Will Bush Pardon Scooter Libby?

Maybe you are thinking that Special Counsel Patrick Fitzgerald's case against Scooter Libby is yesterday's news, or, worse, in its last throes. Think again.

It has recently come to my attention that the title of the Ukrainian national anthem is "Ukraine Is Not Dead Yet." (Seriously, it is.) The same could be said of Special Counsel Patrick Fitzgerald's ongoing prosecution of Vice President Cheney's former aide I. Lewis "Scooter" Libby: The case -- involving charges of perjury, false statements, and obstruction of justice in connection with Fitzgerald's investigation into the unauthorized disclosure of the identity of former Ambassador Joseph Wilson's wife, Valerie Plame, as a CIA operative -- is not dead yet, nor is it even ailing.

U.S. v. Libby is Alive and Well

U.S. v. Libby is not only alive and well; it is also set to begin on January 16, 2007, just three and a half months from now. In June, the defense requested a one-month continuance, but U.S. District Judge Reggie Walton responded by granting a mere one-week extension and reiterating that pretrial filings had to be submitted by both parties in mid-November 2006.

Indeed, a review of court documents makes it abundantly clear that Judge Reggie Walton has no intention of letting this matter laze around on his docket. Filings in the case make it no less clear that Lewis Libby's opportunities to make the charges go away by exercising his rights within the judicial system are dwindling rapidly. Early on, Walton ruled that any motions to dismiss that the defendant wished to bring should be filed by February 24, 2006. Libby's attorneys filed one such motion and it was denied.

In that motion, Libby's defense team argued that the case should be dismissed because it was "obtained, approved and signed by an official -- Special Counsel Patrick J. Fitzgerald -- who was appointed and exercised his powers" in violation of the Constitution. Without getting too technical, the defense argument was that Fitzgerald was taking actions that could only be taken by a presidential appointee. This was essentially a more lawyerly version of accusations the Republican National Committee (directly tied into the Bush administration's political arm, the Office of Strategic Initatives) had begun hurling even before Libby's indictment. In various veiled -- and sometimes not so veiled -- attacks, they argued that Patrick Fitzgerald was "overzealous" and had exceeded his authority by bringing perjury and false-statements charges when he was, according to the Libby defense team and the RNC, only authorized to investigate the possible unauthorized disclosure of a CIA officer.

Not surprisingly, Judge Walton was unimpressed with Libby's motion. He ruled that it was perfectly appropriate and prudent for the Department of Justice to appoint someone outside the hierarchy of the Executive Branch when its highest officials were under investigation. He also said that Fitzgerald's letters of authority "unambiguously" authorized him to investigate and prosecute not only the disclosure of a CIA employee's identity, but also "any violations of federal law that arise during the course of that investigation."

Hoping that Graymail will be a Silver Bullet

Libby does, however, have one other hope for dismissal of the charges prior to trial: graymail -- a defense tactic so named because it is a subtle form of blackmail that forces a prosecutor to choose between disclosing highly classified information and continuing to proceed with a case. Such a tactic can be particularly effective when, as in this case, White House officials, who guard the classification system, would be as happy as clams if the whole case went away.

This is what has happened so far: In March, based on Libby's expressed intent to argue that he made false statements during the investigation because he was preoccupied with national security matters, Judge Walton ordered the government to produce -- for certain weeks in 2003 and 2004 -- a list of topics covered, and inquiries made by Libby, in his morning intelligence briefings. In effect, Judge Walton ordered the government to turn over tables of contents; he did not order it to disclose any substance contained within a classified document.

On September 28, Judge Walton began conducting closed hearings required by the Classified Information Procedures Act -- called CIPA -- to determine what parts of these topic lists would be admissible at trial. If Walton rules that certain information is admissible, and the Special Counsel does not want to disclose it, Fitzgerald may offer either to provide a statement admitting the facts that the classified information tends to prove or to substitute a summary. Then Walton, in turn, would have to decide whether those alternatives would provide Libby with substantially the same ability to present his defense as he would have if the actual information were disclosed.

An order Judge Walton issued on March 10, 2006 provides a giant clue as to how he might rule on this issue. In footnote 25, he pointed out that the prosecution does not dispute the defendant's work on important national security matters; nor has the defense attorney appeared to acknowledge that he was intending to present the substance of the documents to the jury. Then he added:

"It is unlikely that this Court would permit anything other than the general topic areas of these documents to be introduced at trial and would be prepared to advise the jury through an instruction that due to national security concerns the defendant is prohibited from discussing the details about the matters he was working on and that it is undisputed that the defendant was extremely busy during his work day, worked long hours, and worked on highly sensitive national security and intelligence matters."
If Judge Walton continues to follow this approach -- and it's hard to imagine why he wouldn't -- graymail will probably not be the silver bullet that Libby is hoping for.

What, Then, Is a Criminal Defendant with Close Friends in the White House and the Republican National Committee to Do?

The relentless approach of Scooter Libby's trial date -- and the diminishing chances that his lawyers can make the case go away within the confines of the judicial process -- really puts a crimp in his trial strategy.

Why? Because Scooter Libby's trial strategy is not to have a trial.

Unfortunately for Libby, however, a criminal defendant's options for avoiding a trial are limited. It's not an RSVP-type of thing. You can't express regrets and go to some other party; you can't cancel your afternoon meetings and hit the golf course; you wouldn't be wise to call in sick (unless you're practically terminal); and you wouldn't want to play hooky, unless you have a strong desire to meet U.S. Marshals. The judge sets the trial date and you pretty much have to show up, at which point the proceedings take on a life of their own.

The seemingly unstoppable imminence of his trial isn't just a problem for Libby; it's an Excedrin Extra Strength-sized headache for George W. Bush, Dick Cheney, and their entire senior staff, not to mention the Republican Party. Once the trial begins, the administration will have little or no control over the proceedings. Trials are not conducive to spin. Spin requires secrecy; trials, on the other hand, are decidedly public. Reporters will be there. Citizens who have the patience to stand in line can watch. Government officials who testify will actually have to identify themselves before speaking. Their statements will be transcribed and made available to the public almost immediately.

Worse yet, as the Bush administration surely knows, people (aka "voters") love trials. They may not pay attention to congressional debate -- to the extent that there is any -- and they certainly don't read proposed legislation (nor, sometimes, do our representatives in Congress), but they will pay close attention to the trial of I. "Scooter" Lewis Libby. And the day that a public airing of the machinations that led to Libby's indictment begins will be -- to paraphrase Judith Viorst's beloved children's book Alexander and the Terrible, Horrible, No Good, Very Bad Day -- a terrible, horrible, no good, very bad day for the White House.

One measure of how concerned the White House and the Republican National Committee are about the looming trial date -- how important the perjury, false statements, and obstruction charges pending against Libby truly are -- is how assiduously their trusty talking heads are working to convince the public that those very charges, and, indeed, the entire investigation into the unauthorized disclosure of Valerie Plame Wilson's identity as a CIA operative that gave rise to them, are trivial.

How hard is this Republican chorus working? Take a look at the website of the Libby Legal Defense Trust, the fundraising group formed by Libby's powerful and wealthy Republican supporters -- President Bush's former Secretary of Energy Spencer Abraham, business tycoon Steve Forbes, and Cheney's former aide and long-time confidant Mary Matalin, to name a few. Since late August, more than 35 editorials and articles favorable to Libby have appeared in right-wing and mainstream media (all posted right there on the website).

Suffice it to say that the White House and RNC propaganda machine is working overtime to denigrate Patrick Fitzgerald and the charges in the Libby case, using claims that have been largely rejected as without factual or legal basis by a federal judge whom President George W. Bush himself appointed in 2004.

Pardon Me?

Why would the well-educated and powerful members of the Libby Legal Defense Trust, the many pundits close to the White House, and spokespersons for the RNC conduct such a campaign when they know full well that it is entirely irrelevant to the court case pending against Scooter Libby? Because their strategy for the Libby trial is precisely the same as Libby's: not to have a trial. The White House and the RNC do not want anyone to hear, or hear about, Patrick Fitzgerald calmly laying out the case against Scooter Libby -- which will inevitably provide an extremely damaging view of the Office of the Vice President -- in a courtroom where they will have no pundit protection.

With the jury selection date fast approaching and the possibilities of a court dismissal evaporating, the White House appears to be shifting to Plan B: a PR effort to pave the way for a presidential pardon of Scooter Libby -- before the trial.

Last year, not long after Libby was indicted, Senator Harry Reid and others in the Democratic leadership in Congress sent President Bush a letter reminding him that the indictment of Vice President Dick Cheney's Chief of Staff, marked "the first time in 131 years that a senior White House official has been charged with a crime while still serving in the White House." Given the seriousness of the crimes, Senator Reid urged, it was important for the President to "make clear in advance that, if convicted, Mr. Libby will not be able to rely on his close relationship with you or Vice President Cheney to obtain the kind of extraordinarily special treatment unavailable to ordinary Americans." In short, the Democratic Leadership was asking the President to reassure the public that he would not pardon Libby or anyone else ultimately convicted of a crime as a result of the CIA leak investigation.

The President never responded. (Not exactly a shocker.) And Vice President Cheney, when asked recently by Tim Russert on Meet the Press whether the President should pardon Scooter Libby, refused to answer.

No outsider knows if the President is planning to pardon Libby soon, but this would be a good time for Senator Reid to resurrect that letter. He might amend it slightly to call upon the President to pledge not to pardon I. Lewis "Scooter" Libby before Patrick Fitzgerald even has a chance to step to the podium in January. December would be an excellent month for a pardon -- it's the holiday season after all -- and the mid-term elections would be over. The best way to head off this possibility is to call attention to it. Now.

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