What About the Rule of Law?

By Dan Froomkin
Special to washingtonpost.com
Wednesday, June 6, 2007; 1:00 PM

Suppose President Bush pardons Scooter Libby.

How will he explain it to the American people?

Will he say Libby's prosecution, conviction and sentencing were all a terrible miscarriage of justice? How could he say that without eroding the rule of law? Special counsel Patrick J. Fitzgerald is considered beyond reproach by career federal prosecutors, the jury was of Libby's peers, and the judge -- a Bush appointee -- said the proof of Libby's guilt was "overwhelming."

Will Bush say Libby just had an unfortunate memory lapse caused by the strain of pressing national security work? That's an argument that strains the credulity of all but the most die-hard Libby supporters. After all, Libby didn't just fail to recall something -- he assertively made up a story that was resoundingly contradicted by the evidence.

Will Bush say Libby's unfortunate mistake is forgivable considering the public service he performed as the vice president's chief of staff? That might be the easiest rationale for the public to swallow. But Libby has never admitted he made a mistake. He's expressed no remorse. Can Bush forgive someone who is not asking for forgiveness?

Will Bush say that he doesn't believe Libby should be punished since all he did was fall on a dagger aimed at the vice president? That's possibly the most honest approach -- though also the least likely.

Or will Bush say nothing at all, and stick to the strategy of stonewalling on this case? It's a strategy that, in part because of the press corps' lack of tenacity, has served him well thus far.

Washington is abuzz with pardon talk. The thinking appears to be that Bush will grant one before Libby has to go to prison, which could be as soon as the end of July. The pardon will cause Bush a little political damage -- but what's a little more political damage these days?

But this kind of thinking may underestimate the potential fury of the American public.

Pardoning Libby would send the public the message that this White House thinks it is above the law. It's a point critics have made time and time again, whether it relates to the treatment of detainees, warrantless wiretapping or the purge of insufficiently partisan U.S. attorneys. But this time, the charge just might really stick.

Because Libby's lies came in the context of a White House campaign to defend its actions in the run-up to war, pardoning him would inevitably call renewed attention to the most tragic and least forgivable mistake of Bush's presidency: misleading the American people into a disastrous war. It could send the anti-war movement into overdrive.

And pardoning Libby -- a lawbreaker who may have been acting under orders from his superiors -- would finally and fully associate Bush in the public's mind with the one transgression that has forced a president out of office in the modern age: A cover up.

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