By Robert Silvey
The only characteristic George Bush shares with Solomon is his certainty that God anointed him king. He certainly exhibited no Solomonic wisdom when he commuted Scooter Libby’s prison sentence. True, he could have pardoned Libby outright, or he could have allowed Libby to serve his 30-month sentence. Commutation, therefore, appears to be a split-the-difference compromise, a wise middle course.
But it is not. Bush decided on commutation, in fact, as simply the best way to protect himself and Cheney, because it keeps the lid on Libby. As Jeff Lomonaco predicted two weeks ago when he wrote this oped, either of the other two courses would have been more likely to open legal avenues for establishing Bush and Cheney’s involvement in the caseâ€”including both the initial leak of Valerie Plame Wilson’s identity and the subsequent coverup for which Libby was convicted.
Either pardoning or allowing imprisonment might also have kept the case active in Congress and in the media, as the investigative pot continued to bubble. Pardon would have further enraged Congressional leaders, while imprisonment would have further enraged the right-wing GOP base. But commutation, while hardly a real compromise in legal terms, is more nearly acceptable to Bush’s critics on both sides and so less likely to create continuing dispute.
There is a great deal of evidence that Libby leaked Wilson’s identity with the knowledge of Bush and Cheney and Roveâ€”probably at their directionâ€”and that his subsequent obstruction of justice was also at their direction, but definitive proof is lacking. If Libby had gone to prison, he might have found conditions sufficiently distasteful that he would have cooperated with Patrick Fitzgerald, and his insider information would then have certainly implicated his bosses.
But a full pardon would also run the risk of piercing the veil of secrecy. As Lomonaco predicted, it would have deprived Bush and Cheney of “the rationale they have used successfully for four years to avoid addressing their own roles in the case. And Libby’s trial made very clear that the President and Vice President played significant and troubling roles at the very heart of the case.” After a pardon, Bush could no longer have claimed his silence was because the “legal case is ongoing,” and Congress could have granted Libby immunity and forced him to testify. So that would also have been a dangerous path for the White House.
A pardon at the end of Bush’s term doesn’t entail the same risks, and spokesbot Tony Snow has already made clear that a pardon remains on the table. In fact, Jonathan Zasloff at The Reality-Based Community suggests that Libby’s pardon may not be the only one under consideration: “Will Bush pardon Cheney in January 2009, then resign and be pardoned by newly-sworn-in President Cheney the next day?” That should clear the decks. Of course, in that case Cheney might decide he likes the Oval Office and decide to stay in it after January 20, 2009. Something about terrorists and the Long War, I think.
That Libby receives a just punishment, of course, is less important than the fate of Bush and Cheney. Scooter was just doing the devils’ work, and it’s the devils who must be brought to the bar. Mark Kleiman, also at The Reality-Based Community, thinks Congress should call Bush’s bluff and subpoena Libby, even as the appeals process continues:
At this point, there’s no reason not to bring Libby in, immunize him, and start asking questions. His Congressional testimony wouldn’t be relevant to his appeal. It might prevent a retrial should the DC Circuit reverse his conviction. So what?
After Libby, let’s hear from Cheney. Since he’s not a part of the Executive Branch, surely he can’t claim executive privilege. And if the inquiry is into Cheney’s own impeachment, I doubt the courts would interfere.
Bush’s artfully calibrated commutation could yet backfire, and his approval ratings could enter previously unexplored territory. If that blue line keeps moving southward, Nancy Pelosi and Harry Reid might even find some new friends among congressional Republicans, putting impeachment back on the table where it belongs.
These criminals must not be allowed to get away with their despicable crimes. As Martin eloquently points out, accountability is all.