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Quin-Essential Cases: Scooter Libby should be pardoned on the merits

There is no good reason for President George W. Bush to have waited so long to pardon former vice presidential aide Lewis “Scooter” Libby. For Libby still to be twisting in the wind is unconscionable.

Despite Libby’s conviction, there is ample reason to believe him innocent of perjury, and possibly not even guilty of a bad memory. Even if his memory was indeed faulty, the evidence of any intent to deceive was highly dubious. Meanwhile, he caused no harm to the overall investigation, no harm to the country, nor even any harm to the high-flying Joe Wilson/Valerie Plame couple whose own mendacity catalyzed the whole charade of a trial.

Bush has one week left to pardon this talented, long-time public servant. He should do so immediately – while his administration is still around to explain the pardon – not in a Clintonesque, final-day decision that looks like a suspicious, midnight deal.

(The only defensible alternative would be the unlikely scenario of Bush reaching a quiet but firm agreement with incoming president Barack Obama to pardon Libby in Obama’s first few weeks in office – which would benefit Libby by showing the pardon was based on merit apart from inside-administration politics.)

Without getting lost in the weeds of prosecutor Patrick Fitzgerald’s obsessive persecution of Libby, we need merely consider one legal concept and a few key facts to understand why Libby deserves a pardon.

The concept is “mens rea,” roughly translated from Latin as “guilty mind” (or a “mindset” involving “intent”). Simply put, Libby had no intention of lying and no reason to do so.

Recall, if you will, that Fitzgerald’s case revolved around the “leak” of Valerie Plame’s employment by the CIA. Libby had no reason to lie about the leak itself, because neither he, nor his boss, Vice President Dick Cheney, was the leaker. (The State Department’s Richard Armitage was.) But Libby was nevertheless accused of lying about his conversations with reporters Matthew Cooper of TIME and Judith Miller of The New York Times.

He was further accused of lying about his conversation with Tim Russert of NBC’s Meet the Press. The reason he supposedly lied about his talk with Russert was to hide his alleged lies about his discussions with Miller and Cooper the next day.

But Libby was acquitted of lying about Miller and Cooper. Yet, even though he would have had no reason – zip, zero, nada – to lie about Russert if he didn’t lie about the others, he was convicted of lying about Russert anyway.

On its face, that makes no sense. For the supposed lie about Russert, there was no mens rea, which is a necessary element of perjury.

The jury convicted Libby anyway, presumably because his story was so strongly disputed by Russert (now lamentably deceased), who enjoyed a well-earned reputation for integrity.

But if Libby had no reason to lie, what actually happened? Two possibilities, both eminently plausible, suggest themselves. The first is that Libby’s memory was faulty.

Libby also spoke to famous Washington Post editor Bob Woodward shortly before his conversations with Miller and Cooper. And Woodward says his own notes indicate he may well have told Libby the information Libby ascribed to Russert. It would be easy, many months later, for Libby to confuse the Russert conversation with that involving Woodward.

Another possibility exists. Russert’s own memory could have been mistaken. There was precedent for that. In 2004, Russert flatly and quite publicly denied having made a certain, angry call to a Buffalo News reporter, only to acknowledge later that he made the call but had forgotten it.

The jury, therefore, wrongly treated as a test of two men’s respective truthfulness what was merely a test of their memory, about a factoid that was no longer important to the overall case. The jury was wrong because, with mens rea removed, Libby’s testimony was not perjury, even if it had been in error.

Libby enjoyed a reputation as a straight shooter through an entire career in various branches of government. He does not deserve to forever be branded a felon, unable to practice law or to vote. To not pardon him would be a travesty, and a permanent blot on Bush’s reputation for political courage.

Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at qhillyer@gmail.com.