We have urged President Bush to pardon Lewis “Scooter” Libby from the moment a jury found Vice President Dick Cheney’s former chief of staff guilty of perjury and obstruction in the CIA-leak case. Now, the president has acted. He didn’t go as far as we would have liked, choosing to commute Libby’s prison term while leaving his conviction, fine, and probation intact. But his action ensures that Libby will not go to jail, and that’s a good thing.
There were a lot of reasons why presidential clemency was appropriate. The first is that the CIA-leak investigation was a fundamentally political exercise from Day One. Even before the appointment of special prosecutor Patrick Fitzgerald in December 2003, Justice Department investigators knew that it was former State Department official Richard Armitage, not Libby, who originally leaked the identity of CIA employee Valerie Plame Wilson. The Justice Department also knew enough to conclude that Libby had not violated the Intelligence Identities Protection Act, the law at issue in the case. Lacking proof that an underlying crime took place, and knowing the source of the leak, the Justice Department should have shut down the investigation then and there.
But Democrats in Congress, many members of the press, and the president’s adversaries within his own administration agitated for a larger investigation. And in a dreadfully misguided move, then-Attorney General John Ashcroft and other top Justice Department officials chose to appoint Fitzgerald. At that point, the investigation took on the kind of life of its own that we saw in the old independent counsel days. Libby was eventually charged with perjury, the only person accused in the case.
Libby had a credible defense. The perjury charge was based on discrepancies between Libby’s grand jury testimony and that of a few journalists who contradicted him. Libby argued that the discrepancies could be explained by differences in memory. Although the jury disagreed, a reasonable person listening to the faulty memories of the witnesses who testified could have concluded that Libby simply had things mixed up.
Finally, after the guilty verdict, Fitzgerald argued that the judge should sentence Libby as if Libby had been convicted leaking Mrs. Wilson’s identity. The prosecutor wanted to throw the book at Libby for a crime for which Libby was never charged. The judge accepted Fitzgerald’s recommendations, sentencing Libby to 30 months in jail. In our view, that was clearly excessive.
Now that George W. Bush has commuted that sentence, the president’s critics are howling, throwing out the kind of overheated rhetoric that gave birth to the special prosecutor’s investigation in the first place. But the president took care to point out that he respects the jury’s verdict, and that Libby’s conviction still stands. And no one could deny that Libby, who will still have to pay a $250,000 fine, who will likely be disbarred, and who lost his high position in government, has paid a heavy price.
We wish the president had chosen a pardon. But as it is, he has removed the most onerous burden facing Libby as a result of this strange and maddening case, and for that we applaud him.