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April 13, 2018

Prez Trump reportedly to pardon Scooter Libby

According to this ABC News piece, "President Donald Trump is poised to pardon Scooter J. Libby, the former chief of staff to Vice President Dick Cheney, according to sources familiar with the president’s thinking." Here is more:

The president has already signed off on the pardon, which is something he has been considering for several months, sources told ABC News.

The move would mark another controversial pardon for Trump and could raise questions as an increasing number of the president’s political allies have landed themselves in legal jeopardy. The White House has repeatedly said that no pardons are currently on the table for people caught up in the Russia investigation....

Libby was convicted in 2007 of lying to the FBI and obstruction of justice in the investigation into the leak of the identity of Valerie Plame, a former covert CIA operative. Then-President George Bush commuted Libby's 30-month sentence, sparing him prison time, but didn't pardon him.

After Libby claimed that he couldn't have been the source of the leak, multiple people came forward to testify that they learned of Plame's identity from Libby prior to when Libby said he had first received the information. At trial, Libby claimed to have simply forgotten he actually learned about the identity from Cheney a month before he said he had.

Since the conviction, Libby has since had his law license restored and former Virginia Gov. Bob McDonnell restored his voting rights in 2013. Many conservatives have been urging a pardon for Libby, including attorneys Joe diGenova and his wife, Victoria Toensing.

I am sincerely not sure what to say about this news, other than that I am tempted to go back and read some of the article I helped assemble for this October 2007 issue of the Federal Sentencing Reporter titled "Learning from Libby." I suppose I should be excited by the efforts of Prez Trump to make old issues of FSR great again.

April 13, 2018 at 12:03 AM | Permalink


Of course he will pardon Scooter. He wants to let all of his people know that perjury, making false statements and obstruction are not a really serious and will be considered pardonable offenses.

Posted by: John Webster | Apr 13, 2018 10:28:40 AM

i know the guy from Pardon Power visits here occasionally. My question is CAN he pardon Libby? What precedent is there for one president undoing what another president has done. It seems to me Bush's commutation rather than pardon finishes Libby appeals at the FEDERAL level. (The other actions were taken at the state level). But maybe I'm wrong in having that impression. As for the merits of such a pardon I have no significant opinion.

Posted by: Daniel | Apr 13, 2018 11:05:02 AM

A pardon is not an appeal so the rules about finality of judgment do not apply. I don't know if there is any case specifically on point, but the general understanding is that a subsequent chief executive (governor for state offenses, president for federal offenses) can't undo a prior grant of relief. (In other words, if one governor commutes a sentence from twenty years to ten years, the next governor can't reinstate the twenty year sentence.) However, a subsequent chief executive can give additional relief. (In other words, governor one can commute the death sentence to life without parole and the next governor can commute the life without parole sentence to life with parole.) Because a decision on commutation or pardon is always based on the circumstances at the time, any decision by the chief executive to not grant relief is implicitly without prejudice to future reconsideration. Thus, President G.W. Bush's decision to only commute the sentence does not bar President Trump from granting a pardon.

On the merits, the law allows a President to grant or deny a pardon based on a whim. So a president does not have to have a reason. It is unlikely that President Trump will give a reason (at least not a credible reason based on the actual facts of the case) for such a pardon. I am unaware of any significant development since 2008 by which Scooter Libby has "earned" a pardon, raising the question of the real reason for the pardon. Obviously, the concern is the implied message that a government official who breaks the law to further the agenda of a high executive branch official can expect to be protected from the consequences which Joe Citizen would face for similar acts.

Posted by: tmm | Apr 13, 2018 11:36:51 AM

Bill Otis should be happy.

The executive has basically unlimited pardon ability but a pardon as much as any other governmental act by a member of Congress or a judge in the course of their duties might be done for a way that breaks the law or at least is in theory impeachable.

For instance, if a pardon is used as part of a criminal conspiracy, the fact it is a pardon by its lonesome isn't enough to make it not so.

Anyway, this is a further abuse of the pardon power, and a rather cheapening of it too for this individual (who can now vote and practice law, apparently; what in particular makes it necessary to pardon him? maybe, if there is a general rule, it would apply to him too but why single him out?). Those who respect the pardon power and believes it should be used more should objectively be troubled by it.

Posted by: Joe | Apr 13, 2018 12:18:49 PM

Once again, Joe beats around the bush when it comes to the justification of his POV. "may be done in a way that breaks the law"--yeah, if there's an out and out bribe. Pardoning people to end an investigation isn't that.

With respect to Libby---seems that he got a raw deal.

Posted by: federalist | Apr 14, 2018 10:39:29 AM

Once again, I hedge some since in practice things tend to be more complicated than some people's blunt comments suggest they warrant.

An "out and out bribe" is not the only way something can break the law. Merely to "end an investigation" probably is not going to break the law (again, sorry to be beat around the bush, but there are so many possible scenarios that I rather be cautious) though at some point it might be very problematic.

For instance, if pardons are used as part of an overall practice of not enforcing the law against certain individuals -- such as during the Jim Crow Era, to consistently "end investigations" to civil rights violations, there can be at some point a basic violation of one's duty to faithfully execute the law. I left open this not merely being illegal either -- it might be "troubling" or at some point "impeachable," which is not merely about breaking the law (at least that is the understanding of most scholars on the question).

Even if Libby got a "raw deal," he had his sentence commuted and many others who did not get a "raw deal" didn't even get that. As federalist agreed with me in the past, interference in an investigation of the nature he was involved in is serious business. Seemed to warrant something. Why exactly he specifically gets a pardon now is unclear.

Posted by: Joe | Apr 14, 2018 12:14:04 PM

see also: https://www.emptywheel.net/2018/04/12/mueller-will-label-dangling-pardons-as-obstruction-of-justice-just-as-he-drops-more-conspiracy-charges/

Posted by: Joe | Apr 14, 2018 7:41:41 PM

Sometimes, I don't know why I even bother. The prosecution of Libby (which was based on different recollections of what was said and since recanted testimony) seemed way over the top at the time. (And no, the Plame "leak" wasn't a big deal, else we would have seen Armitage frog-marched. Funny, Joe how you don't mention the recantation and you point to others not getting a pardon who may deserve one (I tend to agree with you that many deserve it.) as if the fact that others don't get something they deserve is reason to deny another person. Fuzzy thinking.

It is interesting that the "laws be faithfully executed" makes its way into your comment. DACA and Obama?

Posted by: federalist | Apr 15, 2018 8:27:13 AM

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