President Bush’s commutation of I. Lewis “Scooter” Libby’s 30-month prison sentence will likely prompt many people with politics similar to my own to cry bloody murder. It will be called a cover-up. It will be called a payoff for Libby’s failure to implicate Vice President Dick Cheney, and perhaps even Bush himself, more directly in the Plamegate scandal. It will be compared to President Ford’s pardon of Richard Nixon, and to Bush père’s pardon of former Defense Secretary Caspar Weinberger a mere 12 days before Weinberger was to go on trial for perjury in connection with the Iran-contra scandal. Both of these actions were wrong. But the comparison is a weak one. What Bush did was just and fair. It was the right thing to do.
I don’t take lightly the fact that Libby lied to federal prosecutors about his role in unmasking Valerie Plame as a covert CIA employee. The underlying offense probably wasn’t illegal—because Libby probably didn’t understand that Plame’s identity was a government secret—but it was nonetheless disgraceful. Libby understood that, and that’s why he committed perjury. His prosecution was appropriate because Bush administration officials need to know that they are not above the law. Libby’s trial and conviction, I hope, got that message across to at least some of them.
But Judge Reggie Walton went overboard in sentencing Libby to 30 months. This was about twice as long as the prison term recommended by the court’s probation office, and if Libby hadn’t been a high-ranking government official, there’s a decent chance he would have gotten off with probation, a stiff fine, and likely disbarment. Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby’s routine request to delay the sentence while his lawyers appealed it. (Libby was duly assigned the federal prison register number 28301-016, but Libby’s lawyers managed to move quickly enough to keep Libby out of the slammer until his appeal was denied on July 2, the same day Bush commuted his sentence.) The voluminous pleas for leniency from Libby’s A-list friends seem to have annoyed Walton, who erred on the side of severity not in spite of Libby’s high position in government but because of it. Walton wanted to make an example of him.
What’s the matter with that? Two words: Bill Clinton. No fair-minded person can deny that the previous president committed perjury about Monica Lewinsky while serving in the Oval Office. The country knew it, and it let him get away with it. Does that mean no government official should ever again be prosecuted for perjury? Of course not. But it does mean Walton should have wondered whether he was imposing a double standard in treating Libby more harshly because Libby worked in the White House. Is it really fair to treat White House aides more harshly than ordinary citizens when presidents get off scot-free?
It would have been wrong for Bush to pardon Libby, as many Republicans urged him to do. Libby committed a crime, and it wouldn’t have been right for Bush to do anything to minimize the attendant disgrace or to lighten Libby’s $250,000 burden. “The reputation he gained through his years of public service and professional work in the legal community is forever damaged,” Bush said. And so it should be. Bush did not intervene to spare Libby further disgrace, as Ford did with the Nixon pardon, and he didn’t pre-empt a prosecution that might reveal embarrassing facts about himself, as Bush’s father did. He waited until it was all over, and he acted humanely. Yes, it was inconsistent with his past indifference in such matters, particularly when he was governor of Texas. One can only hope that, having behaved decently once, he’ll acquire the habit. In the meantime, bully for him.