Why did Trump pardon Libby?

This afternoon President Trump pardoned Scooter Libby, a former top aide to Vice President Dick Cheney. In 2007 a federal court convicted Libby of lying to a grand jury about his role in the outing of former CIA operative Valerie Plame. 

Trump’s decision to pardon Libby is mysterious. Why did the president do it?

The issue of a Libby pardon sharply divided the last Republican White House. Before President George W. Bush left office in January 2009, he commuted Libby’s sentence to keep him out of prison, but refused to give him a full pardon, despite the vice president’s repeated requests. The Libby controversy revealed how deeply estranged Bush and Cheney became during the last two years of Bush’s presidency.  In Cheney’s autobiography, In My Time: A Personal and Political Memoir, which is a quite interesting book, he essentially calls Bush a coward for not pardoning Libby. As Cheney explains:

“I felt strongly that Scooter deserved a pardon, and I broached the subject on numerous occasions with the president. . . . I understood that a pardon for Libby was unlikely to be well-received in the mainstream media . . . . But in the long term, where doing the right thing counts, George W. Bush was, in my view, making a grave error. . . . George Bush made courageous decisions as president, and to this day I wish that pardoning Scooter Libby had been one of them.”

In light of the hard feelings between Cheney and Bush, why would President Trump revisit the Libby issue? In the official White House statement today, Trump admitted that he does not have any particular knowledge of the Libby matter: “I don’t know Mr. Libby but for years I have heard that he has been treated unfairly.”

So why pardon Libby now?

Three possible explanations stand out. The first is that Trump genuinely believes that Bush was wrong and that Libby was a victim of a miscarriage of justice. But that still doesn’t explain the pardon’s timing. 

A second explanation is that President Trump wants to undermine former FBI Director James Comey, who played a key role in authorizing the Libby investigation. Comey’s new book, which describes President Trump as “untethered from the truth” and likens the president to a mafia boss, has consumed the national media’s attention all day. Trump responded this morning with Tweets calling Comey a “proven leaker & liar” and an “untruthful slimeball.” Pardoning Libby gave Trump an opportunity to strike back at Comey today, at least in an indirect way. 

But the most troubling explanation is that the Libby pardon is a preview of coming attractions. As Special Counsel Robert Mueller’s investigation gets ever closer to the president and his inner circle, Trump may view the pardon power as his ultimate weapon against Mueller. The possibility of a presidential pardon could persuade key defendants (and potential defendants) to keep quiet and not cooperate with the Special Counsel. There is reason to believe the Trump White House is already thinking along those lines. According to the New York Times, one of the president's lawyers raised the issue of pardons with attorneys for Paul Manafort and Michael Flynn.

If Trump uses pardons to undermine the Special Counsel’s investigation, perhaps in combination with a Saturday Night Massacre-type firing of Mueller and Deputy Attorney General Rod Rosenstein, a Supreme Court battle over the extent of the presidential pardon power is inevitable. Section 2, Article II of the Constitution states that the president:

• “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

No one really knows what the limits are to that power. We have certainly seen controversial pardons in the past. In December 1868 Andrew Johnson used the pardon power to grant amnesty to hundreds of thousands of ex-Confederate soldiers and others who supported the Confederacy during the Civil War. In September 1974 Gerald Ford used the pardon power to preempt federal prosecutors from indicting former president Richard Nixon for his Watergate crimes. In December 1992 George H. W. Bush pardoned former Defense Secretary Caspar Weinberger and 5 other figures involved in the Iran-Contra Affair. 

Never before in history, however, have we seen a president use the pardon power to obstruct justice in order to save himself and his presidency. Even Nixon did not pardon his Watergate co-conspirators when he had the opportunity to do so. But the Libby pardon may signal that President Trump will employ an even more aggressive strategy than Nixon did to thwart federal investigators. A constitutional showdown of epic proportions, with highly unpredictable consequences for the American system of law and government, thus grows more likely with each passing day.    

Comments

[Deep State Special Legal Counsel]

Seems simple to me: He's flipping the bird at the Judiciary.

He is an outsider. He is no better or different than a clueless defendant who wears a Budweiser frogs T-shirt to court for a DUI probation revocation hearing.

[Anthony Gaughan]

Thanks for your comment, Deep State Special Legal Counsel. Have a good weekend!

[Anon]

Its an obvious effort to send a message to all who he conspired with, that lying to investigators, perjury and obstruction of justice will be rewarded with a pardon. He's trying to shut up Cohen, Manafort, Flynn, Gates, and others. The converse of a mob boss whacking the first stool pigeon, to send a message.

[anon]

Your thinly-veiled partisan attacks inspire such thoughtful comments, right Anthony? You must be so proud.

Thank you for your posts, and have a great weekend!

[anymouse]

Libby is certainly not as deserving as Marc Rich which was such a noble and honorable pardon.

[Deep State Special Legal Counsel]

anymouae at 10:19,

I thought of that too. Agree, Marc Rich was not an "honorable" pardon. Wasn't some kid who took a park of gum from the White Hen at 14 and became a school teacher. However, even though that pardon was not "right it was not "wrong" either. Marc Rich was pardoned based on his conduct outside of the Judicial system. He was an ordinary criminal. Nearly all of Trumps pardons were for defendants who committed crimes, offenses or defied orders in front of a Judge. It's a direct message and threat of open defiance to the independence of the Judiciary. He hates judges.

[Anthony Gaughan]

Thank you for your comments, anon. For the record, I am a registered independent. In any case, thanks again and have a great weekend!

[Anthony Gaughan]

Thank you for your comments, Anon. I suspect that you are right about the message that the Libby pardon was intended to send. Have a great weekend.

[Anthony Gaughan]

Thank you for your comments, anymouse, and thank you for reminding me of Bill Clinton's Marc Rich pardon. I should have added that to my list of controversial presidential pardons. Have a great weekend.

[Anthony Gaughan]

Thank you for your comments, Deep State Special Legal Counsel. I'm concerned too that the Libby pardon is intended to send a message to current and potential defendants in the Mueller probe. Thanks again and have a great weekend.

[anon]

What difference does party registration make? your posts speak volumes: topic selection, fact selection, spin selection. It's all obvious. Citing an irrelevant fact (party registration) cinches the conclusion.

Have a great weekend!

[Deep State Special Legal Counsel]

It will be a great weekend if we are not bombed back to the Stone Age by Russia, China, Iran, Mexico, and any and all "****HOLE" nations that Cadet Bone Spurs managed to alienate. Obama left him with no messes. All our GREAT and WONDERFUL leader needed to do was improve upon what Obama started and he would have been a second term president.

Have a Great Weekend!

[Jon H]

"a Supreme Court battle over the extent of the presidential pardon power is inevitable"

Who would take it to court, though? If the Democrats filed suit perhaps it would get tossed for lack of standing. After all, they wouldn't have been harmed and Trump wouldn't be in violation of a law Congress had passed.

(You can probably tell but I am not a lawyer. Please be gentle.)

[Anthony Gaughan]

That is a fantastic point, Jon. I agree with you. Standing issues probably pose an insurmountable barrier to most efforts to challenge presidential pardons, even when the presidential pardon allegedly obstructs justice.

However, I think there are still ways that the extent of the president's pardon power could end up in court.

For example, imagine that a president issues mass pardons to obstruct a criminal investigation into the president and the president's aides. The House then impeaches the president on grounds that the pardons obstructed justice. The Senate agrees and convicts the president by 2/3 vote.

The former president would then have "injury in fact" and thus standing to argue that his pardon power is unlimited and that the impeachment was itself an unconstitutional intrusion into the president's Article II powers. Of course, the Supreme Court would likely decline to hear the case under the political question doctrine, which it has used before in impeachment cases (most famously in a case involving a federal judge in the 1990s called Nixon v United States). But in such momentous circumstances, perhaps the Supreme Court would change its mind about the political question doctrine's applicability to impeachment cases and decide that it should exercise jurisdiction over the case.

A second scenario would involve the same facts as the presidential impeachment scenario, only this time imagine that federal prosecutors go ahead and indict the individuals who were the beneficiaries of the very pardons that led to the president's impeachment and removal. Federal prosecutors might argue that the pardons are now invalid, since Congress determined that the issuing of the pardons obstructed justice.

In that scenario, the beneficiaries of the pardons would (at least in my view) clearly have standing to bring suit because their "injury in fact" would be apparent. That in turn would put the presidential pardon power squarely before the federal courts. But I have to admit that even then it's possible that the federal courts would decide the case on other grounds, such as the Double Jeopardy clause.

In any event, the extreme nature of these scenarios underscores the fact that standing issues are going to make it very difficult for most challenges to the president’s pardon power to end up in Court.

So thanks for your great comment, Jon!