Thompson's Folly

by emptywheel

Judge Walton is tough as they come, and he has the cojones to send Scooter to get his orange jumpsuit sooner rather than later.

That's far and away the most satisfying line from John Dean's review of the tensions behind Libby defenders' calls for his pardon. But the rest of the column is equally worth reading, because Dean--who knows a lot more about these issues than I--lays out some of the tensions I described in my letter to Reggie. Dean predicts that Judge Walton will send Libby directly to jail, which will in turn intensify the discussions about a pardon. But, Dean reminds us, discussing the pardon of someone who served as your firewall can in turn get you indicted.

After all, the March 1, 1974 indictment of Mitchell, Haldeman, Ehrlichman and Chuck Colson (who pled guilty, rather than risk a trial) charged each of them with a conspiracy to obstruct justice by offering to provide clemency to those involved in the Watergate break-in. In addition, as Nixon's tapes showed, the president discussed pardons on several occasions, and this abuse of power was included in the bill of impeachment against him that was pending when he resigned.

Dean argues--as I did--that Libby was clearly protecting Cheney, and therefore any discussion Cheney has of a Libby pardon would expose him to indictment himself. Now, any discussion of pardon between Libby and Cheney would be difficult to prove. As Dean points out, they probably have their very own code for these moments.

It's likely that only Cheney and Libby know precisely what transpired between them, assuming they are half as shrewd as they appear. In addition, Libby has probably not been foolish enough to directly request a pardon, nor Cheney imprudent enough to directly promise one. Given what happened during Watergate, surely they are smart enough not to have had that conversation.

However, these men have worked together so long and closely that a knowing look, or pat on the back, from Cheney at the right moment could and would have said all that was necessary. And my strong impression, from the outside, is that, indeed, that message has been sent.

Add to the fact that Cheney isn't exactly known for keeping lots of incriminating papers lying around. And we know that Libby was with Cheney in Jackson Hole just hours before he met his lawyer Joseph Tate to prepare for his first FBI interview. I'd imagine it's pretty easy to keep things that are said in Jackson Hole in Jackson Hole. Something about the aspen trees that grow in Jackson Hole, I think.

In any case, Dean suggests and I agree that Dick and Libby are likely reasonably good at covering their own tracks.

Which is where Fred Thompson comes in. Dean suggests that the Defense Fund may well be an effort by Cheney supporters to protect their Dick.

Scooter Libby, however, did create such a defense fund. Whether Dick Cheney quietly picked up the phone to get this going, is not known. If he did, he kept himself well removed. Indeed, Lynne Cheney could well have done it. We will never know. But whoever was behind the defense fund, it has worked.

The risk, though, comes when otherwise intelligent people attack the prosecution as if it is out of control.

If high-powered folks like Fred Thompson lobby Bush for a pardon, Cheney need not be involved, and risk further participation in a conspiracy to obstruct justice. But the claim, made by Thompson and others, that Libby is the subject of a great injustice in being prosecuted is pure hogwash. This, in turn, suggests that this entire effort is nothing but a charade.

Frankly, I am not only stunned that Fred Thompson has taken up the "Free Scooter" campaign, but by the crude and thoughtless tactics he has employed. He has either lied or could not be troubled to inform himself of the facts before he attacked Special Counsel Fitzgerald.

[snip]

... based on his two-plus years as an Assistant U.S. Attorney, Thompson informed the audience, "In no other prosecutor's office in the country would a case like this one have been brought." Apparently, other prosecutors tolerate perjury and obstruction of justice. In addition, later in his speech, Thompson explained, "I have called for a pardon for Scooter Libby. When you rectify an injustice using the provisions of the law, just as when you reverse an erroneous court decision, you are not disregarding the rule of law, you are enforcing and protecting it."

That twisted report of the Special Counsel's investigation, and disturbing view on what to do about it is a bit frightening - especially coming from a man who wants to be president. But it is arguments like this that are the basis of the drive for leniency from Judge Walton, for a pardon, and, more broadly, for a change in public opinion regarding this case.

The claims against Fitzgerald and calls for pardon are so bogus from a legal standpoint, Dean suggests, that they beg further investigation.

Which is when Dean raises the specter of Marc Rich, a person know to all these players intimately (after all, Libby represented Rich his pardon negotiations). Dean points out that Fitzgerald was working in SDNY (though not, as Comstock's minions would have you believe, closely involved in the issue) when they aggressively investigated Clinton's pardon of Rich. There is precedent to investigate the circumstances around a dodgy pardon and Dean argues Fitzgerald may well pursue that.

What will happen if Fitzgerald observes Bush pardoning Libby without any better rationale than the paper-thin ones Fred Thompson and friends have been pushing? One would be wise to remember that Fitzgerald will still have five years before the statute of limitations runs to find out why such a pardon was issued, as occurred with Clinton's Marc Rich bottom. Fitzgerald's appointment as Special Counsel ends when he ends it, and given his apparent view that Cheney is at the heart of the Plame scandal, I don't expect him to end it prematurely.

I'm not so sure, though I agree with him that Fitzgerald sees Cheney as the ultimate wrongdoer in this case.

All an interesting argument. Which makes me wonder whether we'll see Barbara Comstock's Marc Rich campaign get replayed after the sentencing?

Comments

[TomJ]

I seem to be stuck on the question of what happens if Bush pardons Libby. Doesn't Libby immediately lose any 5th amendment right to not testify? Couldn't he be called anywhere and everywhere to give more information, once again exposing himself to obstruction of justice, lying, or whatever? A pardon doesn't erase duty to testify truthfully in the future, with the widest grant of immunity possible.

[Ishmael]

EW - If Dean is correct, and the problem for W and Cheney is the appearance of impropriety in the pardon, it would strengthen in my view the likelihood that Bush and Cheney have gone on the record with Judge Walton with their reasons for clemency. As I undertand the pardon power, the pardon itself is unreviewable by any court, so Scooter would be in the clear unless there was an independent act such as a bribe or conspiracy to offer/accept a pardon in return for further frustrating the investigation.

[Mimikatz]

There is no irony in Libby having worked for Marc Rich.

The Comstocks didn't mind the pardon of Marc Rich, they just minded that BILL CLINTON pardoned Marc Rich. The wingnuts went wild because of their Clinton hatred, because they thought he might have had some special time with Denise Rich in return, and because they were told to. If it had been Bush who pardoned Marc Rich, well, so what? Rich is a rich, smart guy--the kind all these capitalists love, don't they? What morality of the marketplace?

These folks really overestimate the stupidity of the American people. That is, underestimate the good sense of the majority.

[kaleidescope]

It would be a shame if Bush pardons Cheney's firewall, but given Daddy Bush's pardon of Casper the Friendly Scrot and Elliot Abrams, we all know what to expect. So if a pardon is inevitable, it would be best to force Bush to do it now, while it can still cause him more political damage.

[Sojourner]

If Libby gets a minimal sentence, or if he is pardoned, I think any belief by our citizens in our system of justice will disappear totally. It will reinforce the idea that it is "who you know" and not what you did. Laws will rapidly become unenforceable -- actually, they already are. I know that sounds radical, but I sense a great tension across the country and people are tired. I have no doubt that Walton will try to do what he feels is correct, but if it is negated by a Presidential pardon, I think there will be some major repercussions...

[Sara]

Yes, if he is pardoned, he has to accept the pardon (an admission that he needs it because of wrongdoing) and on the matters the pardon covers, there are no 5th amendment rights. So if Bush issues an early pardon, Leahy, Conyers and Waxman will have open season. (my guess is that in such a case, Scooter would high tail it out of the country so as to be beyond the reach of the subpoena servers.)

Should Walton give him say 30-36 months, begin serving immediately, Bush could pardon as he walks out the White House door Jan, 2009, and Libby could get his sentence sliced in half. (Unless of course the Appeals Court released him earlier.)

My own sense of this is that the WH principles really don't know ALL that Fitzgerald has in his files, and I suspect they might be very very careful in dealing with this. One odd thing to recall -- the current WH Counsel, Fred Fielding, is a good friend of John Dean's -- during Watergate they lived across the alley from each other, and when Dean wanted to hide files, he hid them in Fred's house till he could move them to a safe deposit vault. Fred let him use his house as a way to avoid the press stake out on the sidewalk in front of Dean's place. I bet they still are good friends. Just something to keep in mind.

[bmaz]

Sara - That is fascinating about Dean and Fielding. If I ever knew that, I certainly had forgotten. I am not sure how it fits in, but absolutely fascinating. I saw your "bet", but any idea whether they still talk?

[John Casper]

IIRC, when a guest on Olbermann's COUNTDOWN, Dean always speaks very highly of Fred.

[Woodhall Hollow]

I had a feeling that when Fielding was appointed, he was inserted by Pappy Bush--and other similar powers that be--to protect Jr from himself, Cheney and Rove, specifically wrt the Libby matter. Had there been someone/anyone with any sanity at the WH when all this went down, you can bet that they would've found another way to tar and feather Joe w/out compromising a CIA asset. In other words, they didn't really take the time to think about what they were doing and what the possible short and long term political & legal consequences were before they went out all desperate and half-cocked to get them some Joe. Which is why they find themselves in the picklejam they now find themselves in.

One also wonders if Dean's column isn't a little memo to his friend Fred, ie, you might want to think very carefully before you sign off on Bush or Cheney doing anything at all wrt the Libby matter.

As for the rest of them--Comstock, Thompson et al; they are just being foolish if they really believe that they can weazel Scooter (and Cheney) out this by smearing Pat Fitzgerald. You would think they would've learned something over the past few years. But then again, they are fools.

[DonS]

When pardon comes up, it seems like we may glean a whole lot more about 1) the state of the Cheney - Bush relationship, at least on this issue, which in turn may give more indications of 2) the extent of Bush's involvement, from the beginning, in outing Plame.

We all remember Bush's disclaimer's and threats to un-employ possible culprits, all of which proved to mean nothing as culprit after culprit stonewalled without Bush's action. Is it just the loyalty thing, or is Bush so implicated that he can't avoid pardoning without the whole thing unravelling?

[ceeinbc]

bmaz -- Perhaps you might be interested in Dean's disclosure statement, with regard to Fielding, contained at the beginning of his March column/commentary on Bush refusing either Rove or Miers to testify before Congress. There's no mention of friendship. Here's the link

[P J Evans]

I thought Dean's column was interesting.

I also noticed that he never mentioned his part in Watergate. Not even once.

[bmaz]

ceeinbc - Thank you for that. I recall redaing that at the time it came out. But it doesn't really address the closeness of Dean and Fielding that Sara delineated or what their current staus of contact is. John Casper is exactly righrt about Dean's appearances on Olbermann, and there have been several where Fielding's name came up and Dean is always respectful and kind as to Fielding. There is clearly no ill will between the two; question is how close are they at this point. By the way, I like your name. Are you in British Columbi or a tv studio?

[ceeinbc]

bmaz, you're most welcome, and I agree Dean's statement was more than little circumspect with regard to either his current or past relationship with Fielding. In answer to your question vis-a-vis my name -- definitely not a studio! I'm in British Columbia.

[Jeff]

There's something about that Dean column that sounds vaguely familiar. Can't quite put my finger on it, though.

[Sara]

Actually the "domestic" side of John Dean's life during Watergate was something I got to see first hand. My folks lived three blocks over from what I am about to describe, and the whole scene was fodder for some good jokes and stories.

First of all, John Dean and I are the same age -- and our mothers knew each other both from church and from the waiting room for the OB/GYN doctor in Akron. Then Dean and I, I discovered in 1973, were baptized in the same Palm Sunday event. (I found the program for it, I don't remember it.) At some point after Dean became famous, my mom approached him at a neighborhood social event, and introduced herself, and her relationship. She kept her eye peeled for all sorts of gossip and all that -- she was a good observer.

There were about five of the Watergate figures who lived in those few blocks -- one rented the townhouse next door, and as my mom observed, he specialized in hot and cold running blonds. He had a very minor role -- I won't use his name, but he was the son of a quite famous, as one is famous in Ohio, Methodist Bishop, who became President of a leading Methodist College. In the 50's he had been quite the moralist -- something of a cross between Billy Graham and Norman Vincent Peal. Mom always said that Preacher's sons were the pits -- and this was further evidence for her conclusions. Anyhow the Methodist Bishop/College President had played a speaking part in the Eisenhower Administration, and the son apparently got a legacy. Two others, names that feature in "All the President's Men" lived around the corner, -- town house batchelor pad.

Dean lived on Queen I think -- maybe it was Princess, right down by the river on the corner with Union. This was a group of new townhouses that went up in the early 70's, Dean was the first owner. My mom considered them overpriced. Anyhow Dean lived on the corner facing the Capitol, and Fielding lived just behind him, facing SE. The houses backed on to an alley. Anyhow Dean discusses moving his files in the middle of the night to Fielding's house through the alley in his book, "Blind Ambition." It also became a scene in the made for TV movie. By the way, when Dean packed up and moved out of Alexandria, he sold his house to Senator Weicker.

When Dean made his deal with the Prosecutors in April, 1973, and turned over his files, (Remember the Huston Plan for using the FBI against political enemies???) He took the files from Fielding's house up to the neighborhood bank, rented space in a vault, gave the key to his lawyer, and then his lawyer gave the Prosecutors the key, they took a whole convoy of US Marshalls to the bank to get the evidence. As it happened, when they arrived my mom was in the bank doing some check cashing, and they came in with guns drawn and all that, and locked the place down with my mom at the teller window. She thought it was a bank heist. Anyhow, then the lawyer and Dean came in, went into the vault, then they wheeled stuff out, and finally the lock-down ended. (Mom's tend to remember stuff like that.) Of course when Dean testified in July we all found out what it was about. But between the event in April and July, my mom thought that Dean had put Nixon's slush fund in the vault.

Anyhow, I would assume Fielding and Dean remain friends -- though distant ones. Fielding was Dean's deputy as White House Counsel, and moved up when Dean left -- but it always seemed to me that Dean confided in Fielding as things moved along. Fielding did no "Watergate" work for Nixon once Dean left -- by that time Nixon was limiting the Watergate stuff to a narrow part of the staff and his personal lawyers. But Dean did make him a witness to a couple of things earlier on -- destruction of some of Liddy's notes sticks in my memory.

Yep, I think it quite likely that some Republican semi-Adult brought Fielding into this WH to keep Junior Bush out of even greater trouble. And it could very well be that part of keeping him out of trouble will involve not letting Cheney get to Bush about a Libby Pardon too soon. I wonder if they are still having bible study at the White House??

[Markinsanfran]

Marcy, what's your take on the new Karl Rove linked to Don Siegelman news, and the implication of Abramoff USA Alice Martin?

[Woodhall Hollow]

Sara, your Mom is a hoot! And she sure does have a knack for being in an interesting place at the right time. I like the part about Nixon's slush fund (and the overpriced condos!).

[Sally]

P J Evans, Dean must think most people know about his role in Watergate. Olbermann brings it up so often when introducing him on Countdown I am embarrassed for Dean. Mr. Dean has paid his dues in my estimation. If anyone gets a pardon, I hope it's Dean.

[Sally]

Sara, oh, yes, Bible Study for this gang of thugs. I'm often reminded of Bush's obsession with having everyone in the White House dressed neatly while their black souls can be seen by anyone paying attention.

[CMike]

Didn't he mean to say "Clinton's Marc Rich pardon"?

John Dean wrote:

One would be wise to remember that Fitzgerald will still have five years before the statute of limitations runs to find out why such a pardon was issued, as occurred with Clinton's Marc Rich bottom.

A simple (sic) would have saved me from going over to FindLaw and reading the whole article myself.

[P J Evans]

No, I know that Dean was involved; it was just that when writing about the other people and what happened to them, it seemed odd that he didn't include himself. (Dean was the best of that lot, IMO. And I remember watching the hearings.)

[Mary]

I'm pretty sure this isn't the case:

Fitzgerald's appointment as Special Counsel ends when he ends it...

It ends or is modified (or ended or was modified) when McNulty says so if I read Walton's memorandum opinion correctly.

Not that McNulty would be involved with the removal of a prosecutor pursuing a public figures case. In any event, if Fitzgerald was an outside special counsel, those regs would give a heads up on some of the major things that might occur on a disagreement/withdrawal of power/authorization front; but since he is in-house if he had his mandate changed or revoked, I'm not sure anyone would know.

[emptywheel]

Mary

Do you mean McNulty or Margolis?

[honked off as usual]

http://bluegirlredmissouri.blogspot.com/2007/06/its-miracle-he-can-walk-at-all.html

Scooter Libby wants probation…and maybe a little community service - if he can work it in between the time the aspens turn and Thanksgiving. Can you f***ing stand it? Commit treason against our nation, and have the unmitigated gall to shamelessly ask for probation???

And the hell with the notion of leniency because he's a first time offender. HE COMMITTED TREASON. There should be no leniency, and the time should be spent at hard labor. i live close enough to Leavenworth to hand him the sledgehammer my damned self. In fact I volunteer to do so!

In Japan, he would be obliged to kill himself in order to redeem his honor - But we are not talking about a man of honor - we are talking about a Cheney flack would know nothing about that. My bad.

Seriously – I threw up a little in my mouth when I heard about this.

He outed a CIA asset – the number one asset we had where nuclear counter-proliferation was concerned – because her husband told the truth about some lies that the war criminal in the oval office told – lies that have displaced as many as 5 million people in a population of 25 million – and killed upward to one million human beings - nearly 3500 of them Americans.

The man has the blood of a million people on his hands, and he compromised national security for the most crass, craven, mendacious of reasons - Politics.

And now he wants probation?

Probation???

I'm gonna be sick again.

He committed treason. If there was justice, he would f***ing hang by the neck until dead. Seriously. He is right up there with Benedict Arnold as far as traitors to the nation go. We executed the Rosenberg's for less.

I hope Judge Walton is just half as offended by this notion as I am.

The opprobrium of his offense is such that he should die.

The mere idea that he should get probation is an affront to common decency.

Has he, at long last, no shame?

[Josiah Bartlett]

Honked,

This got you going. But I agree with you. What would happen if Judge Reggie harbored the same outrage and at sentencing stated such in his sentencing verdict and handed Libby the death sentence. I'm sure there would be lot's of soiled underwear in certain rooms of the whitehouse. Yes, they would immediately appeal the decision through the courts but more significantly through the political channels for a pardon.

The games would be great theater. Pass the popcorn.

[Quzi]

Sara,
Funny story about Dean and Fielding -- I didn't remember that Fielding stashed docments at his house for Dean either.

NPR has an interesting article on Fielding and it mentions their realtionship also.

Link

I hope Walton sentences Libby to the max...but realistically I'd settle for 24-30 months with a "Go Straight to Jail" card for Scooter-Patooter.

Marcy, - looking forward to you & Jane's live blogging on the 5th! Safe travels to both of you.

[Ron Russell]

Honked,

AGREED! Those Repugs pushing the "no underlying crime" theme for Scooter, would be screaming "Treason" if a Progressive so much as revealed the name of a Janitor at the CIA.

[Mary]

Way late but if you see this EW - I meant McNulty. I know that COmey handed off supervision to Margolis. However, that was before McNulty was confirmed. There is nothing that has been made public (but it wouldn't have to be public) to indicate a return of that delegated authority from Margolis to McNulty, but when Fitzgerald argued that he was not a principle officer bc he could be removed, he argued in the alternative with respect to by Margolis or McNulty. IIRC, Walton's opinion references the DAG without making the same either/or assessments. I've always wondered if oversight didn't get handed back to McNulty at some point and whether or not formally handed back, Walton's opinion (again, IIRC but I think this is the case) referenced the DAG as having the power, not Comey's initial delegee.