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The Libby Injustice
Bush’s refusal to pardon the falsely accused aide looks even worse
now.
One of George W. Bush’s worst decisions was failing to pardon Lewis
"Scooter” Libby before he left the White House, as
we and others urged him to do at the time. That
abdication looks even worse today as the chief if
reluctant prosecution witness against Mr. Libby,
journalist Judith Miller, says she now believes her
testimony at trial was wrong.
Peter Berkowitz recounts the story in detail nearby based on Ms.
Miller’s revelation in her new book, released this
week. She says she testified truthfully, but she now
believes based on information she didn’t know at the
time that she was led into a false conclusion about
her notes by special prosecutor Patrick Fitzgerald.
The perjury case against Mr. Libby was always
flimsy, hanging on uncertain memories from years
earlier about noncriminal behavior. But if Ms.
Miller’s testimony was false, then the conviction
was an even worse injustice than we thought.
Why bring all this up now? Well, it is never too late to correct an
unjust conviction, and Mr. Libby deserves to have
his reputation restored. The episode also teaches
lessons about the methods of modern prosecutors, as
well as the pitfalls of Washington that the many
Republicans running for the White House should want
to avoid.
Rule one should be never to take the media bait and appoint an
unsupervised special prosecutor. Mr. Bush gave in to
the pressure, and then Attorney General John
Ashcroft abdicated his duty and recused himself.
That left the choice of prosecutor to Deputy
Attorney General Jim Comey (now President Obama’s
FBI director), who picked Mr. Fitzgerald, his old
prosecutorial pal and godfather to one of his
children.
Mr. Fitzgerald became a Javert who wanted to get Vice President
Dick Cheney for something, and he zeroed in on Mr.
Libby, the Veep’s chief of staff, as his vehicle.
Ms. Miller reports that Mr. Fitzgerald twice told
Mr. Libby’s lawyer that he would drop all charges
against Mr. Libby’s if the chief of staff turned
state’s evidence on Mr. Cheney. Mr. Libby had no
evidence to trade, and Mr. Fitzgerald then set out
to ruin Mr. Libby.
It’s also clearer now why Mr. Fitzgerald fought so hard to bar from
the trial an expert on the vagaries of memory. Such
an expert would have testified how often human
beings wrongly recall the source of information. Mr.
Libby’s Washington, D.C., jury was stacked with
Democrats during the height of anti-Iraq war fever,
but at least one juror might have found reasonable
doubt after hearing testimony on the science of
memory.
The shame is that Judge Reggie Walton contributed to the injustice
by barring such a witness in the Libby trial. Mr.
Fitzgerald’s behavior is all too typical of today’s
prosecutors who want to make a name for themselves,
or are out for a political score. Recall the failure
to disclose exculpatory evidence in the case against
the late Senator Ted Stevens.
Another lesson is about Presidents and loyalty. Mr. Bush helped
make the careers of men like Mr. Comey, and Deputy
Secretary of State Richard Armitage, who nonetheless
worked to sabotage his policies on national security
or Iraq from inside the Administration. They became
media and Beltway celebrities for it.
Yet Mr. Bush abandoned Mr. Libby, who was a rare White House
official fighting for a counter-insurgency strategy
in Iraq as early as 2003-2004. Mr. Bush didn’t adopt
that strategy until 2007, and only after a policy
insurgency led by General David Petraeus working
through former General Jack Keane and Mr. Cheney,
who had to overcome Mr. Bush’s closest advisers such
as Secretary of State Condoleezza Rice.
The least Mr. Bush could have done was not leave Mr. Libby behind
on the battlefield before his Presidency ended. He
commuted his sentence but refused a pardon. This
betrayal was a failure of presidential character
that stains Mr. Bush’s legacy. The next Republican
President should learn from that betrayal. He should
also make amends and pardon Mr. Libby in his first
week in office. |
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