10/31/2005 05:40 pm ET | Updated May 25, 2011

Pardons and Prosecutions

Steve Schlesinger's post, the comments on it, and many of the comments on my Sunday post agree that Libby must have strong grounds for belief that he will be pardoned. Schlesinger suggests that Libby may have already received direct assurances, in the form of a "secret handshake" – indicating, if true, that the criminal conspiracy to obstruct justice extends straight through to Cheney and also possibly to Bush, from whom the pardon would eventually have to come. But there needn't be an overt conspiracy. As Steve and others point out, there is the matter of family precedent, in the 1992 pardons of Weinberger, Abrams, and other figures from the Iran-Contra scandal.

But my post was intended to pose a slightly different question. Even if assurances had been given, if you were Libby would you rely on them? Timing is important here, not just because there is time for Libby to spend a long year or two in jail before the clock runs out on the Bush administration and the day of pardons comes around. There is also plenty of time for other human and political events to occur, even while the case is on appeal. Cheney could have a career-ending cardiac event at any time. Or a career-ending political event. And with Cheney gone, could Libby rely on Bush? Perhaps he has total faith that he can. But if you were working for Bush, would you? Bush is known to demand total loyalty from his staff. But does he reciprocate? You might want to check with Paul O'Neill, just for example, on that question.

There is the interesting complicating factor that in the meantime, Cheney may be called as a witness in Libby's trial. If so, will he support Libby's claim that he (Libby) got the information on Plame's identity from Tim Russert–a claim for which no evidence exists and that Russert has denied under oath? Or will he confirm the evidence that the prosecutor already has, namely that Libby got the information, in part, from Cheney himself? (There is nothing inherently culpable in Cheney giving this information to Libby, though it may have been improper, and it may have been culpable; it does not appear that Cheney necessarily incurs a legal liability by admitting it.) In other words, it seems that Cheney's choice is to perjure himself, transparently, in Libby's defense, or to speak the truth and contribute to the prosecution. Could this, possibly, affect Libby's view of Cheney?

Thinking further, suppose that Cheney was, in point of fact, the lead actor in a conspiracy to destroy Valerie Plame. In that case, if you were Cheney, what claim would you make about your intent, in sharing the information about her identity with Libby? Presumably, under that assumption, you would make a false claim. But then, how can you be sure that the details will tally with those the prosecutor might get, or might have already gotten, from other sources, including, possibly, from Libby himself?

And if you were Libby, thinking about this problem, would you be confident that Cheney knows how to get his testimony just right? Because, if he doesn't, then his chances of being around on pardon day go down, do they not?

My point is again very simple: the power of the prosecutor should not be underestimated. Particularly when his method, as already demonstrated in the indictment, is to reduce the charge to the most plain and simple elements, supported by overwhelming evidence. And when, as we have seen, he has already successfully breached the first line of defenses thrown in his path.