Should the President Pardon Scooter Libby? Why Even Administration Critics Should Favor a Pardon

By MATTHEW R. SEGAL

Wednesday, Jun. 28, 2006

Though he faces a five-count indictment relating to the ongoing investigation of the leak of former CIA agent Valerie Plame's identity, Lewis "Scooter" Libby may still have reason to smile. The current buzz-- triggered most recently by a June 17 Newsday article--is that Libby will be pardoned by President Bush.

The following facts relating to the leak are undisputed: Ambassador Joseph Wilson published a New York Times Op Ed highly critical of the Bush Administration and its "Niger uranium" claims relating to Saddam Hussein--part of the basis for going to war in Iraq, and part of the President's 2003 State of the Union Address. Subsequently, columnist Robert Novak--citing two senior Administration officials as his sources--revealed that Wilson's wife, Valerie Plame, worked for the CIA.

But the question remains: Did authorization for the leak go all the way up to Vice President Cheney and even President Bush?

In connection with the Special Counsel investigation, Libby--formerly Vice President Cheney's chief of staff--has been charged with one count of obstruction of justice, two counts of making false statements to FBI agents, and two counts of perjury. Libby could conceivably implicate Vice President Cheney, whom the indictment against Libby identifies as one of the people who told Libby about Plame's CIA employment.

Many have framed the Libby pardon issue as a partisan-political one--with Administration critics opposing a pardon, and supporters favoring one. But in this column, I'll argue that if even if you're an Administration critic who thinks this investigation is serious business, you should still favor a presidential pardon for Libby.

The Indictment: What Libby Is Charged With

The indictment against Libby alleges that he told reporter Judith Miller of the New York Times and reporter Matthew Cooper of Time that Plame worked for the CIA, and subsequently lied about doing so. In particular, it says Libby falsely told the grand jury in the Special Counsel investigation that he heard about Valerie Plame's CIA affiliation from reporters such as Tim Russert of NBC News, instead of vice-versa.

According to the allegations, Libby's discussions with reporters were hardly idle chitchat. They followed media reports that even though former ambassador Wilson had rejected the Niger uranium claim in 2002, the President had still included the claim in his 2003 State of the Union. Telling reporters that the ambassador's wife worked for the CIA--implying that Wilson was sent to Africa at his wife's suggestion and not because he was actually qualified to assess the uranium claim--was at best an effort to discredit Wilson's conclusions and, at worst, simple revenge on Wilson.

The Politics: Dividing on Partisan Lines Over a Pardon's Propriety

Because the indictment against Libby alleges politically-motivated conduct, pro- and anti-pardon views have divided predictably along partisan lines. The Newsday article, for example, quotes Republican attorney Joseph diGenova as saying that the leak investigation "is the epitome of the criminalization of the political process." And one day after the Newsday story was published, Bill Kristol of the Weekly Standard said that "Bush should pardon Scooter Libby and get the whole thing over with."

The fear is that if Libby isn't pardoned, his trial will implicate or embarrass others in the Administration. But if Libby is pardoned, he can just walk away from the Special Counsel investigation.

Democrats take the opposite view, of course. Four Democratic Senators, including minority leader Harry Reid, wrote to President Bush in November 2005 to request that he pledge not to pardon Libby. Liberal pundits, such as Arianna Huffington, have echoed this request.

I believe, however, that Democrats are wrong to oppose a Libby pardon. Here's why:

A Prosecution of Libby May Well Go Nowhere

Pardoning Libby would deliver something that prosecuting him might not: evidence that the Bush Administration sanctioned Libby's conduct.

After all, if the Administration did not sanction the leak, what would it have to fear from Libby's truthful testimony? If the President and Vice President have been angered by a leak they had nothing to do with, why not let Libby twist in the wind? After all, the President--who on Monday called "disgraceful" the New York Times' disclosure of his Administration's secret collection of bank records, and who previously favored an investigation into the disclosure of his Administration's domestic eavesdropping program--knows how to respond harshly to leaks he doesn't like.

By contrast, prosecuting Libby might deliver nothing at all. Consider that, three years into the investigation, we still don't know who in the White House, if anyone, authorized leaks about Valerie Plame. We do know, however, that Libby is probably not the key figure here.

Indeed, Libby is arguably not even the key player in his own indictment. That honor likely falls to "Official A," the unnamed senior White House official who, according to the indictment, discussed Plame with Novak just before he authored the column that sparked this whole controversy.

Who is "Official A"? And who is the other senior Administration official Novak credited as a source--Libby, or someone else? And why, despite the President's assurance in September 2003 that he wanted Administration officials to step forward with the truth, have the facts remained hidden? The reason we know so little is either that the story has been completely overblown in the press, or else that White House officials--such as Libby, according to the indictment--have obscured the truth by lying to the FBI, the grand jury, and the public.

And what about Novak? With other reporters facing jail for their refusal to reveal sources, what has he done to avoid that fate? Novak was the first to reveal Plame's identity to the public, and his column doing so referred specifically to two senior officials. Whether Novak has identified these officials to the grand jury, and how he avoided jail time if he protected those sources, are ongoing mysteries.

Trying Libby on the charges set against him might not answer any of these open questions. If the charges are true, then he's already been willing to lie under oath about what happened. If Libby did lie, coming clean now, ironically, would only prove the perjury charges.

Libby probably won't provide new details as part of a plea bargain. Given his fidelity to the Administration, Libby would probably strike a deal only to protect other Administration officials from having to testify at his trial, rather than to turn on them.

And even if other potential witnesses aren't protected by a Libby plea bargain, they aren't likely to say more at a trial than they did to the grand jury, which apparently was not enough to identify "Official A."

In sum, prosecuting Libby might not reveal the identities of the other official (or other two officials) who leaked Plame's CIA affiliation to Novak, much less whether the leak was done with knowledge of her covert status. And it almost certainly won't reveal whether leaks were sanctioned--either beforehand or after the fact--by officials senior to Libby.

The Meaning of a Pardon

Pardoning Libby, however, would amount to an acknowledgment--from the President, no less--that the leaks were done on behalf of a grateful Administration. The pardon would tell the American people, "Even if Libby did leak Plame's CIA affiliation, obstruct justice, and lie repeatedly to investigators and the grand jury, that's okay because he was trying to help us politically." The Administration's critics have tried--unsuccessfully, as yet--to make that point. A Libby pardon would do it for them.

So Republicans who want this scandal to burn out should hope that Libby isn't pardoned--unless they have a special affection for Libby, or a blind spot for lying. And conversely, Democrats should recognize that a pardon would give them exactly what they want: support for the argument that the White House in general, and not just Libby, should be held responsible for the Plame leak and subsequent cover-up.

Rooting interests aside, a Libby pardon would also be healthier for our democracy. Libby's conduct almost certainly reflects his judgment that the Plame leak and subsequent cover-up would benefit the White House politically. If the White House explicitly or tacitly endorsed Libby's judgment--which seems likely, given that the President's public assurance about seeking the truth has produced zero results--then the leak's political consequences should belong to the White House, not Libby. Pardoning Libby would visit those repercussions upon President Bush. Convicting him would only make him a fall guy and leave the real responsibility for the leak vague.

Political Blame-Shifting is a Key Part of the Pardon Power

Finally, it's worth noting that the pardon power is designed for political blame-shifting. The Constitution commits that power exclusively to the president, so the political consequences of a controversial pardon constitute the only check on rampant presidential pardoning.

Here, however, the political consequences that would flow from a Libby pardon should have resided with the White House--for whose benefit Libby acted--in the first place. So those consequences cut in favor of, rather than against, exercising the pardon power.

Of course, it's impossible to say what the political consequences of a Libby pardon will be. The public might be outraged, or it might yawn. But at least the Plame affair would culminate in a judgment about the Bush Administration, instead of a judgment about an underling who, the evidence suggests, was simply trying to do what his bosses wanted--and possibly what they had approved or directed.

This does not mean that Republicans are right to say that the leak investigation has sought to criminalize politics. Actually, it has sought to criminalize obstructing justice and lying to investigators and grand juries--which, after all, are crimes.

But because the investigation has revealed precious few facts and resulted only in the indictment of one possibly minor player, it has short-circuited the usual process of political accountability. Pardoning Libby will restore the functioning of that process, and the public will decide what happens next.


Matthew R. Segal is an attorney at Robbins, Russell, Englert, Orseck & Untereiner LLP in Washington, DC. The opinions expressed in this column are his alone. His email address is matthew.segal@yahoo.com.

FindLaw Career Center

    Select a Job Title


      Post a Job  |  Careers Home

    View More