Libby pardon is a dicey topic for GOP hopefuls

Times Staff Writer

The fate of convicted former White House aide I. Lewis “Scooter” Libby has thrown a twist into the race for the Republican presidential nomination, forcing candidates to make an awkward choice between loyalty to a party stalwart and the GOP’s long-held reverence for the rule of law.

The issue erupted during Tuesday night’s GOP debate in New Hampshire, hours after Libby was sentenced to 2 1/2 years in prison for his role in the CIA leak case -- reflecting an intensifying debate in Republican circles over whether President Bush should pardon Libby before he would have to report to prison.

Former New York Mayor Rudolph W. Giuliani, unleashing a fiery soliloquy, called Libby’s sentence an “excessive punishment” and said U.S. District Judge Reggie B. Walton’s order “argues more in favor of a pardon.”


Pressure also is coming from likely candidate Fred D. Thompson, a former Tennessee senator who said in a TV appearance that if he were president, he would “absolutely” pardon Libby because the former aide was the victim of a “gross injustice.” Thompson sits on the advisory board of Libby’s defense fund.

Revealing a rift in the GOP field, former Virginia Gov. James S. Gilmore has flatly opposed pardoning Libby, arguing that doing so would undermine public confidence in the justice system.

“If the public believes there’s one law for a certain group of people in high places and another law for regular people, then you will destroy the law and destroy the system,” Gilmore, a former Virginia attorney general and onetime Republican National Committee chairman, said in an interview Wednesday.

Gilmore said he respected the decision by Special Prosecutor Patrick J. Fitzgerald to pursue the case against Libby and the guilty verdict brought by the jury. Though those views set him apart in the GOP presidential field, Gilmore said they hew closely to Republican dogma.

“Standing by the law and demanding that there be standards of conduct for everybody is conservative thinking,” he said.

The comments from Giuliani and Thompson were notable because both men are former prosecutors who are presenting themselves as law-and-order candidates -- quite literally for Thompson, who played a district attorney on NBC’s “Law & Order.” Their support for Libby comes as they try to win the backing of GOP donors and conservative opinion leaders who have become increasingly aggressive in laying out the case for a pardon.

Libby, a onetime chief of staff to Vice President Dick Cheney and a chief architect of Bush administration foreign policy, was sentenced for obstructing a federal investigation into the unmasking of CIA operative Valerie Plame. The former aide was convicted in March on four of five counts of lying to FBI agents and a grand jury.

Libby’s attorneys are appealing the sentence, and Judge Walton has scheduled a hearing next week to decide whether to grant bail while the former aide awaits his fate. If Walton denies that, Libby would have to surrender to authorities within 45 to 60 days.

Bush has not ruled out a pardon. Speaking with reporters Wednesday, he called it a “sad day for [Libby], and my heart goes out to his family.” But he said he would not comment further “until after the legal remedies have run its course.”

The issue creates a bind for GOP candidates, who risk appearing inconsistent if they defend Libby while also crafting typically Republican campaign themes of being tough on crime.

The arguments coming from conservatives are the opposite of the case many Republicans laid out during the 1999 impeachment of President Clinton, who was accused of making false statements during legal proceedings. At the time, conservatives contended that such a transgression was enough to merit removal from office, whereas Clinton supporters said the case was about sex, not law.

Thompson, in fact, voted as a senator to convict Clinton for obstruction of justice, though he voted to find Clinton not guilty of the perjury charge.

In explaining his vote to convict, Thompson at the time underscored the seriousness of the obstruction charge. “In the context of a federal court proceeding, that does violence to the rule of law,” he told the Memphis Commercial-Appeal shortly after casting his vote. “It causes people to lose respect. That to me was the kind of thing the founding fathers would have said rises to the level of removable conduct.”

Giuliani also adopted a hard-line stance earlier in his career against those who impede criminal investigations.

As a young prosecutor and later as a U.S. attorney, Giuliani supervised many prosecutions for perjury, including several that flowed from a string of Wall Street insider-trading cases that helped make him a national figure and paved the way for his bid for New York mayor.

Giuliani saw perjury and obstruction as significant enough problems in pursuing white-collar crime that he urged Congress to impose a mandatory prison sentence on brokers who lie to investigators.

“This is not an isolated problem,” Giuliani said in testimony to the Senate Banking Committee in 1987, according to an Associated Press account at the time. “Many of these people believe there’s no additional penalty if they lie under oath while being questioned.”

Pardoning Libby could prove popular among conservative intellectuals and opinion leaders, who this week turned up the volume of their calls for Bush to act soon.

The National Review, a leading conservative periodical, published an editorial headlined: “Pardon Him.” The editors argued that Fitzgerald never charged Libby with the underlying crime -- disclosing the identity of a covert CIA operative -- but wanted to punish him as though he had.

It called Libby “a dedicated public servant caught in a crazy political fight that should have never happened, convicted of lying about a crime that the prosecutor can’t even prove was committed.

“President Bush has the power to end this ridiculous saga right now. He should do so.”

A similar sentiment came from William Kristol, editor of the conservative Weekly Standard, who seized on comments from a White House spokeswoman this week as a sign that Bush may opt against a pardon.

“So much for loyalty, or decency, or courage,” Kristol wrote. “For President Bush, loyalty is apparently a one-way street; decency is something he’s for as long as he doesn’t have to take any risks in its behalf; and courage -- well, that’s nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?”

If Bush does not grant a pardon, Libby’s prison term will probably extend into the next administration, meaning another Republican president could choose to grant clemency and give him early freedom.

Besides Thompson and Giuliani, it was not clear whether any other top candidates were ready to commit to that action.

Former Massachusetts Gov. Mitt Romney said during Tuesday’s debate that, as governor, he pardoned nobody, because he “didn’t want to overturn a jury.”

But he hastened to cast the Libby case as special: “In this case, you have a prosecutor who clearly abused prosecutorial discretion by going after somebody when he already knew that the source of the leak was [former Deputy Secretary of State] Richard Armitage,” Romney said, characterizing the case as a “vendetta.”

Asked by the debate moderator, CNN’s Wolf Blitzer, whether that meant he supported a pardon, Romney pulled back. “It’s worth looking at that,” he said.

Another top-tier candidate, Sen. John McCain of Arizona, also hedged, saying he wanted to wait and see how the appeal played out.

Only Gilmore and Rep. Ron Paul of Texas ruled out a pardon, while Sen. Sam Brownback of Kansas and Rep. Tom Tancredo of Colorado supported it. Rep. Duncan Hunter of El Cajon, former Arkansas Gov. Mike Huckabee and former Wisconsin Gov. Tommy Thompson said they would review the record before deciding on a pardon.