The Need for a No-Pardon Pledge

When the New York Times first broke the story that Scooter Libby's own notes indicated that he learned about Plame well before he ever talked to any reporters, many people--myself included--asked: how could Libby be so dumb as to testify in a way that contradicted his own notes? Today, Mickey Kaus writes:

We now think we know the answer to that
question, which is that Libby wasn't dumb
enough to contradict his own notes. Instead he
was dumb enough to avoid contradicting his
notes by concocting a wildly implausible story
about how he forgot what was in his notes! That
story is non-believable on its face, whether Tim
Russert testifies or not. ... Who would take such
an idiotic risk before a much-feared special
prosecutor? One answer: Someone who knows
he'll be protected in the end. Someone who
knows, for example, that he'll be pardoned.
Maybe even someone who had represented
a client who'd been pardoned in similarly
controversial circumstances. It's easier to be a
highwire daredevil when you know you have a
safety net.

Kaus definitely has a point. Libby's behavior throughout this investigation has bordered on the inexplicable. And he now appears set on going to trial against the best prosecutor in the country with what appears to be an incredibly weak defense. It certainly seems plausible that Libby is relying on the president's pardon power as a backstop. Bush, after all, is in his second term and would have very little to lose politically by granting such a pardon on his way out the door.

But this isn't just a political issue. If anyone in the White House even so much as hinted to Libby prior to his departure that, if convicted, he might receive a pardon, that's arguably obstruction of justice. Fitzgerald clearly believes that Libby has gone to great lengths to obstruct his investigation. Because Libby is not cooperating, that obstruction is ongoing. If the White House has suggested to Libby that he might eventually be pardoned, that might well be construed as an attempt to encourage Libby not to cooperate with Fitzgerald's investigation. Fitzgerald clearly hopes that the threat of serious jail time will eventually cause Libby to come clean and testify truthfully about the events at issue. But with the very real possibility of a presidential pardon looming over everything, Fitzgerald's leverage is undermined considerably. Moreover, Libby's testimony may well implicate others (such as Karl Rove and Dick Cheney) who are very close to the President and therefore have enormous influence on future pardon decisions. Not to mention the fact that Libby's truthful testimony may have serious implications (politically if not legally) for the President himself. This has to be a major concern for Fitzgerald. Indeed, it may explain why Fitzgerald went to the trouble of visiting the President's personal attorney, James Sharp, the day Libby was indicted. This is pure speculation, of course, but this is exactly the sort of topic Fitzgerald would want to discuss with Bush, if at all, via his personal attorney.

Because this is such a real concern, it's important that reporters ask the President whether he or anyone on his staff has ever discussed the topic of a pardon with Libby. I don't expect the White Houses would admit to such a discussion even if it happened, but it's nevertheless important to have a denial on the record. Along the same lines, Democratic politicians need to pressure the White House to issue a pledge not to pardon Libby should he be convicted. The president's pardon power is plenary, but it was never meant to be used to obstruct investigations of the very people exercising the power. Only after such a pledge is given will Fitzgerald have the leverage he needs (and would otherwise have in any normal investigation) to get at the truth. If Bush will not pledge to refrain from pardoning Libby, the Democrats should hammer him for it and make it clear to the American people that Bush is, at least indirectly, impeding Fitzgerald's investigation.

These questions are so obvious and so important that I'm troubled that no one outside the blogosphere appears to be raising them. The Washington press corps and the Democratic leadership need to confront the White House with these questions immediately.

UPDATE: A commenter notes that Congressman John Conyers has a petition and form letter on his website demanding that President Bush promise not to pardon anyone convicted in the leak investigation. I hope the Democratic leadership joins him in making this request (though I'd suggest they tone down some of the rhetoric; in particular the "traitorgate" part). I think this is an entirely reasonable and politically prudent request, and I think it will resonate with the public. Harry Reid and others can argue, persuasively I believe, that every day Bush refuses to make such a pledge, he is indirectly impeding Fitzgerald's goal of uncovering the truth. Until the possibility of a pardon is taken off the table, Libby may lack the incentive to cooperate fully.