President Bush’s decision to spare former vice presidential aide I. Lewis “Scooter” Libby from going to prison — but not pardoning him — may have been an attempt to have it both ways. If so, it appears to have proved only partially successful.
Democrats still slammed Bush’s commuting of Libby’s 2 1/2-year sentence for obstructing a CIA leak investigation. And while some Republican conservatives applauded the decision, others grumbled that Libby should have been granted a full pardon.
Calling Libby’s sentence “excessive,” Bush on Monday spared the former chief of staff to Vice President Dick Cheney from having to go to prison. But he left in place Libby’s conviction, two years probation and a $250,000 fine.
Bush acted just hours after a federal appeals court rejected Libby’s request to remain free on bail while pursuing his appeals. That meant Libby soon would have been called to begin his sentence, putting added pressure on the president.
“It is another piece of bad news for the president in the sense that the appeals court forced his hand,” said Paul C. Light, a professor of public service at New York University.
Commuting Libby’s sentence but without pardoning him was Bush’s “way of having his cake and eating it too,” Light said. “He’ll get some boost from his conservative base — and it removes a topic of conversation for the 2008 Republican presidential campaign.”
In a GOP debate last month, former New York Mayor Rudy Giuliani, a former prosecutor, said the sentence was excessive and “argues in favor of a pardon.” Former Massachusetts Gov. Mitt Romney said he would keep “that option open.” Sen. Sam Brownback of Kansas and Rep. Duncan Hunter of California both said flat out that they would pardon Libby.
Conservatives had recently ramped up pressure on Bush to pardon Libby.
With Bush’s approval ratings in the 30 percent range, he could little afford to further alienate this core of his support, already angry about his immigration proposals.
Conservatives characterized the prosecution of Libby by Special Prosecutor Patrick Fitzgerald as a witch hunt. They also groused that Sandy Berger, who was national security adviser in the Clinton administration, got no jail time for illegally sneaking classified documents out of the National Archives — while Libby received a 30-month sentence.
Greg Mueller, a conservative GOP strategist, said Bush will “get a lot of points from people in the conservative movement for doing something so bold when his approval ratings are so low.”
Still, Mueller said, “there are a lot of conservatives who say that they’d just pardon him outright. There are a lot of people who feel that Libby shouldn’t even had any kind of punishment whatsoever.”
Carl Tobias, a law professor at the University of Richmond, said Bush’s decision to commute Libby’s sentence “stands in contrast to his prior history in his first 6 1/2 years” in office.
During that period, Tobias said, Bush was very circumspect in issuing pardons and commuting sentences, using strict standards and doing it relatively rarely.
Bush has pardoned more than 100 people, but none of them were prominent.
Other presidents have issued pardons for which they were heavily criticized. President Ford’s pardon of former President Nixon may have cost Ford the election in 1976.
President Clinton pardoned 140 people on his last day in office, including fugitive financier Marc Rich. On Christmas Eve in 1992, just before he left office, the first President Bush pardoned former Defense Secretary Caspar Weinberger and a CIA official as they awaited trial on Iran-Contra charges, as well as four other administration officials who had pleaded or been found guilty in the scandal.
But the elder Bush and Clinton were on the verge of leaving office. Bush still has 18 months to go.
Furthermore, the commutation of Libby’s sentence comes at a time when the administration is embroiled in accusations of political cronyism in last year’s dismissals of U.S. attorneys.
House Speaker Nancy Pelosi, D-Calif., called Bush’s decision on Libby “betrayal of trust of the American people,” representative of the sharp criticism leveled in general by Democrats.
While some Republicans may cheer Libby’s commutation, “the general public will believe that Bush is taking care of one of his and Cheney’s own,” University of Virginia political scientist Larry Sabato said.
Polls have shown roughly two out of three Americans opposed pardoning Libby. There is no polling data on commuting his sentence.
At the heart of the case was the outing in 2003 of undercover CIA officer Valerie Plame, whose husband, retired diplomat Joseph Wilson, was an outspoken Iraq war critic.
Bush initially vowed to fire anyone in his administration shown to have leaked classified information. It can be a federal crime to deliberately disclose the name of a covert CIA agent.
Testimony at Libby’s trial showed that a number of administration officials had passed along information on Plame to reporters, including Libby; and that both Bush and Cheney took steps to discredit Wilson. Cheney even told Libby to speak with selected reporters, testimony showed.
Fitzgerald has said that the obstruction of justice that prosecutors claim Libby engaged in made it impossible for them to determine whether the leak itself violated the law.
After Libby’s sentencing in early June, both Bush and Cheney had kind words for Libby. Cheney called him a friend and “a fine man.” Bush said, “My heart goes out to his family.”
On Monday, Bush had the final say on Libby’s sentence: “With the denial of bail being upheld and incarceration imminent, I believe it is now important to react to that decision.”
Tom Raum has covered Washington for The Associated Press since 1973, including five presidencies.