Scooter Libby pardon: Why Cheney lost

by Mark Silva

Former Vice President Dick Cheney pressed hard for a presidential pardon for "Scooter"" Libby, his former chief of staff convicted of obstruction of justice in the federal probe of the leak of CIA operative Valerie Plame's identity after her husband, former ambassador Joe Wilson, publicly criticized the Bush administration for playing fast and loose with intelligence backing the invasion of Iraq.

But former President George W. Bush, who did agree to commute Libby's prison sentence, resisted the push for a full pardon. A new account of the final days of the administration's internal wrangling over Libby's possible pardon in Time magazine's "The Final Days of Bush and Cheney'' offers precise insight into who stood where:

Cheney considered the conviction a "he-said-he-said'' case about what Libby had or hadn't told the late television journalist, Tim Russert, and called the prosecution the work of an "overzealous'' prosecutor - that would be Chicago's Patrick Fitzgerald.

Josh Bolten, the president's chief of staff, punted the case as a legal matter for the legal office to sort out. White House Counsel Fred Fielding concluded that Libby had, indeed, lied under oath about what he had told the journalist, the conviction was propert, and the president already had gone a long, and reasonable, way in commuting his sentence.

Bush, the Time account explains, still had Cheney with whom to contend.

Cheney lost.

See the story on Bush and Cheney's final days in Time's Aug. 3 issue, and, courtesy of Time, excerpts here:

From Time magazine:

In an investigation for TIME, Massimo Calabresi and Michael Weisskopf examine the "last hours ...in the mysterious and mostly opaque relationship at the center of a tumultuous period in American history...[t]aking up the pardon question again was, as a West Wing veteran put it later, like passing a kidney stone--for the second time." ... A former senior official tells TIME, "The Vice President knew there was a line out there that he was getting very close to but couldn't cross. The President knew that he needed to help make sure that Cheney didn't cross that line either."

Calabresi and Weisskopf write, "As a former Bush senior aide explains, 'I'm sure the President and [chief of staff] Josh [Bolten] and Fred [Fielding, White House counsel] had a concern that somewhere, deep in there, there was a cover-up.'

Bolten declined to take a stand, according to several associates. Instead, he lateraled the issue to Fielding, claiming that a legal, not a political, call was required. If the counsel's office decided a pardon wasn't merited, says an official involved in the discussions, everyone else would have cover with Cheney. 'They could say, Our hands are tied--our lawyers said the guy was guilty.'"

In an "Oval Office session, which was attended by the President and his top aides" on pardons, "he [Cheney] made his points in a calm, lawyerly style, saying that Libby was a fall guy for critics of the Iraq war, a loyal team player caught up in a political dispute that should never have turned into a legal matter. They went after Scooter, Cheney would say, because they couldn't get his boss. But Bush pushed past the political dimension. 'Did the jury get it right or wrong?' he [Bush] asked.

Cheney replied that the conviction for obstruction of justice was based on what amounted to a case of 'he said, he said,' a disagreement between his longtime aide and a journalist. 'Who do you believe, Scooter or [Tim} Russert?' he asked Bush.

And Cheney went further. Even if Russert was right, Libby may have honestly forgotten what was said during a single conversation in a typically busy day. Memories are fallible. Only an overzealous prosecutor and a liberal Washington jury would criminalize a bad one, he argued.

For his part, Fielding laid out most of his findings in a document called the pardon book, a compendium of evidence for anyone seeking clemency. The book on Libby lengthened the odds on a pardon. 'You might disagree with the fact that the case had been brought and that prosecutorial discretion had been used in this way,' says a source familiar with the review. 'But the question of whether there had been materially misleading statements made by Scooter--on the facts, on the evidence, it was pretty clear.' As far as Fielding was concerned, Libby had lied under oath.

Fielding told Bush that justice had been done in commuting Libby's harsh sentence nearly two years before. Bush had no moral obligation to do more. 'You've done enough,' he told the President. Presidential counselor Ed Gillespie, without passing judgment on the legal merits, told Bush a pardon would have political costs: it would be seen as an about-face or a sign that he wasn't forthright two years earlier in declaring that a commutation was the fairest result.

While packing boxes in the upstairs residence, according to his associates, Bush noted that he was again under pressure from Cheney to pardon Libby. He characterized Cheney as a friend and a good Vice President but said his pardon request had little internal support. If the presidential staff were polled, the result would be 100 to 1 against a pardon, Bush joked. Then he turned to Sharp. 'What's the bottom line here? Did this guy lie, or not?'

The lawyer, who had followed the case very closely, replied affirmatively.

Bush indicated that he had already come to that conclusion too.

'O.K., that's it,' he said.

Bush believes that his Vice President was 'probably blinded by his personal loyalty to Scooter,' a White House aide says. Cheney had pressed the issue as far as he could but finally conceded."