“He is also to be authorized to grant `reprieves and pardons for offenses against the United States, except in cases of impeachment Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.” Alexander Hamilton, Federalist No. 74, March 25, 1788.
The question is before us is whether the President should pardon or grant a reprieve to Lewis “Scooter” Libby. Libby was chief of staff to Vice-President Dick Cheney. Libby was recently convicted of perjury and obstruction of justice for his grand jury testimony and interviews with federal investigators surrounding the Valerie Plame affair.
Valerie Plame was a CIA employee who suggested that her husband Joseph Wilson be dispatched to Africa to check on reports of Iraqi interest in purchasing uranium. Despite the fact that he reported such interest in his oral report to the CIA, Wilson criticized President Bushs assertion that Iraq was seeking uranium. The criticism was expressed in an op-ed piece in the New York Times. Of course, these claims were disputed by the Administration. During the that period, the fact the Valerie Plame worked for the CIA was revealed to and reported, almost incidentally, in a column by Robert Novak.
The revelation was first thought to be a scandal since revealing the name of covert CIA agent is illegal. In response to this Special Counsel Patrick Fitzgerald was tasked with finding out whether who revealed her name and to prosecute any guilty parties. There were a few cool heads at the time. Victoria Toensing, one of the lawyers who wrote the legislation, argued under the terms of the legislation Valerie Plame was not a covert agent and the release of her name was no crime. This was a conclusion that Fitzgerald implicitly reached because he never charged anyone with this crime.
It is reasonable to question the judgment of the prosecutor in spending time trolling for perjury submerged in inconsistencies in testimony. Even before Fitzgerald was named Special Counsel, federal agents had determined that Richard Armitage, Deputy Secretary of State, was the source of the fact the Valerie Plame helped secure the Africa trip to Africa for her husband. Apparently, Armitage was just gossiping. At the point that Fitzgerald knew the source of the leak and the fact that the leak was not a crime, the investigation should have ended. A conventional prosecutor with many crimes to pursue probably would have moved on. A special counselor does not look good coming up empty handed so there is always the temptation for prosecutor indiscretion.
Nonetheless, even if we posit that the Special Counsel acted improperly in using the grand jury to create crimes where none existed, this does not excuse perjury on the part of Libby or anyone else. Libby was convicted by a jury of his peers, so must assume his guilt at this point. Conservatives who argued that President Clinton’s perjury was unacceptable cannot not now turn around and excuse perjury on the part of Libby.
However, the sentence meted out to Libby of 30 months in jail and a $250,000 fine seems excessive given the context. Clinton plea bargained a deal with an agreement not to practice law for five years (probably not his intention anyways) and only $25,000 fine. Clintons National Security Advisor Sandy Berger, deliberately absconded with highly secret documents and was sentenced to community service and to a $50,000 fine.
President Bush should reduce Libby’s sentence to something similar to Bergers sentence and not grant a pardon. Libby still maintains his innocence and pursuing appeals. This reprieve would keep Libby out of jail and permit him to still pursue his appeal.