WASHINGTON – The sentence imposed Tuesday on former White House aide Lewis “Scooter” Libby put President Bush in the position of making a decision he has tried to avoid for months: trigger a fresh political storm by pardoning a convicted perjurer or let one of the early architects of his administration head to prison.
Libby, Vice President Dick Cheney’s former chief of staff, was sentenced to 2 1/2 years in prison Tuesday for lying and obstructing the CIA leak investigation.
Libby asked for leniency, but a federal judge said he would not reward someone who hindered the investigation into the exposure of a CIA operative. The operative’s husband had accused the administration of twisting intelligence to justify the Iraq war.
No date was immediately set for Libby to report to prison.
The prospect of a pardon has become so sensitive inside the West Wing that top aides have been kept out of the loop and even Bush friends have been told not to bring it up with the president. In any debate, officials expect Cheney to favor a pardon, while other aides worry about the political consequences of stepping into a case stemming from the origins of the Iraq war and renewing questions about the truthfulness of the Bush administration.
The White House publicly sought to defer the matter again Tuesday, saying Bush is “not going to intervene” for now. But U.S. District Judge Reggie Walton indicated he is not inclined to let Libby remain free pending appeals, which means the issue could confront Bush in a matter of weeks when, barring a judicial change of heart, Libby will have to trade his business suit for prison garb. Republicans inside and outside the administration said that would be the moment when Bush has to decide.
“Obviously, there’d be a significant political price to pay,” said William Barr, who as attorney general to President George H.W. Bush remembers the controversy raised by last-minute pardons for several Iran-contra figures in 1992. “I personally am very sympathetic to Scooter Libby. But it would be a tough call to do it at this stage.”
At the same time, some White House advisers said the president’s political troubles are already so deep that a pardon might not be so damaging. Those most upset by the CIA leak case that spawned the Libby conviction already oppose Bush, they noted. “You can’t hang a man twice for the same crime,” a Republican close to the White House said.
Libby was convicted in March of perjury and obstruction of justice for lying to investigators about his conversations with reporters about CIA official Valerie Plame.
Libby’s attorneys noted that Special Prosecutor Patrick Fitzgerald, who spent years investigating the case, never charged anyone with leaking Plame’s identity, including former Deputy Secretary of State Richard Armitage or White House political adviser Karl Rove, the original sources of the leak.
“No one was ever charged. Nobody ever pleaded guilty,” attorney William Jeffress said. “The government did not establish the existence of an offense.”
But Walton, a Bush nominee who served in the White House as deputy drug director under Bush’s father, said public officials in particular had a duty to testify honestly. His voice raising at times, he said the leak investigation was a serious one and obstructing it deserved a serious penalty.
“It’s one thing if you obstruct a petty larceny. It’s another thing if you obstruct a murder investigation,” he said.
Libby did not apologize and has maintained his innocence.
“It is respectfully my hope that the court will consider, along with the jury verdict, my whole life,” he said in brief remarks in court before the sentencing, his first public statement about the case since his indictment in 2005.
The issue comes at a time when the Bush administration already has been trying to deflect allegations of cronyism stemming from the dismissals of U.S. attorneys.
But Walton’s decision to sentence Libby to 2 1/2 years refocused attention on the administration and touched off a new debate. Libby supporters kicked off a new bid to lobby the White House for a pardon. Barely an hour after the sentence was handed down, the conservative National Review posted an editorial on its Web site headlined, “Pardon Him.” The magazine argued Libby had been “found guilty of process crimes.”
The Weekly Standard followed with a cutting piece accusing Bush of abandoning Libby: “So much for loyalty, or decency, or courage. For President Bush, loyalty is apparently a one-way street; decency is something he’s for as long as he doesn’t have to take any risks in its behalf; and courage – well, that’s nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?”
If Bush were to decide to pardon Libby, he would have to short-circuit the normal process. Under Justice Department guidelines, Libby would not qualify for a pardon. The guidelines require applicants to wait at least five years after being released from prison. The review process after an application typically can take two years before a decision. During more than six years in office, Bush has pardoned just 113 people, nearly a modern low, and never anyone who had not yet completed his sentence. He has commuted three sentences.
But the president’s pardon power under Article II of the Constitution is essentially unrestricted and he can ignore the guidelines if he chooses. Other presidents who did so stirred furors, most prominently when Gerald Ford pardoned his Watergate-stained predecessor, Richard Nixon, when the first Bush issued his Iran-contra pardons, and when Bill Clinton in his last hours in office pardoned financier Marc Rich, Whitewater figure Susan McDougal, his brother Roger Clinton and scores of others.
The current president has not ruled out a Libby pardon but tried to put off discussion of it. Informed of the sentence while traveling in Europe on Tuesday, Bush sent out a spokeswoman to say he “felt terrible for the family” but would wait to see what happens when Walton holds a hearing next week on whether Libby goes to prison during his appeal. “The president has not intervened so far in this or any other criminal matter, and so he is going to decline to do so now as well,” Dana Perino told reporters aboard Air Force One.
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