Bush commutes Libby prison sentenceOn July 2, 2007, George Bush issued a statement saying that he had decided it was time for him to do something about Scooter Libby , who that morning had been told that he would very soon be headed for prison.
What Bush had decided to do was to commute the portion of the sentence requiring Libby to spend 30 months in prison while leaving in place the fine and probation.
The reasons that he gave were:
1. No one was ever charged with the underlying crime;
2. Libby’s sentence was based on allegations that were never presented to the jury;
3. the district court that sentenced Libby had rejected the advice of the probation office that had recommended a lighter sentence;
4. the sentence was excessive;
5. the constitution gives him the power to do this when he deemed it to be warranted and it was his judgment that commuting Libby’s prison sentence was an appropriate exercise of this power.
Immediately following the release of this statement, the White House switchboard was closed to the public.
Surprised?
The reaction to this was immediate, and mostly expected, and like just about everything else during the past 6 1/2 years, highly partisan. Once the initial reactions had been made and Bush’s statement more carefully read, however, the questions began – for example:
Q.: Timing – why now? Bush said that he would let the process run its course before getting involved, but he jumped in before the appeals court issued a judgment. Why?
A.: One word – prison time. With the appeals court denying Libby’s request to stay out of prison until his appeal was heard, this meant that within 30-40 days Libby would have to report to the Bureau of Prisons for his jumpsuit.
Q.: Was Libby’s sentence REALLY excessive?
A.: According to federal data, the average sentence for obstruction of justice is 70 months. Obstruction of justice was only one of the four crimes of which Libby was found guilty.
Q.: No one was ever charged with the underlying crime of violating the Intelligence Identities Protection Act, so why did the investigation continue? A. By the time Patrick Fitzgerald was appointed Special Prosecutor on this case, Libby’s account had been sharply contradicted by the accounts of other witnesses. It would have been a dereliction of his duty had Fitzgerald not continued to investigate in order to determine why these lies were being told.
Q. Why didn’t Bush just give Libby a pardon? Why only commute the prison sentence?A.: Had Bush pardoned Libby, he could have been called to testify about matters that might “embarrass” the administration. By merely commuting the prison sentence, Bush assured that Libby’s Fifth Amendment rights, that guarantee a person’s right to avoid incriminating himself, remain in place. White House press secretary Tony Snow has also made it clear that a future pardon is still very possible.
Base to Bush: Pardon him. This is not a request.
No sooner had the jury returned their guilty verdict on Libby than the editorial page of the Wall Street Journal published “The Libby Travesty: Mr. Bush owes the former aide a pardon, and an apology” (
published on March 7th) which argued that critics of the war on Iraq were using the guilty verdict as proof that Bush & Co. lied us into war, ergo Bush must pardon Libby to prove them wrong.
The editorial bemoaned the fact that Libby had not espoused the grand jury strategy of Harold Ickes, which was saying, “I don’t recall”, or variations thereof, to every threatening question. As we would soon see,
tactical amnesia would soon become the strategy of choice for Bush & Co.
An even more incredible claim this story makes is that, because Bush & Co. did not interfere with the appointment of Patrick Fitzgerald – because they “allowed Attorney General John Ashcroft to recuse himself and Mr. Fitzgerald to be appointed….”, the president owes Libby an apology for the matter having gotten this far. Attorney General John Ashcroft recused himself on the matter three months into the investigation, when it became known that he was receiving regular progress reports from the FBI. The fact that at the time Karl Rove was a major target in the investigation, and that Ashcroft had paid Rove $750,000 to guide his Senate campaign, made Ashcroft’s recusal mandatory, and the suggestion that this should have been circumvented by the White House is disgraceful.
The National Review published GOP Presidential hopeful Fred Thompson’s opinion piece the same day, and it made similar points (naturally, as the WSJ and the NR feed off the same “Talkers”), accusing the Justice Department of folding under political and media pressure because of the Plame leak, stating, “When DOJ made the appointment (of special counsel) they knew that the leak did not constitute a violation of the law”, which is not true, but even if it had been, is not relevant to the procedure by which the Department of Justice operates when it conducts investigations.
Incipient eventsOn March 7th, when these outrageous charges appeared in the mainstream media, it was not yet known how the Department of Justice had been changed since Alberto Gonzales replaced John Ashcroft as Attorney General.
The public was not yet privy to the fact that the Justice Department, under the leadership of Bush’s old Texas crony and former White House attorney, had become a wholly owned subsidiary of the Republican National Committee. Karl Rove, directing more than smears and leak cover-ups, was working hard to realize his dream of ensuring that the USA would be a one-party state for as long as he and the RNC could maintain it.
The CIA leak investigation began in the fall of 2003 and it is fair to say that an administration as politically motivated as Bush & Co. would, with presidential elections only a year away, see everything – every action, every decision, every response – through a prism of the upcoming campaign. Staying in power was what drove them and all else flowed from this.
Back to the trial
On January 19, 2007, Scooter Libby’s team of lawyers (“Team Libby”) filed their proposed jury instruction describing the theory of defense they would use to argue Libby’s innocence.
This straightforward 2-page document denies that Libby ever intended to or did commit any of the crimes for which he was indicted. In essence, Team Libby’s defense would be that when he testified under oath to the grand jury, and when he answered the questions put to him by the FBI, he “misspoke” because he was so involved in other (more important) things like national security, and that Joe Wilson and his wife were so unimportant to him that it is ludicrous to suggest that he would even recall who they were, never mind actively try to get journalists to print bad things about them.
Wells delivers a shockerImagine the surprise, then, when Team Libby lawyer Theodore Wells began his opening statement on January 23rd with this:
“Scooter Libby is innocent. … He did not give any false statements to the FBI he is an innocent man, and he has been wrongly and unjustly and unfairly accused.”
“Now, there will be some people at the White House – at the White House, not the office of the vice president – who you will learn may have pushed reporters to write stories about Ms. Wilson.”
“Now, Mr. Fitzgerald suggested that Mr. Libby might have a motive to lie because Mr. McClellan, the president’s press secretary, went on TV and said, anybody involved in leaking classified information, you are going to lose your job….(Mr. Libby) was not concerned about losing his job. He was concerned about being set up. He was concerned about being the scapegoat for this entire Valerie Wilson controversy.”
“And Mr. Libby, you will learn, went to the vice president of the United States and met with the vice president in private. Mr. Libby said to the vice president, I think the White House – people over there in the White House, not the office of the vice president – people in the White House are trying to set me up. People in the White House are trying to sacrifice me. People in the White House want me to be a scapegoat. People in the White House are trying to protect a man named Karl Rove, the president’s right-hand man.”
“Karl Rove was President Bush’s right-hand person in terms of political strategy. Karl Rove was the person most responsible for making sure that the Republican Party stayed in office. He was viewed as a political genius. His fate was important to the Republican Party if they were going to stay in office. He had to be protected.”
“And the person who was to be sacrificed – “sacrifice the guy” – that’s Scooter Libby. Scooter Libby was to be sacrificed. Karl Rove was to be protected.”
From scorched earth to pussycat
How we looked forward with great anticipation to the testimony of both Dick Cheney and Scooter Libby! How disappointed we were to hear on February 13th that neither of them would take the stand!
What happened to Team Libby’s accusations of January 23rd? Why would Wells put forth such a dramatic narrative, Libby as scapegoat, Rove as golden boy, without offering any evidence to back it up - acting as if it had never happened – as if the dramatic accusations had never taken place?
A possible hint was contained in paragraph 14 of a March 8th Washington Post story:
“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.” (Emphasis is mine.)
Why would that be? Why would an administration with the reputation of having a teenager’s twitchy metabolism and self-centered view of the world, not be angry at such accusations? What reassurance did Team Libby offer the White House? That they were “just kidding”? And if so, then what was the point?
For two weeks the prosecution presented its case, but then on February 13th, with the defense having called only two witnesses, Team Libby made the shocking announcement that
Dick Cheney would not be called to testify;
Scooter Libby would not testify in his own behalf;
The defense would rest its case at this point.
The reaction was immediate. Mine was something like, “WHAT? You call that a DEFENSE? What are you afraid of? That Cheney’d lose it and start babbling?” I will admit to being distraught.
That Libby himself would not testify was in itself a shock, as seasoned prosecutors and defense lawyers know that any defendant hoping for a not guilty verdict to a perjury charge must be prepared to look the jury in the collective eye and say that he did not lie, or that he made an honest error.
Coded messagesSo Team Libby folded up its tent and called it a day and the case went to the jury and the rest is history; eventually most of the questions about Wells’ mysterious disappearing defense strategy faded with all the other strange, secretive things that enfold this administration.
But what if Team Libby wasn’t just “kidding” but sending a message to the White House? Recall this sentence from the March 8th Washington Post story:
“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.” (Emphasis is mine.)
What if the “reaching out” that Team Libby did to the White House was in the form of a demand that a deal be made, a quid pro quo: Team Libby would drop the scapegoat theory if Bush would promise to keep Libby out of prison.
Such a deal would explain the timing – why Bush couldn’t wait until Libby’s appeal had “run its course”, because Libby would have had to spend that time in prison.
In his opening statement, Team Libby lawyer Ted Wells mentioned Karl Rove seventeen times, usually in the context of “sacrifice Libby, protect Rove”, and hammered home that Rove was important to the Republican Party if they were going to stay in office.
Wells makes a clear distinction between the White House, where George Bush and Karl Rove work, and the office of the vice president, where Libby worked.
An offer they could not refuse“Protect Karl Rove. Sacrifice Scooter Libby. The person whose neck had been put into the meat grinder, you will learn, was Scooter Libby. The vice president and the president of the United States – because the note is very interesting. The note, when you see it, has “the pres” – P-R-E-S—and then vice president Cheney crosses that out.”
“And then the person whose neck was put into the meat grinder was Scooter Libby. And the meat grinder that he had been put into was to be tasked to go out and talk to certain reporters, not about Valerie Wilson, but to talk to reporters about this entire controversy concerning whether or not the president’s 16 words in the State of the Union were accurate or some kind of misrepresentation.”
“But unlike Karl Rove, you will learn Mr. Libby had not been out pushing stories about Ms. Wilson.”
“But, again, Mr. Libby was just a staffer. He was just a guy working on national security. He was an important staffer, but Karl Rove was the lifeblood of the Republican Party.”
The White House is not the only target - the Republican National Committee should also take note. This would go a long way to explain the Libby Defense Fund, and the impassioned, illogical and downright untruthful requests for donations made by frightening women.
Now what?
By commuting and not pardoning, Bush has guaranteed that Libby will not be subpoenaed to testify anytime soon, because commuting a sentence the way Bush did it leaves in place Libby’s ability to plead the Fifth Amendment, while a pardon would remove the stain from Libby’s record, but it would also leave him vulnerable to those mean Democrats and their nasty subpoenas.
Byron York wants Libby pardoned and bemoans the fact that Bush did not make an impassioned statement such as his father did in December 1992 when he pardoned former defense secretary Casper Weinberger and the other crooks of Iran-contra infamy.
George H. W. Bush called patriotism the “common denominator of their motivation” and using the pardons as an opportunity to denounce what he called “a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences”.
York also tells us that the president’s last 18 months in office without his base will force him to “…exercise power based not on his political clout but rather on the authority the Constitution gives the office of the president: He is commander in chief. He can veto bills. He can issue pardons. And that’s about it.”
I, for one, would be eternally grateful if this is all George Bush is allowed to do to this country in the last months of his brutal presidency.
