Pardon?

To pardon or not to pardon, that is the question...

On the one hand (and with juxtaposing metaphors) with tongue firmly planted in cheek, Marty Kaplan over at the Huffingtonpost says:

I want Bush to pardon Libby.

Yes, you read that correctly. Kaplan wrote that at the HUFFINGTONPOST. But you gotta see his reasons.

I want every Republican candidate running for President and Congress to be forced to applaud Libby's pardon and to inscribe their names alongside Scooter's other distinguished defenders, from Rumsfeld to Bolton.

I want American history to possess forever a crystalline illustration of Cheney's whack-ball theory of the unitary executive exempt from the rule of law.

I want the persistent presidential nullification of the Constitution to be perpetually exemplified by an unambiguous act of unmistakable arrogance.

I want Scooter Libby's fate to be be ironically and irrevocably linked to Paris Hilton.

I want Alberto Gonzales and Orrin Hatch to have their credibility fatally and eternally compromised by their fealty to an Administration which equates savage loyalty with justice.

I want every wingnut in the blogosphere to be forced to undermine their own credibility from here to eternity by endlessly recycling their lies about Valerie Plame not being covert, and by contending -- falsley, relentlessly and deliciously self-destructively -- that a pardon does not presume guilt.

Don't get me wrong. I'd love to see him do time. But even more than that, I'd love a Bush pardon to provide an incontestable X-ray of this crowd's sclerotic soul.

Ok, then.

By the way, the National Review's editorial spouts the same old same old deflections: No underlying crime (Nevermind that Libby was charged with perjury and obstruction of justice - which are crimes), Plame was not covert according to the IIPA (Which is, of course, irrelevant as Libby was charged with perjury and obstruction of justice) and so on. Of course The NR wants a pardon. Now.

But there's a problem. While the Constitution places few limits on the President's pardon powers (the case must be Federal and a pardon can't be used "in Cases of Impeachment"), according to Newsweek dubya was saying only last month on Fox "News" that there's a procedure in place at the DoJ to keep the pardon process "rational."

If that's the case, and he adheres to the rational process, Newsweek says, Libby can't be a candidate for pardon - not yet. Among the Standards outlined is this:

In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence. The Department's regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 C.F.R. § 1.2). [emphasis added]

After that it has to be shown that the petitioner has accepted responsibility for the crime. I can't see Scooter doing that - indeed, his defense is that there was no crime committed at all!

Of course, dubya can pardon whomever he wants, but if he does he'd contradicting himself.

And gosh golly, that's never happened with this President, has it?

John Dean has another wrinkle.

If Watergate had any lesson, it was that when someone connected to the White House is heading for prison, it is dangerous for the president or those close to him to even think about - not to mention talk about - clemency.

After all, the March 1, 1974 indictment of Mitchell, Haldeman, Ehrlichman and Chuck Colson (who pled guilty, rather than risk a trial) charged each of them with a conspiracy to obstruct justice by offering to provide clemency to those involved in the Watergate break-in. In addition, as Nixon's tapes showed, the president discussed pardons on several occasions, and this abuse of power was included in the

bill of impeachment against him that was pending when he resigned.
If Libby had been acting on his own behalf, a pardon would present no problem; Bush and Cheney could feel it was the humanitarian thing to do, given his long service to the government. However, no one I know believes Libby was acting simply for himself, nor does the evidence suggest it.

Though he doubts that Cheney and Libby ever had a conversation about a pardon.

And as a pre-emptive strike, I'll quote (though I shouldn't need to) Fitzgerald's position about Plame's covert status and the illegality of exposing her identity. This is from the Government's Sentencing Memorandum (page 12):

The assertion that the collective facts known at an early point in the investigation warranted a summary termination of the investigation does not stand up to close scrutiny.

First, it was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute (Title 50, United States Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press.

Here's the relevant statute. Go read it.