The Libby Commutation: Coincidence, or Conspiracy?
The President of the United States has the unrestrained Power of granting Pardons for Treason; which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the Crime, & thereby prevent a Discovery of his own Guilt. -- George Mason (1725-1792), the "father of the Bill of Rights," noting his objection to presidential pardon powers in his first draft commentary on the Constitution of the United States he helped write
Ambassador Joe Wilson writes a New York Times op-ed article suggesting that George W. Bush knowingly lied to the American people in a Constitutionally-required duty of Bush's office - the State of the Union speech - and Wilson's wife is punished by having her career and her life's work destroyed (along with the destruction of a major CIA undercover asset in the front company of Brewster Jennings, Inc.).
Coincidence or conspiracy? That's part of what U.S. Attorney Patrick Fitzgerald was charged with discovering.
In the process, Fitzgerald found that somebody was repeatedly trying to "throw sand in the umpire's eyes" - obstructing Fitzgerald's investigation into the now-identified conspiracy to destroy a CIA asset as a form of political payback. That person obstructing the investigation into the conspiracy, Fitzgerald discovered, worked at the right hands of both President Bush and Vice President Cheney and was named Irving Lewis Libby.
Coincidence or conspiracy?
On January 26, 2007, Newsweek's Michael Isikoff reported that Libby was going to undertake an aggressive defense of his own role in what may be revealed as a larger criminal conspiracy centered in the White House. In essence, his defense would be that he was merely a low-level grunt, a "scapegoat" ("patsy" was the term used by a previous generation) for crimes committed by those above him:
White House anxiety is mounting over the prospect that top officials—including deputy chief of staff Karl Rove and counselor Dan Bartlett—may be forced to provide potentially awkward testimony in the perjury and obstruction trial of Lewis (Scooter) Libby. Both Rove and Bartlett have already received trial subpoenas from Libby's defense lawyers, according to lawyers close to the case who asked not to be identified talking about sensitive matters. ... Cheney is expected to provide the most crucial testimony to back up Wells's assertion, one of the lawyers close to the case said. The vice president personally penned an October 2003 note in which he wrote, "Not going to protect one staffer and sacrifice the other."
Libby's lawyer, Theodore Wells, explicitly told the jury in his opening statement:
"Mr. Libby, you will learn, went to the vice president of the United States and met with the vice president in private. Mr. Libby said to the vice president, 'I think the White House ... is trying to set me up. People in the White House want me to be a scapegoat.'"
When Fitzgerald got Cheney's current number two guy, David Addington, on the stand, he grilled Addington about what Cheney had written, one implication being that the outing of a CIA officer and her counterterrorism operation, Brewster Jennings Inc., was a crime that originated not just with the Vice President, but as a criminal conspiracy that originated with the President himself.
Wells handed Addington a copy of the note Cheney had written in September of 2003 and pointed out that the original handwritten text hadn't said:
"not going to protect one staffer and sacrifice the guy that was asked to stick his head in the meat grinder because of incompetence of others" but, instead Cheney had written: "not going to protect one staffer and sacrifice the guy this pres asked to stick his head in the meat grinder because of incompetence of others." (emphasis added for clarity)
Libby's lawyer, Wells, ran Cheney's assistant, Addington, through the memo:
Wells: "Can you make out what's crossed out, Mr. Addington?"
Addington: "It says 'the guy' and then it says, 'this Pres.' and then that is scratched through."
Wells: "OK, let's start again. 'Not going to protect one staffer and sacrifice the guy ...' and then what's scratched through?"
Addington: "T-h-i-s space P-r-e-s, and then it's got a scratch-through."
Wells: "So it looks like 'this Pres.?'"
Addington: "Yes sir."
So here was the defense's case: The President and Vice President of the United States conspired to cover up their own outing (through the proxy of their underlings) of a CIA officer and her undercover operation, damaging the intelligence apparatus of the United States and intimidating CIA officers worldwide, purely for political payback against Wilson and to intimidate CIA officers who may think of speaking out (or anybody related to a CIA officer who may think of speaking out).
Former President George H.W. Bush had once famously said: "I have nothing but contempt and anger for those who betray the trust by exposing the name of our sources. They are, in my view, the most insidious of traitors."
But now that Libby's defense team had suggested in open court that this conspiracy to expose the name of a CIA source had originated with his son, the former President was conspicuously silent.
Half a year - from May 2006 to late January of 2007 - went by filled with reports that Libby's lawyers were going to put Cheney under oath on the witness stand. Even Cheney himself said in a January 2007 interview with Wolf Blitzer: "I'm going to be a witness in that trial within a matter of weeks, I'm not going to discuss it."
And then the third bomb dropped.
Suddenly, in the second week of February, 2007, Scooter Libby decided to lie down and let the steamroller of the criminal justice system roll all over him.
He wouldn't ask Rove or Cheney to testify.
He wouldn't call other witnesses from within the White House.
His lawyer wasn't going to bring up the Cheney memo again.
Libby wouldn't even take the stand in his own defense.
And it all happened just about the time Rove and Cheney would have been forced to testify in court under oath.
Coincidence or conspiracy?
The press was stunned. As reporter Andy Sullivan reported for Reuters on February 13, 2007:
U.S. Vice President Dick Cheney will not testify as expected in a former top aide's perjury trial that has exposed White House efforts to counter Iraq-war critics, the aide's lawyers said on Tuesday. Defendant Lewis "Scooter" Libby, Cheney's former chief of staff, likewise will not take the witness stand, his lawyers said as they abruptly prepared to wrap up their case on Wednesday.
From a legal defense point of view it made no sense. It was almost as if Libby didn't care if he was convicted or not. He smiled a lot, and friends raised over $5 million for him. But he wasn't going to offer a defense. Not even a word to the jury in his own defense.
In Sullivan's Reuters article, he quoted George Washington University law professor Jonathan Turley:
"Most jurors expect defendants to testify, and the failure to do so can lead to silent presumptions against them on credibility questions."
The possibility that Libby's decision not to bring Cheney or Rove to the stand but instead to simply roll over and legally die troubled many. Along with others on the radio and in print, I speculated at the time that in exchange for Libby not going forward with a defense - a virtual assurance that he would be convicted and sentenced to prison - Cheney and Bush had promised him a presidential pardon.
Such an explicit quid pro quo would, according to most constitutional scholars, represent a clear criminal conspiracy to obstruct justice, a felony and an impeachable offense.
So here we have a new question:
First lying us into a war - we now know from people within the administration itself that it was a conspiracy.
Then destroying part of the CIA to cover up that first act of treason - a court has ruled that was a conspiracy.
And now the possibility that Libby was given the assurance that if he didn't defend himself, he'd be taken care of, just as Libby's defense was about to bring the White House onto the stand to testify under oath in open court.
Was it a coincidence or a conspiracy?
When Richard Nixon tried to stop judicial inquiries into his own crimes, Congress investigated and discovered that Nixon was part of a criminal conspiracy based in the White House. They responded with articles of impeachment, which read, in part (emphasis added):
In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that:
...Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.
The means used to implement this course of conduct or plan included one or more of the following:
making false or misleading statements to lawfully authorized investigative officers and employees of the United States;
withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;
approving, condoning, acquiescing in, and counseling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;
interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees; ...
making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct: or
endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony. ...
Was Bush's commutation of Libby's imprisonment just days before it was to begin and after his appeals of it were exhausted simply a coincidence, or part of a conspiracy that reaches back to the first months of this year?
It appears that an entirely new crime - one that has not been investigated, exposed, or reported on at all - happened in late January or early February of this year.
Was Bush's commutation of Libby's jail time a coincidentally-timed act of mercy by a man known as brutally unmerciful, or an act of criminal conspiracy to conceal previous criminal conspiracies?
In the winter of early 2007, Did Bush, Cheney, or both, directly or through a co-conspirator, assure Libby that he would never have to serve jail time, and that he would not carry any criminal stain after Bush left office?
Was the timing of this commutation a coincidence, or part of a conspiracy to cover up other conspiracies, which have already been determined by a US Attorney to include both partisan and apparently illegal activities directed from within the White House?
The last time our nation confronted such a question, the nation's press did their job and looked into it, while Congress did the job assigned it by the Constitution and launched an immediate investigation.
Today's press, and this Congress, should do no less.
Thom Hartmann (thom at thomhartmann.com) is a Project Censored Award-winning New York Times best-selling author, and host of a nationally syndicated daily progressive talk program on the Air America Radio Network, live noon-3 PM ET. www.thomhartmann.com His most recent books are "The Last Hours of Ancient Sunlight," "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights," "We The People: A Call To Take Back America," "What Would Jefferson Do?," "Screwed: The Undeclared War Against the Middle Class and What We Can Do About It," and "Cracking The Code: How to Win Hearts, Change Minds, and Restore America's Original Vision."