Justice for Scooter Libby
On April 7, 2015, these columns said the next Republican President should pardon I. Lewis “Scooter” Libby “in his first week in office.” President Trump waited a little longer, but in pardoning the former chief of staff to Dick Cheney on Friday Mr. Trump rectified a legal injustice and corrected one of George W. Bush’s worst decisions.
Above all, Mr. Trump pardoned an innocent man. In an op-ed nearby, David Rivkin and Lee Casey recount the story of Mr. Libby’s unjust prosecution amid the political uproar over the leak of the name of CIA employee Valerie Plame. Special counsel Patrick Fitzgerald never did prosecute the leaker, who was Deputy Secretary of State Richard Armitage. But in his zealous pursuit of Mr. Cheney, Mr. Fitzgerald railroaded Mr. Libby for lying to the FBI based in large part on the testimony of former New York Times reporter Judith Miller.
Ms. Miller says she testified truthfully at the time, but she later concluded based on new information that she had been led into false testimony by Mr. Fitzgerald. As the White House press secretary said Friday in a pardon statement: “In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said.”
Mr. Fitzgerald had called her testimony “critical” to the case in his summation for the jury, and Ms. Miller says that the prosecutor twice said that he would drop all charges against Mr. Libby if he offered evidence against Mr. Cheney. Mr. Libby had no evidence to trade, and Mr. Fitzgerald then set out to ruin Mr. Libby for supposedly lying about a non-crime.
Mr. Bush commuted Mr. Libby’s sentence so he didn’t go to prison. But Mr. Bush refused to issue a full pardon on the basis of bad legal advice, a betrayal of a loyal aide that understandably infuriated Mr. Cheney.
In 2016 the District of Columbia Court of Appeals reinstated Mr. Libby to the D.C. bar after it said a legal disciplinary counsel had presented “credible evidence” in support of his innocence. Mr. Trump’s pardon should now restore his reputation in full.
We recount this history because almost none of it appears in the press accounts about the pardon. The stories read as if history stopped with Mr. Libby’s conviction. The media implications are that Mr. Trump pardoned Mr. Libby as a way to send a message to potential witnesses in special counsel Robert Mueller’s investigation of Mr. Trump. But it’s hardly news to witnesses, or anyone else, that a President’s pardon power is nearly absolute, and the issue that matters is whether a pardon is justified on the merits.
“I don’t know Mr. Libby,” Mr. Trump said, according to the White House statement, “but for years I have heard that he has been treated unfairly. Hopefully, this full pardon will help rectify a very sad portion of his life.” His pardon is a worthy use of presidential power.
Yet there is a broader lesson in the Libby case about special counsels and zealotry. Mr. Fitzgerald knew from his first days on the job that Mr. Libby hadn’t leaked Ms. Plame’s name. Yet rather than close up shop, he pursued dubious obstruction of justice charges based on the flimsiest of evidence. For two years Mr. Fitzgerald also let the country think a crime may have been committed by people close to President Bush or Vice President Cheney when he already knew better.
As it happens, Mr. Fitzgerald was appointed by his good friend, James Comey, who was then Deputy Attorney General. This is the Jim Comey who told Congress last year that his goal in leaking information to the press about his conversations with Donald Trump after he was fired was to trigger a special counsel investigation that is now led by Mr. Mueller. This special counsel’s work isn’t done, but the Fitzgerald episode is worth keeping in mind as it unfolds.
Appeared in the April 14, 2018, print edition.