Lomonaco on Libby

by Henry Farrell on July 3, 2007

“Brad De Long”:http://delong.typepad.com/sdj/2007/07/jeff-lomonaco-p.html posts an op-ed that my mate Jeff Lomonaco tried and failed to get published in the L.A. Times two weeks ago.

Why Bush will Commute Libby’s Sentence – but Not Pardon Him

With Judge Reggie Walton’s ruling that Scooter Libby must begin serving his prison sentence before the appeal of his convictions has run its course, the pressure from Libby’s supporters on President Bush to keep Libby out of prison is certain to intensify. President Bush, however, is unlikely to outright pardon Libby for a simple reason: to protect himself and Vice President Cheney.

If Bush were to pardon Libby, he and Vice President Cheney would give up the rationale they have used successfully for four years to avoid addressing their own roles in the case. And Libby’s trial made very clear that the President and Vice President played significant and troubling roles at the very heart of the case. It is for the very same reason that Bush is more likely to follow the advice some have offered him and commute Libby’s prison sentence, allowing Libby to remain free while he pursues legal vindication.

Libby was convicted on four counts of obstruction of justice, perjury and false statements in connection with the account he gave to investigators of how he learned the identify of CIA officer Valerie Plame Wilson and whether and how he disclosed that information to the press.

At the trial, the event that special prosecutor Patrick Fitzgerald said was at the heart of the case was Libby’s July 8, 2003 conversation with New York Times reporter Judith Miller at the St. Regis Hotel.

Both prosecution and defense agreed that this interview was of unusual, even singular nature and importance. Kept secret from others in the Office of the Vice President, most notably Cheney’s chief press aide Cathie Martin, who would normally handle interview logistics with reporters, both sides also agreed that Libby was acting at Cheney’s direction in talking with Miller. There was no dispute that, after Libby expressed reservations about leaking classified information to Miller, Cheney went to President Bush to get his authorization to leak information to the press to answer the searing criticisms Plame’s husband, Joe Wilson, had made of the administration’s case for war.

There was dispute, however, over the distinct purpose of what the defense called the “secret mission” Libby undertook at the behest of the President and Vice President. Libby and his defense team contended that it was to leak Miller portions of the October 2002 National Intelligence Estimate (NIE) on Iraqi WMD to bolster the administration’s case. And Libby categorically denied to the grand jury that the meeting had anything to do with Plame and her CIA identity.

However, the trial (and pretrial wrangling) revealed two problems with the defense’s depiction of Libby’s “NIE secret mission.”. First, the prosecution showed at trial, principally through Judith Miller’s testimony about the July 8 meeting backed up by her contemporaneous notes of it, that Libby did indeed disclose Plame’s CIA identity to her. It was also demonstrated that Cheney himself was focused on the idea that Wilson’s wife had sent him on his mission for the CIA at that very moment.

Second, it turns out that Libby was leaking portions of the NIE to other reporters, and doing so without the secrecy that surrounded his meeting with Miller, both before and after he leaked that information to Miller on July 8. Libby leaked the NIE to Bob Woodward in June, and – in press aide Cathie Martin’s presence – to David Sanger and Andrea Martin in July.

Together, those revelations undercut the notion that the NIE leak was the distinctive purpose of Libby’s secret mission, and instead make clear that at least part of the distinctive purpose was to leak Plame’s CIA identity to Miller in an effort to get the Times to publish that information.

That in turn raises troubling questions about Cheney and Bush’s role in sending Libby on his secret mission. Cheney’s hand-written notes on Wilson’s op-ed from two days earlier showed that he was focused on Wilson’s wife’s alleged role in her husband’s mission. Libby was acting at Cheney’s direction. How likely is it that Cheney did not direct Libby to disclose information about Plame to Miller?

And what was the substance of Cheney and Bush’s discussion shortly before Libby went on his secret mission to disclose previously-classified information to the press with the President’s permission? Published reports have indicated that Bush told Cheney something to the effect of “Get it out,” or “Let’s get this out,” referring to information that would damage the case Joe Wilson was making against the administration. Libby himself testified before the grand jury that Cheney told him something strikingly similar. That means that if Bush and Cheney discussed Wilson’s wife before the direction was given, the President was effectively authorizing his subordinate to disclose Plame’s CIA identity to the press.

It is precisely out of the desire to avoid such uncomfortable questions for himself and his vice president that President Bush is likely not to pardon Libby but to commute his sentence, or otherwise keep him out of prison without fully clearing him. That would enable Libby to remain free while he seeks legal vindication through the appeals process. But more importantly, it would enable Bush and Cheney to continue the strategy they have successfully pursued in deterring journalists seeking their explanations with claims that they shouldn’t comment on an ongoing legal proceeding. If Bush were to pardon Libby, he and Cheney would no longer have such a rationale for evading the press’ questions – nor would Libby be able to claim the right against self-incrimination to resist testifying before Congress about the role that Cheney and Bush played in directing his conduct.

But if Bush simply commutes Libby’s prison sentence without effectively vacating Libby’s conviction, the appeals process goes forward and Bush and Cheney continue to have their rationale for not answering the press’ questions. This strategy would also have the added benefit for Bush of eliminating the chance, however remote, that under the pressure of prison time away from his family and abandoned by the White House he served loyally, Libby himself would tell the true story of his own and others’ conduct.

However, in one sense, all of this is beside the point. There is no reason why the press and Congress should rest content with Bush and Cheney’s refusal to answer questions about their own role in what turned out to be an important episode in the history of the Bush administration. Regardless of what he does, the President should not be allowed to complete the cover up of his and Cheney’s role that Libby successfully conducted for four years, and for which he is now on the verge of being punished.

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Good Will Hinton
07.09.07 at 3:09 am



lambert strether 07.03.07 at 2:52 am

Here’s the White House phonebook so you can keep calling until you get through — and express your concerns in a civil and dignified fashion. Remember, our civil servants have important work to do!

The switchboard will probably be busy, busy, busy tomorrow, but with the directory in hand, you can keep calling ’til you get through.


JP Stormcrow 07.03.07 at 3:36 am

What sluggards, what cowards have I brought up in my court, who care nothing for their allegiance to their lord. Who will rid me of this meddlesome CIA agent and her husband.

That was Cheney. Bush more along the lines of:

I call upon all nations of my staff to do everything they can to stop these terrorist war support killers.
Now, watch this drive.


Jim Harrison 07.03.07 at 4:56 am

The worst thing about this whole affair is not what it means about Bush’s regime, bad as that is. It’s the precedent. We’re showing the even worse people who will follow in Bush’s footsteps that they can get away with anything. We’re demonstrating to any would-be domestic dictator waiting for their chance that nobody is willing to defend the constitution or our political traditions with more than words and gestures. Bush will pay no real price for his obstruction of justice anymore than he will pay any price for violating the wire tapping laws, suspending habeas corpus, or turning the DOJ into an arm of the Republican party.

If we really cared about the future of the country, we’d be insisting that Bush and his people not only lose their power but spend most of the rest of their lives in prison. The fact that this suggestion will strike everybody as overwrought or impractical simply shows that we’ve lost the will to preserve our democracy. After all, what is required is not insurrection, but simply impeachment and, if necessary, the cut off of funds to the administration, all perfectly constitutional steps.


ejh 07.03.07 at 9:53 am

Isn’t it normal to wait before one is about to leave office before pardoning one’s crooked friends and associates?


Michael Dietz 07.03.07 at 1:27 pm

Yes, except that in this case one’s crooked friend/associate may very well have lots of things to say, unflattering things he might be inclined to say were his ass to find itself parked for the duration in a federal pen. Can’t let that happen.


mds 07.03.07 at 6:44 pm

We’re demonstrating to any would-be domestic dictator waiting for their chance

“Paging Mr. Giuliani. Would Mr. Giuliani please pick up a white courtesy phone.”


Dave 07.05.07 at 4:01 am

Plain and simple as noted in the article. Libby’s got the goods on what’s been happening over the years in the Bush administration. Nobody connected to Bush wants to anwser questions about what Libby knew and didn’t know.


DAS 07.05.07 at 11:04 pm

Hmmm … this guy called something big like this? Hmmm … a while back instituting performance metrics was the bees knees according to everybody who was anybody. Schools, etc., were to be evaluated, and evaluated and measured and measured. Everybody was a gaga over applying metrics everywhere … except, of course, to themselves.

And now we know why. If pundits were judged according to how well they actually predicted things (and such), then Jeff Lomonaco would be raking in the dough as the most applauded pundit evah and the Washington Cocktail Weenie crowd would be on the street hawking Eau de Fred Thomspon knock-off toilet water to make ends meet.

So when will the marketplace of ideas actually start rewarding those who got it right? I guess about the same time any other marketplace does such a good job. Meanwhile, how’s that Iraq war, that all serious people supported otherwise they wouldn’t be serious, working out?

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