Are Libby's lawyers teeing up a pardon?

In court filings, attorneys say they'll need to subpoena reporters and use classified information if the case ever goes to trial.

Published January 23, 2006 8:47PM (EST)

When the Bush administration needed a face-saving way to extract itself from the Harriet Miers nomination, it picked a fight over White House documents, immediately declared the conflict irreconcilable, then thanked Miers for withdrawing in order to avoid a constitutional crisis.

Was Scooter Libby paying attention?

On Friday, attorneys for Dick Cheney's former chief of staff said that they'll need to subpoena reporters -- lots and lots of reporters and the newspapers and magazines and TV networks for which they work -- in order to defend Libby against criminal charges in the Valerie Plame case. And earlier today, they said they're also going to need to get into some classified material, possibly about the work Plame was doing for the CIA, during the course of any trial in the case.

Maybe it's all on the up and up, steps Libby's lawyers honestly believe they'll need to take to make sure their client gets a fair trial. But it's hard not to notice what the two issues -- subpoenas for reporters and the request to use classified information -- have in common: They'll prompt legal disputes that will slow the proceedings considerably, and they'll raise questions about the relative merits of prosecuting Libby, protecting reporters from inquisitive lawyers and keeping classified information classified.

In other words, they'll set up exactly the same sort of dynamic that gave George W. Bush an out for withdrawing Miers' nomination. Now, Libby can't just withdraw himself from the criminal case against him. But if he thinks there's any hope that Bush will pardon him someday, he has every interest in dragging his case along -- and keeping himself out of federal prison -- for just as long as he can. Libby's lawyers' request to use classified information certainly serves that goal; as the Associated Press notes, the request launches "a highly secretive court process that could bog down the case." And together with the notice that they'll be seeking testimony from reporters and the companies that employ them, the request does something else: By inserting issues of press freedom and national security into the middle of the case, Libby's lawyers have given Bush a reason for saying that the nation would be better off he just set Scooter free.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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