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Pardon Libby

It's the right thing to do.

4:00 PM, Jan 15, 2009 • By FRED BARNES
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It's not quite right to say President Bush owes Scooter Libby a pardon. Having commuted Libby's sentence to 30 months in jail (but not his $250,000 fine), the president has no special obligation to follow up now with a full pardon before he leaves office next Tuesday. Nor does Libby's role as a proxy for Bush's policies on Iraq and the war on terror, and thus an indirect victim of political opposition to those policies, necessitate a pardon.

But there is a compelling reason for presidential absolution: simple justice. Libby has either been punished far too severely for a very small offense or he is an innocent man. Either way, a pardon is both justified and appropriate.

I say this as someone who is not a close friend of Libby, formerly Vice President Cheney's chief of staff. I know him only professionally and then only slightly. I've talked to him no more than a dozen times (and not at all in recent months), interviewed him for a book I was writing about Bush, and once had lunch with him. I haven't donated to his defense fund.

Like many journalists in Washington, I've followed the Libby case closely. It grew out of the leak in 2003 of the name of a CIA official, Valerie Plame, to columnist Robert Novak. Libby was not the leaker. Then deputy secretary of state Richard Armitage was. At his trial, Libby was acquitted of the one count that dealt with an alleged leak to a reporter.

It also turned out there was no underlying crime in the case. Plame was a desk officer at the CIA, not a secret agent. Libby was convicted of perjury and obstruction of justice, both offenses stemming from his assertion he'd heard of Plame's employment at the CIA from NBC anchor Tim Russert, now deceased.

The basic issue was Libby's recollection against Russert's. FBI agents said Russert had initially told them he could not recall if he'd spoken of Plame in his conversation with Libby. At the trial, Russert denied having said this. To the contrary, he testified he remembered the talk with Libby and Plame's name had not come up.

Russert had no motive to lie about what he'd said to Libby, but Libby had no motive to lie either. The trial judge found there was "no evidence whatsoever" that Libby believed Plame's job status was classified. So Libby, an attorney, had no need to protect himself legally by insisting Russert was his source on Plame.

What's obvious is that this was a miniscule matter in a larger and very complex political dispute and a thin reed on which to base a criminal prosecution. For the jury, the decision to convict Libby had to be close call.

When he commuted Libby's jail sentence two years ago, the president did not rule out a pardon. There's an overriding reason for one--the Libby case represents a miscarriage of justice--and three more specific reasons.

The first is the haziness of anyone's recollection. As I've grown older, I've discovered rather shockingly that I sometimes remember things that never happened or at least didn't in the way I recall them.

That may well have been Libby's problem. He argued that his memory might have been faulty and that he might have, quite innocently, recalled his conversation with Russert incorrectly. But the judge refused his request to have an expert on memory lapses testify. During deliberations, a juror wondered aloud why such an expert hadn't been called to the stand.

More recently, a study by professors at Harvard and the University of Virginia identified what they dubbed "the Scooter Libby effect." It occurs when a seemingly inconsequential matter--like the Libby-Russert conversation--later becomes crucially important. Then participants are asked to "remember more than they possibly can." But the jury never learned of the study.

The second reason is the gap between the supposed crime and the punishment. To the extent Libby was guilty of anything, he's a first offender and perhaps an inadvertent offender. But he has not only paid a whopping fine, his reputation has been sullied, and he's been barred from returning to his career as a lawyer.

The third reason is Libby himself. He's a family man and a patriot. He was a loyal assistant to the president. He is the kind of person, from all I know about him, who deserves a second chance. In another context, Bush would surely give him one.

The president rightly prides himself on trying to do the right thing regardless of polls or pressure. Now, whatever the political fallout, pardoning Scooter Libby is the right thing to do.

Fred Barnes is executive editor of THE WEEKLY STANDARD.