Bob Bauer and Scooter Libby Justice
photo: Bob Bauer (PolicitalActivityLaw via Flickr)
Glenn Greenwald has a post hitting on an op-ed Bob Bauer — Greg Craig’s replacement as White House Counsel — wrote supporting a pardon for Scooter Libby. (h/t BayStateLibrul) Glenn focuses on these passages…
Bush’s opposition has braced for a pardon and its rage at the prospect is building. To Bush’s antagonists on left, a pardon would be only another act in the conspiracy — a further cover-up, a way of getting away with it. But this is the entirely wrong way of seeing things. A pardon is just what Bush’s opponents should want. . . .Nothing in the nature of the pardon renders it inappropriate to these purposes. The issuance of a presidential pardon, not reserved for miscarriages of justice, has historically also served political functions — to redirect policy, to send a message, to associate the president with a cause or position. . . .
Libby is said to be unpardonable because the act of lying, a subversion of the legal process, cannot go unpunished. Yet this is mere glibness. . .
Now, as it happens, I didn’t write about this when it first came out. And to be honest, I’ve got mixed feelings about it. After all, Bauer did something that few people in DC were doing at the time–pointing to Bush’s own involvement in the leak of Plame’s identity.
A presidential pardon is finally an intervention by the President, his emergence from behind the thick curtain he has dropped between him and these momentous events involving his government, his policy, his Vice President. By pardoning Libby, he acknowledges that Libby is not really the one to confront the administration’s accusers. Now the president, the true party in interest, would confront them, which is what his opponents have demanded all along.
[snip]
But if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions.
Even though I had already pointed to evidence showing Bush was involved–and may have even ordered OVP’s campaign against Joe Wilson in June 2003, when Bauer wrote this, almost no one would utter the possibility that Bush was somehow in the loop on the Plame outing. I think I remember being mildly grateful that someone would even point out that Bush ultimately bore responsibility for the Plame outing.
That said, I think Bauer was, on two counts, hopelessly naive. First, he suggested that if Bush were to pardon Libby, there would be a political firestorm that would exact some kind of price for Plame’s outing.
If the pardon would be politically explosive, then this is what the administration’s critics, hungering for accountability, have been waiting for.
Didn’t happen that way, Bauer, and the muted response to the commutation (in several ways worse than a pardon) was entirely predictable, not least because of the Press’ own complicity in this case.
Furthermore, Bauer predicted that Scooter Libby would not flip on Cheney.
Libby is not going to flip; he is not going to rat out Dick Cheney. He will just be the Fall Guy, the minor actor in a play that, if Bush never takes the stage with a pardon, closes soon to disappointing reviews.
Now, I have no way of knowing whether or not Libby would have flipped. He seemed willing to play the good solder, but his wife certainly seemed unwilling to have her children forgo their father all to benefit Dick and Bush.
That said, when Bush commuted Libby’s sentence, he completed the cover-up. Which is my biggest complaint about Bauer’s op-ed–his utter lack of consideration of how further details about the outing might be exposed. The commutation itself was part of the crime, yet Bauer pitched a pardon as the acceptance of responsibility for that crime.
Which is one more point: apparently Bauer didn’t consider the possibility of a commutation, which served to keep Libby quieter than a full pardon would have. Did Bauer not anticipate that? Because people on The Next Hurrah threads were predicting that route.
I have interacted with Bauer in a teeny teeny way once, and he struck me as a solid partisan unafraid to fight the good fight. I fear he will be even more competent than Greg Craig at reinforcing executive power at the expense of balance of powers, though I expect he will be less willing to put up with GOP stonewalling.
But my impression of his op-ed is that he’s simply naive about how DC worked in this particular case, naive about Bush’s ability to evade all responsibility for his actions, and naive about the press.
This guy sounds like he does not believe that “no one is above the law”
If the folks in D.C. have not noticed there is “crisis of faith” in our justice system.
Sounds like he wants to be a plagiarizing playwright, in the winter of our discontent.
At the time, it seemed to me to be rather transparent that Bauer was floating a trial balloon for Obama and the “don’t look back” approach to Bush abuses. I think Jane Hamsher said at the time that it was unbelievable that an Obama loyalist like Bauer would make such a public statement on such a controversial issue without clearing it with Obama and the campaign.
Interesting as well that Bauer came into the WH the same week that his wife Anita Dunn was shown the door.
Couple of things.
First, this was written in June 2007. Yes, Obama was running–but it wasn’t a campaign yet.
Second of all, it’s not inappropriate that the WH have just one spouse in such senior positions. So I think it likely that Dunn announced her departure in anticipation of Bauer taking over.
I’m not sure I see the distinction between running and campaigning in this context of the post being a trial balloon – Bauer was General Counsel of Obama for America in January 07, Obama announced his candidacy in February 2007. Bauer said in June 2007 after the reaction to the post that he was speaking as a private citizen, and Obama subsequently distanced himself from the remarks by saying that he did not support a pardon for Libby.
Agreed on the Dunn exit.
I just think Obama was telling the truth on that front. I think EOH is closer to the mark on this one than reading this as Obama paving the way to protect Dick Cheney forever.
A Beltway lobbyist never speaks on the record in a public forum like a NYT’s OpEd piece unless he’s being paid to advocate for or protect a client. Mr. Bauer’s practice fits that description, too. He might claim to have been speaking as a private person; the odds that he was seem quite low.
OT.
The fantastic Mr. Justice…
DOJ can move extremely fast to cover their arses…
No torture pics, never, so sayeth our democracy…
It’s raining here, I’m depressed, eagerly awating “Trash Talk” to
brighten my spirits….
http://www.scotusblog.com/wp/wp-content/uploads/2009/11/photos-US-supp-brief-11-13-09.pdf
Whatever else he is, Mr. Bauer is not naive. His argument for the pardon of a fellow Washington lawyer and deep insider may give the public simple reasoning using simplistic logic, but he was not being naive.
Mr. Bauer’s legal expertise is the law of politics and elections. He is one of the few lawyers who make millions a year explaining such things to presidents, would be presidents, Senators and senate staffers, and anyone who can pay his price. Many might need his expertise – a potential large donor to FDL or Act Blue, for example – but only the high and mighty can pay for it. He surely had a political end in mind when giving such reasons for the pardoning of Lewis Libby.
He could have wanted to expose Bush or Cheney, to free a friend from worrying about dropping the soap in the prison shower, or to do away with a political football so that the new Democratic president would have one less worry among the many. It matters less which reasons are his than it does that he won’t say which ones.
Mr. Obama, like Mr. Bush, is falling back on trusted advisers of long standing, who will protect his back. They may be more talented than those Mr. Bush knew, but they are just as political. Mr. Bauer will advise on the law as if it were politics pursued through other means. He will blur the line between the political and personal.
It will be interesting, given how poorly the DoJ has recovered from its bout of Ashcroft-Gonzales-Mukasey disease, to see how much sway Mr. Bauer holds over Eric Holder, and whether he will encourage treating American law in the same way as his television namesake.
It is curious that Bauer did not make the one legal argument for a Libby pardon that would actually both be viable and quite intellectually acceptable for the progressive view. By that, I man that a pardon (as opposed to the commutation) could have been sufficiently broad as to immunize Libby from further prosecution and/or punishment and mandate that he testify completely and honestly in any and every forum.
The one compelling argument Bauer could have made, he did not.
Yup. A full pardon in exchange for full elocution of his crimes in open court, his full disclosure and his full cooperation with prosecutors investigating the crimes of others that Lewis Libby’s obstruction prevented them from pursuing. That would have been a pardon worth extending. Fitz might have recommended such a pardon. But something tells me that neither the DoJ and the White House Counsel’s office, nor Mr. Bauer, ever gave that much consideration.
I very much admire Greenwald for his apparently limitless resolve to scramble out to the end of so many slim limbs so often, yet turn out right so amazingly often — but this one seems very badly misplaced.
Without intending to diminish the flavor of Bauer’s 2007 by reduction, what he had to say was about Bush, not Libby: he wasn’t in any way diminishing what Libby was up to, or who it was that must have put him up to it. Moreover, I can’t see any merit to the opposing argument: clearly, if Bush were to have pardoned Libby, he’d be taking two — I don’t think ‘courageous’ is at all the word, but perhaps some word that combines ‘craven’ with ‘responsible’ — positions:
first, the one Bauer pointed to;
second, leaving open that Congress might choose to pick up the ball where Fitzgerald left it [or was obliged to] —
precisely what HR Oversight Chair Waxman signaled was his intent.
If one concedes the possibility [IMO the likelihood] that efforts by Waxman to execute on that intent would have been frustrated [by one administration or the other or both; by Republican minority members while Blue Dogs and centrists ducked; by Libby and “his” team], the commutation option, on several levels, including but not limited to the political, worked out even better:
Bush took just enough of a bite out the responsibility pie to leave indelible streaks of blueberry on his bib, but nowhere near enough to even suggest any sort of courage or leadership.
Also, how can it be concluded because he didn’t use the word in the HuffPo piece it mean that he didn’t have anything like it in mind? So I have trouble with the “naive” part, at least to the extent it critically relies on Bauer’s HuffPo piece.
I am content to concede the record shows fearless leader’s wheel-to-man judgment carries a lot of water [though, I observe, it typically is supported by a assembly of evidence, which IMO the HuffPo piece does not constitute]. But I’ve always felt the concept is extremely context-dependent. Does anyone here seriously propose that it bring some advantageous to a president dealing with an immense Beltway-centric bureaucracy & primarily politicized opposition to look beyond the pool of Beltway specialists to defending the WH from Beltway attacks? Wouldn’t that be something like bringing in a Coast Guard reservist with an impeccable record of consistency in hoving to legal standards & an unblemished record of success, except all that has been accumulated in service in Kansas?
OT: EW… your “fuck-you Schumer” post is featured in Columbia Journalism
Review… the sound and fury of shielding
http://www.cjr.org/campaign_desk/a_shield_for_bloggers.php
There is a lot of talk about this and that since there are mountains of facts and information of what took place. Makes sense to me that some of us are wanting pure truth and justice for all at this point. I’m one who longs for corrrectness from our usual devious ways.
It would make sense if you think deeply that there are “things” going on at higher levels. This would be above our ability to comprehend since we seem to require all those facts. But look elsewhere and you may notice changes that are taking place here and there that may inspire an expansion of your thinking.
As I’ve mentioned many times in the past, we are in the midst of a White House Coup. This Coup has been in operation for decades and when 911 hit, it went crazy. As I was told by my ex-wife’s family (Adreani’s – Ray & Bruce Adreani are the family leaders) at the time of being married, 911 was a kick off point for a series of situations progressing towards Martial Law. Martial Law to them meant we would become a dictatorship which has been their goal all along.
For those involved in this Coup, it’s a difficult journey since they have to balance relationships with the citizens so they don’t catch on. Thus they will manipulate everything until their game is over, which by the way is coming up really soon. You can fool SOME of the people SOME of the time, but you can’t fool ALL of the people ALL of the time. All of the people are starting to come together now.
Considering that there is an opposition to this Coup which currently shows to be making serious progress, it may be time to look at how “Consequences” were handed out for those involved in the last WH Coup in 1933. Unfortunately back then little was known and only a few met their doom. But today things are much different as we all have this great tool called the Internet. Sharing of information works for us as well as for those involved in the Coup which now allows for a more accurate summary of those involved. I look forward to a more accurate accounting of those involved right down to include those who may have a casual involvement. This means there may be a need to “compromise” allowing some to sidestep total persional doom. With so many involved in this Coup there may be a need to extend an olive branch but only for a time up until where decisions will need to be made. Once that point is reached where a final decision is required, afterwards, only total doom should exist. Too many people have been murdered. Those involved need to know that who they are is known and their time is going to end soon.
Marty Didier
Northbrook, IL
The essentially personal nature of the Libby commutation or pardon is highlighted by the fact that Bush Junior didn’t seek guidance about it from the DoJ’s specialist office for such things, or even from his White House Counsel’s office. His principal legal adviser on this issue, by all accounts, was literally Shrub’s personal defense lawyer. This was strictly personal, not business.
I would also add that Mr. Bauer was probably well-used in his former capacity as legal adviser to Obama personally. Bauer’s election and politics law practice seems as narrow, although different in kind, as Alberto Gonzales’ background in Texas shopping mall law, a year as a Texas judge, and a few years advising an underworked governor about the laws he couldn’t avoid dealing with.
I am not happy about seeing another personal attorney of the Oval Office occupant become the White House Counsel. This is a disturbing trend notwithstanding the goodwill and competence of those making and accepting such appointments.
One would think Obama and Bauer would want to avoid this obvious comparison to W/AGAG. I guess they are above such comparisons, but the comparison will be made.
Let’s hope it doesn’t hurt the President and America as badly as the last such arrangement did.
Hoping in this case, I fear, isn’t going to help anyone.
Not anticipating a commutation seems odd.
Perhaps he anticipated it, but couldn’t fit it into his narrative?
This guy is a piece of shit.
On this point, wish everyone here were a lawyer.
Hopelessly naive?
He looks too gray in the hair and he’s got a good paying job.
I want to puke. I thought being blond, living in a fancy trailer house and still wanting to find positive and nice things in my life to keep me going qualified as being naive.
Shit.
Wishing and hoping and
thinking and praying,
planning and dreaming
each night of his charms
that won’t get you into his arms,
I’m seriously wondering why there seems to be a decrease in the number of posts on this site. And, it’s not just the ones I’m commenting on. Anyone else notice that?
(crickets)
They’re all over on the trash talk thread.
Bob in AZ
watching college football vicariously, I take it. (Never went to a school that had a good team, so I’m not that into it. Except maybe to appreciate the work put into the halftime shows ….)
(crickets)
Three in a row…gotta go.
I think people are off at supper. Or maybe the movies or TV, depending on time zone.
Everyone? Really?
Love ya, PJ, but not everyone in three time zones are eating dinner right now. Somethin’ else is going on.
We’re looking for a movie to watch. Maybe Fiddler On The Roof. Or Jekyl and Hyde.
arob has a diary front-paged!
Conn Hallinan: Why the Afghan Surge Will Fail
Jekyl and Hyde it is.
I love when people, especially lawyers, spout out about how once this is accomplished integrity will force people to come out and deal with the issues. Like Bush and Cheney would have admitted there role if Scooter wasn’t in the way. If Obama pardons Scooter, all that happens is that Scooter gets his law licsense back. He does not disappear, remember Ollie North. He has his own Radio and television spots. He was involved in selling advanced tank weapons to the Ayetollah in Iran. It is pretty obvious that his pardon did nothing but encourage him. They are worried that once their term is done, someone may need a pardon as well.
By the way, how is it that you can look back rather than forward when it concerns giving Scooter a pardon but we can’t look back to investigate torture? Interesting. Maybe Rahm would like to see if Scooter would like to run as a conservadem.
When I stop to think about these things it makes me wonder why I invest any resources in politics. They are all a bunch of narcissists who believe they are entitled to live in rare atmosphere above the law. The highest priority is to take care of each other first.
I fear Obama is a consummate elite and the simple folk be damned.
I just don’t like how the commutation let Libby keep his mouth shut and kept him out of the clink.
I can see making the case for a pardon so he can’t hide behind the 5th Amendment anymore, and since accepting a pardon means accepting guilt, I’m sure someone like Whitehouse could ask him some really interesting questions and if he tried to not answer that would be breaking the law again.
“Accepting a pardon” does NOT require “accepting guilt”. There is no requirement that a person ask for a pardon, or even want a pardon; the pardon power is the sole and plenary power of the President. The President is free to pardon a person that affirmatively does not want one; once the pardon warrant has been issued and signed by the President and entered of record, it is done; there is no requisite action of “acceptance” by the subject of either the pardon or guilt of the underlying offense(s).
This is simply an urban myth that is false and needs to die.
ok
Much of this myth was born during the secretive negotiations between the Ford White House and Nixon over RMN’s pardon. For a long while, WH counsel’s office insisted Nixon had to “accept” the pardon, while Nixon (who knew better) replied “Nope.” Finally, wiser heads prevailed on Jerry Ford, and he simply granted the full and complete pardon.
But the waiting might have killed his presidency. If he’d done it fast, while he was still at the very height of his goodwill and before he started actually stumbling, it might have worked. As it was, people were trying very hard to forget about Nixon when Ford reminded them by pardoning him.
But there was no acceptane required or obtained.
Bmaz, I think there is confusion about the requirements of the pardon application process vs. the constitutional pardon power
yep
Is Baer the only lawyer in D.C. with the qualifications to fill this post? Christ All Mighty from the outside looking in one would think there are only about 30 attorneys in D.C. The way this revolving door works many of the same folks keep going round and round to fill these critical positions.
“Change”