To Pardon or Not to Pardon

JUDGE WALTON DECIDES. As was expected, Judge Walton ruled today that he was going to remand Scooter Libby to prison now rather than let Libby wait till his appeals are exhausted before serving his 30 month sentence. Of course, "now" means six or eight weeks from now as Libby appeals the decision to send him to jail and gets his affairs in order.

That leaves President Bush six or eight weeks to decide whether to pardon him or not.

"MY ADMINISTRATION IS NOT FILLED WITH CROOKS." Like most observers on the left, I believe that Bush will pardon Libby. This would be primarily because refusing to pardon Libby for obstruction of justice and allowing him to go to jail would imply an admission on Bush's part that Libby in fact committed a crime.

Why is this significant? Columnists on the right have been emphatic that Libby did not obstruct justice. They believe that Libby just got mixed up about what he was telling which reporter.

Of course, the right-wing cover story is non-sense. As Patrick Fitzgerald claimed, Libby lied to the prosecutor to keep the investigation from reaching Dick Cheney.

But that's not the point here.

What would be important from President Bush's point of view is that his administration has been filled with actions that Republican appointees like Patrick Fitzgerald or Judge Walton could view as criminal behavior. These include his own decisions about interrogation techniques, indefinite detention, Guantanamo, extraordinary renditions, kidnapping people on foreign soil without any kind of due process, and the like. It also includes Karl Rove's apparently systematic efforts to violate the Hatch Act against political activity by Civil Service appointees, the efforts of Brad Schlozman and others in the Department of Justice to prosecute Democrats for non-existent vote fraud, and obstruction of justice in the firing of federal prosecutors.

If President Bush does not accept conservative rationalizations for Scooter Libby's criminal actions, he is leaving himself open to the slippery slope of having a big chunk of his administration considered a criminal enterprise.

In other words, Bush's pardoning of Scooter Libby is the equivalent of saying "my administration is not filled with crooks."

BUT WHAT ABOUT THE POLITICS? But the Libby pardon does raise a difficult political problem for the President. If President Bush does pardon Scooter Libby, it's a big nail in the coffin of Republican hopes for the 2008 election. Why? A Bush pardon would mean that all the Republican presidential candidates except Ron Paul would be called on to defend the pardon in a way that would tie them to Bush. However, if the reactions of Bush appointees like Patrick Fitzgerald and Judge Walton to Libby's claims are any indication, a big majority of the public is going to be just as disgusted with a Libby pardon as they are with the war in Iraq. By pardoning Libby, President Bush would be tying Republican candidates to the mast of yet another hugely unpopular Bush political decision and further damage their chances in a general election. I would bet my bottom dollar that Democratic political strategists recognize and are secretly hoping for a pardon.

Of course, letting Libby go to jail would leave Republican activists, op-ed writers, and bloggers extremely unhappy but it would be like the immigration battle in having the consequence of freeing them from George Bush. Ironically, Bush could help the Republicans best by sending Libby to jail and leaving them to their sense of betrayal, bitterness, and resentment.

IN THE FINAL ANALYSIS, Bush will pardon Libby. He'll probably think that he'll be defying the Democrats, the liberal media, bloggers, and anti-war activists by keeping Libby out of jail. In reality, he'll be taking one more step toward giving us almost complete control over the federal government.