Bravely Bold Sir Dubya

Time decided to do some reporting about the final days in the Bush bunker, particularly about Dick Cheney's efforts to extract a pardon for his pal Scooter Libby. It's clearly from Bush's perspective, but nevertheless it's a pretty fascinating article just for seeing how the Bush loyalists spin the tale.

Petitions for pardons are usually sent in writing to the White House counsel's office or a specially designated attorney at the Department of Justice. In Libby's case, Cheney simply carried the message directly to Bush, as he had with so many other issues in the past, pressing the President in one-on-one meetings or in larger settings. A White House veteran was struck by his "extraordinary level of attention" to the case. Cheney's persistence became nearly as big an issue as the pardon itself. "Cheney really got in the President's face," says a longtime Bush-family source. "He just wouldn't give it up."

And there was a darker possibility. As a former Bush senior aide explains, "I'm sure the President and [chief of staff] Josh [Bolten] and Fred had a concern that somewhere, deep in there, there was a cover-up." It had been an article of faith among Cheney's critics that the Vice President wanted a pardon for Libby because Libby had taken the fall for him in the Fitzgerald probe. In his grand-jury testimony reviewed by TIME, Libby denied three times that Cheney had directed him to leak Plame's CIA identity in mid-2003. Though his recollection of other events in the same time frame was lucid and detailed, on at least 20 occasions, Libby could not recall details of his talks with Cheney about Plame's place of employment or questions the Vice President raised privately about Wilson's credibility. Some Bush officials wondered whether Libby was covering up for Cheney's involvement in the leak of Plame's identity.

That makes it seem like Bush just wanted to separate himself from the Libby case altogether, despite the fact that Libby was a special adviser to the President, not the Vice President, and he was protecting both Bush and Cheney. It makes sense for Bush to compartmentalize the Libby leak, as if he were an innocent bystander, and refusing to pardon obviously helps him in that case. But it's not true at all. Marcy Wheeler has a lot more on this.

But this just blew me away. After Cheney lays out the case for a pardon, repeatedly, incessantly, for weeks:

A few days later, about a week before they would become private citizens, Bush pulled Cheney aside after a morning meeting and told him there would be no pardon. Cheney looked stricken. Most officials respond to a presidential rebuff with a polite thanks for considering the request in the first place. But Cheney, an observer says, "expressed his disappointment and disagreement with the decision ... He didn't take it well."

Two days after that, Libby, who hadn't previously lobbied on his own behalf, telephoned Bolten's office. He wanted an audience with Bush to argue his case in person. To Libby, a presidential pardon was a practical as well as symbolic prize: among other things, it would allow him to practice law again. Bolten once more kicked the matter to the lawyers, agreeing to arrange a meeting with Fielding. On Saturday, Jan. 17, with less than 72 hours left in the Bush presidency, Libby and Fielding and a deputy met for lunch at a seafood restaurant three blocks from the White House. Again Libby insisted on his innocence. No one's memory is perfect, he argued; to convict me for not remembering something precisely was unfair. Fielding kept listening for signs of remorse. But none came. Fielding reported the conversation to Bush.

OK, is it normal for the subject of a possible Presidential pardon to personally lobby for it on his own behalf? Has that ever happened before? If it has, I don't recall it.

The article is decent enough, but don't start to drink a glass of water when you read this part, or you're in for a surefire spit-take:

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. "What's the bottom line here? Did this guy lie or not?"

The lawyer, who had followed the case very closely, replied affirmatively.

Bush indicated that he had already come to that conclusion too.

"O.K., that's it," Bush said.

Yes, that moral paragon, truth-teller extraordinaire, George W. Bush, Honest George I think they called him, comes down firmly on the side of truth in virtually every circumstance. History will judge him as the most forthright human who ever bestrode the earth. A colossus among men.

Incidentally, the man, Jim Sharp, that Bush is talking with here? It's his own defense attorney.

... you have to love Cheney's response to the story. I guess the Bush loyalists got under his skin.

Wahhmbulance for Fourthbranch Emeritus

Dick Cheney wants the world to know, through his chief fluffer Stephen Hayes, that Scooter Libby should have received his pardon.

Asked for his reaction to Bush's decision Cheney said: "Scooter Libby is one of the most capable and honorable men I've ever known. He's been an outstanding public servant throughout his career. He was the victim of a serious miscarriage of justice, and I strongly believe that he deserved a presidential pardon. Obviously, I disagree with President Bush's decision."

Emptywheel is the go-to on reactions to this one.

I wonder whether Cheney is worried that his firewall might not hold tight as Libby faces the rest of his life as a felon? Or perhaps Dick is just aghast that Bush--who after all asked Libby to stick his neck in a meat grinder--didn't return the favor by sacrificing a little of his scarce posterity to thank Libby for his work protecting Bush?

In any case, I do hope Cheney's mood about Bush remains contentious and sour. There is little I'd like more than to see Bush and Cheney take each other out during their retirement.

That WOULD be exciting. Of course, Bush is both solicitous of keeping himself clean (pardoning Scooter would have opened him up to public testimony) and unsolicitous of anyone else's feelings or concerns, so that's probably the explanation here.

What'd I Miss?

OK, I'm back. Had to make sure Bush got my pardon all ready and prepar- what, no pardons? Damn, guess I'll pay that parking ticket. (On a slightly more serious note, W. never gave a damn about anyone but himself, and pardoning a Libby or a Gonzales makes it easier for them to testify in Congress, so he's selfish to the end.)

Much thanks to Noah for picking up the pieces for me these last couple days.

So I feel recharged and ready to go for a new Presidency and a new era for Democrats. And ready to see the old regime slink away - don't let the door hit ya on the way out, Cheney!

...what, he hurt his back moving boxes into his new house and will show up at the Inauguration in a wheelchair? Must... resist... schadenfreude...

Regular posting to resume shortly.

Pardon Them

This unpardoning story is not only bizarre in its own right, with its own set of legal questions, such as "when does a pardon become official?" But it shows a true flaw in Bush-era hubris, their failure to apply any of the mistakes of the past to themselves.

The reason for the unpardoning, I take it, is that the father of Isaac Toussie, the unpardoned, made a large political donation to the national Republican Party recently, and the subsequent pardon, done in haste and without going through proper channels, smacked of a corrupt bargain between elites. In other words, the change of heart was entirely for reasons of perception, not the fact that Toussie was a predatory lender who preyed on minority homebuyers.

Right now the right is gearing up to fight the nomination of Eric Holder for Attorney General, and his role in the Marc Rich pardon, which had similar allegations of corruption and political payback, is going to be prominent. So the Administration didn't want to gum up that looming fight with their own Rich-like pardon. Again, this has nothing to do with the competence of Holder, who even the prosecutor in the Rich case and former top Bush Justice Department official James Comey thinks is eminently qualified, but everything to do with perception.

But do the Bushies REALLY think that reversing themselves on ONE pardon will save them from any perception of cronyism? I mean, just today it was revealed that a different man pardoned the other day by the President, at the same time as Toussie, gave contributions directly to the President in 2004.

USA Today reports that Alan Maisse, a former gambling executive who was pardoned this week by President Bush, had made two contributions to Bush’s re-election campaign in 2003 and 2004 totaling $1,500. White House deputy press secretary Tony Fratto declined to comment on the case but said “[w]e do not look into political contributions” in reviewing pardon requests. “We think it would be inappropriate to do that. They should have no influence over our decision-making,” Fratto added.

I mean, this is how the pardon power is used in contemporary America. There are always dispensations made for friends and friends of friends. I don't think anyone is blind to this. It is supremely arrogant on the part of the Bush White House to think that they could clean up their conduct by revoking one pardon. Furthermore, it's politically stupid, because it will just invite investigations into the background, and donations, of all the others pardoned during his tenure. I expect the Pro Publica report on contributions by pardoned criminals any day now.

The remedy for this is strict limits on pardon power. As for now, the right's Holder strategy is permanently disabled.

The Place For Holder

Continuing on with a look at some of the key figures who will do the important work in Barack Obama's Administration who were introduced at yesterday's press conference, let's focus on Attorney General nominee Eric Holder. It's been interesting to see the split on the left over Holder, who has produced some strong views about closing Guantanamo and restoring the rule of law in recent years, but who has a creeping tendency to respond to power in dangerous ways. I tended to let Holder's involvement in the Marc Rich problem slide, but today's report by Eric Lichtblau and David Johnston suggests that I shouldn't.

Mr. Holder’s supporters portray him as having been a relatively uninvolved bystander caught in a Clinton-era controversy, the remarkable granting of a last-minute pardon by President Bill Clinton to a fugitive from justice. But interviews and an examination of Congressional records show that Mr. Holder, who at the time of the pardon was the deputy attorney general, was more deeply involved in the Rich pardon than his supporters acknowledge.

Mr. Holder had more than a half-dozen contacts with Mr. Rich’s lawyers over 15 months, including phone calls, e-mail and memorandums that helped keep alive Mr. Rich’s prospects for a legal resolution to his case. And Mr. Holder’s final opinion on the matter — a recommendation to the White House on the eve of the pardon that he was “neutral, leaning toward” favorable — helped ensure that Mr. Clinton signed the pardon despite objections from other senior staff members, participants said.

At the same time, Mr. Holder was not the sinister deal maker that his critics made him out to be. He let himself be drawn into the case by politically influential advocates, the review of the case shows, bypassing the usual Justice Department channels for reviewing pardon applications and infuriating prosecutors in New York who had brought the initial charges against Mr. Rich and his business partner.

I think that last paragraph makes Holder look worse. It shows he can be seduced by powerful interests into doing their bidding, which is also the concern with his advocacy for Chiquita Banana in their legal battle over their funding right-wing paramilitaries to kill labor organizers in Colombia.

Holder's recent speeches on the subject of the rule of law are first rate, and I think in general that he stands in the Democratic mainstream. My hope is that he protects the Constitution and enforces the laws of the nation. But actions speak louder than words. And while the Rich pardon is many years in the past, the way in which he acceded to the wishes of the politicially connected must be troubling.

Unless, like Glenn Greenwald, you see this as less of a character flaw and more of a symptom:

This is vintage Washington. This is the filthy, venal sleaze on which both political parties feed. It's what fuels how the Beltway operates. It's the leading cause of why it functions as a corrupt, dysfunctional, bloated, incestuous royal court. That's what Washington is. For that reason, it would be next to impossible to find people who have been a part of this system who haven't been infected -- or more accurately: who haven't infected themselves -- at one point or another with this disease.

More than anything else, Obama's endless invocation of the "change" mantra was not about promises of sharp ideological or even policy shifts -- as needed as those may be -- but instead, was about changing this core Beltway dynamic, delousing the Washington culture. A consensus has emerged, which I more or less share, that condemning the not-yet-inaugurated Obama presidency based merely on his appointments of establishment re-treads and war supporters is premature, irrational and unfair.

Obama has repeatedly said that his appointees are there to implement and carry out his agenda. There are reasons to believe Obama can and will carry through on his "change" commitments, and there are also ample, reasonable grounds for doubting that he will. Either way, though it's constructive to express views on his high-level appointments, it makes sense to wait to see what Obama himself actually does as President before assessing whether his commitments are illusory [...]

If you're someone who basically thinks that the Washington political system works fine and has been run by the Good, Serious Adults who rule over the rabble for their own good -- in other words, if you're Fred Hiatt or David Ignatius -- it makes perfect sense to celebrate these appointments. For anyone else, skepticism is warranted -- how could it not be? -- and praise and gratitude and celebratory Change parades make sense if and when they're actually warranted by actions. The closer one's proximity has been to the bipartisan Washington establishment, the less entitled they are -- not the more -- to a presumption of Magnanimous, Serious, Adult, Transformative leadership.

I think it is important to raise this skepticism, however, with a degree of balance or what have you, because we have already seen that a proper amount of pressure can actually extract results from the Obama transition. Because of pressure from the left, John Brennan will not be holding a top intelligence post, and in fact nobody associated with Bush's interrogation policies will be acceptable. I think Holder does not quite fit into that category, but there's plenty of reason to voice concern and make sure he is true to his most recent rhetoric.

Accountability Moment

Yes, finding Radovan Karadzic was a great day for human rights. He was the leader of the Srebenica massacre, and his arrest shows that the International Criminal Court can be effective in bringing fugitives to justice through pressuring member nations and rallying the international community.

The United States is not a signatory to the ICC, as George Bush is always keen to point out. And as Charlie Savage wants us to know, the White House may not wait before assuring that the war criminals inside its walls cannot be charged with any crimes domestically.

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons — whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

I don't think they'll lose any sleep over the public assuming guilt, as long as they're kept far from the jails. The usual suspects are quoted in the article, including Victoria Toensing, the featured bobblehead for the White House during the Plame case. And we've already seen the Village pronounce that there ought to be no accountability for war crimes, torture, rendition, indefinite detention, or any of those mere trifles. After all, Bush's re-election in 2004 allows him to do whatever he wanted, right? It's that whole "accountability moment" thing. The courts simply don't have the jurisdiction of a random election 4 years ago.

Is there any doubt that this will happen, either on Christmas Day or New Year's? After all, like father, like son.

Today in Libby Spin

So I thought I'd accumulate some of the most egregious Scooter Libby commutation spin and turn it into a big long post.

Tony Snow actually took to the venerable USA Today op-ed page, and in between the brightly-colored graphs served up a melange of rationalizations and justifications:

The Constitution gives the president the power to grant clemency in a wide range of cases, at his discretion, with no restrictions. In the final hours of the Clinton administration, this unfettered authority was embodied in a mad rush to push through pardons with dizzying haste — 141 grants on Clinton's final day in office, part of 211 in the final nine weeks.

In contrast, no president in recent history has made more careful use of the pardoning power than George W. Bush: The president believes pardons and commutations should reflect a genuine determination to strengthen the rule of law and increase public faith in government.

We're allowed, and anyway Clinton abused it too, but we abused the clemency power in such a way that RESPECTED the rule of law. That's just bogus. In one account of the deliberations over the commutation, Bush's team appeared to be re-trying the case by weighing the evidence. There can be no greater disrespect of the independent judiciary than this. And we can go over all of the times in Texas when Bush didn't lift a finger to help those convicts who were mentally retarded, or those whose lawyers slept through their trials.

As for the "Clinton did it" part, there was more of this today.

The White House on Thursday made fun of former President Clinton and his wife, Sen. Hillary Rodham Clinton, for criticizing President Bush's decision to erase the prison sentence of former aide I. Lewis "Scooter" Libby.

"I don't know what Arkansan is for chutzpah, but this is a gigantic case of it," presidential spokesman Tony Snow said [...]

In the closing hours of his presidency, Clinton pardoned 140 people, including fugitive financier Marc Rich.

Marc Rich was REPRESENTED by Scooter Libby, and Libby made a cool couple million defending him, money that in part went to his fine today. If you have a problem with the pardoning of Marc Rich, go ask Scooter Libby if he was guilty as sin.

In addition, nobody that Bill Clinton pardoned had the goods on him. In other words, he wasn't continuing to obstruct justice by commuting a sentence, as Al Gore says best:

Former Vice President Al Gore said he found the Bush decision "disappointing" and said he did not think it was comparable to Clinton's pardons.

"It's different because in this case the person involved is charged with activities that involved knowledge of what his superiors in the White House did," Gore said on NBC's "Today" show Thursday.

You can also go back and look at Bush I's pardons of everyone connected to the Iran-Contra Affair, all of whom ALSO had information on the President himself, and realize that this is a family tradition of backscratching in exchange for silence.

In a twist on the "Clinton did it" sub-genre, radio talker Neal Boortz outright lied and claimed that Clinton was also convicted of perjury just like Libby (and as such deserved no jail time, right?):

BOORTZ: But in the case of Scooter Libby, Scooter Libby and Bill Clinton got sentenced and convicted for exactly the same crime. Can you -- now tell me, why is there so much outrage on the left that Scooter Libby isn't going to have to serve a 30-month jail term, and not a bit of outrage on the left that Bill Clinton didn't even get a 30-month jail term.

CALLER: I don't remember Bill Clinton actually being convicted for perjury.

BOORTZ: I'm sorry, he was.

CALLER: He was exonerated by a Republican Senate if I remember correctly.

The caller was, um, right.

Alan Dershowitz, one of the lawyers who filed a brief on Libby's behalf that Judge Walton famously said "wouldn't pass the muster of a first-year law student," predictably got angry at the judge for failing to recognize his brilliance:

Dershowitz:

The trial judge too acted politically, when he imposed the harshly excessive sentence on Libby, virtually provoking the president into commuting it.

As several readers who commented on Dershowitz's brief pointed out, not only was the judge who sentenced Libby--and denied him bail pending appeal--a Republican nominee, but so were two of the three Appeals Court judges who sustained that decision [...]

The Dershowitz Rule: Those who disagree with Alan Dershowitz are political.

Rudy Giuliani didn't really try to spin the White House's decision, simply calling it "reasonable", despite railing against at least one particular perjury sentencing when he was a federal prosecutor:

The United States Attorney in Manhattan, Rudolph W. Giuliani, declared yesterday that the one-year prison sentence that a Queens judge received for perjury was "somewhat shocking."

"A sentence of one year seemed to me to be very lenient," Mr. Giuliani said, when asked to comment on the sentence imposed Wednesday on Justice Francis X. Smith, the former Queens administrative judge.

And finally, there's in-over-his-head "I didn't think we'd have any tough questions over Fourth of July break" deputy press secretary Scott Stanzel, who first couldn't argue his way out of the most obvious spin-puncturing question:

Q Scott, why, if the President thought the sentence was excessive, why didn't he simply reduce it? Why do away with the entire sentence?

MR. STANZEL: Well, I think the President thought that the penalty -- the fine, the probation, the felony charge -- were all very significant penalties. And so that's why -- I'm not going to get into a gaming out of whether zero to 30 and somewhere in there was -- is the right place, but the President thought that the fine was excessive -- or the jail time was excessive, and that's why he commuted the sentence.

Q Even one day would have been considered excessive?

MR. STANZEL: The President commuted the entire sentence.

Q So a single day in jail for lying and obstructing justice, in a federal case, is excessive?

MR. STANZEL: The President believed that 30 months, the sentence that was given -- one day wasn't given, 30 months was.

Q Right, but it's not the 30 months that he thought was excessive, it was the entire sentence.

MR. STANZEL: It was the --

Q -- any time in jail.

It reminds me of that Kids in the Hall episode where the customer is haggling with the sales clerk, and the sales clerk keeps saying "$500" and the customer thinks about it, and goes, "No dollars." The all-or-nothing aspect of this makes plain that this was a makedly political act.

Then there's this gem.

Q Scott, is Scooter Libby getting more than equal justice under the law? Is he getting special treatment?

MR. STANZEL: Well, I guess I don't know what you mean by "equal justice under the law."

Epitaph for an Administration. They don't know what "equal justice under the law means.

FOOTNOTE: I will add that at least one Republican didn't check his "law and order" bona fides at the door when it comes to this case.

So far, however, only one congressional Republican from Florida, Rep. Gus Bilirakis of Palm Harbor, has publicly broken with party leaders and the president, saying Bush's decision was wrong. Most of the others have just kept mum.

"Mr. Libby was tried by a jury of his peers and was convicted of a felony, " Bilirakis said in a statement. "The fact that Mr. Libby committed this crime while serving as a public official makes it all the more egregious. Excessive or not, Mr. Libby's sentence should be respected."

Pardon Me

With Scooter Libby convicted, the chatter now moves to whether or not he'll receive a Presidential pardon. This is firm ground for conservatives, since they don't have to argue the facts of the case and the obvious mountain of evidence that Libby lied to the grand jury. All they have to do is claim that Libby was the fall guy and he's such a good man and he never even leaked Plame's name to Novak and this is a travesty of justice. Look, they even got a juror to fall for it:

One of the 11 jurors who convicted Mr. Libby said in an interview with MSNBC on Wednesday that she would favor a pardon. The juror, Ann Redington, explained her thinking by saying “it kind of bothers me” that no one was charged with the alleged crime initially under investigation — exposing the identity of a covert C.I.A. officer — and that Mr. Libby “got caught up in the investigation as opposed to in the actual crime that was supposedly committed.”

But Christy at FDL has the right idea here. Scooter Libby committed a crime, and whether you're naughty or nice doesn't nullify that.

Here is what I know: sometimes, even seemingly decent people commit crimes. And when they do, they ought to be punished in the same way that everyone else is — because they have committed crimes. Perhaps it is the prosecutor in me saying this but, honestly, you commit a crime for which you are convicted, then you are sentenced, and you carry out your sentence and pay the penalty for your criminal conduct. Period. End of story. There is a very simple way to not have to deal with prison: do not commit a crime.

Libby made a series of bad choices: he lied, repeatedly, to the FBI, to the Grand Jury under oath, all to cover up for the Vice President of the United States and for his own poor choices. For those poor choices of his own making, he was convicted by a unanimous vote of a jury of his peers, and he should pay the penalty for this. No one, no matter their station in life, no matter their connections or political affiliation — no one — should be allowed to repeatedly and manipulatively lie to a grand jury under oath or to criminal investigators without consequences. It is wrong, whomever may be doing it, and Libby is no exception to the rule of law.

The spin on this from the right is very powerful. It's full of deceit and excuse-making and lots of other nonsense. But Christy's two paragraphs are as clear as a bell. You do the crime, you do the time.

And the thing is, Bush would have to waive specific Justice Department guidelines to pardon Libby before the end of his term. There's typically a waiting period of at least 5 years from the conviction. Bush could easily do that (it's not like he pays a lot of attention to guidelines), but if you read Sidney Blumenthal's column today, you get the sense that Bush may use this guideline thing as an excuse to throw Libby overboard. There's an internecine battle in the White House between the Rove crew and the Cheney crew, and Rove was ready to stick the knife in Cheney and Libby if asked.

Did something change in the defense after its opening statement about Rove (Libby "will not be sacrificed so Karl Rove can be protected") that led to its refusal to follow up during the trial? Did the prosecutor have new information that has not yet been made public about Libby and Cheney? If so, that evidence would have been irrelevant to the precise charges against Libby but might have come into play if Libby and Cheney testified. Their appearances might have made them vulnerable to additional perjury and obstruction charges if they were found to have lied on the stand. But who might have proved that?

The missing piece in the extensive evidence and testimony that detailed the administration's concerted attack on Wilson, orchestrated by Cheney, is the conversations among Libby, Cheney — and Rove. Rove had made a deal with Fitzgerald. Rove changed his testimony, escaped prosecution and went back for a fifth time before the grand jury. Fitzgerald owned Rove.

Only if Libby and Cheney appeared could Fitzgerald cross-examine them about their discussions with Rove, which presumably Rove had already testified about before the grand jury. Rove was the hostile witness against Cheney whom the prosecution had waiting in the wings, the witness who was never called. If Libby had come to the stand in his own defense, and summoned Cheney as well, Fitzgerald might have been prompted to call Rove from the deep to impeach Libby's and Cheney's credibility and reveal new incriminating information about them. Instead, Libby remained silent, Cheney flew off to Afghanistan and Rove never appeared. Rove was the missing witness for the prosecution.

That's fascinating, and with Cheney off on his own while Rove has been continuing to sit at the President's side, I think the pardon brigade is kind of desperate. How else to explain this:



UPDATE: Uh-oh, Waxman's on the case.

Chairman Henry A. Waxman has announced that the House Commitee on Oversight and Government Reform will be holding hearings looking into the outing of CIA agent Valerie Plame, beginning on March the 16th.

Plame herself is going to testify. Wow. This is what needs to be done. The obstruction by Scooter Libby derailed the investigation. Congress must pick up where Patrick Fitzgerald left off.