LOS ANGELES –
At first I thought Democrats were kidding when the press releases started flying in the wake of the I. Lewis Libby verdict calling on the president not to pardon the vice president’s former chief of staff. Democrats were just looking for a hook to keep the story alive, I figured.
As if the president is about to pardon this guy any time soon....
Then I started reading what conservatives were writing and saying, and I realized it was no joke. There really is a campaign afoot to pardon Libby. Show people the tip of the iceberg and what do you get?
“One simple signature by President Bush and this all goes away,” respected Republican consultant (and my sometimes Fox News sparring partner) Rich Galen writes in his blog, Mullings. “The president should do the right thing, issue a pardon this week and have done with it.”
According to Galen, “The press corps got its fill of the kind of he-said-she-said that goes on between senior White House aides and senior Washington Newslebrities; the prosecution got its conviction; Libby had his day in court.”
So why not just wipe the slate clean?
There are, it seems to me, any number of reasons why not. The argument that Scooter Libby shouldn’t be punished for lying when the underlying conduct he was talking (or not) about was not in fact a crime runs head into the argument that Bill Clinton shouldn’t be impeached for lying when the underlying conduct he was talking about was his sex life, for Goodness sake.
You can’t excuse Libby in order to get back to attacking one of the Clintons that much faster; distinguishing the lie from what you lied about was an argument that conservatives perfected with Clinton, and that comes back to bite them with Libby.
Do prosecutors overuse this particular move, using it to create crimes where none would otherwise exist? Absolutely. But the Libby case, unlike the Clinton claim, involved a possible serious breach of security, not an inappropriate but consensual sexual encounter. At least there was a crime to investigate.
Nor does Libby meet any of the regulatory standards for getting a pardon, should those be considered applicable. He hasn’t completed the appellate process, much less waited five years after serving his term, the way the rules suggest. By the usual standards, it is way too soon.
There is also the tricky matter of remorse. The pardon power is not viewed as a mean for the Executive to correct the mistakes of the judiciary. It is not a final appeal.
The regulations go into some detail on this matter: “The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner's attempt to minimize or rationalize culpability does not advance the case for pardon.”
I’m sure Scooter Libby is very remorseful about telling the grand jury that he learned about Valerie Plame from Tim Russert, instead of telling them that he couldn’t remember or didn’t know who told him her name. No doubt. Had he been shrewder, he would not have turned a non-crime into one.
But the reason he was trying to cover up was because there was something to hide. He knew that, and that’s why he stands convicted. The people who talked to him knew that, which is why everyone was inclined to hide behind the first amendment.
Real remorse in this case would require regret not only for the mistake of misleading the FBI and the grand jury, but for what they were being misled about. Neither Mr. Libby nor any of his bosses have yet to show remorse for much when it comes to the selling of the war in Iraq, or the “hit jobs” conducted on those who dared to challenge their version.
That should be a reason to deny a pardon, but in this case, it may be the most compelling consideration for granting one.
Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California. She was previously Professor of Law at Harvard Law School and was the first woman President of the Harvard Law Review. She is a columnist for Creators Syndicate and has written for USA Today and the Los Angeles Times.
Estrich's books include the just published “Soulless,” “The Case for Hillary Clinton,” “How to Get Into Law School,” “Sex & Power,” “Real Rape,” “Getting Away with Murder: How Politics Is Destroying the Criminal Justice System,” and "Making the Case for Yourself: A Diet Book for Smart Women.”
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel, in addition to writing the “Blue Streak” column for foxnews.com.