In the West Wing, Pardon Is A Topic Too Sensitive to Mention

U.S. District Judge Reggie Walton indicated that he's not inclined to let Libby stay free pending appeals.
U.S. District Judge Reggie Walton indicated that he's not inclined to let Libby stay free pending appeals. (By Evan Vucci -- Associated Press)
By Peter Baker
Washington Post Staff Writer
Wednesday, June 6, 2007

The sentence imposed on former White House aide I. Lewis "Scooter" Libby yesterday put President Bush in the position of making a decision he has tried to avoid for months: Trigger a fresh political storm by pardoning a convicted perjurer or let one of the early architects of his administration head to prison.

The prospect of a pardon has become so sensitive inside the West Wing that top aides have been kept out of the loop, and even Bush friends have been told not to bring it up with the president. In any debate, officials expect Vice President Cheney to favor a pardon, while other aides worry about the political consequences of stepping into a case that stems from the origins of the Iraq war and renewing questions about the truthfulness of the Bush administration.

The White House publicly sought to defer the matter again yesterday, saying that Bush is "not going to intervene" for now. But U.S. District Judge Reggie B. Walton indicated that he is not inclined to let Libby remain free pending appeals, which means the issue could confront Bush in a matter of weeks when, barring a judicial change of heart, Cheney's former chief of staff will have to trade his business suit for prison garb. Republicans inside and outside the administration said that would be the moment when Bush has to decide.

"Obviously, there'd be a significant political price to pay," said William P. Barr, who as attorney general to President George H.W. Bush remembers the controversy raised by the post-election pardons for several Iran-contra figures in 1992. "I personally am very sympathetic to Scooter Libby. But it would be a tough call to do it at this stage."

At the same time, some White House advisers said the president's political troubles are already so deep that a pardon might not be so damaging. Those most upset by the CIA leak case that led to the Libby conviction already oppose Bush, they noted. "You can't hang a man twice for the same crime," a Republican close to the White House said.

The issue comes at a time when the Bush administration already has been trying to deflect allegations of cronyism stemming from the dismissals of U.S. attorneys. After resisting months of bipartisan calls for Attorney General Alberto R. Gonzales's resignation, the White House had hoped that the matter was fading from the headlines and was relieved that the latest corruption news was the bribery indictment of a Democratic congressman, William J. Jefferson (La.).

But Walton's decision to sentence Libby to 2 1/2 years in prison for perjury and obstruction of justice refocused attention on the administration and touched off a new debate. Libby supporters kicked off a bid to lobby the White House for a pardon. Barely an hour after the sentence was handed down, the conservative National Review posted an editorial on its Web site headlined "Pardon Him."

The magazine contended that Libby had been "found guilty of process crimes," even though the special prosecutor never brought charges relating to the leak of CIA officer Valerie Plame's name: "He is a dedicated public servant caught in a crazy political fight that should have never happened, convicted of lying about a crime that the prosecutor can't even prove was committed."

The Weekly Standard followed with a cutting article accusing Bush of abandoning Libby: "So much for loyalty, or decency, or courage. For President Bush, loyalty is apparently a one-way street; decency is something he's for as long as he doesn't have to take any risks in its behalf; and courage -- well, that's nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?"

Some former Bush administration officials joined in. "I think the prosecution was unwarranted, and I think a pardon would be exactly the right thing for the president to do," John R. Bolton, a former ambassador to the United Nations, said by e-mail.

Democrats asserted that a pardon would be an outrage. "Serious offenses resulted in the appropriate sentencing of Scooter Libby today," said House Speaker Nancy Pelosi (Calif.). "The president must not pardon him." Senate Majority Leader Harry M. Reid (Nev.) added: "The Libby case revealed the lengths to which the Bush administration went to manipulate intelligence and discredit its critics."

Joseph C. Wilson IV, Plame's husband, said a pardon would be improper. "My view of this is that given the supervisory-subordinate relationship that existed between Cheney, the president and Libby, they should recuse themselves," he said. "It's Ethics 101."

The politics of pardon played out last night, sharply dividing Republican presidential candidates debating in New Hampshire. Former New York mayor Rudolph W. Giuliani and former Massachusetts governor Mitt Romney said that they would seriously consider pardoning Libby. "What the judge did today argues more in favor of a pardon because this is excessive punishment," Giuliani said. Romney said the prosecutor "clearly abused prosecutorial discretion." Sen. John McCain (Ariz.) said he would wait for the appeals.

Sen. Sam Brownback (Kan.) and Rep. Tom Tancredo (Colo.) said flatly that they would pardon Libby, while former Wisconsin governor Tommy G. Thompson called the sentence "not fair" without committing to clemency. Four candidates rejected a pardon or sounded negative: Reps. Duncan Hunter (Calif.) and Ron Paul (Tex.), and former governors Mike Huckabee of Arkansas and James S. Gilmore III of Virginia. Former Tennessee senator Fred D. Thompson, a presumed candidate who did not take part in the debate, is a member of Libby's legal defense fund and has called for a pardon.

If Bush were to decide to pardon Libby, he would have to short-circuit the normal process. Under Justice Department guidelines, Libby would not qualify for a pardon. The guidelines require applicants to wait at least five years after being released from prison. The review process after the submission of an application typically can take two years before a decision is made. During more than six years in office, Bush has pardoned just 113 people, nearly a modern low, and never anyone who had not yet completed his sentence. He has commuted three sentences.

But the president's power to pardon federal crimes under Article II of the Constitution is essentially unrestricted, so he can ignore the guidelines. Other presidents who did so stirred furors, most prominently when Gerald R. Ford pardoned his Watergate-stained predecessor, Richard M. Nixon; when George H.W. Bush issued his Iran-contra pardons; and when Bill Clinton in his last hours in office pardoned financier Marc Rich, Whitewater figure Susan McDougal, his brother Roger Clinton and scores of others.

The current president has not ruled out a Libby pardon but tried to put off discussion of it. Informed of the sentence while traveling in Europe yesterday, Bush sent out a spokeswoman to say that he "felt terrible for the family" but would wait to see what happens when Walton holds a hearing next week on whether Libby goes to prison during his appeal. "The president has not intervened so far in this or any other criminal matter, and so he is going to decline to do so now as well," Dana Perino told reporters aboard Air Force One.

Cheney's office declined to comment beyond giving a statement in which he praised Libby and expressed hope that he would avoid prison. "The defense has indicated it plans to appeal the conviction in the case," Cheney said. "Speaking as friends, we hope that our system will return a final result consistent with what we know of this fine man."

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