Thursday, June 29, 2006

the possibility of a libby pardon

* larry johnson:
"The evidence now on the public record is overwhelming and, if we could have a jury, Vice President Dick Cheney would be found guilty of cooking the intelligence and lying us into war. Three remarkable and compelling pieces of evidence have hit the streets within the last two weeks. Let's start with today and work backwards...
[]
To call someone a liar, particularly the President and Vice President, is considered stepping over the line of public decorum. However, given the facts on the record, there is no other logical conclusion. Bush and Cheney are liars and because of their lies, Americans are dead and grievously wounded. "
* dr. elsewhere at cannon's place has a mega rove/leopold post - cautiously coming out in favour of leopold

* oldschool re the possibility of a libby pardon:
"Fitz's war-gaming - fascinating stuff I think. High-stakes poker indeed. Bush has the ability to pardon, Fitz has the ability to bring more indictments. Fitz is holding more and better cards . IMO, Bush can play the pardon card maybe once while in office, once at the end of his term - tops. Two would be seriously pushing it - to even use his one in-office pardon on Libby is risky in a few ways: a) it smacks of Saturday-Night-Massacre a la Nixon, b) as per above, a blanket pardon makes Libby an potential unprotected witness against the administration, c) pardoning Libby as to only the areas charged (obstruction, perjury, false statements) might just induce Fitz to go all-in and charge the underlying offenses involving blowing the cover of a CIA agent (which play would not necessarily be limited to Libby - all sorts of fun names could pop up). I just don't see how GWB could extend an in-office pardon to Libby which would cover the possibility of Libby's outing a CIA agent - total political death - he needs to save that one for December 2008. Of course, in Dec 2008, he can just pardon anybody he feels like pardoning for anything they've ever done while 'serving' the president.

Now, a smart prosecutor might, if faced with a pardon of Libby's obstruction, realize that *Conspiracy* to obstruct is an altogether different, stand-alone charge (the crime is the conspiracy, not the obstruction). It would, I think, be sufficiently different from the original charges so as to stand on its own, and have the added benefit of once again necessarily bringing in some of those other interesting names.

I also like the conspiracy angle because the statute of limitations on a conspiracy to obtruct charge wouldn't even begin to run until said conspiracy has ceased functioning. Let's just say - no problems there."
nice work oldschool.

* incidentally, this citizenspook post says:
"The Constitution Voids Presidential Pardons For Criminal Convictions Or Indictments Flowing From "Cases of Impeachment" Where The Senate Has Voted To Convict."
let's hope that John Conyers writes his articles of impeachment with that in mind.

(as an aside, this citizenspook post argues that Fitz appears to have changed his understanding of the leak case in october 2004 - away from an assumption that the outing of Plame was in retaliation against Wilson. let's hope)
(thanks to LeeB for the links)

15 comments:

Wake up said...

"Fitz's war-gaming - fascinating stuff I think. High-stakes poker indeed. Bush has the ability to pardon, Fitz has the ability to bring more indictments. Fitz is holding more and better cards ."

I fail to understand that assertion. Fitzgerald has a very limited mandate-- he can investigate and seek indictments for: (a) alleged crimes relating to the disclosure of Plame's CIa employment (which it seems abundantly clear will not happen) and for crimes committed to thwart the investigation and prosecution of (a) (perjury/false swearing, obstruction witness tampering etc.)

That's it. He has no more authority than that-- plus he has to WIN any cases for anything legal sanctions to be imposed.

Bush has the authority to pardon anyone for any federal criminal offense-- convicted or not, charged or not.

Asserting a special prosecutor with a limited mandate holds more cards than the President makes no sense. The only question is whether if the president needs to play his cards he will.


"IMO, Bush can play the pardon card maybe once while in office, once at the end of his term - tops. Two would be seriously pushing it - to even use his one in-office pardon on Libby is risky in a few ways: a) it smacks of Saturday-Night-Massacre a la Nixon, b) as per above, a blanket pardon makes Libby an potential unprotected witness against the administration, c) pardoning Libby as to only the areas charged (obstruction, perjury, false statements) might just induce Fitz to go all-in and charge the underlying offenses involving blowing the cover of a CIA agent which play would not necessarily be limited to Libby - all sorts of fun names could pop up). I just don't see how GWB could extend an in-office pardon to Libby which would cover the possibility of Libby's outing a CIA agent - total political death - he needs to save that one for December 2008."

To the extent pardoning anyone involved in this situation would be politically crippling I agree. I can't imagine Bush would pardon anyone for anything until after the 2008 election- and quite possibly not then even if people have been convicted or the investigation and/or criminal prosecutions are still underway.





"Of course, in Dec 2008, he can just pardon anybody he feels like pardoning for anything they've ever done while 'serving' the president."

Yes, and that's one heck of a card if one is willing to use it.

"Now, a smart prosecutor might, if faced with a pardon of Libby's obstruction, realize that *Conspiracy* to obstruct is an altogether different, stand-alone charge (the crime is the conspiracy, not the obstruction). It would, I think, be sufficiently different from the original charges so as to stand on its own, and have the added benefit of once again necessarily bringing in some of those other interesting names."

He's already fully refuted this point himself. Bush can simply pardon people completely-- for charges brought or charges which otherwise might be brought.

"I also like the conspiracy angle because the statute of limitations on a conspiracy to obtruct charge wouldn't even begin to run until said conspiracy has ceased functioning."

This is true and one thing about a conspiracy -- it can have more than one object. a conspiracy began to violat "Law A" is considered to exist so long as any 2 of the original co-conspirators are working to conceal the crime or obstruct the investigation of it. However, that still would not prevent the President from simply pardoning everyone involved for all criminal activirt committed up to the moment of the pardon. It wouldn't take a genius for the pardoned folks to decide that would be a real good time to stop conspiring.

The bottom line is with the stroke of a pen Bush can remove all of his subordinates from any CRIMINAL exposure any time he wishes. Politically, even after the 2008 elections there would be serious consequences so it will only happen if the alternative consequences are even worse.

Assuming Libby is convicted, I could see Bush pardoning him in late 08 early 09. I cannot imagine he will use a "pre-emptive" pardon for Libby or anyone else prior to the 2008 election.

right now, there is little reason to believe the trial of Libby will result in the disclosure of any information any worse than what most already believe to be the case and probably the trial will not result in disclosure of things near as bad as the most vehement Bush critics already believe.

the trial will not be about how bad the Bush Administration is or the decisions leading to war and thge information (propaganda) disseminted to the public to sell the war. The trial will be about whether Libby lied regarding what he knew concernming the "outing" of Plame.

It is FITZGERALD who is fighting to keep the issue narrowly framed and the trial focused solely ON WHAT HE HAS CHARGED THE DEFENDANT WITH DOING. Libby's lawyers are the ones maneuvering (so far unsuccessfully) to turn the trial into a long drawn out "political show trial."


* incidentally, this citizenspook post says:
"The Constitution Voids Presidential Pardons For Criminal Convictions Or Indictments Flowing From "Cases of Impeachment" Where The Senate Has Voted To Convict."

That is a very poorly worded and very misleading description of what the Constitution actually says, which is:

"...and he [the President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Article III, §2, Par. 1.

That means what it says. The President can pardon anyone for any fderal offense except IN CASES OF IMPEACHMENT.

If an official is impeached the President cannot pardon you and the President can't pardon an official to forestall impeachment by the House. Of course, he cannot prevent conviction in the Senate and removal from office either.

That DOES NOT mean the president cannot pardon anyone involved in a criminal case before THE COURTS just because the case may also involve impeachment proceedings in Congress. It means only that the pardon only pertains tot he criminal case before the courts and not to the impeachment.

Hypothetically, let's assume cheney gets both indicted by a grand jury and the House initiated impeachment proceedings. the President could pardon him and end the criminal proceedings but he could not stop the impeaqchment proceedings. That's ALL that Article III, §2, Par. 1, means.


"(as an aside, this citizenspook post argues that Fitz appears to have changed his understanding of the leak case in october 2004 - away from an assumption that the outing of Plame was in retaliation against Wilson."

I don't know where he could have got that idea. The transcript of the 5/5/06 hearing in the Libby case certainly does not support that claim. Fitzgerald did clearly seem to concede that would not try to argue that the converstaions during which Plame was outed also were using other means to discredit Wilson (including what Fitzgerald conceded were inaccuracies in Wilson's NYT op-Ed)but he never said anything suggesting he didn't believe that Plame's position was not revealed to plant the idea that was another reason not to believe Wilson.


One must also understand CONTEXT. Fitzgerald wants a conviction of Libby. that's his job. He doesn't want a trial about the war and intelligence and political infighting. He wants a trial focused on whether LIBBY LIED as charged. Libby's lawyers have been seeking very broad discovery and arguing they need it to properly defend Libby. the defense argument has been, in a nutshell-- the jury needs to hear everything that was going on because the Plame thing was just a small piece of the whole story and it would be more believable to the jury Libby forgot this one thing (telling Plame was a CIA agent) if they hear about all the many things going on simultaneously. thus, Libby's lawyers argue he should be allowed to show all the things everyone in the Administration was doing to combat the critics of pre-war intelligence--AND TO DO THAT WE NEED FAR MORE EXTENSIVE DISCOVERY AND PERMISSION FROM THE COURT TO INTRODUCE TONS OF COLLATERAL EVIDENCE.

FFitzgerald is saying no-- the only issue is whether Libby lied or not when he was uner obligation to thell the truth during my investigation and I should only have to disclose things directly relevant to that and the trial should be limited to things concerning whether Libby lied. fitzgerald argues Libby can prsent his "innocent failure of recollection" theory without turning the trial into a year long review of who said waht about the war and whjo was right and who was wrong.

(I agree with Fitzgerald-- THAT job is for Congress not the courts. That's also one reason why it is vital the Dems get at least one house in fall electiion-- because a real congressional investigation probably won't happen otherwise. That's also why I rail against people on the Left who make fools of themselves stating false facts and making absurd claims about things.

That gives the Republicans ammunition to dicredit the entire Left and makes it less likely we will prevail in November. If our loudes t voices are shrill and ignorant ones we play into their hands and could actually manage to LOSE at a time when it really should be easy for us toi win. Our worst enemeies are not the Republicans -- they are screwing up left and right-- it's the idiots on our side who help take the focus off the Republicans by making their silliness a focus.

I don't want to seem what is actually a small minority of the Democratic Party allowed to grab the spotlight and make all of us look like fools. the only way to do that is stop THE SMALL MINORITY who ARE FOOLs. that's why I am so combative-- the fools in our Party are the only thing the Republicans have going for them. Unfortunately, right now that is quite a bit and may cost us an election where everything else is in our favor.

Kathleen said...

I said, ages ago, that the Libby trial is very narrowly focused on the outing of Plame's name and any crimes committed in covering it up.

I have never said it was about the war, except as "motive" for the outing of Plame's name.

Fitz has Plenary powers of the AG, so he can increase the scope of his investiagtion, as evidence of another crime is uncovered.

I also said, ages ago, that the actual leaking of Plame's name was a small part of the larger crime of conspiracy and the evidence submitted in the Libby case could confirm it, hence the possible judgment on Fitz's part to impose immuniuty on Rove for the Libby trial. I've been saying if Rove is subpoenaed for dox, testimony or just given interrogatories that are answered under oath, but don't require a court appearance, he could just take the 5th or need immunity.

I think the larger crime of conspriacy is the charge of the sealed indictment, as against Rove and others, but then, I've said that too, ages ago.

If we post the actual articles of the constitution, on presidential pardons, readers can judge for themself. If you link to Fitz's site, people could read the pleadings in the Libby trial as Fitz posts them.

oldschool said...

Wake-Up:
I really don't see much that we disagree about. I think Fitz's mandate and authority may be a little broader than you assert, but I'm writing from work and can't do the research right now. (Shhh.., don't tell 'em - as long as I keep this fine scowl on my face it looks like I'm doing something profit-related).

But even within the more narrow standard, Fitzgerald holds at least two very valuable cards - time and a pool of potential defendants. A Libby pardon now, I'd assert, precludes any more pardons until 2008. Lots of possibilities between now and then. Should a pre-2008 pardon be issued, indictments could be fast and furious, with no help in sight for quite a while. Again, the pardons coming in Dec 2008 will end criminal prosecutions or sentences being executed, but at the price of the Bush legacy, as if it will need further tarnishing.

As far as fitz 'wanting' a narrow-issue trial for Libby, I could quite easily argue the opposite, or that this initial charge is for the purpose of flushing out bigger game. But it would be only that - a guess. And as Fitz hasn't spoken to me - or anyone else - on the issue(s), for now your guess is quite as good as mine.

Wake up said...

"I said, ages ago, that the Libby trial is very narrowly focused on the outing of Plame's name and any crimes committed in covering it up."

On that we agree, so does everyone else except Libby's lawyers, thought they have probably not given up on trying to change Walton's mind

"I have never said it was about the war, except as "motive" for the outing of Plame's name."

I was not addressing you with that comment so don't argue when I'm not disagreeing with you.

"Fitz has Plenary powers of the AG, so he can increase the scope of his investiagtion, as evidence of another crime is uncovered."

WRONG! Again you just don't understand. Fitzgerals only has the plenary power of the AG insofar as it was granted by the AG. that means he can act without AG approval and do all (lawful) things he thinks necessary to complete the mandate given him. However, the mandate given him is limited to investigating and prosecuting crimes directly related to the outing of Plame and of crimes committed to thwart THAT investigation and any prosecutions arising from it. HE DOES NOT HAVE POWER TO EXPAND THE SCOPE OF THE INVESTIGATION OR TO PROSECUTE OTHER CHARGES AT THIS TIME. That authority was not delegated to him by the AG. If he wants to do that he has to go to the AG and request an expanded mandate. If he were to happen upon evidence that, say, an administration official bribed someone to plant forged documents in Niger in 2001, he would have to ask for and receive permission from the AG to pursue that.



"I also said, ages ago, that the actual leaking of Plame's name was a small part of the larger crime of conspiracy and the evidence submitted in the Libby case could confirm it, hence the possible judgment on Fitz's part to impose immuniuty on Rove for the Libby trial."

You may have said it but that doesn't make it true. Fitzgerald does not have authority now to go after this "larger" conspiracy YOU THINK exist even if it does. Certainly if HE STARTS TO THINK THAT-- based on small considerations like evidence rather than the theories of some know-nothing on a message board-- he could request the authority to pursue it. As *I* said long ago, that would be very interesting because it would be very difficult for the Administration to withstand the uproar that would ensue if Fitzgerald's request was denied-- but Gonzales could do deny it and there is nothing Fitzgerald could do about it if he did.

"I've been saying if Rove is subpoenaed for dox, testimony or just given interrogatories that are answered under oath, but don't require a court appearance, he could just take the 5th or need immunity."

First, I've already explained the 5th Amendment is a TESTIMONIAL privilege and CANNOT be invoked to evade production of documents pursuant to a subpeona. Interrogatories do not exist in federal criminal proceedings, although a person could voluntarily agree to provide written answers to questions under oath and that WOULD BE testimonial, but the scenario makes little sense. If you don't want to provide written answers you don't need to take the 5th you just point out there is no rule or law requiring you to do so.

As I said, immunity will only be imposed whjere a witness has been subpoened to testify and either personally says I take the 5th or communicates his intent to do so through counsel. At that point the party desiring the testimony can request that the judge impose immunity and compel him to testify or be held in contempt of court. JUDGES do no entertain requests to impose immunity where the witness has not been subpoened to appear in a proceeding simply because the witness might at some future time choose to take the 5th. For obvious reasons, the courts wait until it is shown to be necessary to procure the testimony. At this time for all anyone knows, the case could be resolved without his testimony being required and just because I might be inclined to take the 5th today does not mean things won't happen which will cause me to agree to testify voluntarily before i am actually called.

"I think the larger crime of conspriacy is the charge of the sealed indictment, as against Rove and others, but then, I've said that too, ages ago. "

Think what you want. There is no point reasoning with a loon. If you still believe the obvious nonsense about a sealed indictment against Rove you need professional help of a different nature than
I can provide.

"If we post the actual articles of the constitution, on presidential pardons, readers can judge for themself. "

That's why I DID IT above and explained it. To humor you I paste from above:

"...and he [the President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Article III, §2, Par. 1.

That means what it says. The President can pardon anyone for any fderal offense except IN CASES OF IMPEACHMENT.

If an official is impeached the President cannot pardon you and the President can't pardon an official to forestall impeachment by the House. Of course, he cannot prevent conviction in the Senate and removal from office either.

That DOES NOT mean the president cannot pardon anyone involved in a criminal case before THE COURTS just because the case may also involve impeachment proceedings in Congress. It means only that the pardon only pertains tot he criminal case before the courts and not to the impeachment.

wake up said...

delegation letter 2/6/04"

"Dear Patrick:
At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes

the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted;

and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue. Further, my conferral on you of the title of "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.
/s/ James B. Comey"


that letter clarifies this letter of 12/30 /03:

"Dear Patrick,
By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's

investigation into the alleged unauthorized disclosure of a CIA employee's identity,

and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.
/s/ James B. Comey James B. Comey Acting Attorney General"


I think the scope of the delegation is plain and exactly as i describe it.

Wake up said...

Old school:

Comment on the rest of your post.




Bu"t even within the more narrow standard, Fitzgerald holds at least two very valuable cards - time and a pool of potential defendants. A Libby pardon now, I'd assert, precludes any more pardons until 2008."

I'd go further than that. I think pardoning Libby would be masnna from heaven for us if he did prioe to the 2008 election and I don't think he will do it, if at all, until after the 08 election. as I said, THIS trial is very unlikely to result in further political damage worse than what would result from a pardon of Libby without a trial.

"Lots of possibilities between now and then. Should a pre-2008 pardon be issued, indictments could be fast and furious, with no help in sight for quite a while."

I really don't think a pardon would change the legal picture much at all (except as fat as Libby is concerned of course). It's the POLITCAL fallout from a pardon Bush has to worry about not the possibility (unlikely0 that Fitzgerald would suddnely go on a rampage. (doesn't that line of thinking imply Fitzgerald has cut some kind of corrupt deal to accept Libby as a sacrificicial lamb and is deliberately not pursuing good cases in exchange for Scooter's head on a pike? I'm just not THAT cynical. Everything i have heard about Fitzgerald and everything I have observed in this case contradicts that impression in my mind. He might possibly be accuses of excessibe caution in this case but beyond that I think his conduct has been exemplary.)


" Again, the pardons coming in Dec 2008 will end criminal prosecutions or sentences being executed, but at the price of the Bush legacy, as if it will need further tarnishing."

Pardon would probably cement Bush's legacy as a negative one and also cause considerable political problems for other Republicans in the short-term. hat's why i think many are getting way ahead of --cough, ahem, cough, -- "the news cycle" in assuming there will be any.

"As far as fitz 'wanting' a narrow-issue trial for Libby, I could quite easily argue the opposite,"

But, you don't get to argue and Fitzgeral does and he's made his position clear and is prevailing to a very great extent with the Judge who gets to decide.

"or that this initial charge is for the purpose of flushing out bigger game."

Can we say "wishful thinking?" Is it likely Fitzgerald thinks Libby is protecting Cheney? Yeah, probably. Can he do anything about it? No more than he's already done and if Scooter won't flip there's not a whole lot more Fitzgerald can do but try him.


"But it would be only that - a guess. And as Fitz hasn't spoken to me - or anyone else - on the issue(s), for now your guess is quite as good as mine."

As I said, Fitzgerald is NEVER going to speak beyond announcing indictments (the kind that actually happen not the imaginary Rove kind), making a bland "justice prevailed and the point has been made even high level officials cannot lie under oath, blah, blah" if libby is convicted, and ultimately announcing when the investigations concludes. He won't ever discuss the evidence or what motivated his decisins and actions.

If we are going to get the answers we all REALLY want, those are going to come from Congressional hearings which have a different purpose than criminal cases.

4:10 AM

lukery said...

WakeUp - thanks again for your input. i really appreciate it. and thanks for your patience (however frayed it might get at times) in typing out stuff really slowly for us.

just a couple of general points.
as i understand it, fitz' investigation is apparently ongoing - so while i appreciate your point that fitz is trying to limit the issues relating to the libby trial to the very specific charges, that doesnt preclude the possibility that there might also be an ongoing investigation into broader issues. indeed, fitz himself said that he'd be happy to get al capone on tax charges - which is pointedly different to saying that he wants to prosecute the tax charges because they are a crime. i read that to mean that he wants to keep the libby indictment to the '4 corners' because that suits him, for the time being.

i *suspect* that that fitz wants do draw a solid line around libby's specific charges in part because he understands that to go beyond the specific claims might taint possible future charges. but perhaps that is just wishful thinking.

i'd also quibble with your presumption that a libby pardon would particularly hurt bush's legacy. (i admit that my historical understanding of american presidents is paper-thin.) Given what i 'know', a pardoning of libby would be way, way down the list of bush's crimes - and would barely be a footnote.

Wake up said...

"just a couple of general points.
as i understand it, fitz' investigation is apparently ongoing - so while i appreciate your point that fitz is trying to limit the issues relating to the libby trial to the very specific charges, that doesnt preclude the possibility that there might also be an ongoing investigation into broader issues. "

As Yogi would say, it ain't over 'til it's over. There is not NOW a an ongoing investigation into broader issues, but certainly if Fitzgerald in the course of investigation within his current mandate has uncovered evidence that he feels warrants a broader investigation because it suggests wrondoing outside the scope of hin current mandate, he can request a delegation to broaden his investigation. If that happens, basically 4 things could happen. i list them I what I consider descending order of likelihood.

Gonzales could agree further and broader inveestigation is warranted and grant Fitzgerald the sought authority. Gonzales could agree but appoint a different special prosecutor to investigate the new allegations. Gonzales could have the allegations investigated through normal DOJ offices under his authority. the Administration could stonewall and refuse to investigate.

"indeed, fitz himself said that he'd be happy to get al capone on tax charges - which is pointedly different to saying that he wants to prosecute the tax charges because they are a crime."

Generally speaking, DOJ policy is to prosecute people (at least in terms of initial charges) for the "most serious provable offense." Provable is an important word in that phrase. along with that, bear in mind, DOJ also does not (and could not with available resources) prosecute everyone it thinks it could prove committed a federal crime.

OFTEN people believed to have done worse things that can't be proven are prosecuted for offenses that DOJ would likely take a pass on if committed by people DOJ did not think had done worse things. that's certainly "selective prosecution" and people like to assume that's a bad thing but fair and prudent selectivity is a good thing in my eyes. (that's not defending all selectivity-- and certainly not "negative" selection based on race, etc, or "positive" selection based on connections and wealth, etc.0

"i read that to mean that he wants to keep the libby indictment to the '4 corners' because that suits him, for the time being."

Right, complexity and confusion is always adverse to the side with the burden of proof. Prosecutors want a simple linear narrative and defendants want a byzantine cacophony of confusing and better yet contradictory evidence.

"i *suspect* that that fitz wants do draw a solid line around libby's specific charges in part because he understands that to go beyond the specific claims might taint possible future charges. but perhaps that is just wishful thinking."

That is wishful thinking. That's just basic trial strategy and Fitzgerald's position would be the same regardless of whether he determined Libby was it or he had his sights on others, Of course, that DOESN'T mean he doesn't have his sights on others it just means you can't draw that conclusion from his approach to the Libby case.

"i'd also quibble with your presumption that a libby pardon would particularly hurt bush's legacy. (i admit that my historical understanding of american presidents is paper-thin.) Given what i 'know', a pardoning of libby would be way, way down the list of bush's crimes - and would barely be a footnote."

That's because YOU don't like him already. The pardon could hurt him both with people who are neutral and even with some who like him. Most Presidents also care about how future historians and scholars will view them. i think pardoning anyone FOR LYING UNDER OATH DURING AN INVESTIGATION INTO PERFORMANCE OF DUTIES IN THE WHITE HOUSE would be viewed negatively even by most people who are otherwise favorable. similarly, I think the Clinton pardon of Rich for money will eventually be considered s one of the most corrupt pardons in our nation's history and a serious stain on the Clinton legacy even by historians who approve of his politics.

If everyone already couldn't think worse of Bush he would not have to consider the politics of pardonoing Libby but that isn'y the case. Even among people who disapprove of the war and/or his policies as President he is not universally disliked or distrusted. He probably cares a lot more about what the people who haven't already determined he is irredeeembaly evil think than what those who have think. (As would anyone.)

8:10 PM

lukery said...

WU - thnx again.

your points are well taken.

but again, to quibble at the edges - i cant for the life of me understand how bush's 'legacy' might be undermined by a libby pardon. it's not that i dont like him - it's that he categorically is a failed president who will be lucky if he doesnt end up in the hague.

if he pardons libby on these charges it will barely register compared to clinton's pardoning of Rich, or the pardoning of the iran contra-crew - and those pardons barely dented those presidencies

Wake up said...

"i cant for the life of me understand how bush's 'legacy' might be undermined by a libby pardon. it's not that i dont like him - it's that he categorically is a failed president who will be lucky if he doesnt end up in the hague."

That's a tad hyperbolic. He is a relatively unpopular President. He's not going to end up before a war crimes tribunal in the World Court, he's not going to be impeached and it remains to be seen if his failures even result in Democrats making significant political gains this year and in 2008 (that has more to do with the ineptness of the Democats than any positives related to Bush)

if he pardons libby on these charges it will barely register compared to clinton's pardoning of Rich, or the pardoning of the iran contra-crew - and those pardons barely dented those presidencies..

Well, Reagan's pardons were controversial at the time, but Reagan was (a) personally liked by most people including his political opponents and his legacy was shortly made pretty unassailable when the Soviet Union collapsed. When the biggest dispute about your legacy is how much credit you should get for the greatest positive development of the last half century you can shrug off things others can't.

As for Clinton, people were just exhausted and the scandal fatigue was such that the Republicans realized no one wanted any hardcore investigation in congress or criminal courts into someone who was no longer in power. I strongly suspect it will come into play in a big way if Hillary remains a frontrunner for the nomination as of late 2007. i expect both Democratic rivals and, of course Republicans will hit it hard and often. Historically, I think it will be a huge taint and i think Clinton's esteem is going to prove to be far more ephemeral than most Presidents-- let alone Reagan. I highly doubt most future historians will rank Clinton highly as anything other than a politically shrewd operator good at achieving transient personal goals

He was lucky to be in office during a boom economy which he benefited from and scholars generally understand that Presidents are affected by the economy far more than vice versa. among "middle of the road historians" i think he will be assessed as a mediocre President plagued by silly scandals of his own fault.

I think from the Left, he will be viewed as the President who abandoned the working man, embraced big business, cut welfare and talked a lot without delivering much of anything. Obviously, the Right despises him, but they should probably thank him.

emptywheel said...

A couple words. First, the investigation did demonstrably change direction in Fall 2004, though not in the way Citizenspook suggests. Before August 2004, Fitz believed he was investigating the individual leaks to Novak and Cooper. After that point, he clearly started investigating why Libby had lied about leaking to Kessler and Cooper. And the answer, quite simply, is because he was covering up for whoever leaked to Pincus and for Rove. The investigation switched from an IIPA investigation to an obstruction investigation.

Also, I wouldn't be so sure that the revelations in a trial won't be damaging. As it is, if the press actually covered the authorized leaking of the NIE and Dick's notes on Wilson's op-ed, then soccer moms would get a little concerned. But Fitzgerald, in the name of providing motive, is going to explain that Libby was lying his ass off about being authorized to leak the NIE. Which will, if the press retains even one or two brain cells (a big if, I know) make it pretty obvious that Dick authorized Libby to leak Plame's ID. If the press covers it, it will be fairly damaging.

lukery said...

WU - you are almost certainly correct that Bush wont end up in the Hague - but only becuase the world isnt a very just place. he certainly deserves to be there. as for impeachment, i wouldnt be surprised to see impeachment hearings if the dems win the House.

regardless - i stand by my comments that its a failed presidency - and illegitimate to boot. i dont think history will be very kind. given that, a libby pardon will be barely a footnote.

lukery said...

thnx EW - i think that yuo are correct that a trial will be damaging - not least because of the cumulative effect of the ongoing drip-drip of scandal if we see more indictments in other cases. let's hope the public is sufficiently fed-up by then.

what chance a trial? plea? pre-emptive pardon?

kathleen said...

WakeUp;

I read Comey's letter ages ago when it was posted on citizenspook's site, so you needn't have troubled your self on my account. It does not contradict what I said Fitz could do.

The sound of one hand slapping.

Wake Up said...

Yes, it does contradict what you said. READ THEN THINK. Fitzgerald is currently limited to investigating offenses relating to the disclosure of Plame's identity and (by the "clarification") offensense relating to impeding the investigation into the disclosure.

He CAN'T pursue other offenses without receiving additional authority from the AG.