But there’s one significant roadblock on the path to Libby’s salvation: Vice President Dick Cheney’s former chief of staff does not qualify to even be considered for a presidential pardon under Justice Department guidelines.
From the day he took office, Bush seems to have followed those guidelines religiously. He’s taken an exceedingly stingy approach to pardons, granting only 113 in six years, mostly for relatively minor fraud, embezzlement and drug cases dating back more than two decades. Bush’s pardons are “fewer than any president in 100 years,” according to Margaret Love, former pardon attorney at the Justice Department.
Following the furor over President Bill Clinton’s last-minute pardon of fugitive financier Marc Rich (among others), Bush made it clear he wasn’t interested in granting many pardons. “We were basically told [by then White House counsel and now Attorney General Alberto Gonzales] that there weren’t going to be pardons—or if there were, there would be very few,” recalls one former White House lawyer who asked not to be identified talking about internal matters.
The president has since indicated he intended to go by the book in granting what few pardons he’d hand out—considering only requests that had first been reviewed by the Justice Department under a series of publicly available guidelines.
Those regulations, which are discussed on the Justice Department Web site at www.usdoj.gov/pardon, would seem to make a Libby pardon a nonstarter in George W. Bush’s White House. They “require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application,” according to the Justice Web site.
Moreover, in weighing whether to recommend a pardon, U.S. attorneys are supposed to consider whether an applicant is remorseful. “The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to … victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication,” the Justice Web site states.
Of course, there is nothing that requires Bush to follow these guidelines in reviewing a pardon for Libby (whose lawyer, Ted Wells, stated on the courthouse steps Tuesday that he intended to push for a retrial, adding that he has “every confidence that Mr. Libby will be vindicated.”) As Love, the former pardon attorney, points out, “the president can do whatever he wants.” Both Clinton and Bush’s father, President George H.W. Bush (who pardoned Casper Weinberger among other Iran-contra figures), bear that out.
Still, Bush himself publicly reaffirmed his determination to stick to the Justice pardon guidelines as recently as last month. In a Feb. 1 interview with Fox News anchor Neal Cavuto, Bush was asked about whether he would pardon Ignacio Ramos and Jose Compean, two former U.S. Border Patrol agents convicted of shooting a Mexican drug dealer who was fleeing across the border into Mexico. Their case has become a cause celebre for many conservatives and anti-immigrant activists who believe it symbolizes the federal government’s lack of aggressive enforcement of border controls. Fueled by CNN immigration critic Lou Dobbs and Colorado Republican Rep. Tom Tancredo, supporters of the two former agents have been flooding the White House with e-mails and phone calls seeking pardons for Ramos and Compean.
Bush’s response in Cavuto’s inquiry was telling. He repeatedly pointed to the Justice Department pardon process to explain how he would make his decision.
“You know, I get asked about pardons on a lot of different cases. And there’s a procedure in place,” he said at first. When Bush added that he has been telling members of Congress who have contacted him about the matter to “look at the facts in the case,” Cavuto followed up: “So what are you saying?”
“I’m saying … there is a process in any case for a president to make a pardon decisions. In other words, there is a series of steps that are followed, so that the pardon process is, you know, a rational process,” the president answered.
Doug Berman, a Ohio State University law professor who specializes in pardons, said the president may have just been pointing to the Justice Department process as a way to “avoid responsibility” for the political flap over the Border Patrol agents’ case. But Bush has always used his pardon power sparingly—dating back to his days in the Texas governor’s mansion. In 1998, Bush came under enormous political pressure to commute the death sentence of Karla Faye Tucker, a convicted murderer who had a well-publicized conversion to Christianity. But despite pleas from conservative evangelist Pat Robertson, Pope John Paul II and many others, Bush refused to save her life, and Tucker became the first woman executed in Texas since the Civil War.
None of this means that, in the last days of his presidency, Bush won’t feel differently about Libby (who ironically once worked as a lawyer for Marc Rich in an earlier effort to win him a pardon). Libby’s supporters will argue forcefully that he was unjustly prosecuted and others, like former deputy secretary of State Richard Armitage (who first leaked Valerie Plame Wilson’s identity to columnist Robert Novak) were more culpable and should have been charged. Cheney—who once praised Libby as “one of the most capable and talented individuals I have ever known”—may well make a personal plea to the president.
But for now, one intriguing clue as to White House thinking came from a well-known Washington lobbyist and White House ally who was steering reporters away from the pardon idea this week. “The guidance I get is Libby doesn’t qualify under the guidelines,” the lobbyist, who asked not to be identified talking about sensitive matters, told a reporter in a TV “green room” this week. The lobbyist wouldn’t say who provided the guidance. But the fine print of the Justice Department guidelines may prove the toughest barrier for Libby to overcome.
