Everybody wants to know, will Bush pardon Libby, and if so, then when? It would seem that Bush will need to weigh various factors, including damage to his own historical reputation versus loyalty to Libby versus preventing the possibility of a flip.
Personally I would prefer Libby not be pardoned and he serve a lengthy prison sentence. However, if he is going to be pardoned, I hope it does maximum damage to Bush and the Republican party. Bush, of course, will be seeking to minimize such damage. What then, can we guess now about pardon possibilities given the legal situation and when a pardon might happen? I haven't seen much analysis of this question other than on Olbermann last night and, ironically enough, in the New York Sun today. In this diary, I will argue that the key timing issue is whether Judge Walton allows Libby to remain free pending appeal, and that this is where we should focus our thoughts for now at least.
Realistically, I see five different pardon possibilities and since Bush has absolute authority to issue a pardon, the ball is in mostly in his court to determine how things will play out:
- No pardon (maximum justice, minimum political damage).
- Pardon now (get it over as early as possible).
- Pardon around sentencing time (prevent a flip).
- Pardon around jail time (prevent a flip; last minute).
- Pardon at the end of Bush's term (minimize political damage while still maintaining loyalty to Libby).
Last night on Olbermann, Howard Fineman suggested that Bush could not deal with the political fallout from an early pardon, and thus that a pardon, if any, would happen at the end of Bush's term.
John Dean, however, stated that he thought that Bush would pardon Libby before Libby went to jail. If this is the case (and personally I agree, because Bush is not going to ruin his reputation just to shorten a prison sentence), then the real question is: when is Libby going to jail? I have researched this question and the best answer I can give is that he will either go to jail in June 2007 (sentencing time) or June-ish 2008 (when the appeal process should be completed, roughly), depending on whether Judge Walton allows Libby to remain free on bail pending appeal.
Generally speaking, a convicted felon is not entitled to automatic bail pending appeal. Federal law makes bail available to a criminal defendant after conviction and pending appeal provided (1) the appeal is "not for the purpose of delay," (2) the appeal "raises a substantial question of law or fact," and (3) the defendant shows by "clear and convincing evidence" that, if released, he "is not likely to flee or pose a danger to the safety" of the community. 18 U. S. C. §3143(b).
Notwithstanding his nickname "Scooter", I think Mr. Libby will probably be able to show that he is not likely to flee or pose a danger to the safety of the community. Thus, what this really comes down to is whether the appeal is for delay and whether the appeal raises a substantial question of law or fact. I'm not close enough to the case to realistically opine on how good his appeal chances would be, but I would think that Fitzgerald could credibly argue that the purpose of appeal is for delay, given the political circumstances surrounding the pardon issue.
Bottom line, though, it will come down to Judge Walton. Here's to hoping that he takes real world factors into consideration and denies Libby bail pending appeal. If so, this will force Bush's hand as early as possible, which would increase the chances of true justice, or at least maximize the political harm from a pardon.
What do you think?