No Libby Pardon under the Holiday Tree

by emptywheel

Via C&L, I see Christmas has come and gone yet Scooter Libby found no pardon in his stocking.

President Bush issued 16 pardons on Thursday and commuted the sentence of an Iowa man who was convicted on drug charges.

[snip]

The list did not include former White House aide I. Lewis"Scooter" Libby, charged in the CIA leak case with perjury and obstruction.

I won't say "I told you so" yet, because I have long thought a pardon would happen, if it were going to happen, after Libby got Jencks and figured out how much Ari testified to that would incriminate Dick and Bush--and he only just got that on Friday, the day Bush signed all these pardons.

I will, however, take this limited "I told you so" moment to explain again why I don't think they'll pardon Libby until later (like maybe two years from today, if Libby is convicted).

First, realize that a pardon is admission of guilt. And this Libby-Cheney crowd is not one that likes to admit they're wrong, particularly not on matters that affect whistleblowers. Gosh, if Libby were pardoned, it would be tantamount to admitting that someone like Joe Wilson--who knew BushCo lied about something--had a right to call BushCo on those lies. That would really put a damper on Cheney's plans for the unitary executive.

And now consider that fact in light of the civil suit. The biggest hurdle to the civil suit going forward is for the Wilsons to prove that the anti-Wilson smear was not something Libby, Rove, Armitage, and Cheney did in the normal course of their work. Had Libby accepted a pardon, it would make it a lot easier to argue that whatever he did with the smear, it wasn't a normal part of his job. Heck, all legal questions aside, it'd be a lot easier to fight the civil suit if they didn't have admission of criminal wrong-doing. And remember, if the civil suit goes forward, the Wilsons will have far wider subpoena powers than Fitzgerald did, which would no doubt make Dick and Bush rather uncomfortable. So I suspect a pardon (and I don't doubt he'll get one, eventually) will come after the time when it would raise the chance that the civil suit will go forward.

Finally, consider the timing, which is remarkable. From the Wilsons' website:

The Wilsons' opposition to the defendants' motions to dismiss is due on January 16, 2007. Then, the defendants' will have the opportunity to file reply briefs by February 15, 2007. Sometime thereafter, U.S. District Court Judge John Bates will schedule an oral argument, during which the judge has the chance to question the lawyers about their arguments. A decision will be expected sometime in the spring, but it is likely that the judge's decision will then be appealed.

January 16 is, of course, the scheduled start date for the trial [corrected per lhp]. If a hearing takes place shortly after February 15, it'll happen just as the criminal case is coming to a close. Yes, either side is bound to appeal any decision that comes out of this first hearing. But BushCo will get an initial read on how easy it'll be to dismiss the lawsuit shortly after the criminal trial (and don't get me wrong, I think the chances it'll be dismissed are high).

At this point, Libby's best option is to stall, though given that Walton has managed to keep the trial schedule on target thus far, I doubt that'll work either.

Comments

[looseheadprop]

Not to pick nits, but January 8th is the day for jury selection (or was as of yesterday afternoon when I last checked the court website)

Jan 15th is the opening day of thetrial according to the court calendar.

Best reason not to pardon Libby?

If he is pardoned, he loses his 5th ammendment privledge and can be forced to tell all to any Congressional Committee waiving a subpeona. In fact, w/o that privledge ols Scooter would be looking at certain jail time for contempt.

Ken Starrheld held Susan McDougal for how long? Why? Because he gave her imuunity and she still refused to talk.

Nope, the pardon doesn't help keep Scooter out of jail (only chnages the reason why) and exposes the W?H like nothing else can.

[emptywheel]

lhp

Well, I was working for memory, now several years old. So I'll cede to your review of the website.

[Pete]

I really don't think that the White House will consider the pardon to be an admission of anything.

They'll come up with creative ways to justify a pardon. A peek into the justoneminute blogs will provide evidence of the creative thinking process.

[obsessed]

I'm surprised (and pleased) that you seem to think the trial will only last a month. I was assuming it would drag on for at least a year.

What's the basis for thinking it will be over by Feb. 15th?

[dawnaggio]

Lawyer falls to death at hotel
RIP Paul Sanford
[EXCERPT]

...Mills said Sanford decided in recent years to add journalism to his many occupations.

Almost immediately, he caused a stir after he joined the White House Press Corps in 2005, making waves as the first reporter to ask then-White House press secretary Scott McClellan whether the leaking of CIA agent Valerie Plame's name might be considered an act of treason.

"There has been a lot of speculation concerning the meaning of the underlying statute and the grand jury investigation concerning Mr. Rove," Sanford asked. "The question is, have the legal counsel to the White House or White House staff reviewed the statute in sufficient specificity to determine whether a violation of that statute would, in effect, constitute treason?"

http://www.montereyherald.com/mld/montereyherald/news/16326502.htm
Lawyer falls to death at hotel
Seaside: Police suspect Paul Sanford committed suicide

[cboldt]

09/08/2006 140 ORDER granting in part and denying in part 118 Motion to Continue as to I. LEWIS LIBBY. Jury selection shall begin on January 16, 2007, with the trial commencing immediately thereafter. Signed by Judge Reggie B. Walton on 9/8/06.

The January 8 jury selection, January 15 start of trial was set on February 3, 2006, and was changed on September 8 per the Court's Order noted just above.

[Jodi]

It is going pretty much as expected. Libby's lawyers have introduced all sorts of things that Walton has not allowed but that make for good appeal fodder. Likewise will be the trial a laundry list of possibilites besides the trial itself.

Along the way they will make an effort to discredit Mr Wilson (pay back for the funds made available to the defense, and indeed lay the blame for his wife's outing on Mr Wilson himself along with his wife's mixing up business (CIA) with her husband needing a job. If there is any conspiracy, it is there.

Of course the real benefit of all this as I see it is a thorough look into the way these investigative reporters do their investigating. Probabably more "in between the sheets work" than any movie ever showed. A lot of expense account swilling as well.

Only an idiot would expect Bush to pardon Libby at anytime short of one week from the end of his term. But there are idiots in abundance.

I am looking forward to the trial like any good game presented for the public's enjoyment.

I would say the line would show Libby and Co. are favored.
1. at the trial
2. on appeal
3. by pardon

[emptywheel]

cboldt--

Yup, that's what I was thinking of. As LHP points out, the courtroom is currently scheduled for July 15. Though there may be two phases to jury selection, only one of which will be in the court room (after they've found 100 people who don't think Cheney sucks).

[emptywheel]

obsessed

Walton has said, on several occasions, that he expects the trial will last 6 weeks.

[obsessed]

Walton has said, on several occasions, that he expects the trial will last 6 weeks.

wow!

1) when can we expect that book you've been writing?
2) does anyone besides Jodi doubt that Libby will be convicted?
3) even if he's convicted, do you think the odds are against the civil case making it to trial?

[looseheadprop]

The parties have estimated the trial at 4 weeks, but I don't believe them. I think it will go longer. If Walton is estimating 6 weeks, it will probably go a bit beyond that.

Like closets, trials have a way of expandeing to take up all the time allotted to them, plau a wee bit more.

I have to sort out this start day stuff, got to book plane tickets

[emptywheel]

1) About the book. Well, you can go here or here to either preorder (at the first link) or see where you can order once Amazon gets through its Christmas rush. I expect to have a real link up on the site shortly, with the cover image. And I expect to get my own copies (the book will be produced here in Ann Arbor MI!) in my grubby little hands on January 12, so online availability should be shortly after that (that is--just in time for jury selection or the trial, whichever it is that starts on January 16).

2) As to conviction. I think it quite possible that Libby will be found guilty of some--but not all--of the charges. But then you never know. There is A LOT of evidence against Libby, but it would be good to remember that Ted Wells is a legendary trial lawyer (of course, he's a Democrat), so anything is possible.

3) I think the odds of the civil trial making it to trial are smaller than a conviction on some of the charges. I think the odds of a civil trial starting before Dick Cheney retires form public life is even smaller, given the inevitable appeal of the pre-trial decisions to SCOTUS.

[emptywheel]

lhp

I asked Jeralyn about jury selection, and she mentioned that in McVeigh they started with thousands in the jury pool, then weeded down to hundreds before they got to the court room. Is something similar possible here? After all, if they need to find people who don't hate Dick, they're going to have to start with at least 72 people, given his approval ratings.

[obsessed]

I have to sort out this start day stuff, got to book plane tickets

You're going to attend? It would be fabulous to get your reports, and you would be be automatically enshrined in ...

The Plameoholic Hall of Fame

[pow wow]

Well, if ever anyone needed proof of the complicity of the corporate media (in the form this time of the management of the Associated Press and the ownership of the Wall Street Journal) in this whole affair, they have it now:

"Lawyers for the [two] news organizations said the public has the right to know why, despite that knowledge, Fitzgerald testified that he needed the testimony of reporters to continue the investigation. The only way to know that, the lawyers argued, is to unseal Fitzgerald’s affidavits and the court’s full legal opinion on the issue."

http://www.mediainfo.com/eandp/news/article_display.jsp?vnu_content_id=1003524857

[Those are two organizations apparently most perturbed that Libby's graymail effort failed and the pardon is still in the offing... Most suspicious timing and motives lurk behind this week's sudden court filing by these members of the "press."]

The investigators had conflicting testimony, and only one way to verify or dispute said testimony: by questioning the two reporters who participated in, and were the sole eyewitnesses to, the Libby conversations at issue. Enough of one of the key affidavits is already public to make that pretty clear, as I recall. I am really feeling hostile about the AP's coverage of this issue (just as the AP is hostile to the public's right to know the truth about this case), and to the deceptive, slanted coverage, and lack of coverage, of same by our corporate censors. The fact that the AP seemingly withheld from the public the evidence they had obtained via the FOIAct about Armitage's meeting with Bob Woodward for months after receipt, until someone else was about to break the story, really deserves further elucidation... No media source has yet published Armitage's calendar of appointments for July 8, 2003 (I wonder if an AP reporter is caught up in this somehow?). [It is of course possible that that evidence has been withheld under one of the exemptions to the FOIAct, but it is stunning that no member of the media has bothered to ask or explain why that calendar has not been published by this time, as June 13's has been.]

Let's see how many of the AP's "friends" trumpet this disinformation, and knowingly deceptive argument, at face value in the days ahead...

P.S. My understanding of the trial start date is the same as cboldt's, lhp - although Joel Seidman of NBC News was reporting the same information you have, last week. I can understand that they may want the courtroom reserved a day in advance for set-up - but it appears that the old January 8th (plus 1/15?) start date has simply not been updated on their website? [And now, of course, there is a status conference and motion to quash hearing scheduled for January 10th.] Tuesday, January 16, 2007, as far as I know, kicks things off.

[obsessed]

>Well, you can go here to preorder

duly pre-ordered! thanks

[emptywheel]

pow wow

UGH. That is some really shitty shitty representation of the public interest. Sure seems like someone on Libby's team is trying to use them as a shield to try to force this out, to guarantee the Armitage stuff gets out there.

ANd on the July 8 calendar, I'll point out two details. First, there are still conflicting stories about when ROve first spoke to NOvak about this--but the NYT story on July 15 2005, which almost certainly was Luskin's attempt to pre-empt Waas' story--said they spoke on July 8. Further, if we had Armitage's calendar and it became clear the Novak meeting took place after the outburst to Joe WIlson's friend, it would be crystal clear that Armi was not the "first" source.

Of course, until Novak and Libby start revealing more details about their subpoenaed conversation, we don't even know that Armi is the right source.

[Leslie in CA]

Lawyer falls to death at hotel

I did a diary on that over at dKos. Not because I think it actually has anything to do with Plame, but because it seems unlikely, based on the info currently available, that he actually committed suicide.

EW, what are your reasons for thinking the civil suit's likely to be dismissed? Because it'll eventually wind up in a court that will rule the way Bushco wants, or for legitimate legal reasons?

[looseheadprop]

I did some checking close to the source and Jan 16th is indeed the beginning of jury selection.
The court calendar is evidently wrong.
However, they do not anticiapte a long voir dire maybe only a couple days. So, Opening Statements maybe on 1/22 or possibly even earlier.

This uncertainty about the date of Opening makes it a little dicey for us out of towners to make travel plans.
Imagine the nerve, the criminal justice system is not trial tourist freindly! (snark alert)

[looseheadprop]

Further, if we had Armitage's calendar and it became clear the Novak meeting took place after the outburst to Joe WIlson's friend, it would be crystal clear that Armi was not the "first" source.

Of course, until Novak and Libby start revealing more details about their subpoenaed conversation, we don't even know that Armi is the right source.

Marcy, You are a genius! Actually, I already knew you were a genius, but you just keep reminding me again and again.

This is a very nice pickup! I wonder? In that case, would it not be a wonderful thing for Team Fitz if the Judge were able to unseal?

What a bitchslap that would be!

[emptywheel]

LHP

I know what you mean, about this legal touristing. I've been invited to a very swank coffee on January 17. What is a legal tourist to do?!?!?!

[emptywheel]

Leslie in CA

Because other people who ARE lawyers have convinced me of the fact. There are several reasons for it. First, the law does protect federal workers from getting sued for something they do in the course of their job. Then, the Paula Jones precedent, while relevant (because it says POTUS can be sued) is not exactly relevant (because it referred to events from before the presidency). And because the application of first amendment rights is fairly novel. I think proving the intentional smear part is a cinch. It's getting over the other legal hurdles that is tough.

[katie Jensen]

Very interesting. There is something about the confluence of Ford's death, those watergate memories, and a pardon that the republicans are spinning "saved america". All it has done is remind me of how bitter I was that Nixon was pardoned. Keep the dialogue coming.

[John Casper]

Great title (of your book) emptywheel.

[emptywheel]

Thanks John Casper. Have to admit I had help with that one--a lot of it.

[pdaly]

John Casper said:
Great title (of your book) emptywheel.

I agree. Congrats, emptywheel.
And if you take "Anatomy of Deceit" as one word, the 15 words in the subtitle bring the total count to "16 words."
Good subliminal message.

[pdaly]

oops, I miscounted.
The subtitle alone is 16 words.

Subliminal still applies