Politics & Policy

Libby Hasn’t Asked for a Pardon

Hush! -- in the Libby circle these days, it's the thing that cannot be spoken.

‘Nobody talks about it, nobody says anything,” says one prominent supporter of Lewis Libby, the former Cheney chief of staff convicted of perjury and making false statements in the CIA-leak investigation. When it comes to the question of whether Libby will receive a pardon in the final days of the Bush administration, says another well-connected supporter, “There’s not much more to say — we just kind of wait and watch and hope.”

The president has less than a week left to pardon Libby, whose jail sentence Bush commuted in 2007. (Libby still paid a $250,000 fine.) But even though it’s the president’s power alone to pardon, all eyes are on Vice President Cheney, Libby’s old boss. People who paid close attention to the case are looking for any sort of signal from Cheney that something is up, and they’re getting nothing. “I’ve seen the VP recently, and he doesn’t talk about this stuff — never would,” says the first Libby ally. “But we all assume — ‘we’ meaning people who know the case and who know Scooter — that the VP has interceded with the president and made his pitch. It would be irrational not to assume that.”

That seems likely, but unless you’re Dick Cheney, or George Bush, or White House counsel Fred Fielding, it’s probably not possible to know, because no one in that tightest of inner circles is talking. On January 7, for example, Cheney met with a small group of conservative journalists at the vice president’s residence. Asked whether he was pushing for a pardon for Libby, Cheney replied that he is “a huge fan of Scooter’s,” but “the question of a pardon is — really falls within the president’s purview, and his alone.”

“So you’re not offering any advice?”

“That’s as much as I’m going to say.”

“Do you think Scooter is innocent?”

“I don’t want to discuss the case.”

And that was that. For his part, the president is no more forthcoming. His 2007 statement accompanying the commutation of Libby’s prison sentence did not rule out a future pardon, but it seemed to suggest that Bush believed Libby should suffer lasting consequences from his conviction. Although the president concluded that Libby’s prison sentence was “excessive,” he wrote, “My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby…The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.” That didn’t sound like a man who intended to pardon Libby in 18 months or so.

What role has Libby played in this pardon speculation? It appears the answer is none. We know that he has not gone through the regular pardon channels at the Justice Department; a department spokesman told me that, as of Monday, the Office of the Pardon Attorney had not received a clemency petition from Libby. Whether Libby has spoken privately with Cheney is unknown. But this seems to be a case in which all the players feel strongly and say very little. Everybody knows a pardon would be enormously valuable to Libby. It could be that there really isn’t much to discuss.

It’s no surprise that Libby has not gone to the Justice Department, because he clearly wouldn’t qualify for a pardon under Department standards. For one thing, his conviction in 2007 means that not enough time has passed since his case for him to be eligible. That alone would disqualify him.

But in a larger sense, the Libby case simply doesn’t fit the profile of the traditional Justice Department pardon. “There are pardons that the president may choose to make that mean something other than the typical forgiveness kind of pardon, which contemplates that you acknowledge guilt and express remorse and be contrite,” says Margaret Colgate Love, who was the pardon attorney in the Justice Department for much of the 1990s. “A pardon like this would be like the Iran-Contra pardons, which said, to me, ‘These guys didn’t do anything wrong.’“

The Iran-Contra pardons, to which Love referred, came on Christmas Eve, 1992, when George H. W. Bush, then just a few weeks from leaving office, pardoned former Defense Secretary Caspar Weinberger, former National Security Adviser Robert McFarlane, former top CIA official Clair George, and four others involved in the Iran-Contra affair. Bush made clear that he was trying to right a political wrong. “The prosecutions of the individuals I am pardoning represent what I believe is a profoundly troubling development in the political and legal climate of our country: the criminalization of policy differences,” the president wrote in an impassioned pardon statement. “These differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of some of the combatants.”

The question now, for Libby and his supporters, is whether George W. Bush will follow his father’s example. Even though words are few, emotions are quite intense. “If it doesn’t happen, I’m afraid the president’s legacy on this will be one that is pretty ugly,” says the first Libby ally quoted in this story. “This guy took a bullet for the White House, in an absolutely outrageous, unfounded prosecution by an out-of-control prosecutor. For the president not to recognize that fact, and not to pardon Scooter Libby at this point, would be viewed as disgraceful.”

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