Jeff Lomonaco, Please Report to the Department of Pre-Crime
Jeff Lomonaco called the Libby pardon half a month ago, in an op-ed he submitted to the Los Angeles Times but that it did not take:
Why Bush will Commute Libby's Sentence - but Not Pardon Him
With Judge Reggie Walton's ruling that Scooter Libby must begin serving his prison sentence before the appeal of his convictions has run its course, the pressure from Libby's supporters on President Bush to keep Libby out of prison is certain to intensify. President Bush, however, is unlikely to outright pardon Libby for a simple reason: to protect himself and Vice President Cheney.
If Bush were to pardon Libby, he and Vice President Cheney would give up the rationale they have used successfully for four years to avoid addressing their own roles in the case. And Libby's trial made very clear that the President and Vice President played significant and troubling roles at the very heart of the case. It is for the very same reason that Bush is more likely to follow the advice some have offered him and commute Libby's prison sentence, allowing Libby to remain free while he pursues legal vindication.
Libby was convicted on four counts of obstruction of justice, perjury and false statements in connection with the account he gave to investigators of how he learned the identify of CIA officer Valerie Plame Wilson and whether and how he disclosed that information to the press.
At the trial, the event that special prosecutor Patrick Fitzgerald said was at the heart of the case was Libby's July 8, 2003 conversation with New York Times reporter Judith Miller at the St. Regis Hotel.
Both prosecution and defense agreed that this interview was of unusual, even singular nature and importance. Kept secret from others in the Office of the Vice President, most notably Cheney's chief press aide Cathie Martin, who would normally handle interview logistics with reporters, both sides also agreed that Libby was acting at Cheney's direction in talking with Miller. There was no dispute that, after Libby expressed reservations about leaking classified information to Miller, Cheney went to President Bush to get his authorization to leak information to the press to answer the searing criticisms Plame's husband, Joe Wilson, had made of the administration's case for war.
There was dispute, however, over the distinct purpose of what the defense called the "secret mission" Libby undertook at the behest of the President and Vice President. Libby and his defense team contended that it was to leak Miller portions of the October 2002 National Intelligence Estimate (NIE) on Iraqi WMD to bolster the administration's case. And Libby categorically denied to the grand jury that the meeting had anything to do with Plame and her CIA identity.
However, the trial (and pretrial wrangling) revealed two problems with the defense's depiction of Libby's "NIE secret mission.". First, the prosecution showed at trial, principally through Judith Miller's testimony about the July 8 meeting backed up by her contemporaneous notes of it, that Libby did indeed disclose Plame's CIA identity to her. It was also demonstrated that Cheney himself was focused on the idea that Wilson's wife had sent him on his mission for the CIA at that very moment.
Second, it turns out that Libby was leaking portions of the NIE to other reporters, and doing so without the secrecy that surrounded his meeting with Miller, both before and after he leaked that information to Miller on July 8. Libby leaked the NIE to Bob Woodward in June, and - in press aide Cathie Martin's presence - to David Sanger and Andrea Martin in July.
Together, those revelations undercut the notion that the NIE leak was the distinctive purpose of Libby's secret mission, and instead make clear that at least part of the distinctive purpose was to leak Plame's CIA identity to Miller in an effort to get the Times to publish that information.
That in turn raises troubling questions about Cheney and Bush's role in sending Libby on his secret mission. Cheney's hand-written notes on Wilson's op-ed from two days earlier showed that he was focused on Wilson's wife's alleged role in her husband's mission. Libby was acting at Cheney's direction. How likely is it that Cheney did not direct Libby to disclose information about Plame to Miller?
And what was the substance of Cheney and Bush's discussion shortly before Libby went on his secret mission to disclose previously-classified information to the press with the President's permission? Published reports have indicated that Bush told Cheney something to the effect of "Get it out," or "Let's get this out," referring to information that would damage the case Joe Wilson was making against the administration. Libby himself testified before the grand jury that Cheney told him something strikingly similar. That means that if Bush and Cheney discussed Wilson's wife before the direction was given, the President was effectively authorizing his subordinate to disclose Plame's CIA identity to the press.
It is precisely out of the desire to avoid such uncomfortable questions for himself and his vice president that President Bush is likely not to pardon Libby but to commute his sentence, or otherwise keep him out of prison without fully clearing him. That would enable Libby to remain free while he seeks legal vindication through the appeals process. But more importantly, 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.
But if Bush simply commutes Libby's prison sentence without effectively vacating Libby's conviction, the appeals process goes forward and Bush and Cheney continue to have their rationale for not answering the press' questions. This strategy would also have the added benefit for Bush of eliminating the chance, however remote, that under the pressure of prison time away from his family and abandoned by the White House he served loyally, Libby himself would tell the true story of his own and others' conduct.
However, in one sense, all of this is beside the point. There is no reason why the press and Congress should rest content with Bush and Cheney's refusal to answer questions about their own role in what turned out to be an important episode in the history of the Bush administration. Regardless of what he does, the President should not be allowed to complete the cover up of his and Cheney's role that Libby successfully conducted for four years, and for which he is now on the verge of being punished.
Impeach George W. Bush. Impeach Richard Cheney. Do it now.
