Three months ago, after Scooter Libby was convicted of perjury and false statements, we argued in these pages that pardoning Libby was in President Bush's interest and in the country's interest. And we suggested that if the president did intend to pardon Libby, there was no reason to wait.
The president waited. He explained he was "pretty much going to stay out of it" until the case had run its course. Now we are near the end of the course, with a sentence of 30 months in prison and a $250,000 fine, and the judge's stated inclination not even to let Libby stay out of prison pending his appeal. The federal probation office had filed a statement that the applicable guidelines would suggest a sentence of 15 to 21 months--and that there were grounds for a "downward departure" from that range. The judge rejected his own probation office's recommendation.
Why the "unusually harsh sentence," as William Otis, a former federal prosecutor who served on the advisory committee on sentencing guidelines, put it? Because, the judge explained, "people who occupy these types of positions, where they have the welfare and security of the nation in their hands, have a special obligation not to do anything that might create a problem." Of course, Sandy Berger, national security adviser to Bill Clinton, hid original documents on his person, took them out of the National Archives, destroyed them, and lied to investigators. One might think of this as "creating a problem." But Berger got no prison time and a fine one-fifth that imposed on Libby.
Libby's sentence--to say nothing of the original prosecution--is unfair and vindictive. But there is little point in complaining or second-guessing. Scooter Libby, special prosecutor Patrick Fitzgerald, and Judge Reggie Walton have done what they have done. One man must now choose to act--or not to act. That is George W. Bush.
For now, Bush seems inclined to duck. Bush spokeswoman Dana Perino, noting that an appeals process was underway (and ignoring the indication by the judge that he might imprison Libby despite his pending appeal), said that "the president has not intervened so far in any other criminal matter and he is going to decline to do so now." She also emphasized that "the president said that he felt terrible for the family, especially his wife and his kids."
Whatever the intention, this touch is a bit chilling. Bush doesn't seem to have much sympathy for Libby himself--he was just hired help, and hired help sometimes gets thrown overboard. Normally, though, staff who get thrown overboard simply lose their government job. They don't go to jail. Nor, incidentally, has the president said that he feels terrible for what the Wall Street Journal correctly called "the cowardice and incompetence of his administration"--an administration whose CIA leaked its referral of the Plame matter, and whose Justice Department panicked and appointed a special prosecutor, all of which has finally brought us to the present pass.
In any case, it's not about Bush's feelings. The Constitution says nothing about the president's feelings. It does, however, in Article II, Section Two, give the president the power to pardon. To govern is to choose. Not to pardon is, now--given the verdict, and the likelihood of a prison term--itself a choice. Not to pardon would be a foolish and unjust choice for the president to make. But more important, not to pardon--or, at the very least, not to commute the sentence by eliminating the jail sentence--would be a dishonorable choice. For one could only interpret such a choice as driven by vanity and fastidiousness--the president's desire to separate himself from someone who has gotten into trouble, a desire not to tarnish his own legacy by pardoning the top staffer of his unpopular vice president. One might add that Libby's "crime" came about as he tried to defend the Bush administration from the charge that it knowingly--that the president knowingly--lied us into a difficult and unpopular war.
Injustices happen in politics. Sometimes presidents have to put the general good over individual cases of justice or humanity. But Bush can't believe any general good is served by Scooter Libby's going to prison. Quite the contrary. All that stands against a pardon--or at the very least commutation of the prison term--is a short-sighted, selfish, and petty desire to avoid some additional criticism. We would like to think better of George W. Bush.