Before President Bush’s decision to commute Scooter Libby’s sentence drifts off into a debate over whether it was worse than Clinton’s last-minute pardons— as the White House would like it to —let’s focus for a moment on how the president’s decision is being sold. In particular, three irritating elements of the White House justification:
The president studied hard. White House aides have stressed how thoroughly Bush weighed his decision. The president acted after “long consideration,” said press secretary Tony Snow, “weeks and weeks of consideration.” The president has often been made fun of for his short workday; even his wife has joked that he would have to stay up later to win the war on terror. In this case, Bush’s long hours are supposed to sanctify the justness of the decision and prove that he didn’t make it in a bubble. But consulting your closest aides, as Bush did in the ad-hoc Oval Office appeals court he convened, is hardly an act of intellectual exploration. And if you’ve truly engaged in such thorough study, you usually come away armed with lines of argument and explanations that you can use to defend yourself. The president and his aides offer very little of either. They fall back on how hard he worked without showing what he really got out of it.
Thirty months in jail or nothing. The administration and the president have tried to make it look like the president decided that 30 months in jail was an excessive punishment for Libby. This claim is the sound bite for the whole affair. But that’s not really what Bush decided. The president could have knocked Libby’s 30 months down to 10 months or one day. He didn’t. What the president decided was that Libby should not spend a single day in jail.
Bush protects Lady Justice. A lot has been written about how the Libby commutation undermines the rule of law, which Republicans are supposed to care about. The White House ducks this criticism. That’s bad enough, but to be expected. What’s deeply galling is simultaneously trying to portray the president as a high defender of legal principle. Bush’s aides keep going on about how he worked to preserve the integrity of the jury system by allowing Libby’s conviction itself to stand. “The president also believes, for those who were arguing on behalf of a pardon, that you need to respect the jury system,” said Snow. “Scooter Libby was tried before a jury of his peers. And it is important to make clear our faith in what really is a pillar of the American justice system, which is everybody’s right to be tried before a jury of their peers.” (No mention, of course, of that other legal principle: The system can’t function with people lying and obstructing justice.)
And notice one more suspect wrinkle: The president has been careful never to admit that Libby did anything wrong. He also suggests that Libby’s punishment—even after the commutation—has been severe, and therefore he’s paid for his crimes. This nicely leaves open the possibility of a pardon. At a later date—a few days before he leaves office, perhaps—Bush can continue to praise the jury for its hard work and nobility, while claiming, as Libby’s lawyers do in their appeal, that the jury never heard the whole case outlining Libby’s innocence.
White House aides insist that the president didn’t start his deliberation process with the premise that Libby would never go to jail. They insist the president made his decision based on the merits. The evidence they offer, however, doesn’t support that case. All the sleight of hand and dissembling makes the opposite one.