< meta name="DC.Date.Valid.End" content="20050825"> Amendment Nine: Counsel to the President

Friday, November 04, 2005

Counsel to the President

Some of my first memories are of what I guess must have been the summer of the Watergate hearings. I remember having to leave the swimming pool one day at the apartment complex we lived in so my parents get back in time to watch the hearings on TV. I don't really remember much about the hearings themselves, except it seemed like every third word that came out of the TV was "John Dean." ("Viet Nam" is another word I remember coming out of the TV a lot around that same time). I had no idea who "John Dean" was, but I got the pretty clear impression (a) that he was somebody that people thought should be listened to, and (b) that whatever he was saying wasn't good for Richard Nixon (of whom my mother repeatedly said "he's a CROOK!" -- as if that were a self-evident truth with an obvious conclusion: that he needed to go).

Turns out that John Dean was White House Counsel to President Richard Nixon, and he was pretty much blowing the whistle on Nixon.

Well John Dean is still around: http://writ.news.findlaw.com/dean/20051104.html He understands White House scandals. And he's still someone worth listening to. His assessment on this one -- which he says is "Worse Than Watergate" -- is that Fitzgerald is close to having the goods on Cheney. Only problem is that he needs Libby to flip, and that that probably ain't gonna happen.

As I've suggested in previous posts, I think Dean's assessment is probably right. Libby knows he's likely to be pardoned no later than January of 2009, and possibly sooner (December of 2006 is a possibility). In other words, from Libby's perspective, Fitzgerald doesn't have all that much leverage, and the guy with the real leverage is Bush. Bush, legally, can give Libby a get out of jail free card whenever it becomes politically possible. (Can anyone imagine a scenario where it won't be at least politically possible on January 19 of 2009? Serious question.)

Bush and Cheney, in their conspicuous Indictment Day praise of "Scooter," clearly were winking at Libby (as if they needed to), holding out the carrot of a pardon if he does his duty. Fitzgerald's only leverage is to offer a plea deal that would lead to a lesser sentence than a conviction after trial. But if Libby thinks he's likely to be pardoned in no more than 3 years if he takes the fall and protects Uncle Dick, where's the incentive to deal with Fitzgerald?

Does Fitzgerald understand this? He's a prosecutor, used to being the government and having all the power. Does he realize that Bush has way more power over this than he does, through his ability to pardon anyone he wants to for any reason? Does he care? Is there anything he can do about it?

The only thing that might give Libby pause enough to deal with Fitzgerald is the thought that it might never become politically possible for Bush to pardon him. Clearly, it's not politically possible right now because of the impending 2006 midterm elections. But is there any way that the political landscape could be such that it is impossible for Bush to pardon Libby in January of 2009? Maybe Democrats could make the pardon question such an issue that Bush is forced somehow to promise that he won't use it. Is it a campaign issue for the 2006 midterms? I ultimately question whether there's any strategy that would work: if Frist wins the election, then it's easy for Bush. But isn't it also easy if Hillary wins? A last FU to the American people from W?

Knowing a little about Fitzgerald from the inside, I can't imagine that he would sit still while Libby effectively thumbed his nose at the criminal justice system because of the hope of a pardon. But does he have a plan for dealing with the deflating effect that the possibility of a pardon has on his prosecutorial power? Do the Democrats have a plan for making it politically impossible for Bush to pardon Libby? I'd like to hear some good thinking on this.