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Obstruction of Justice, Continued

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By Dan Froomkin
Special to washingtonpost.com
Tuesday, July 3, 2007; 3:22 PM

During the course of I. Lewis "Scooter" Libby's trial for obstruction of justice and perjury, we learned a lot about his bosses.

Incremental discoveries that didn't garner major headlines nevertheless added to what we know -- and can reasonably surmise -- about Vice President Cheney and President Bush's role in the leak of CIA agent Valerie Plame's identity, which was revealed during the course of the administration's defense of its decision to go to war in Iraq.

We know, for instance, that Cheney was the first person to tell Libby about Plame's identity. We know that Cheney told Libby to leak Plame's identity to the New York Times in an attempt to discredit her husband, who had accused the administration of manipulating prewar intelligence. We know that Cheney wrote talking points that may have encouraged Libby and others to mention Plame to reporters. We know that Cheney once talked to Bush about Libby's assignment, and got permission from the president for Libby to leak hitherto classified information to the Times.

We don't know why Libby decided to lie to federal investigators about his role in the leak. But it's reasonable to conclude -- or at least strongly suspect -- that he was doing it to protect Cheney, and maybe even Bush.

Why, after all, was special counsel Patrick Fitzgerald so determined to get the truth from Libby and, barring that, to punish him for obstructing justice? Prosecutorial ethics preclude Fitzgerald, a Bush appointee, from answering such questions. But the most likely scenario is that he suspected that it was Cheney who committed the underlying crime -- that Cheney instructed Libby to out a CIA agent in his no-holds-barred crusade against a critic. (See my Feb. 21 column, The Cloud Over Cheney and my May 29 column, Fitzgerald Again Points to Cheney.)

All of this means that Bush's decision yesterday to commute Libby's prison sentence isn't just a matter of unequal justice. It is also a potentially self-serving and corrupt act.

Was there a quid pro quo at work? Was Libby being repaid for falling on his sword and protecting his bosses from further scrutiny? Alternately, was he being repaid for his defense team's abrupt decision in mid-trial not to drag Cheney into court, where he would have faced cross-examination by Fitzgerald? (See my March 8 column, Did Libby Make a Deal?)

Bush and Press Secretary Tony Snow this morning continued to stonewall when it comes to any of the important questions about this case, Cheney and Bush's involvement, and the commutation itself. Bush said he wouldn't rule out a future pardon for Libby -- but didn't have much else new to say. Snow was simply ducking questions while asserting repeatedly that the president is entitled to exercise his clemency power when he sees fit.

It's true that the Constitution grants the president unlimited clemency and pardon power. But presidents have generally used that power to show mercy or, in rare cases, make political amends -- not to protect themselves from exposure.

The Framers, ever sensitive to the need for checks and balances, recognized the potential for abuse of the pardon power. According to a Judiciary Committee report drafted in the aftermath of the Watergate crisis: "In the [Constitutional] convention George Mason argued that the President might use his pardoning power to 'pardon crimes which were advised by himself' or, before indictment or conviction, 'to stop inquiry and prevent detection.' James Madison responded:

"[I]f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty. . . .

"Madison went on to [say] contrary to his position in the Philadelphia convention, that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected."


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