A Trump pardon for Scooter Libby?

Didn't George W. Bush already pardon Scooter Libby? No, Bush just commuted the 30-month prison sentence. Why is President Trump (reportedly) going to do what Bush did not?

I. Lewis Libby Jr., VP Dick Cheney's chief of staff, "was convicted of four felonies in 2007 for perjury before a grand jury, lying to F.B.I. investigators and obstruction of justice during an investigation into the disclosure of the work of Valerie Plame Wilson, a C.I.A. officer.... Mr. Libby was not charged with the leak itself and has long argued that his conviction rested on an innocent difference in memories between him and several witnesses, not an intent to deceive investigators."

Mr. Libby’s case has long been a cause for conservatives who maintained that he was a victim of a special prosecutor run amok, an argument that may have resonated with the president. Mr. Trump has repeatedly complained that the special counsel investigation into possible cooperation between his campaign and Russia in 2016 has gone too far and amounts to an unfair “witch hunt.”...

Mistrusting Mueller.

On Fox News Sunday this morning, first, there was Newt Gingrich:

CHRIS WALLACE: Speaker Gingrich, I want... to start with the - your tweet... "Republicans need to focus on closing down independent counsel because it clearly isn't independent." What's your reasoning and wouldn't that really look like an obstruction of justice?

NEWT GINGRICH: Well, first of all, look at what Comey said. Comey said, I deliberately leaked, through an intermediary, to create this counsel, who happens to be one of his closest friends. Then look at who Mueller's starting to hire. I mean these are people that, frankly, look - look to me like they're - they're setting up to go after Trump. They've - including people, by the way, who have been reprimanded for hiding from the defense information into major cases. I think this - this is going to be a witch hunt. I think that Comey himself, by his own testimony, tainted this particular process. You have a director of the FBI deliberately leaking in order to create a special counsel, who we're now supposed to believe is going to be this neutral figure. I think that's just nonsense....

Then, Karl Rove:

"You won’t believe this (or maybe you will). The LA Times claims that Scooter Libby 'leaked' the name of Valerie Plame."

"As we all know the leak came from Richard Armitage. I wonder how a mistake like that got by all those editors and fact checkers. The reference was in [an] article about the White House blowing the identity of the CIA station chief in Afghanistan."

George Bush "demanded a level of accountability and candor that this president has not."

Jennifer Rubin, on today's "Fox News Sunday":

I think the question is whether the president is ever going to order his people to cooperate. Lois Lerner took the Fifth and was then put on [administrative leave].... But [Obama] has not sent out an order as George Bush did, in the Valerie Plame decision, I do not want anyone in this administration to refuse to cooperate. That cost some people in his administration dearly. But no one took the Fifth in that case. Karl Rove testified, Scooter Libby testified. He demanded a level of accountability and candor that this president has not. And I think that whole hide the ball mentality, and the president's unwillingness to push his people forward to give a complete story is going to hurt him as well.

Victoria Toensing thinks Patrick Fitzgerald should can the emotional theatrics.

It's not right for a prosecutor to express his outrage, she says:

... Justice Department guidelines [say] that prior to trial a "prosecutor shall refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused." The prosecutor is permitted to "inform the public of the nature and extent" of the charges. In the vernacular of all of us who practice criminal law, that means the prosecutor may not go "beyond the four corners" -- the specific facts -- in the complaint or indictment...

Fitzgerald said what Blagojevich did "would make Lincoln roll over in his grave" and so forth. Clearly, inappropriate, according to Toensing, who seems to think Fitzgerald was emboldened by the adulation he received in the media over the way he treated Scooter Libby:

In his news conference in October 2005 announcing the indictment of Scooter Libby for obstruction of justice, he compared himself to an umpire who "gets sand thrown in his eyes." The umpire is "trying to figure what happened and somebody blocked" his view. With this statement, Mr. Fitzgerald made us all believe he could not find the person who leaked Valerie Plame's name as a CIA operative because of Mr. Libby. What we all now know is that Mr. Fitzgerald knew well before he ever started the investigation in January 2004 that Richard Armitage was the leaker and nothing Mr. Libby did or did not do threw sand in his eyes. In fact -- since there was no crime -- there was not even a game for the umpire to call.

In the Libby case, rather than suffer criticism, Mr. Fitzgerald became a media darling. And so in the Blagojevich case he returned to the microphone. Throughout the press conference about Gov. Blagojevich, Mr. Fitzgerald talked beyond the four corners of the complaint. He repeatedly characterized the conduct as "appalling." He opined that the governor "has taken us to a new low," while going on a "political corruption crime spree."

Let's get back to super-square prosecutors -- confined by the four corners.

"There you were, Mr. Elevate-Cronyism-Over-The-Rule-of-Law, sitting on a stool right behind me in that look-at-me Crayola yellow shirt..."

Maureen Dowd writes about my favorite '08 election topic: the problem of how to wring positive value out of Bill Clinton without getting any of his negative on Hillary. (TimesSelect link.)

Yes, did you see those photos of Bill and Hillary in Iowa, with him in that bright yellow shirt? We all know yellow is the color of hope, and Bill is the man from Hope, and Hillary's name begins with H but her image is not so much one of hope but of grim resignation. Obama is the candidate who embodies hope. (It's the main thing he does!) So, naturally they put a bright yellow shirt on Bill.

The end of Dowd's piece is a riff I think we'll hear her riff quite a few times: Bill will want to have trysts in the White House. How is the Hillary Clinton campaign going to try to keep people from thinking about that when they imagine Bill as the first First Gentleman? It looks like what they're doing is having him appear alongside her, acting out his role as proper husband. But, as Dowd notes, everyone is going to be scrutinizing him to see if it's genuine, and if everyone's looking at him, how will he not be too distracting?

“Sweetie,” [Hillary] says, smiling brightly. “Everything’s going really well. You abide by your five-minute limit and talk only about me. You’re still having a little trouble getting that adoring smile down. In fact, on our first stop you actually looked bored and fidgety while I was talking. But I think we solved that problem today by having you leave the stage as soon as I start speaking. If you can just refrain from looking so longingly at the microphone, our pas de deux will be perfect!”

CORRECTION: I called Bill's shirt a polo shirt. The shirt actually buttoned all the way down the front and had long sleeves. Which I recommend.

"That judicial decision was entirely political.... that was entirely improper, because judges are not allowed to act politically..."

That's how Alan Dershowitz writes about the D.C. Circuit panel that denied Libby release pending appeal. (The panel briefly noted that Libby failed to show he had a substantial issue for appeal.) Orin Kerr makes short work of Dershowitz:

I love Dershowitz's reason why the two-sentence order shows that these two very conservative judges ["Federalist Society favorite David Sentelle and solid conservative Karen LeCraft Henderson"] (together with Judge Tatel) acted out of partisan political animosity against Bush: Libby's arguments were so strong that it's the only explanation. Of course.

"The farce is over. It has no significance."

David Brooks recounts Plamegate. (TimesSelect link.) He calls Joe Wilson
a strutting little peacock," a "charming P.T. Barnum," and "an inveterate huckster," who only got attention because of Dick Cheney's "unfailing talent for vindictive self-destruction."

Scooter Libby emerged as the least absurd character in the entire drama, and yet he was the one who committed a crime. President Bush entered the stage like a character from another world, a world in which things make sense.

His decision to commute Libby’s sentence but not erase his conviction was exactly right. It punishes him for his perjury, but not for the phantasmagorical political farce that grew to surround him. It takes away his career, but not his family.

Bush spares Libby.

AP reports:

President Bush commuted the sentence of former aide I. Lewis "Scooter" Libby Monday, sparing him from a 2 1/2-year prison term in the CIA leak case.

Bush left intact a $250,000 fine and two years probation for Libby, according to a senior White House official, who spoke on condition of anonymity because the decision had not been announced.

Bush's move came hours after a federal appeals panel ruled Libby could not delay his prison term in the CIA leak case.

MORE: From the NYT:

“I respect the jury’s verdict,” Mr. Bush said. “But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend 30 months in prison.”

Like a pardon, a commutation is a form of clemency, granted to the president by the Constitution. But a pardon is an official act of forgiveness, whereas a commutation simply reduces the penalty, without making an official judgment of forgiveness.

Mr. Bush has been urged by some conservatives to grant Mr. Libby an outright pardon.

The president noted in his statement that that the decision to commute “leaves in place a harsh punishment for Mr. Libby.”

“The reputation he gained through his years of public service and professional work in the legal community is forever damaged,” Mr. Bush said. “His wife and young children have suffered immensely. He will remain on probation.”

AND: Earlier in the day, there was glee from some quarters when the Court of Appeals denied Libby's motion for release pending appeal. Firedoglake:

What this says to me is that Libby — or, as I like to call him Inmate 28301-016 — is headed to jail. Do not pass go. Do not collect anything.

[COMMENTS SECTION]

is the frog marching?...

BWAAAAAAAAAAAAAAAA-HAHAHAHAHAHAHAAA!!!....

Scooter Libby, convicted felon, is going to prison.

4th of July present. Barbeque and drinks all around…

The Fitz of July?

ADDED: If you want to know what I think, click the "Libby" label below. I've got nothing new to say.

Straight to prison for Libby?

The judge refused to allow him to remain free pending his appeal. What will Bush do, if he's lost the option of waiting until after the 2008 election to pardon Libby?

"These letters, once released, would be published on the Internet and their authors discussed, even mocked, by bloggers."

An incredibly banal line in an argument leads to a really padded NYT story. If the judge had caved to this argument against releasing the letters written in support of Scooter Libby -- by Donald Rumsfeld, John Bolton, Paul Wolfowitz, etc. -- there might have been something worth going on about. But he didn't, so...

"It was over in an instant. That career path was terminated."

Valerie Plame testifies.

UPDATE: The AP report is rather harsh:

She revealed little new information about the case, which sparked a federal investigation and brought perjury and obstruction of justice convictions of Vice President Dick Cheney's former top aide, I. Lewis "Scooter" Libby. No one has been charged with leaking her identity.

Still, Plame's appearance before the House Oversight and Government Reform Committee was a moment of political theater that dramatized Democrats' drive to use their control of Congress to expose what they see as White House efforts to intimidate dissenters....

News cameras whirred and spectators craned their necks to catch a glimpse of Plame as the blond former operative took her place alone at the witness table for her 90 minutes of testimony.

The one significant thing seems to be this:

Plame said she did not select her husband for a CIA fact-finding trip to Niger. Wilson later wrote in a newspaper column that his trip debunked the administration's prewar intelligence that Iraq was seeking to buy uranium from Africa.

"I did not recommend him. I did not suggest him. There was no nepotism involved. I did not have the authority," she said.

That conflicts with senior officials at the CIA and State Department, who testified during Libby's trial and told Congress that Plame recommended Wilson for the trip.

That's a conflict to be resolved. Is it anything or do the words "recommend" and "suggest" have some subtle meaning that will be revealed later, erasing the conflict? That's just mystifying.

"I'm pretty much going to stay out of it until the course -- the case has finally run its final -- the course it's going to take."

So says President Bush, responding to inquiries about whether he will pardon Scooter Libby. I know Bush often stumbles over his words -- and that the press loves to transcribe his remarks in especially stumbly-looking form -- but reading that quote, in that form, I hear the intention to hang back and hope the legal process spares him, but, if it comes to a point where there's nothing between Libby and prison, to pardon him.

Libby probably faces a prison sentence of 1 1/2 to three years for lying about his role in the disclosure of the identity of undercover CIA officer Valerie Plame, wife of war critic and former ambassador Joseph C. Wilson IV. But Libby could avoid jail time until after the 2008 presidential election through appeals, according to legal specialists -- timing that would make a pardon easier for Bush politically.

The path is so obvious. The path, the course, the case, the course...

"The time for a pardon is now."

The Wall Street Journal editorializes that Bush should pardon Libby:

In hindsight, the defense seems to have blundered by portraying Mr. Libby as the "fall guy" for others in the White House. That didn't do enough to rebut Mr. Fitzgerald's theory of the case, and so the jury seems to have decided that Mr. Libby must have been lying to protect something. The defense might have been better off taking on Mr. Fitzgerald for criminalizing political differences.

Since the defense made this decision, it's hard to see why Bush would be motivated to pardon him.

We believe [Bush] some personal responsibility for this conviction, especially for not policing the disputes and insubordination in his Administration that made this travesty possible.

I really don't understand how these asserted shortcomings connect to lying to a grand jury. He was convicted of perjury. Whatever you think of the Plame affair and the whole investigation, why should Bush condone that?

Minutes after we hear that their notes make the jurors seem confused, the verdict is in.

Here's the piece about the confused-sounding notes.

In their questions, which were released Tuesday morning, jurors seemed confused about what Special Prosecutor Patrick Fitzgerald was alleging.

Were prosecutors saying Libby knew that Plame worked for the CIA by the time of his FBI interview, jurors asked? Was he accused of lying to Cooper? Or does the government believe Libby's account of the Cooper conversation was untrue?

Walton tried to clarify things.

"To be clear, Mr. Libby is charged in Count Three with making false statements to the FBI about what was said during his July 12, 2003 conversation with Mr. Cooper," Walton wrote in response. "Mr. Libby is not charged with making a false statement to Mr. Cooper."

The reading of the verdict is scheduled for noon, Eastern Time.

UPDATE: I'm watching the CNN Pipeline, "Awaiting Libby Verdict." We overhear the journalists chatting as they mill around off camera. One guy stays in the frame. He's got a Burberry scarf all twirled around his neck and lower face. How cold is it in D.C. anyway? Oh, good Lord, he just put on a wool hat. Hmmm... I see it's 26°. "I did it. I'm guilty. I'd do it again." I hear someone -- not the scarf guy -- say. Ooh, I guess I'm "live-blogging" as they say.

"Guilty on 4 out of 5 counts," someone says. Are they predicting or hearing? They are hearing.

"'Humanly possible' is just a nebulous term, and I don't know exactly what it means."

The judge in the Libby case refuses to answer the question the jury asked. Remember, we puzzled over the question here. I wrote:

"Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event?"...

The question suggests that the jurors might be stumped about whether than can convict even though a juror keeps saying something like: But, of course, it's possible to forget anything. This would be an argument against convicting based on the evidence that demonstrated the importance of what Libby contends he forgot.

This question might mean that they are arguing about how high the standard of reasonable doubt really is. But there is also concern about the kind of proof that is required. Is it enough to simply show that the thing allegedly forgotten was extremely memorable, so that the jurors have to make an inference that he is therefore lying? Someone may be demanding that there should be evidence about the mechanism of forgetting.

I would think that the correct answer about the quantity and quality of the evidence needed would tend to make a jury that would ask the question that way likely to convict.

So, now I suppose I have to say that the judge's refusal to give an answer decreases the likelihood that the jury will convict. Do you agree?

"Is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event?"

So asked the jury in the Libby case, seeking a clarification from the judge about the meaning of reasonable doubt. They've been deliberating since February 22. Can anyone pick apart that question and tell what it means?

The question suggests that the jurors might be stumped about whether than can convict even though a juror keeps saying something like: But, of course, it's possible to forget anything. This would be an argument against convicting based on the evidence that demonstrated the importance of what Libby contends he forgot.

This question might mean that they are arguing about how high the standard of reasonable doubt really is. But there is also concern about the kind of proof that is required. Is it enough to simply show that the thing allegedly forgotten was extremely memorable, so that the jurors have to make an inference that he is therefore lying? Someone may be demanding that there should be evidence about the mechanism of forgetting.

I would think that the correct answer about the quantity and quality of the evidence needed would tend to make a jury that would ask the question that way likely to convict. Do you agree?

Here they are, with laptops, salami, and crackers...

It's the bloggers! They're covering the Libby trial.

All day long during the trial, one Firedoglake blogger is on duty to beam to the Web from the courthouse media room a rough, real-time transcript of the testimony...

With a yeasty mix of commentary, invective and inside jokes, Fire-doglake [sic] has seen its audience grow steadily during the trial, reaching 200,000 visitors and requiring an additional computer server on its busiest days — like Tuesday, with the revelation that Mr. Cheney would not appear....

Even as they exploit the newest technologies, the Libby trial bloggers are a throwback to a journalistic style of decades ago, when many reporters made no pretense of political neutrality. Compared with the sober, neutral drudges of the establishment press, the bloggers are class clowns and crusaders, satirists and scolds....

In the courthouse, the old- and new-media groups have mixed warily at times. Mainstream reporters have shushed the bloggers when their sarcastic comments on the testimony drowned out the audio feed.

I haven't had the time or inclination to follow the detailed blog coverage of the Libby trial, but I really would like to read some detailed coverage of the dynamic between the professional journalists and the bloggers who get to have so much more fun and show their emotions. Is the static between the two groups manifested only in the form of repressed, repressive shushing? The real reporters can't express much of what they feel about the bloggers, who must be irritating the hell out of them, can they? It wouldn't be professional. Plus, the bloggers would blog about it!

Well, Jane Hamsher is there, and she's the producer of "Natural Born Killers," a movie about media (and murder). I'd like to see the movie about life in that little courthouse media room. No, the script needn't depict bloody mayhem. I like a nice dark satire myself. Or a documentary (if it's not too late). But a romantic comedy would do just as well. Do you want the girl or the boy to be the blogger?

Things I read/watched but don't quite feel like blogging about this morning.

1. People kind of hate real estate agents.

2. Maybe you really don't have to save that much for your retirement.

3. A developmentally disabled guy reacts to opposition to a group home for the developmentally disabled.

4. An autistic woman demonstrates what she considers to be her language.

5. One night, back in the 60s, Bob Dylan did a call-in advice show on the radio.

6. Allen Shawn wrote a book about his phobias, but maybe he's not all that phobic.

7. A law and economics professor did a study that correlates earnings to skin tone.

8. Professor Bainbridge gives up on the "magazine" format for his blog.

9. The Swampland bloggers are squabbling.

10. Hillary Clinton needs to get some more votes in Iowa.

11. Powerline is at a conservative summit of some sort.

12. People don't like to shop at The Gap so much anymore.

13. Seminary students don't necessarily feel like becoming ministers.

14. An episcopal rector mocked parishioners and got in trouble.

15. An ugly incident upset people on a campus.

16. Elia behaved badly on "Top Chef."

17. People are talking about Libby and Rove and Cheney.

18. Bush is resigning himself to an Iraq resolution.

19. A guy had amnesia.

20. Angelina Jolie might be in a bad mood.

"Not going to protect one staffer and sacrifice the guy that was asked to stick his neck in the meat grinder because of the incompetence of others."

So read the note from Dick Cheney, translated for the jury by Scooter Libby's lawyer Ted Wells, paraphrased by Michael Isikoff:

The vice president was not going to allow Karl Rove to be protected and Libby to be sacrificed. Libby had stuck his neck “in the meat grinder” because he had been authorized by President Bush himself to talk to reporters and rebut what the White House considered unfair criticism by Wilson that the intelligence about Iraq had been “twisted.” And the “incompetence” Cheney was referring to was by the CIA which, he claimed, was responsible for whatever the White House had gotten wrong about Iraq’s purported weapons of mass destruction.

It looks like the trial is going to be quite a meat grinder. Per Isikoff:

Well’s argument was both brilliant and complex-and perhaps difficult for non-news hounds on the jury to follow. But it raised the prospect that the Libby trial will now turn into a horror show for the White House, forcing current and former top aides to testify against each other and revealing an administration that has been in turmoil over the Iraq war for more than three years.