John Dean: The Bush Administration's Dilemma Regarding a Possible Libby Pardon

[seafan]

The Bush Administration's Dilemma Regarding a Possible Libby Pardon

By John Dean
June 1, 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.

....

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.

.....

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. .....
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.

.....

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. ..... 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.

.....

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.

[Rydz777]

1. Interesting that Fred Thompson has rushed to the defense of

Scooter Libby. Aside from two terms in the Senate and his acting career, Thompson has made his living as a lobbyist. If Thompson announces for President next week, as expected, I hope the lobbying part of his career gets close scrutiny. Also, considering his connections to Libby, it is worth wondering whether he is a stalking horse for an attempted neo-con comeback.

[H2O Man]

5. Exactly.

Though he hasn't suddenly rushed to Libby's defense -- he has been one of the main players from Day One. And yes, he is the neoconservatives' choice for the presidency.

[EVDebs]

12. Billy Carter got skewered for being an 'agent for a foreign power'

Thompson made a living doing that...go figure.

[Blackhatjack]

2. Listen to John Dean if you want to preview the coming attractions....

This is the moment of truth for the Bush/Cheney 'stonewall.'

IMHO Cheney is not going to sit by and let Scooter go to prison without demanding Bush pardon him.

But if Bush pardons Libby, it will only intensify the Fitzgerald investigation in the 'pardon granting basis' --which leads directly to scrutiny of Bush.

If Bush does not pardon Libby, and Libby heads directly to prison, Cheney knows that Libby will be tempted to 'cut a deal' and cooperate with Fitzgerald --which leads directly to Cheney's actions.

Dean is right when he points out that Fitzgerald cannot be shut down by the White House.

Fitz is like the proverbial great white shark waiting just outside the gates of the White House, and the smell of blood in the water is high.

Dean will be a good guide to follow in predicting what events will occur next. The more we know about the coverup, the more it is playing out just like Watergate --which Dean knows better than anyone.

[G_Leo_Criley]

8. BHJ Nails it

... cue "jaws" soundtrack...

:hungry shark emoticon:

BTW, Dean's columns can be found at http://writ.findlaw.com/dean/

glc

[Blackhatjack]

11. Thanks! I see Fitz as still in attack position ... quietly waiting for the opening ....

I do not think Fitz wants to go down in history as having engaged in a years long investigation that yielded only perjury and obstruction charges against Libby since Fitz obviously knows that Libby was acting at the direction of Cheney(and possibly others).

Remember Fitz did not close the books on any further charges.

IMHO Fitz is motivated by a sense of justice that has gone unserved, and I do not think he will throw his hands up and walk away. He is smart. He knows where the bodies are buried and what evidence he must have to prove his case.

I think the Jaws soundtrack might be the last thing the White House would want to hear right now!

[G_Leo_Criley]

14. I have great admiration for Fitz BHJ,

and agree with what you've said about him.

I recall that he told Congress that they must investigate, and they have been doing so.

My sense of it is that the info that he has, from the grand jury proceedings and from interviews with among others, Cranky, * , and Rove, is relevant and powerful but needed the right time and venue in which to come out, if that makes sense. He couldn't add anything to the mix until other things started coming out and that was what he was saying to Congress. (If I remember right it was Leahy who wrote him?) I think that we're getting there now though.

It's no accident that things are unraveling for * over the US Attorney firings; No accident that Fitz was on the list of those who weren't performing up to specs; No accident that good US Attorneys were tossed away to be replaced by those who would participate in the caging and all the rest of the trashing of our Constitution. It's no accident that this is now the way the house of cards begins to fall.

Fitz is incredibly patient and very, very smart. Think of how long ago he inserted that Wilson Op-Ed into the record, with the description of Cheney cutting it out with his tiny shiv, writing his pointed questions in his tiny, neat handwriting. Think of how we will never get the image out of our heads. Fitz is very patient.

Thinking about certain people in that big white house hearing that Jaws soundtrack creepin' up on them is ... well... kind of comforting.

glc

big fan of the Constitution and the Rule of Law

[mod mom]

3. Interesting to note that the fate of I Liar Libby rests in the hands of 2 men appointed by *

I am glad there are still those who uphold the law over the self interest of the party. Still I have to question why * would recently appoint Judge Walton to the FISA Court.

[UpInArms]

4. conspirators' picture

[seafan]

6. Dean: "..stunned ...by the crude and thoughtless tactics" in Fred Thompson's "Free Scooter"campaign

More from Dean on Thompson's vacuous display of small intellect. But he wields it proudly an unapologetically to further the aims of Bush's GOP.

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.

[glitch]

10. No wonder Thompson is the choice of the neocons.

They must look up to him as one of their best and brightest.

[Bandit]

7. The pResident has the Constitutional authority to pardon anyone at any time.

He needs no reason nor explanation and there is nothing anyone can do about it period. I fully expect Libby to get the Pardon..Bush* has been "in your face" his whole time in office. Why would he change now?

[Blackhatjack]

9. The exercise of the President's power to pardon is constrained ....

The President must exercise the power to pardon in keeping with his oath of office and performance of his duties as President.

The power to pardon is constrained in such a way that the improper exercise of that power in contravention of his oath to uphold the Constitution and the laws of the United States is illegal, and therefore is illegitimate and illegal.

For example, if the President were to 'issue a pardon' to an individual who is blackmailing him, there is considerable authority that the 'attempt to pardon' in that circumstance would be ineffective since he would not be carrying out the duties of his office but rather be 'using the powers of his office for personal gain.'

Second example, if the President were to 'issue a pardon' to an individual for the purpose of hiding his own criminal actions or conduct, that would constitute the furtherance of a criminal conspiracy rather than a legitimate exercise of his power as President.

You are correct that the President is not required to give any reason for issuing a pardon. And obtaining evidence that the President is abusing his power to pardon is very difficult. But it is incorrect to say that 'there is nothing anyone can do about it period.'

Because we have a president (and not a king) his wielding of power --including the power to pardon -- is limited to only the legitimate exercise of that power within the scope and legitimized authority conferred by the Constitution. That is a fact backed up by the existence of the power of Congress to impeach and remove the President for high crimes and misdemeanors.

[EVDebs]

13. Can the public then 'excommunicate' the President ? Hmmmm. nt

[Kurovski]

15. K&R. (nt)