The talk about a pardon for Lewis Libby is food for thought. Partisans are grateful that there is time, even if not much time, to think, pending the appeals that are under way challenging the conviction at a technical level.
There isn’t much to hope for here from Libby’s point of view. The evidence appears to have been overwhelming that he lied to the FBI, and that in so doing he hindered the execution of justice.
But appeals, even if judicially unpromising, are politically useful. President Bush can legitimately postpone action — or prolong inaction — by waiting for the appeals to make their appointed rounds. But he has other things to weigh besides formal guilt. The reason is that although Libby is certainly guilty of having lied, he is not, in the view of weighty arbiters of the law, deserving of a jail sentence.
What he did was to involve himself in a security matter of no consequence. It was of no consequence at the time Libby figured in the proceedings because the nature of Joseph Wilson’s mission to Niger had already been revealed in the press, and his wife, Valerie Plame, was already moving out of the covert branch of the CIA. The underlying issue had to do with the authority of the United States to conceal the true commission of people acting covertly for U.S. intelligence.
My own involvement in such a deception became known many years after I practiced it, when a holy member of the liberal elite (the Rev. William Sloane Coffin) dropped the word to somebody that when I was in Mexico City ostensibly doing work for my father, I was actually there doing work for the CIA.
If, while in Mexico, I had been detained by the authorities and asked what I was doing there, my duty would have been to deceive, and I’d have done so without any sense of debt-deferred to my father confessor. The U.S. law making it a crime to disclose the identity of a covert agent is designed to protect such operatives.
In the present case, Mrs. Wilson had already been assigned to non-covert work in the CIA. This means that Libby’s mentioning her to reporter Judith Miller wasn’t defiant of the law that seeks to provide for the safety of operatives in foreign parts. And he was not charged with having broken that law, but rather with lying to FBI agents about where he had initially obtained his information. Attempting to deflect such an investigation is a very different matter from endangering the life of a CIA agent.
There has been speculation that Libby is unqualified for a pardon because he has not confessed contrition for what he has done. This invites profound moral thought on what is appropriate behavior for someone convicted of a formalistic breach of the law.
Obviously Libby is sorry that he ran afoul of the law. Obviously he is sorry that he didn’t find some means to put off the FBI this side of lying to FBI agents. But contrition of that sort is not going to satisfy the Hang Libby crowd. Because what these folks want is to damage the Bush administration. If Libby goes to jail, they will have the satisfaction that a former chief of staff of the vice president is behind bars. If he is pardoned, they will have the satisfaction of claiming that the chief executive is declaring that any crime done in the service of the president will be protected by the exercise of a presidential pardon.
The reason to give thought to the triviality of Libby’s offense is precisely to unburden Bush of any sense of collaboration with true crime if he uses his pardoning power. No one, in the perspective of history, believes the first President Bush to have been a furtive advocate of crime when he pardoned Caspar Weinberger or Robert McFarlane for involvement in the Iran-Contra mess. We are not talking about a Mark Rich, an ongoing criminal pardoned by Bill Clinton for indefensible reasons.
Mr. Bush will have to exhibit the courage for which he is loved and hated, by doing the right thing, and letting Mr. Libby get on with life.