By Peter Baker and Carol D. Leonnig
Washington Post Staff Writers
Thursday, March 8, 2007
President Bush said yesterday that he is "pretty much going to stay out of" the case of I. Lewis "Scooter" Libby until the legal process has run its course, deflecting pressure from supporters of the former White House aide to pardon him for perjury and obstruction of justice.
Libby's allies said Bush should not wait for Libby to be sentenced, and should use his executive power to spare Vice President Cheney's former chief of staff the risk of prison time for lying to a grand jury and FBI agents about his role in leaking the name of an undercover CIA officer. But the prospect of a pardon triggered condemnation from Democrats and caution from some Republicans wary of another furor.
Defense lawyers for Libby said they are focused on seeking a new trial and appealing Tuesday's jury verdict, while making clear that they believe the president should step in. "Our number one goal is to see Scooter's conviction wiped out by the courts and see him vindicated," attorney William Jeffress Jr. said in an interview. "Now, I've seen all the calls for a pardon. And I agree with them. To me, he should have been pardoned six months ago or a year ago."
In his first comments on the case since the verdict, Bush told CNN en Español that he has to "respect that conviction" but that he "was sad for a man who had worked in my administration." Bush did not rule out a pardon but implied that it is not imminent. "I'm pretty much going to stay out of it until the course -- the case has finally run its final -- the course it's going to take," he told Univision during an interview before a trip to Latin America that begins today.
No one knows better than Libby how politically hazardous a pardon can be. Before he became Cheney's chief of staff, Libby served as an attorney for Marc Rich, the financier whose pardon by President Bill Clinton in the last hours of his administration provoked a storm of complaints. Now Libby finds himself in the same situation as his onetime client, hoping for a president's beneficence.
The pardon power is enshrined in the Constitution and is completely at the president's discretion. In recent decades, presidents have been increasingly reluctant to use it for fear of political trouble. When they have exercised it in controversial cases, they typically have waited until their terms were at an end, as Clinton did with Rich, Susan McDougal, Roger Clinton and others, and as George H.W. Bush did in pardoning former defense secretary Caspar W. Weinberger and others implicated in the Iran-contra arms-for-hostages case. Libby is the highest-ranking White House official convicted of a felony since that scandal.
Otherwise, pardons in recent times generally have been granted to people who were convicted years earlier of nonviolent crimes and who have completed their sentences and redeemed themselves. Bush has granted 113 pardons over six years, nearly a modern low, and has never pardoned anyone who had not been released from prison. He has commuted the sentences of three others.
Libby probably faces a prison sentence of 1 1/2 to three years for lying about his role in the disclosure of the identity of undercover CIA officer Valerie Plame, wife of war critic and former ambassador Joseph C. Wilson IV. But Libby could avoid jail time until after the 2008 presidential election through appeals, according to legal specialists -- timing that would make a pardon easier for Bush politically.
Libby's defense team intends to seek a new trial and possibly appeal his conviction on four felony counts. U.S. District Judge Reggie B. Walton has scheduled sentencing for June 5, when many lawyers expect him to allow Libby to remain out of prison pending appeals that could last through late 2008.
Some Republicans said yesterday that Bush should wait for that process to play out. "It's probably too early for the White House to reach a determination," said former congressman Robert S. Walker (Pa.), adding that Libby "is certainly entitled to take this into the appeals process, and I don't think it should be interfered with."
But if Special Counsel Patrick J. Fitzgerald insists that Libby begin serving his sentence right away and Walton agrees, it could force the question sooner. "Then the issue could ripen very fast," said Bradford A. Berenson, a former Bush White House lawyer, who said he expects a debate within the White House about what to do.
"It seems likely that the vice president will advocate for a pardon," he said. "What's less clear is whether the president would agree."
Libby's allies urged Bush to move right away to put an end to a prosecution they consider blown out of proportion. "He absolutely should do it," said Victoria Toensing, a former federal prosecutor who has been one of Libby's most prominent public supporters. "It was a case that never should have been brought in the first place. It's in Scooter Libby's interest to have it happen as soon as possible to stop this madness."
Despite the defense's trial argument that Libby was made a scapegoat by the White House, aides and advisers said there is no anger toward him in the West Wing. Libby's defense team reached out to an intermediary after its opening statement to reassure the White House about its strategy, according to a source close to the situation.
Some Republican lawmakers said Libby does not deserve the punishment he faces. "Mr. Libby is a good candidate for a pardon -- I'll put it that way," said Sen. Lindsey O. Graham (S.C.). "Mr. Libby can make an application for a pardon, and the president can seriously consider it." Senate Minority Whip Trent Lott (Miss.) said: "It's a terrible miscarriage of justice and abuse of prosecutorial power. But there's a long way to go in this process, and it's too early to talk about pardons."
Other Republicans warned that a pardon by Bush would make a bad situation worse. "If he does pardon Scooter Libby, then it will be construed, whether correctly or not, as an admission on his part that there's culpability that goes beyond the foolishness of an individual in the administration and that Scooter took a bullet for the team," said former House majority leader Richard K. Armey (Tex.).
The perils of a pardon would extend beyond politicians, according to some lawyers. Pardons normally are reviewed by a special office at the Justice Department, which provides recommendations about whether one is merited. Bush does not have to listen, but he would risk the wrath of career law enforcement officers if he disregarded their views, said Walter E. Dellinger III, who was assistant attorney general under Clinton.
"A president's going out on a limb without going through the process -- as we saw with President Clinton's pardon of Marc Rich -- with respect to someone who was just convicted," Dellinger said.
Staff writer Lyndsey Layton contributed to this report.