July 4, 2007

A Fourth of July Scooter Libby Primer

Much has already been written about the utter disgrace that was President Bush's commutation of I. Lewis "Scooter" Libby's conviction for perjury and obstruction of justice, and while I have plenty of thoughts on the matter, they largely echo some excellent writing that has already appeared on blogs like Glenn Greenwald's at Salon.com and Dan Froomkin's at The Washington Post, and I will not waste anyone's time by essentially repeating what has already been well expressed.

However, while much has been written, the Libby scandal remains one which can be difficult to explain or argue. With that in mind, my contribution to commentary on the Libby matter will (attempt to) be more functional in purpose; a - with apologies to Joshua Micah Marshall - talking points memo; a handy tool to use in addressing the preposterous arguments that have been floated by GOP partisan hacks to spin the unequal and favorable treatment before the law Mr. Libby has enjoyed into some kind of long-overdue exercise in True Justice®.

SECTION 1: A Brief History of the Scooter Libby Case

SECTION 2: Arguments Made in Favor of Pardoning Scooter Libby or Commuting His Sentence

  • Scooter Libby should be pardoned because he was not indicted for revealing Ms. Plame's NOC status, and therefore, "no underlying crime" was committed.

  • Richard Armitage was determined to also have revealed Valerie Plame's identity to the press, but was not indicted. Prosecuting Scooter Libby while Armitage remains unindicted is unfair.

  • The investigation into the leak of Valerie Plame's name, and Mr. Libby's trial and conviction were politically motivated. He should be pardoned because it would be unjust to send him to prison for political reasons.

  • President Clinton issued 140 presidential pardons just before he left office, including a pardon for fugitive financier Marc Rich. President Bush is wholly justified in granting a "partial pardon" to Scooter Libby.

  • The 30-month sentence given Mr. Libby for four counts of perjury and obstruction of justice was too harsh.

  • Lewis Libby was a "fallen soldier" who sacrificed himself for President Bush's Iraq policy, and did deserve to be sent to jail after exhibiting such loyalty.

SECTION 3: Responses to Arguments Made in Favor of Pardoning Scooter Libby or Commuting His Sentence

  • Prosecutor Fitzgerald never indicted anyone for revealing Valerie Plame's status as a covert agent because he was unable to establish exactly what events took place. Mr. Fitzgerald was unable to determine whether or not he could successfully pursue a prosecution of the CIA shield law precisely because Mr. Libby lied and obfuscated. Hindering an investigation like Mr. Fitzgerald's and lying to a grand jury are both crimes. Mr. Libby was charged with, and convicted of, both.

  • Richard Armitage freely admitted that he revealed Ms. Plame's identity. While he may still be open to indictment under the CIA shield law, he has not been indicted - just as Mr. Libby has not been. Scooter Libby was indicted and convicted on perjury and obstruction of justice charges because he provided false testimony and attempted to obscure facts important to Fitzgerald's investigation. Mr. Armitage (at least in this matter) did not, and the comparison is invalid.

  • The Central Intelligence Agency asked that the revelation of Plame's identity be investigated by the FBI in September of 2003. That request was delivered to then-Attorney General John Ashcroft, who was appointed by President George W. Bush. Attorney General Ashcroft referred the matter to the U.S. Department of Justice Office of Special Counsel, under the direction of Patrick Fitzgerald, who was another Bush appointee. Mr. Fitzgerald convened a grand jury and began the investigation. Mr. Libby was indicted by that grand jury and convicted in open court. The presiding judge in the trial was Reggie Walton, who was appointed to the federal bench by George W. Bush in 2004. A three-judge panel made up of one judge appointed by President Bill Clinton, one by President George H.W. Bush and one by President George W. Bush unanimously refused Libby's request to remain free pending appeal when they were asked to review it. In short, the idea that the trial and conviction of Lewis Libby was a political play is patently absurd; everyone involved in his prosecution was a Republican.

  • President Clinton's pardons were indeed a black mark on his legacy, and it is difficult to understand why President Bush would follow the same path. However, while Mr. Clinton's pardons reeked of patronage and family ties, none of them had any bearing on the potential involvement of Mr. Clinton or his subordinates in an illegal act, and many of the most significant pardons were issued after those pardoned had served their full sentences. Perhaps most importantly however, Mr. Clinton has not been in office since the first days of 2001, and this point is completely irrelevant.

  • A three-judge review panel concluded unanimously that the sentence was fully in line with crimes for which Mr. Libby was convicted, and Prosecutor Fitzgerald concurred.

  • Lewis Libby was indeed a significant player in the march to war in Iraq. However, as detailed above, there was ample justification for charging him with crimes and he was convicted through a due process that was notably - and clearly - free of political influence. More importantly however, comparing Vice President Dick Cheney's former chief of staff to soldiers serving in Iraq is utterly inappropriate, absurd and insulting. (As amply illustrated in this video clip at Crooks and Liars.)
SECTION 4: The Ramifications of Commuting Scooter Libby's Sentence
  • As I wrote last year in Dishonoring Those Who Serve - and as Ms. Plame's husband, echoed in his response to the Libby commutation - the commutation of Libby's sentence shows an utter contempt for the men and women who serve in the American intelligence community. Simply put, it will be increasingly difficult to recruit agents for non-official cover and covert assignments now that a precedent exists under which it is either permissible to reveal an agent's identity for political purposes, or to lie about the circumstances under which such a revelation was made.

  • Mr. Bush - who had promised dire consequences for anyone found to have been involved in the Plame leak - not only failed to hold his rogue vice president accountable, discipline Karl Rove or punish Richard Armitage, but he intervened for what are clearly spurious legal reasons about which the Justice Department was never consulted. Even as they were spoken, Mr Bush's justifications sounded thin, and his actions unquestionably illustrate that their are two kinds of justice in the United States: one for ordinary people, and another for the Beltway elite.

  • Even worse for the institutions of American democracy, is that the commutation of Libby's sentence is the capstone on a temple of lawlessness built by a president and an administration who clearly believe that statutes do not apply to them. Mr. Bush's decision to keep Scooter Libby out of jail is only surprising to those who have ignored the White House's policies on "extraordinary rendition," torture, denial of habeas corpus, warrantless wiretaps, and the firing of U.S. Attorneys for political reasons. Unless the people who have broken the law in pursuit of these policies are held accountable, our very system of government will be irretrievably damaged.
Congress must demand answers from the Bush Administration and refuse to back down until it gets them. If presidential aides won't testify, they must be subpoenaed. If subpoenas are ignored, then those who have been served must be held in contempt of Congress and arrested. If all of this fails - and more than likely if all of this succeeds - President Bush and Vice President Cheney should be impeached. In the plainest possible terms: the Bush White House cannot be allowed to dismantle our Constitution. Keith Olbermann has more:

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