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The Progressive Case for a Libby Pardon

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All the views expressed in this post are those of the author and not of any client of his firm.

Until a very short while ago, few had heard of Scooter Libby. Today, still not a celebrity with the larger public, he carries on his shoulders the full weight of charges against the administration in the Wilson/Plame matter. Convicted of lying, he is not really reviled for that. It is his hand in a plot that he has been asked to answer for: a plot against war critics who have taken the administration to task for the mishandling, mismanagement and misrepresentation of war intelligence. But Libby, the only one in the law's grasp, is the only one to pay the price.

Bush's opposition has braced for a pardon and its rage at the prospect is building. To Bush's antagonists on left, a pardon would be only another act in the conspiracy -- a further cover-up, a way of getting away with it. But this is the entirely wrong way of seeing things. A pardon is just what Bush's opponents should want.

A pardon brings the president into the heart of the case. It compels him to do what he has so far managed to avoid: accept in some way responsibility for the conduct of his Administration in communicating with the public about national security and in its treatment of dissent. If the pardon would be politically explosive, then this is what the administration's critics, hungering for accountability, have been waiting for. The case against this government on the larger charge of abuse of power is diminished, made even laughable, by resolving into a 30-month sentence for an obscure figure named Libby.

From the beginning, the president has had his reasons for encouraging the Wilson/Plame case along, keeping a lofty distance, until it all came crashing down on Libby. Mr. Bush announced that he would tolerate no law-breaking; he wished nothing less than a full and independent investigation. His Deputy Attorney General selected a tough and independent prosecutor for the mission. Whatever wrongdoing occurred, however much of it was detected, it could have nothing to do with him. If there was criminal conduct, it was rogue criminal conduct; if it was a benefit to his administration, it was not a benefit he courted, and it was not provided in a manner he authorized.

So Bush kept clear of the case, as it had nothing at all to do with him. And the case that unfolded, in the natural course, offered additional benefits to his administration, more consequential in the long run than the sniping at Plame and Wilson. Special Prosecutor Fitzgerald, doing the job he was assigned, chased resolutely and relentlessly every bit of evidence from any source. It took him to the press, and there he made an enduring mark, squeezing prominent journalists and dispatching to jail the one who held out longer than the others. A government in war-time, criticized for hounding dissenters and for hostility to dissent, could enjoy the spectacle of a national security investigation and prosecution fully compatible with those aims. And this advance in the weaponry available to the National Security State is one that the administration could point to as proof of its commitment to the rule of law.

A presidential pardon is finally an intervention by the President, his emergence from behind the thick curtain he has dropped between him and these momentous events involving his government, his policy, his Vice President. By pardoning Libby, he acknowledges that Libby is not really the one to confront the administration's accusers. Now the president, the true party in interest, would confront them, which is what his opponents have demanded all along.

Nothing in the nature of the pardon renders it inappropriate to these purposes. The issuance of a presidential pardon, not reserved for miscarriages of justice, has historically also served political functions -- to redirect policy, to send a message, to associate the president with a cause or position. Gerald Ford radically altered the nation's politics with the pardon of Richard Nixon. Credited with an act of national healing, he also spared the man who had selected him for the vice presidency and whose prosecution might have haunted his party even more than the act of pardoning him. He reshaped with a stroke of the pen the national agenda: this pardon, he told Congress, was meant to "change our national focus." George W. Bush's father expressed his contempt for the opposition's "criminalization" of policy differences, with a batch of pardons for high Republican officials convicted in the Iran-Contra scandals .

In each of these cases, the president who issued the pardons was, by determining the course of a criminal matter, redefining its political significance and acquiring in it a personal and lasting place. By pardoning Libby, Bush will have done the same. Presidential fingerprints, so far nowhere to be found in this case, will surface at last, indelibly, on the pardon.

Libby is said to be unpardonable because the act of lying, a subversion of the legal process, cannot go unpunished. Yet this is mere glibness. President Clinton's pardons included one granted to a farmer convicted of perjury in a bankruptcy proceeding. The lie was not in doubt but other circumstances carried the case for absolution. Is the difference one of station in life, the difference between the Chief of Staff to the Vice President and a hog farmer? Progressives can't mean this, having rightly refused to accept that President Clinton's own misleading testimony in legal proceedings outweighed other considerations favoring the preservation of his presidency.

Progressives are not so much appalled by Libby's lies as they are frustrated that this is all they have: Libby and only Libby. Left with only this, they want this small victory unspoiled. They want someone to pay.

But if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions.

For Libby, the pardon does not come without cost; for in accepting the pardon, he effectively accepts rather than continues to contest his guilt. "A pardon", one court has stated, "proceeds not upon the theory of innocence, but implies guilt." And if Libby does not serve time, 30 months exacted from the Fall Guy, how much should anyone really care? Libby is not going to flip; he is not going to rat out Dick Cheney. He will just be the Fall Guy, the minor actor in a play that, if Bush never takes the stage with a pardon, closes soon to disappointing reviews.