As his time in the White House drew to a close, President George W. Bush authorized a final review of the case of Lewis Libby, the top aide to Vice President Dick Cheney convicted of perjury and obstruction of justice in the Valerie Plame-CIA leak affair. But in the end Bush, skeptical of pardons in general, determined not to repeat the scandal of the final days of Bill Clinton’s term in office, appalled by the number of last-minute requests for presidential clemency, and embarrassed by an incident in which he was forced to withdraw a pardon after just one day, decided against a pardon for Libby. In his new memoir, Decision Points, Bush calls denying Libby a pardon “the most emotional personnel decision I had to make” during eight years in office.
As Bush tells the story, Vice President Dick Cheney, a staunch advocate for Libby, “pressed his case that Scooter should be pardoned” in the final days of the administration. “Scooter was a decent man and dedicated public servant, and I understood the ramifications for his family,” Bush writes. “I asked two trusted lawyers to review the case from top to bottom, including the evidence presented at the trial for and against Scooter.” Bush says he also authorized the lawyers to meet with Libby to hear his side of the story. “After careful analysis, both lawyers told me thy could find no justification for overturning the jury’s verdict,” Bush concluded.
According to sources who asked not to be identified, the two lawyers were White House counsel Fred Fielding and James Sharp, who represented Bush personally in the CIA leak investigation. The men worked separately — in effect giving Bush two new opinions on the Libby matter.
Bush does not mention it in Decision Points, but Libby had asked the White House for a meeting with the president at which Libby could make the case for his innocence. The request was denied. Libby was directed instead to Fielding. The two discussed the case on the phone and also met for lunch at a downtown Washington restaurant.
Libby had already received clemency from the president in July 2007, when Bush commuted his 30-month prison term. At the time, there was a debate inside the White House over whether Bush should have instead granted Libby a full pardon. But Bush allowed Libby’s conviction to stand, writing in Decision Points that, “I decided it would send a bad message to pardon a former staff member convicted of obstructing justice, especially after I had instructed the staff to cooperate with the investigation.”
As the administration ended, Cheney renewed his push for a pardon. The lawyers conducted serious re-examinations of the matter. But from the standpoint of some of Libby’s advocates, the reviews were incomplete and thus didn’t give the president a full picture of the case.
Before Libby’s trial began, his legal team told the judge, Reggie Walton, of their intention to use the testimony of memory experts who would help explain Libby’s version of events. Libby also wanted access to classified documents showing the extent and gravity of the national-security issues he faced at the time of the CIA leak affair, to refresh his memory and support his contention that his mind was focused elsewhere. Walton refused both of Libby’s requests.
So Libby’s defense team believed the jury didn’t get the whole story. If there was going to be a White House review of the case, Libby hoped that it would include the evidence he had not been able to present at trial, as well as some of his own files he was not allowed to use to prepare his case. After all, reviewing evidence that has been excluded from trials is a common feature of the appeals process. But the lawyers who reviewed the case for Bush decided that to do anything other than review the trial record itself — that is, to carefully go over the testimony and evidence presented at trial — would go beyond their responsibility. So they did not consider Libby’s other evidence. Both lawyers concluded, in Bush’s words, that there was “no justification” to overturn the verdict.
So Libby didn’t get a pardon. Bush made up his mind after hearing the lawyers’ reviews, but Decision Points makes clear that the decision against clemency for Libby also came in the context of the president’s general unhappiness with the issue of pardons.
Bush was never particularly comfortable with the power to pardon. As governor of Texas, Bush granted just 18 pardons — fewer than any governor in the previous half-century. As president, he granted 189 pardons and 11 commutations, almost 100 fewer than his immediate predecessor.
Bush was appalled by the Clinton pardon scandal in January 2001. Then, as Bush was preparing to leave office, he had a pardon mess of his own. On December 23, 2008, acting on Fielding’s recommendation, Bush pardoned a real-estate developer named Isaac Toussie who had pleaded guilty to defrauding homebuyers in suburban New York. Then the White House discovered that Toussie’s father had, just a few months earlier, donated $28,500 to the Republican National Committee and $2,300 to the McCain presidential campaign, creating the appearance of a quid pro quo. In addition, the Justice Department pardon attorney had never approved a pardon for Toussie. In a highly unusual turn of events, a chagrined Bush withdrew the pardon a day after granting it.
Then came January 2009. “One of the biggest surprises of my presidency was the flood of pardon requests at the end,” Bush writes in Decision Points. “I could not believe the number of people who pulled me aside to suggest that a friend or former colleague deserved a pardon. At first I was frustrated. Then I was disgusted.” Bush said he came to believe that there was “massive injustice” in the system, in which those with a connection to the White House could have their pardon requests heard while people with no connections had to go through the laborious process of applying to the Justice Department’s pardon office.
It was Libby’s bad luck that that was the context in which his pardon request was considered. But Libby’s case was entirely different from the ones that upset the president. Libby wasn’t a friend of a friend who tried to pull strings in the White House. He was a high-ranking Bush administration official who had gotten in a jam in the service of the president and the implementation of Bush administration policies.
Libby’s case also involved more than the specific question considered at his trial. The CIA leak case was a highly politicized affair that left even the jurors in Libby’s trial wondering whether it was fair for him to be caught up in the legal tangle. “I will say there was a tremendous amount of sympathy for Mr. Libby on the jury,” one juror told the press after the trial. “It was said a number of times, ‘What are we doing with this guy here? Where’s Rove? Where are these other guys?’ I’m not saying we didn’t think Mr. Libby was guilty of the things we found him guilty of. It seemed like he was…the fall guy.” Given the highly political nature of the case, Bush could have pardoned Libby for political reasons, much like Bush’s father pardoned Caspar Weinberger and others in the Iran-contra matter.
Certainly Cheney believed Bush should have simply granted a straight-out pardon. When Bush told the vice president that there would be no pardon, Cheney reacted with an anger that Bush had not expected. “In eight years, I had never seen Dick like this, or even close to this,” Bush writes in Decision Points. “He stared at me with an intense look. ‘I can’t believe you’re going to leave a soldier on the battlefield,’ he said.” But that’s what the president did.
