A Libby Pardon for Christmas?

October 5, 2006

A Libby Pardon for Christmas?
by Elizabeth de la Vega and Tom Engelhardt

Sometimes, the proximate cause of an unraveling, even an implosion, may catch everyone by surprise. This week the “tipping point” (to borrow a Bush administration phrase from the Iraq War) for the possible unraveling of Republican control of Congress may be the roiling, boiling Mark Foley affair with its sexually explicit e-mails and instant messages to teenage House pages, which, in the pattern of any such scandal, has surely not yet fully emerged into view. On Tuesday, the editorial page of the right-wing Washington Times called on House Speaker Dennis Hastert to resign “at once,” while the Washington Post reported “intense anger among social conservative activists in Washington yesterday.” Meanwhile, news about how much the Republican leadership (and the FBI) knew about Foley’s activities without taking any action continues to emerge, and the Democrats are clearly about to press their sudden advantage in undoubtedly below-the-belt campaign ads. As Perry Bacon Jr. of Time magazine puts it, a potentially expanding “‘throw the bums’ out mentality … could result in a Democratic win in the House” – and, with that, the power to investigate the Bush administration would fall into far less friendly hands at a moment when the landscape is chock-a-block full of investigative possibilities.

In just the last couple of weeks, it was learned that lobbyist
Jack Abramoff may have practically camped
out
in Karl Rove’s office; that Henry Kissinger had quietly
returned to the Oval Office to re-fight the Vietnam War; that the
complete American intelligence community agreed, in a National
intelligence Estimate
, that Iraq was a veritable machine for
creating terrorists; that (according to the Washington Post‘s
Bob Woodward, who created laudatory portraits of the president when
things were going so well) George W. Bush (gasp!) actually lied
to the American people about the situation in Iraq; that he was also
determined to make sure American troops remained mired in Iraq even
if only
his wife
and dog supported his policy; that his former national
security adviser and present secretary of state may have shrugged
off a meeting
with the top two people in the CIA in July 2001 warning about an
Osama bin Laden attack; and finally that Congress passed a bill
essentially giving the president and the CIA a get-out-of-jail-free
card for illegal past acts in the thriving field of torture and
illegal detention.

In such a scandal-ridden, edge-of-election moment in Washington,
it’s easy enough to let older scandals slip from sight. Right now,
that’s the case with Special Counsel Patrick Fitzgerald’s upcoming
prosecution of I. Lewis Libby, Vice President Cheney’s former
right-hand man. As it happens, however, even if we’ve taken our eyes
off the case (and the set of scandals behind it), key administration
figures haven’t for a simple reason that former federal prosecutor
Elizabeth de la Vega explains in striking fashion below. After all,
the Libby case, when laid out in court, would threaten to unravel
the vice president’s command post in full view of the public. So
take a moment off from the scandals of the present to consider a
scandal of the past that, one way or another, is guaranteed to be a
major scandal of the near future. Tom

Pardon Me?

Scooter Libby’s trial strategy
by Elizabeth de la Vega

Maybe you are thinking that Special
Counsel Patrick Fitzgerald’s case against Scooter Libby is
yesterday’s news, or, worse, in its last throes. Think again.

It has recently come to my attention that the title of the
Ukrainian national anthem is “Ukraine Is Not Dead Yet.” (Seriously,
it is.) The same could be said of Special Counsel Patrick
Fitzgerald’s ongoing prosecution of Vice President Cheney’s former
aide I. Lewis “Scooter” Libby: The case – involving charges of
perjury, false statements, and obstruction of justice in connection
with Fitzgerald’s investigation into the unauthorized disclosure of
the identity of former Ambassador Joseph Wilson’s wife, Valerie
Plame, as a CIA operative – is not dead yet, nor is it even ailing.

U.S. v. Libby Is Alive and Well

U.S. v. Libby is not only alive and well; it is also set
to begin on Jan. 16, 2007, just three and a half months from now. In
June, the defense requested a one-month continuance, but U.S.
District Judge Reggie Walton responded by granting a mere one-week
extension and reiterating that pretrial filings had to be submitted
by both parties in mid-November 2006.

Indeed, a review of court documents makes it abundantly clear
that Judge Reggie Walton has no intention of letting this matter
laze around on his docket. Filings in the case make it no less clear
that Libby’s opportunities to make the charges go away by exercising
his rights within the judicial system are dwindling rapidly. Early
on, Walton ruled that any motions to dismiss that the defendant
wished to bring should be filed by Feb. 24, 2006. Libby’s attorneys
filed one such motion and it was denied.

In that motion, Libby’s defense team argued that the case should
be dismissed because it was “obtained, approved, and signed by an
official – Special Counsel Patrick J. Fitzgerald – who was appointed
and exercised his powers” in violation of the Constitution. Without
getting too technical, the defense argument was that Fitzgerald was
taking actions that could only be taken by a presidential appointee.
This was essentially a more lawyerly version of accusations the
Republican National Committee (directly tied into the Bush
administration’s political arm, the Office of Strategic Initiatives)
had begun hurling even before Libby’s indictment. In various veiled
– and sometimes not so veiled – attacks,
they argued that Patrick Fitzgerald was “overzealous” and had
exceeded his authority by bringing perjury and false-statements
charges when he was, according to the Libby defense team and the
RNC, only authorized to investigate the possible unauthorized
disclosure of a CIA officer.

Not surprisingly, Judge Walton was unimpressed with Libby’s
motion. He ruled that it was perfectly appropriate and prudent for
the Department of Justice to appoint someone outside the hierarchy
of the Executive Branch when its highest officials were under
investigation. He also said that Fitzgerald’s letters of authority
“unambiguously” authorized him to investigate and prosecute not only
the disclosure of a CIA employee’s identity, but also “any
violations of federal law that arise during the course of that
investigation.”

Hoping That Graymail Will Be a Silver Bullet

Libby does, however, have one other hope for dismissal of the
charges prior to trial: graymail – a defense tactic so named
because it is a subtle form of blackmail that forces a prosecutor to
choose between disclosing highly classified information and
continuing to proceed with a case. Such a tactic can be particularly
effective when, as in this case, White House officials, who guard
the classification system, would be as happy as clams if the whole
case went away.

This is what has happened so far: In March, based on Libby’s
expressed intent to argue that he made false statements during the
investigation because he was preoccupied with national security
matters, Judge Walton ordered the government to produce – for
certain weeks in 2003 and 2004 – a list of topics covered, and
inquiries made by Libby, in his morning intelligence briefings. In
effect, Judge Walton ordered the government to turn over tables of
contents; he did not order it to disclose any substance contained
within a classified document.

On Sept. 28, Judge Walton began conducting closed hearings
required by the Classified Information Procedures Act – called CIPA
– to determine what parts of these topic lists would be admissible
at trial. If Walton rules that certain information is admissible,
and the Special Counsel does not want to disclose it, Fitzgerald may
offer either to provide a statement admitting the facts that the
classified information tends to prove or to substitute a summary.
Then Walton, in turn, would have to decide whether those
alternatives would provide Libby with substantially the same ability
to present his defense as he would have if the actual information
were disclosed.

An order Judge Walton issued on March 10, 2006 provides a giant
clue as to how he might rule on this issue. In footnote 25, he
pointed out that the prosecution does not dispute the defendant’s
work on important national security matters; nor has the defense
attorney appeared to acknowledge that he was intending to present
the substance of the documents to the jury. Then he added:

“It is unlikely that this Court would permit anything other
than the general topic areas of these documents to be introduced at
trial and would be prepared to advise the jury through an
instruction that due to national security concerns the defendant is
prohibited from discussing the details about the matters he was
working on and that it is undisputed that the defendant was
extremely busy during his work day, worked long hours, and worked on
highly sensitive national security and intelligence
matters.”

If Judge Walton continues to follow this approach – and it’s hard
to imagine why he wouldn’t – graymail will probably not be the
silver bullet that Libby is hoping for.

What, Then, Is a Criminal Defendant With Close Friends in the
White House and the Republican National Committee to Do?

The relentless approach of Scooter Libby’s trial date – and the
diminishing chances that his lawyers can make the case go away
within the confines of the judicial process – really puts a crimp in
his trial strategy.

Why? Because Scooter Libby’s trial strategy is not to have a
trial.

Unfortunately for Libby, however, a criminal defendant’s options
for avoiding a trial are limited. It’s not an RSVP-type of thing.
You can’t express regrets and go to some other party; you can’t
cancel your afternoon meetings and hit the golf course; you wouldn’t
be wise to call in sick (unless you’re practically terminal); and
you wouldn’t want to play hooky, unless you have a strong desire to
meet U.S. marshals. The judge sets the trial date and you pretty
much have to show up, at which point the proceedings take on a life
of their own.

The seemingly unstoppable imminence of his trial isn’t just a
problem for Libby; it’s an Excedrin Extra Strength-sized headache
for George W. Bush, Dick Cheney, and their entire senior staff, not
to mention the Republican Party. Once the trial begins, the
administration will have little or no control over the proceedings.
Trials are not conducive to spin. Spin requires secrecy; trials, on
the other hand, are decidedly public. Reporters will be there.
Citizens who have the patience to stand in line can watch.
Government officials who testify will actually have to identify
themselves before speaking. Their statements will be transcribed and
made available to the public almost immediately.

Worse yet, as the Bush administration surely knows, people (aka
“voters”) love trials. They may not pay attention to congressional
debate – to the extent that there is any – and they certainly don’t
read proposed legislation (nor, sometimes, do our representatives in
Congress), but they will pay close attention to the trial of I.
“Scooter” Lewis Libby. And the day that a public airing of the
machinations that led to Libby’s indictment begins will be – to
paraphrase Judith Viorst’s beloved children’s book Alexander and
the Terrible, Horrible, No Good, Very Bad Day
– a terrible,
horrible, no good, very bad day for the White House.

One measure of how concerned the White House and the Republican
National Committee are about the looming trial date – how important
the perjury, false statements, and obstruction charges pending
against Libby truly are – is how assiduously their trusty talking
heads are working to convince the public that those very charges,
and, indeed, the entire investigation into the unauthorized
disclosure of Valerie Plame Wilson’s identity as a CIA operative
that gave rise to them, are trivial.

How hard is this Republican chorus working? Take a look at the
Web site of the Libby Legal
Defense Trust
, the fundraising group formed by Libby’s powerful
and wealthy Republican supporters – President Bush’s former
Secretary of Energy Spencer Abraham, business tycoon Steve Forbes,
and Cheney’s former aide and longtime confidant Mary Matalin, to
name a few. Since late August, more than 35 editorials and articles
favorable to Libby have appeared in right-wing and mainstream media
(all posted right there on the Web site).

Next week – in Pardon Me? Libby’s Trial Strategy (Part II)
– I will address the distinctly piscine (def.: “Of or relating to
fish”) nature of those arguments and their timing, but, for now,
suffice it to say that the White House and RNC propaganda machine is
working overtime to denigrate Patrick Fitzgerald and the charges in
the Libby case, using claims that have been largely rejected as
without factual or legal basis by a federal judge whom President
George W. Bush himself appointed in 2004.

Pardon Me?

Why would the well-educated and powerful members of the Libby
Legal Defense Trust, the many pundits close to the White House, and
spokespersons for the RNC conduct such a campaign when they know
full well that it is entirely irrelevant to the court case pending
against Scooter Libby? Because their strategy for the Libby trial is
precisely the same as Libby’s: not to have a trial. The White House
and the RNC do not want anyone to hear, or hear about, Patrick
Fitzgerald calmly laying out the case against Scooter Libby – which
will inevitably provide an extremely damaging view of the Office of
the Vice President – in a courtroom where they will have no pundit
protection.

With the jury selection date fast approaching and the
possibilities of a court dismissal evaporating, the White House
appears to be shifting to Plan B: a PR effort to pave the way for a
presidential pardon of Scooter Libby – before the trial.

Last year, not long after Libby was indicted, Sen. Harry Reid and
others in the Democratic leadership in Congress sent President Bush
a letter
reminding him that the indictment of Vice President Dick Cheney’s
chief of staff marked “the first time in 131 years that a senior
White House official has been charged with a crime while still
serving in the White House.” Given the seriousness of the crimes,
Reid urged, it was important for the president to “make clear in
advance that, if convicted, Mr. Libby will not be able to rely on
his close relationship with you or Vice President Cheney to obtain
the kind of extraordinarily special treatment unavailable to
ordinary Americans.” In short, the Democratic leadership was asking
the president to reassure the public that he would not pardon Libby
or anyone else ultimately convicted of a crime as a result of the
CIA leak investigation.

The president never responded. (Not exactly a shocker.) And Vice
President Cheney, when asked recently by Tim Russert on Meet
the Press
whether the president should pardon Scooter Libby,
refused to answer.

No outsider knows if the president is planning to pardon Libby
soon, but this would be a good time for Reid to resurrect that
letter. He might amend it slightly to call upon the president to
pledge not to pardon I. Lewis “Scooter” Libby before Patrick
Fitzgerald even has a chance to step to the podium in January.
December would be an excellent month for a pardon – it’s the holiday
season after all – and the midterm elections would be over. The best
way to head off this possibility is to call attention to it. Now.

Elizabeth de la Vega is a former federal prosecutor with more
than 20 years of experience. During her tenure, she was a member of
the Organized Crime Strike Force and chief of the San Jose branch of
the U.S. Attorney’s Office for the Northern District of California.
Her pieces have appeared in the
Nation magazine, the Los
Angeles Times, and Salon. She writes regularly for TomDispatch
and is the author of the upcoming book
U.S.
v. George W. Bush et. al.
, a TomDispatch project to be
published by Seven Stories Press in late November. She may be
contacted at ElizabethdelaVega@Verizon.net.

Copyright 2006 Elizabeth de la Vega