Obstruction of Justice, Continued

By Dan Froomkin
Special to washingtonpost.com
Tuesday, July 3, 2007; 3:22 PM

During the course of I. Lewis "Scooter" Libby's trial for obstruction of justice and perjury, we learned a lot about his bosses.

Incremental discoveries that didn't garner major headlines nevertheless added to what we know -- and can reasonably surmise -- about Vice President Cheney and President Bush's role in the leak of CIA agent Valerie Plame's identity, which was revealed during the course of the administration's defense of its decision to go to war in Iraq.

We know, for instance, that Cheney was the first person to tell Libby about Plame's identity. We know that Cheney told Libby to leak Plame's identity to the New York Times in an attempt to discredit her husband, who had accused the administration of manipulating prewar intelligence. We know that Cheney wrote talking points that may have encouraged Libby and others to mention Plame to reporters. We know that Cheney once talked to Bush about Libby's assignment, and got permission from the president for Libby to leak hitherto classified information to the Times.

We don't know why Libby decided to lie to federal investigators about his role in the leak. But it's reasonable to conclude -- or at least strongly suspect -- that he was doing it to protect Cheney, and maybe even Bush.

Why, after all, was special counsel Patrick Fitzgerald so determined to get the truth from Libby and, barring that, to punish him for obstructing justice? Prosecutorial ethics preclude Fitzgerald, a Bush appointee, from answering such questions. But the most likely scenario is that he suspected that it was Cheney who committed the underlying crime -- that Cheney instructed Libby to out a CIA agent in his no-holds-barred crusade against a critic. (See my Feb. 21 column, The Cloud Over Cheney and my May 29 column, Fitzgerald Again Points to Cheney.)

All of this means that Bush's decision yesterday to commute Libby's prison sentence isn't just a matter of unequal justice. It is also a potentially self-serving and corrupt act.

Was there a quid pro quo at work? Was Libby being repaid for falling on his sword and protecting his bosses from further scrutiny? Alternately, was he being repaid for his defense team's abrupt decision in mid-trial not to drag Cheney into court, where he would have faced cross-examination by Fitzgerald? (See my March 8 column, Did Libby Make a Deal?)

Bush and Press Secretary Tony Snow this morning continued to stonewall when it comes to any of the important questions about this case, Cheney and Bush's involvement, and the commutation itself. Bush said he wouldn't rule out a future pardon for Libby -- but didn't have much else new to say. Snow was simply ducking questions while asserting repeatedly that the president is entitled to exercise his clemency power when he sees fit.

It's true that the Constitution grants the president unlimited clemency and pardon power. But presidents have generally used that power to show mercy or, in rare cases, make political amends -- not to protect themselves from exposure.

The Framers, ever sensitive to the need for checks and balances, recognized the potential for abuse of the pardon power. According to a Judiciary Committee report drafted in the aftermath of the Watergate crisis: "In the [Constitutional] convention George Mason argued that the President might use his pardoning power to 'pardon crimes which were advised by himself' or, before indictment or conviction, 'to stop inquiry and prevent detection.' James Madison responded:

"[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty. . . .

"Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected."

Impeachment is off the table for congressional Democrats. But the political toll of Bush's choice could still be considerable. Besides Iraq, corruption was probably the one issue that most hurt Republicans in last year's election. And what is more corrupt than using the powers of the presidency for personal benefit?

Not Splitting the Difference

Bush's written statement announcing clemency was a clear attempt to suggest that he was splitting the difference between those who supported and opposed a pardon for Libby. But in fact, Bush's order grants Libby everything he needs in the short run while still keeping open the possibility of a pardon in the long run, as Bush heads out the door. And to law-and-order types, Bush's message may actually be more galling. For Bush to state he believed Libby to be innocent would at least have been defensible. Instead, what Bush is saying is that acknowledges the guilty verdict -- but, when it comes to his friends and colleagues, he just doesn't care what the justice system concluded was a fitting punishment.

The Stonewall Continues

I was only keeping half an ear on Snow's press briefing today (more about that on Thursday.) But from what I gather, he rejected any suggestion that the American people were owed a fuller explanation of Bush's decision. He continued to refuse to answer questions on the grounds that Libby's "legal process" is not yet over -- yet still found time to attack the veracity of Joe Wilson, Plame's husband.

A few of the more jaw-dropping utterances: "The president does not look upon this as granting a favor to anyone." Asked if Bush had handled the decision in an extraordinary or routine manner, Snow said routine. Asked if the public was owed an apology for the White House behavior, Snow glibly shot back: "I'll apologize. Done."

Will the Press Keep Pressing for Answers?

Among the questions that Bush, Cheney and others should be facing:

* Does the president approve of Libby's conduct?

* On whose behalf did Libby act?

* Did the White House make any sort of a deal with Libby or his defense team?

* What did Bush know and when did he know it?

* When did he find out that Karl Rove and Libby had both leaked Plame's identity? Before or after he vowed that any leakers would be fired? Did anyone lie to him about their role? Why didn't he fire them?

* How does the conduct of his aides comport with Bush's vow to restore ethics to the White House? How does the commutation?

* What factors did the president take into account in deciding to commute the sentence?

* What does the president consider an appropriate punishment for perjury and obstruction of justice?

* What was Cheney's role in the commutation?

That's just for starters. Send more questions to froomkin@washingtonpost.com. I'll publish more on Thursday.

Bush's Statement

Here's the text of Bush's statement, and his grant of clemency.

"I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive," he wrote.

"Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation."

Fitzgerald's Statement

Here is Fitzgerald's response: "We fully recognize that the Constitution provides that commutation decisions are a matter of presidential prerogative and we do not comment on the exercise of that prerogative.

"We comment only on the statement in which the President termed the sentence imposed by the judge as 'excessive.' The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws.

"It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing."

News Analysis

Michael Abramowitz writes in The Washington Post: "President Bush limited his deliberations over commuting the prison term of I. Lewis 'Scooter' Libby to a few close aides, opting not to consult with the Justice Department and rebuffing efforts by friends to lobby on Libby's behalf, administration officials and people close to Bush said yesterday. . . .

"For the first time in his presidency, Bush commuted a sentence without running requests through lawyers at the Justice Department, White House officials said. He also did not ask the chief prosecutor in the case, Patrick J. Fitzgerald, for his input, as routinely happens in cases routed through the Justice Department's pardon attorney.

"'Executive clemency is the president's exclusive power under the Constitution, and there are precedents for exercising that power without going through the pardon attorney process,' said Bush spokesman Tony Fratto."

Abramowitz writes that a senior administration official "said there is 'comfort' at the White House that the decision will not hurt him politically despite the Democratic outcry."

Sheryl Gay Stolberg writes in the New York Times: "President Bush's decision to commute the sentence of I. Lewis Libby Jr. was the act of a liberated man -- a leader who knows that, with 18 months left in the Oval Office and only a dwindling band of conservatives still behind him, he might as well do what he wants.

"The decision is a sharp departure for Mr. Bush. In determining whether to invoke his powers of clemency, the president typically relies on formal advice from lawyers at the Justice Department.

"But the Libby case, featuring a loyal aide to Vice President Dick Cheney who was the architect and chief defender of the administration's most controversial foreign policy decision, the war in Iraq, was not just any clemency case. It came to symbolize an unpopular war and the administration's penchant for secrecy."

Janet Hook writes in the Los Angeles Times: "Bush's action shows that, with a little more than 18 months remaining in his second term and his influence at its lowest ebb, he is still willing to rely on his signature leadership style -- one that risks polarizing the country to take stands that satisfy his conservative base."

Massimo Calabresi writes for Time: "President Bush's commutation of Scooter Libby's prison sentence on Monday will fuel speculation that others at the White House helped coordinate the leak of Valerie Plame's identity as a CIA officer in 2003. But politically the move makes sense...

"Those who suspect the worst about the Administration's role in the Plame case are not likely to become any more motivated than they already were against Bush and the Republicans. On the right, the Republican base, which demanded mercy for Libby, will be placated. Had Bush not acted, they would have turned on him, weakening the last pocket of support he has."

Amy Goldstein writes in The Washington Post: "At a time when his popularity is as low as any president's in modern history, Bush's action . . . defied public opinion. Shortly after Libby was convicted in March, three national public opinion polls found that seven in 10 Americans said they would oppose a pardon of Libby.

"Still, the president appeared to calculate that he would antagonize his conservative base too severely if he did not provide Libby some form of reprieve, according to people close to the White House."

Goldstein reports that House Judiciary Committee Chairman John Conyers is "expected to move swiftly to conduct hearings on the commutation, congressional sources said."

William Schneider reported on CNN: "It's very clear . . . that this will be horrendously unpopular. . . . Politically there will be direct repercussions. Of course President Bush can't run for re-elections, but there's going to be a lot of anger out there.

"I don't think it's going to be restricted simply to Democrats. Independents and some Republicans are going to be angry, and it's going to feed into the anger at Washington that seems to be poisoning the mood of the country and informing everything happening in the campaign so far. Americans are very resentful over the fact that someone who was convicted of a serious crime, for which many, many other people are in jail right now had his sentence commuted and will not go to jail. That's the important thing: Will not go to jail, because he has friends in high places. That's exactly what enrages people about business in Washington. . . .

"This anti-Washington, anti-establishment feeling, because of this instance of special treatment, is likely to become much more powerful."

John Harwood told Brian Williams on the NBC Nightly News: "This is not going to be popular with the American public as a whole but Republicans are happy tonight, and I'll tell you, so is Dick Cheney."

Opinion Watch

Here is MSNBC's Keith Olbermann announcing the winner of last night's "worst person in the world" contest: "[B]y unanimous decision, the 43rd president of the United States, who has tonight commuted the sentence of one of the key members of his own administration, who has done it gutlessly, by press release, who has buried it on the Monday of the longest Fourth of July weekend possible, and who has, in so doing, forfeited his claim to being president of anything larger than a small, privileged, elitist, undemocratic, anti-constitutional cabal.

"As Oliver Cromwell said to the infamous Rump Parliament in England more than 350 years ago: 'You have sat too long for any good you have been doing lately. Depart, I say, and let us have done with you.' In the name of God, go. . . . As you may have suspected, tomorrow night, here on Countdown, a 'Special Comment' calling on this vice president and this president to resign. Tomorrow night on Countdown."

Josh Marshall blogs: "The real offense here is not so much or not simply that the president has spared Scooter Libby the punishment that anyone else would have gotten for this crime (for what it's worth, I actually find the commutation more outrageous than a full pardon). The deeper offense is that the president has used his pardon power to shortcircuit the investigation of a crime to which he himself was quite likely a party, and to which, his vice president, who controls him, certainly was.

"The president's power to pardon is full and unchecked, one of the few such powers given the president in the constitution. Yet here the president has used it to further obstruct justice. In a sense, perhaps we should thank the president for bringing the matter full circle. Began with criminality, ends with it."

Marcy Wheeler blogs for the Guardian: "[T]he real effect of Bush's actions is to prevent Libby from revealing the truth about Bush's -- and vice president Cheney's -- own actions in the leak. By commuting Libby's sentence, Bush protected himself and his vice president from potential criminal exposure for their actions in the CIA Leak. As such, Libby's commutation is nothing short of another obstruction of justice."

Joe Wilson on NPR: "Congress ought to conduct an investigation of whether or not the president himself is a participant in the obstruction of justice."

Libby trial book coauthor Jeff Lomonaco, in an op-ed he tried unsuccessfully to get published several weeks ago, predicted a commutation because "it would enable Bush and Cheney to continue the strategy they have successfully pursued in deterring journalists seeking their explanations with claims that they shouldn't comment on an ongoing legal proceeding. If Bush were to pardon Libby, he and Cheney would no longer have such a rationale for evading the press' questions - nor would Libby be able to claim the right against self-incrimination to resist testifying before Congress about the role that Cheney and Bush played in directing his conduct."

Joan Walsh blogs for Salon: "I was immediately reminded of a juvenile dirty joke about dogs: Why did Bush commute Libby's sentence? Because he can. He can't do much else: He can't win the war in Iraq, let alone the war on terror. He can't stop his approval ratings from continuing to decline. He can't pass immigration reform. He can't stop Dick Cheney from destroying his presidency, and the world. But he's got the power to do this, with a final kick at U.S. attorney Patrick Fitzgerald and Valerie Plame. Is anyone really shocked?"

David Corn blogs for the Nation: "It's appropriate.

"The president who led the nation into a disastrous war in Iraq by peddling false statements and misrepresentations has come to the rescue of a White House aide convicted of lying by commuting his sentence. . . .

"The fine will be no problem for Libby. His neoconservative friends and admirers will kick in to cover that tab. (Perhaps even Cheney will send a check.)"

David Brooks starts off his New York Times opinion column (subscription required) by mocking Joe Wilson for having an unimaginative name then writes that Bush's decision "was exactly right. . . .

"Of course, the howlers howl. That is their assigned posture in this drama. They entered howling, they will leave howling and the only thing you can count on is their anger has been cynically manufactured from start to finish.

"The farce is over. It has no significance. Nobody but Libby's family will remember it in a few weeks time. Everyone else will have moved on to other fiascos, other poses, fresher manias."

Timothy Noah writes for Slate: "What Bush did was just and fair. It was the right thing to do." His explanation? "Two words: Bill Clinton. No fair-minded person can deny that the previous president committed perjury about Monica Lewinsky while serving in the Oval Office. The country knew it, and it let him get away with it."

Blogger Digby responds: "The country backed Bill Clinton because it was obvious that he was being pursued by a shrieking band of harpies over an inconsequential, sexual indiscretion, which anyone in his right mind would have lied about in that perjury trap of a deposition for that pathetic set-up lawsuit. The reason Clinton was supported by most Americans was because most of them understood exactly what had happened and they didn't think he merited the punishment of being forced from office. . . .

"Clinton was impeached and he faced the music. He was tried and acquitted according to the rules of the constitution. Bush, on the other hand, just used his plenary power to commute a sentence to cover his own bad deeds and keep one of his own aides from having to pay the price for his crimes. . . .

"And apparently, as predicted, that's just fine with a good portion of the DC establishment. The oh-so-jaded political observers like Tim Noah see this whole thing as some sort of partisan game of tag. . . .

"From their perches atop the commentariat they smugly dismiss the concerns of average Americans who are enraged that these people keep cheating and getting away with things that ordinary citizens and even powerful Democrats could never dream of getting away with -- they relentlessly smear their opponents with the filthiest lies, they stage partisan impeachments, they steal elections, they illegally start wars and make up novel authoritarian theories of governance -- and then they use their powers to excuse their minions from the consequences of these actions if they happen to get sloppy and get caught. None of them ever pay. Ever."

Glenn Greenwald blogs for Salon: "That Dick Cheney's top aide, one of the most well-connected neonconservatives in the world, is protected from the consequences of his felonies ought to be anything but surprising. That is the country that we have. It is a result that is completely consistent with the 'values' that define official Washington. No other outcome was possible. . . .

"The President and his followers know that they can apply completely different rules to themselves, and freely break the law, because our Washington establishment, our 'political press,' will never object too strenuously, or even at all. Over the last six years, our media has directed their hostility only towards those who investigate or attempt to hold accountable the most powerful members of our political system -- hence their attacks on the GOP prosecutor investigating the Bush administration's crimes, their anger towards the very few investigative reporters trying to uncover Washington's secrets, and their righteous condemnation towards each of the handful of attempts by Congress to exercise investigative oversight of the administration.

"The political press -- the function of which was envisioned by the Founders to investigate and hold accountable the most politically powerful -- now fulfill the exact oppose purpose in our country. They are slavishly protective of our highest political officials, and adversarial only to those who investigate, oppose and seek to hold those officials accountable."

Glenn Reynolds blogs: "My prediction: Bush will rise in the polls as estranged conservatives warm to him in light of lefty indignation."

Democratic Reaction Watch

Senate Majority Leader Harry Reid of Nevada: "Libby's conviction was the one faint glimmer of accountability for White House efforts to manipulate intelligence and silence critics of the Iraq War. Now, even that small bit of justice has been undone."

House Speaker Nancy Pelosi of California: "The President said he would hold accountable anyone involved in the Valerie Plame leak case. By his action today, the President shows his word is not to be believed."

Sen. Joseph Biden of Delaware: "I call for all Americans to flood the White House with phone calls tomorrow expressing their outrage over this blatant disregard for the rule of law."

More reaction compiled by the Associated Press and washingtonpost.com's Paul Kane.

Editorial Watch

The New York Times: "Presidents have the power to grant clemency and pardons. But in this case, Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell."

The Washington Post, which had been editorially silent on the Libby issue since his sentencing, today notes an op-ed by William Otis that proposed commutation as an option on June 7. But The Post argues that Bush went too far: "We agree that a pardon would have been inappropriate and that the prison sentence of 30 months was excessive. But reducing the sentence to no prison time at all, as Mr. Bush did -- to probation and a large fine -- is not defensible."

The Chicago Tribune: "[I]n nixing the prison term, Bush sent a terrible message to citizens and to government officials who are expected to serve the public with integrity. The way for a president to discourage the breaking of federal laws is by letting fairly rendered consequences play out, however uncomfortably for everyone involved. The message to a Scooter Libby ought to be the same as it is for other convicts: You do the crime, you do the time."

The San Francisco Chronicle: "The special prosecutor observed that Libby's evasiveness cast 'a cloud' over the vice president.

"One juror called Libby 'the fall guy' for his boss and White House political guru Karl Rove.

"The cloud remains.

"The fall guy just received a far softer landing than he deserved."

The Seattle Post-Intelligencer: "President Bush's commutation of a pal's prison sentence counts as a most shocking act of disrespect for the U.S. justice system. It's the latest sign of the huge repairs to American concepts of the rule of law that await the next president. . . .

"The commutation illustrates a profoundly dispiriting and unshakable aspect of the administration. The president and Vice President Dick Cheney see themselves and their cohorts as above traditional concepts of legal and constitutional constraints on their conduct in office."

The Rocky Mountain News: "If Libby isn't going to prison for lying to a grand jury, then it's hard to see why anyone should.

"As the president himself said Monday, '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. They say that had Mr. Libby only told the truth, he would have never been indicted in the first place.'

"They not only say it, Mr. President, it happens to be true."

The Denver Post: "President Bush's decision Monday to commute the sentence of I. Lewis 'Scooter' Libby is another disheartening example of the administration's appetite for trampling upon decisions made by other branches of government."

The Arizona Republic: "Fairness and the rule of law are core American values. Elected officials don't jump into the middle of the process and play favorites.

"Or so we thought."

The San Jose Mercury News: "Whether it's ignoring climate change to boost oil profits or feeding no-bid contracts to Halliburton, President Bush watches out for his pals - often at the expense of the American people. So it should have been no surprise Monday when the president commuted the sentence of Lewis 'Scooter' Libby, saving him from 2 1/2 years in prison.

"And yet, somehow it was. The contempt for the rule of law was so blatant, even for this administration."

The Wall Street Journal: "President Bush's commutation late yesterday afternoon of the prison sentence of I. Lewis 'Scooter' Libby will at least spare his former aide from 2 1/2 years in prison. But by failing to issue a full pardon, Mr. Bush is evading responsibility for the role his Administration played in letting the Plame affair build into fiasco and, ultimately, this personal tragedy. . . .

"Mr. Bush's commutation statement yesterday is [a] profile in non-courage. He describes the case for and against the Libby sentence with an antiseptic neutrality that would lead one to conclude that somehow the whole event was merely the result of Mr. Libby gone bad as a solo operator. . . .

"Mr. Libby deserved better from the President whose policies he tried to defend when others were running for cover. The consequences for the reputation of his Administration will also be long-lasting."

The New York Post: " Now the president should go all the way -- and grant Libby a full pardon.

"Commutation, after all, doesn't wipe away Libby's perjury conviction. A pardon would.

"Sure, a pardon would provoke an uproar in Washington.

"As if the commutation won't?"

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