The new WH counsel and "Scooter Libby justice"

Robert Bauer's passionate call for a pardon of his fellow Washington lawyer sheds light on his thinking.

Published November 14, 2009 9:15AM (EST)

Barack Obama, November 3, 2007, announcing presidential bid:

Here's the good news - for the first time in a long time, the name George Bush will not appear on the ballot. The name Dick Cheney will not appear on the ballot. The era of Scooter Libby justice . . . will be over.

The Atlantic's Marc Ambinder, yesterday:

Sources in government say that White House Counsel Gregory Craig has decided to resign, and that the president's personal lawyer, Robert Bauer, will take his place. A formal announcement is slated for next week, though word might drop Friday.

Robert Bauer, The Huffington Post, June 13, 2007:

 The Progressive Case for a Libby Pardon

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. . . .

When he vowed to end it, Obama never really defined what he meant by "Scooter Libby justice," but whatever it meant, surely a pardon of Lewis Libby -- expressly advocated by Obama's new White House counsel -- would have been a pure example of it.  Bauer based his argument for a pardon of his fellow Washington-insider lawyer on the political ground that a pardon would be politically beneficial because it would involve George Bush and thus force him to accept some personal responsibility for the Plame case, but as Jane Hamsher wrote at the time:  

This is about the rule of law, not political posturing. . . . Libby did not just "lie," he obstructed justice. He’s not some poor patsy, some innocent scapegoat, a good soldier just doing his job. But that’s how the clubbish DC elite seem to see him, and in his willingness to ignore Libby’s culpability in the situation and the penalty he should most assuredly pay having been found guilty by a jury of his peers Bauer shows himself to be yet another DC lawyer with little regard for the judicial process that has managed to be successfully carried out despite tremendous opposition from those it threatens. There isn’t all that much daylight between himself and the Libby apologists currently screeching in horror because "things like this just don’t happen to people like us."

Former prosecutor Christy Hardin Smith, who had spent years covering the Plame investigation, wrote this about Bauer's call for a Libby pardon:

This isn’t some political machination point -- this is a conviction on multiple felony counts by a duly constituted jury which reviewed copious evidence and reached a unanimous verdict after weeks and weeks of trial. And a defendant who was just given an enhanced sentence by a federal judge who pointed out that the rule of law must apply equally to every person — including public officials, whose conduct ought to take into account their fiduciary obligation to the public.  If Obama’s chief counsel wants to throw that out to score some political points, then Obama ought to clarify what his commitment is to the rule of law and upholding the constitution before he should even be considered a viable candidate for President of the United States.

A restoration of the rule of law -- meaning an end to immunity for high-level political officials who commit crimes -- was a central prong of the Obama campaign.  Those who called for a pardon of Lewis Libby -- even on the oh-so-clever "progressive" political grounds concocted by Bauer -- were as antithetical to that pledge could be.  Yet here is that pro-pardon Washington lawyer now being named as White House counsel.   Then again, one of the few positions more expressive of "Scooter Libby justice" than calling for a pardon of Libby himself is the view that all high-level Bush officials should be immunized from prosecution -- even those who committed grievous war crimes and other serious felonies -- because it's more important that we "look to the future" than it is to apply the rule of law equally. If immunity for high-level war criminals -- and for lawbreakinng telecoms -- isn't "Scooter Libby justice," what is? Viewed that way, Bauer would seem to fit in well in his new position.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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