes the White House from commenting. But they didn't try either.

Another Juror Speaks

MSNBC reports: "Saying 'I don't want him to go to jail,' a member of the jury that convicted I. Lewis 'Scooter' Libby of perjury and obstruction of justice in the CIA leak case called Wednesday for President Bush to pardon Vice President Dick Cheney's former chief of staff.

"The woman, Ann Redington, said in an interview on MSNBC's 'Hardball' that she cried when the verdicts against Libby were read Tuesday. She said Libby seemed to be 'a really nice guy.'"

Here's the video of the interview. Redington, apparently one of those people who sees good in everyone, called Libby "a ton of fun." And what she actually says about a pardon is: "Whether or not he should get one I don't know that I have a valid opinion, but I would like him to get one . . . It'd be more fun."

Bush's Trip

Deb Riechmann writes for the Associated Press: "President Bush will challenge a widespread perception in Latin America of U.S. neglect that has helped fuel leftist leader Hugo Chavez's rising influence in America's backyard.

"Bush, who leaves Thursday on a five-nation tour, will argue that strong democratic governments hold the promise of prosperity. . . .

"But Bush, with just two years left in his presidency, has a weak hand. Anti-Americanism and Bush's poor image, tainted by the war in Iraq, have only fueled Chavez's influence in the region and beyond."

JoAnne Allen writes for Reuters: "Addressing speculation his trip was a response to Chavez, Bush said his intention was to show the United States cared about its neighbors.

"'It's nothing more than to say we want to be your friends, and we've got a very strong policy of improving the lives of others,' Bush said in an interview with Colombia's RCN TV on the eve of his departure.

"'My trip is a chance to tell the people of Colombia, Uruguay and Brazil and Guatemala and Mexico that the United States cares deeply about the human condition,'"

The best news for Bush: Latin Americans hate Chavez, too.

Catherine Dodge and Roger Runningen write for Bloomberg: "A poll conducted by Latinobarometro, a Santiago-based public opinion research company, in 18 countries and published Dec. 9 by the Economist magazine found 30 percent of those surveyed had a 'positive' image of Bush, while 28 percent viewed Chavez positively."

Richard Lapper and Jonathan Wheatley write in the Financial Times: "Such is the scale of Latin American disillusionment that it seems much more attention and money may be needed to turn the tide in Washington's favour. Some sceptics think the tour could turn into a public relations disaster on the scale of Richard Nixon's 1958 visit, when the then vice-president's entourage was stoned by protesters in Caracas. At the very least, Mr Bush risks being upstaged by Mr Chavez, who travels to Argentina this week to head a march of anti-Bush protesters."

Bush's Book Club

Sidney Blumenthal writes in Salon about the latest meeting of Bush's book club, where the guest was "Andrew Roberts, an English conservative historian and columnist and the author of 'The Churchillians' and, most recently, 'A History of the English-Speaking People Since 1900."

"The subject of Winston Churchill inspired Bush's self-reflection. The president confided to Roberts that he believes he has an advantage over Churchill, a reliable source with access to the conversation told me. He has faith in God, Bush explained, but Churchill, an agnostic, did not. Because he believes in God, it is easier for him to make decisions and stick to them than it was for Churchill. Bush said he doesn't worry, or feel alone, or care if he is unpopular. He has God."

Cartoon Watch

Tom Toles; Tony Auth; and Steve Sack on the Libby verdict.

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