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The Bush Administration's Dilemma Regarding a Possible Libby Pardon -
And How Outsiders Such as Fred Thompson Appear to Be Working on a Solution


Friday, Jun. 01, 2007

On June 5, U.S. District Judge Reggie B. Walton will sentence Vice President Cheney's former chief of staff, I. Lewis "Scooter" Libby, who has been convicted of obstruction of justice, making false statements, and perjury, as the result of the Special Counsel investigation arising from the revelation of Valerie Plame's identity as a CIA agent. I suspect that Judge Walton's actions will create a difficult and delicate problem for the White House.

Needless to say, I have no crystal ball. But it is plain that the White House must be bracing itself for Libby's being sent to prison. Moreover, it appears that high-powered friends of Libby and Cheney have figured out the White House's dilemma, so they are trying to help keep Scooter out of prison in a manner that will not have criminal consequences for anyone involved.

No one has been more active in this undertaking on Libby's behalf than former Tennessee Senator Fred D. Thompson, who has strong Presidential aspirations. Yet, to my surprise, Thompson is either being blatantly dishonest, or he is remarkably uninformed about his efforts. Unfortunately for Thompson, neither state of mind ought to commend itself to Republicans clamoring for a conservative with stature for the GOP nomination in 2008.

Libby's Likely Sentence and Duration of Incarceration

Since Libby's conviction, there has been considerable public speculation about his sentence. Typical of the consensus is an article by U.S. News & World Report that explains, "Under current federal guidelines, Libby's four felony convictions, which stem from an FBI [and Grand Jury] investigation into the disclosure of a CIA operative's identity, would most likely net him 18 months to three years in prison." This report notes, however, that "this is not an ordinary case, and … aggressive lawyering by both sides and the intense media scrutiny add an element of unpredictability."

There is a historical parallel to certain Watergate-related convictions. For example, former Nixon Attorney General John Mitchell, White House Chief of Staff H.R. Haldeman and Assistant to the President for Domestic Affairs John D. Ehrlichman were each sentenced to 30 to 96 months for perjury and obstruction of justice - two of the three crimes of which Libby was convicted (They each served some 18 months before they were released.)

Providing a closer parallel to the Libby situation, Presidential Appointment Secretary and Deputy Assistant to the President Dwight Chapin was convicted for lying about his involvement in the 1972 Nixon campaign "dirty tricks" operation. Chapin was not convicted for involvement in the dirty tricks per se, but rather for making false statements to the grand jury about his activities. Chapin was sentenced to 10-to-30 months in prison, with the judge required that he serve not less than 10. Similarly, Libby was not convicted for leaking information about Valerie Plame Wilson's covert status at the CIA, but rather for lying about his efforts to leak the information.

All of these former Nixon Administration officials were permitted to remain free on bond during the time they unsuccessfully appealed their convictions. But the law has become more settled in the three decades since Watergate, and currently, defense lawyers tell me that unless a defendant has serious legal issues in play on appeal, federal judges seldom allow defendants to remain free on bond during the appeal process. Libby very likely has no strong appellate issues: His trial and conviction were rather uneventful, and Judge Walton - an experienced trial judge -- was widely seen as having been fair to both sides, and careful not to make any mistakes of law.

It is well known that Judge Walton, who arrived on the bench after a successful career in the U.S. Attorney's Office in Washington, DC, gives out tough sentences. He is the kind of "law and order" judge that conservatives praise, except when one of their own is being sentenced. As I was told by one person who knows him well, Judge Walton is tough as they come, and he has the cojones to send Scooter to get his orange jumpsuit sooner rather than later.

How long a sentence is Judge Walton likely to impose? On May 25, Special Counsel Patrick Fitzgerald filed the Government's Sentencing Memorandum asking Judge Walton to sentence Libby in the range of "30 to 37 months." Criminal defense attorneys with whom I have spoken expect that Judge Walton will choose a sentence of roughly 30 months (two-and-a-half years), and to give Libby at most a couple of days to get his affairs in order before surrendering to the Federal Bureau of Prisons.

No doubt, the Bush White House has been making similar calculations. Thus, they are approaching a moment of truth. There are only three real insiders here: Bush, Cheney and Libby. However, it appears that the outsiders have looked at the situation, and acted to try to improve it. And as long as they are outsiders, they can do so without criminal exposure.

The Cost of Clemency: The White House's Dilemma Regarding the Libby Sentencing

If Watergate had any lesson, it was that when someone connected to the White House is heading for prison, it is dangerous for the president or those close to him to even think about - not to mention talk about - clemency.

After all, the March 1, 1974 indictment of Mitchell, Haldeman, Ehrlichman and Chuck Colson (who pled guilty, rather than risk a trial) charged each of them with a conspiracy to obstruct justice by offering to provide clemency to those involved in the Watergate break-in. In addition, as Nixon's tapes showed, the president discussed pardons on several occasions, and this abuse of power was included in the bill of impeachment against him that was pending when he resigned.

If Libby had been acting on his own behalf, a pardon would present no problem; Bush and Cheney could feel it was the humanitarian thing to do, given his long service to the government. However, no one I know believes Libby was acting simply for himself, nor does the evidence suggest it.

Let's suppose, instead, that Libby was doing Cheney's bidding, and that Cheney was deeply involved in both Libby's leak of Valerie Plame's CIA status and the lies Libby subsequently concocted to deflect attention away from the Vice President. If so, then there was a conspiracy to obstruct justice - and if Cheney should go to Bush and request that he pardon Libby, he would be furthering that conspiracy. No wonder then, that Special Counsel Fitzgerald remarked during the Libby trial that there was "a cloud" over the Vice President.

Come Tuesday, that cloud could get much darker for Cheney.

It's likely that only Cheney and Libby know precisely what transpired between them, assuming they are half as shrewd as they appear. In addition, Libby has probably not been foolish enough to directly request a pardon, nor Cheney imprudent enough to directly promise one. Given what happened during Watergate, surely they are smart enough not to have had that conversation.

However, these men have worked together so long and closely that a knowing look, or pat on the back, from Cheney at the right moment could and would have said all that was necessary. And my strong impression, from the outside, is that, indeed, that message has been sent.

Libby's Public Defense Fund and Pardon Efforts

Following the bungled Watergate burglary and the arrest of Gordon Liddy's troops in the Democratic National Committee, there was discussion in the White House and at a meeting of the Nixon reelection committee of setting up a public defense fund. Nixon's friend Bebe Rebozo offered to do so, with the plan of soliciting contributions from heavy hitters who merely were contributing because those arrested had all been Nixon loyalists, and were entitled to a fair trial. But it never happened.

Scooter Libby, however, did create such a defense fund. Whether Dick Cheney quietly picked up the phone to get this going, is not known. If he did, he kept himself well removed. Indeed, Lynne Cheney could well have done it. We will never know. But whoever was behind the defense fund, it has worked.

The drive to pardon Libby has come from people outside the White House who are smart enough to have figured out the dilemma facing the White House. A list of these people can be found at Libby's defense fund site, where these purported friends have gathered. It is a Who's Who of the Right-Wing Establishment -- many of whom have not only raised money to help pay Libby's legal fees, but have also written letters to Judge Walton about Libby's good character and public service, and continue to call for his pardon.

If high-powered folks like Fred Thompson lobby Bush for a pardon, Cheney need not be involved, and risk further participation in a conspiracy to obstruct justice. But the claim, made by Thompson and others, that Libby is the subject of a great injustice in being prosecuted is pure hogwash. This, in turn, suggests that this entire effort is nothing but a charade.

The Bogus Claim that Libby Has Been Unjustly Prosecuted

Frankly, I am not only stunned that Fred Thompson has taken up the "Free Scooter" campaign, but by the crude and thoughtless tactics he has employed. He has either lied or could not be troubled to inform himself of the facts before he attacked Special Counsel Fitzgerald.

Thompson, a former Assistant U.S. Attorney in Tennessee, gave an audience his assessment of the prosecution against Libby for perjury and obstruction of justice in a speech on May 12, 2007. He claims that the investigation was a sham from the outset: that there should have been no Special Counsel selected, and there never was any violation of the Intelligence Identities Protection Act. Indeed, he claimed "that there was no violation of the law, by anyone, and everybody - the CIA, the Justice Department and the Special Counsel knew it. Ms. Plame was not a 'covered person' under the statute and it was obvious from the outset."

This is a remarkable charge - suggesting that the CIA referred the matter to the Justice Department knowing that Plame was not covered by the law; that the Justice Department commenced the investigation even though it had the same knowledge; and that the Special Counsel continued the investigation even though he, too, knew she was not covered. Yet why would Attorney General John Ashcroft's Justice Department have undertaken a baseless investigation? Why would a busy and highly-respected U.S. Attorney from Chicago take the assignment of Special Counsel if the law did not apply? And why would that same highly-respected U.S. Attorney make representations to a federal judge that the law did cover Valerie Plame, if it did not? It seems Fred Thompson has made a remarkably irresponsible charge.

"Furthermore," Thompson claimed, "Justice and the Special Counsel knew who leaked Plame's name and it wasn't Scooter Libby." Yet, Thompson added, "the Beltway machinery was well oiled and geared up so the Special Counsel … spent the next two years moving heaven and earth to come up with something, anything," and finally "came up with some inconsistent recollections by Scooter Libby." Inconsistent recollections? Apparently Thompson does not have a clue about the evidence that was presented at the trial, which proved beyond a reasonable doubt that Libby concocted a complex lie to explain away key behavior.

Nonetheless, based on his two-plus years as an Assistant U.S. Attorney, Thompson informed the audience, "In no other prosecutor's office in the country would a case like this one have been brought." Apparently, other prosecutors tolerate perjury and obstruction of justice. In addition, later in his speech, Thompson explained, "I have called for a pardon for Scooter Libby. When you rectify an injustice using the provisions of the law, just as when you reverse an erroneous court decision, you are not disregarding the rule of law, you are enforcing and protecting it."

That twisted report of the Special Counsel's investigation, and disturbing view on what to do about it is a bit frightening - especially coming from a man who wants to be president. But it is arguments like this that are the basis of the drive for leniency from Judge Walton, for a pardon, and, more broadly, for a change in public opinion regarding this case.

Fitzgerald Responds To The Conservatives' Claims

Although a few paragraphs of the Government's Sentencing Memorandum were filed under seal, Special Counsel Fitzgerald addressed within the publicly-available portions of the Memorandum assertions like those Thompson has made.

In the Memorandum, Fitzgerald advises Judge Walton that until the investigation was as complete as possible, he had not decided who could, or should not, be charged. He also makes clear that Valerie Plame was, indeed, a covert agent, and that the law did, indeed apply to her: "[I]t was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press."

Unlike Thompson, who is free to act irresponsibly, Fitzgerald is not. He backed up his assertion by providing Valerie Plame's employment record. As MSNBC explained, "An unclassified summary of outed CIA officer Valerie Plame's employment history at the spy agency, disclosed for the first time today in a court filing by Special Counsel Patrick Fitzgerald, indicates that Plame was "covert" when her name became public in July 2003."

Although Fred Thompson claims no other prosecutor would have taken action against Libby's perjury, Fitzgerald's filing makes it difficult to imagine how any legitimate prosecutor could have failed to take such action. Fitzgerald quotes and cites United States v. Mandujano - one of a number of cases reaching the very same conclusion - to the effect that "[p]erjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is -- and even the solemnity of the oath -- cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it."

It should be of concern to Vice President Cheney that the Fitzgerald filing on Libby's sentence once again indicates that Special Prosecutor has concluded, based on the evidence, that Cheney was involved in Libby's misdeeds. Fitzgerald all but states that he still has not gotten to the bottom of this investigation because Libby refuses to tell the truth, and that, if he did reach that bottom, he would likely find Dick Cheney, who may well have violated a number of laws.

With Friends Like Thompson, Libby's Pardon Is In Doubt

Judge Walton has agreed to make public the hundred-some letters he has received from present and former government officials regarding the Libby pardon. After Judge Walton sentences Libby, the world will know if the rumor as to his truly having cojones is correct -- for if Walton does tell Libby to surrender forthwith to the Federal Bureau of Prison, the campaign to "Free Scooter" will begin in earnest.

I suspect Patrick Fitzgerald will be watching with great interest any pardon action. After all, he was working in the U.S. Attorney's Office for the Southern District of New York when that office ignored the refusal of the Bush Department of Justice, under Attorney General Ashcroft, to investigate former President Bill Clinton's pardon of financier Marc Rich.

What will happen if Fitzgerald observes Bush pardoning Libby without any better rationale than the paper-thin ones Fred Thompson and friends have been pushing? One would be wise to remember that Fitzgerald will still have five years before the statute of limitations runs to find out why such a pardon was issued, as occurred with Clinton's Marc Rich bottom. Fitzgerald's appointment as Special Counsel ends when he ends it, and given his apparent view that Cheney is at the heart of the Plame scandal, I don't expect him to end it prematurely.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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