March 19, 2007 issue - For nearly two months, while his trial unfolded in a federal courtroom, I. Lewis (Scooter) Libby seemed breezily confident. Even as prosecutor Patrick Fitzgerald presented compelling evidence that he had lied under oath to investigators probing who leaked the name of an undercover CIA agent, Libby sat smiling at the defense table, whispering amusing asides to his lawyers. But when he filed in to hear the jury's verdict last week, Libby was a changed man. He looked ashen and stared into the distance while the jury read its decision: guilty on four of five counts of perjury and obstruction. His wife, Harriet, broke down in tears.
The verdict may be in, but the saga is far from over. On June 5, Libby will return to court for sentencing by Judge Reggie Walton, a no-nonsense jurist who metes out tough prison sentences and cuts no slack for white-collar defendants. Libby could get two years. His lawyers will ask that Libby be allowed to remain free while his appeals work their way through the courts. As he has in past prosecutions, Fitzgerald is likely to press for Libby to go straight to prison. "Fitz is so by-the- book he would send his own mother to jail," joked a veteran federal prosecutor who asked not to be identified talking about his colleague.
The prospect of Libby's serving time is fueling an intense debate in Washington: should President Bush pardon him? Conservatives immediately began agitating for clemency, arguing that Fitzgerald, unable to convict anyone for leaking, had made Libby a scapegoat. Vice President Dick Cheney may also weigh in. Former and current colleagues, who asked not to be named talking about private conversations, say Cheney has been shaken by the prosecution of his former chief of staff. Out of obligation and duty, Cheney is almost certain to press Bush to pardon his close friend and protégé.
But don't count on Bush to go along—at least not yet. Bush is not big on pardons. In his first six years as president, he has granted just 113, fewer than any president in the last 100 years, says Margaret Love, a former Justice Department pardon attorney. At his first press conference as president in February 2001, Bush set himself apart from Bill Clinton, who had caused a stir with several controversial pardons in his final days. When it came to granting pardons, Bush said, "I'll have the highest of high standards."
The president can pardon anyone at any time. But Bush has abided by long-standing Justice guidelines that spell out who should be eligible. Those rules say a person shouldn't even be considered for a pardon until five years after he's completed his sentence. "I know the way he's approached pardons," says Bush's former press secretary Scott McClellan. "If you boil it down, it's two things. One, that they serve their time. And two, that they express remorse for the crime." By those standards, Libby doesn't make the cut, especially if he pursues an appeal and continues to insist he did nothing wrong.
That doesn't mean Libby will be denied a pardon. Former White House aides, who didn't want to be named discussing Bush's strategizing, say they believe the president will ultimately grant him one. Libby may just have to wait, probably until after the '08 election. "The president has absolute authority, and we've seen in the final days of a presidency all bets are off," McClellan says. "But I'd be surprised if he did anything before the legal process has run its course, and there's been a request through formal channels."
That reluctance to bend the rules may stem from a feeling inside the White House that Libby, though loyal and well liked, went too far. Even if Bush is "sad" about Libby's conviction, Libby did lie to the FBI and made the administration look bad. "What you saw was a vice president's office that was out of control," says a former White House staffer who asked not to be named talking about internal discussions. According to trial testimony, White House aides Karl Rove and Ari Fleischer both disclosed the identity of Wilson's wife to reporters. But the way the White House sees it, Rove and Fleischer "went up to the line," the staffer says, "but they didn't cross it. The vice president's office crossed it." Now Bush has to decide how long he'll make Libby wait on the other side.
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