The President Covers His Tracks

On the legality of Bush's commutation of Libby's sentence, there is not a lot to say. Critics can rant and rave all they want, but there it is in the Constitution, Article II, Sec. 2, where the President, on an unqualified basis,

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

The Supreme Court has construed this power (which applies only in the case of federal law, such as the offenses for which Libby was convicted) to include the power to commute sentences, for any reason, for no reason, for a bad reason. The power has always been controversial, harking back as it did to the British king's power to let political allies off the hook. The more things change, the more they seem the same.

Looking at matters circumspectly, it is obvious that L'Affaire Plame is the true legal Achilles heel for both Bush and Cheney. It strains credulity well past the breaking point to believe, for a moment, that Bush did not know, in detail and in real time, everything there was to know about the coordinated leaks to the press which occurred in July, 2003. The press has been remarkably timid and reticent about this point, choosing to accept the ludicrous idea that Bush was telling the truth when he expressed his determination "to get to the bottom of the leak" etc. ad nauseum in the summer and fall of 2003, before he went underground with the excuse that he did not want to comment on an "ongoing investigation." Since we now know, to a moral certainty, that Cheney, Rove and Libby, among others, already knew everything there was to know about the leaks, what are the odds Bush was not similarly in the loop? His Vice President knew everything Bush professed not to know at the very time Bush was making statements to create the impression he did not know anything. We also know, from hearings which Henry Waxman conducted, that the White House's own office of security did not even open a file to investigate the leak. How, then, was Bush conducting his "inquiry?" There was no inquiry because Bush already knew the whole story. If he didn't know it as it happened, he knew when Cheney told him immediately after.

Lawyers use "Canons of Interpretation" to construe statutes, contracts, and other legal matters. For example, where a contractual matter is ambiguous, the interpretation least favorable to the drafter of the document is employed. The enumeration of specific things in a statute is assumed to be to the exclusion of things not mentioned, unless a contrary intent appears. And so forth. The main Canon of Interpretation to use with George W. Bush's every action and utterance is this: the man never does or says anything out of principle if such action could possibly be to his own detriment. Applying the Bush Canon to the Libby commutation, we see what's going on with renewed clarity. By commuting, instead of pardoning (which will come later), Libby remains in technical legal "jeopardy." (Try not to snort your July Fourth beer out of your nose as you read that.) Thus and therefore, when Libby's oft-testifying ass is hauled before a Congressional panel to find out what Bush and Cheney knew and when they knew it, he can escape, for now, with a Fifth Amendment plea. A blanket pardon would remove this cover for Bush and Cheney. That is the sum and substance of what is going on.

In the long run, Bush and Cheney know there is no way out of this trap other than pardons for both of them. They obstructed justice by failing to disclose the truth when they first knew it; they deliberately misled investigators and the American public. They are trying to run out the clock, with the feckless assistance of the pusillanimous press. Bush will eventually pardon Cheney, then resign, and Cheney will pardon Bush. They are going to give Article II, Section 2 a real workout. Just wait and see.