Personal Asides: Libby Deserves to be Pardoned…Jack Frank’s Bill of Indictment Against this Governor.

Libby.

A federal judge has ordered Scooter Libby to report to prison within weeks (three at the most) to begin serving a 30-month sentence for lying to federasl investigators about his role in disclosing a covert CIA officer’s identity to the news media. In doing so, the judge denied defense’s request to allow Libby to remain free on bond while they appeal his conviction for perjury and obstruction of justice. Libby’s lawyers say they will ask the U.S. Circuit Court of Appeals to issue an emergency order delaying the sentence.

The political Left and paleo-Rightist Pat Buchanan (which now, sadly, is almost the same persona) believe Scooter Libby should not be pardoned. They give three reasons: First, Libby, they say, undeniably mis-led the grand jury by lies and in so doing committed an act independent of who really leaked Valerie Plame’s job i.e. Richard Armitage. Second, they maintain, to pardon Libby would be to institute a separate brand of justice for one of the administration’s top cohorts. The administration’s Justice Department itself named a special prosecutor who took on equal to, if not more, powers than the old independent prosecutors had—powers that were withdrawn by congressional action; therefore the administration sewed its own net in which Libby is enmeshed. Third, Libby is a political officer of the administration whose guilt is overwhelming and to pardon him would be to thumb a presidential nose at jury findings with which it disagrees.

The Neo-Conservative Right counters with three points. First, the covert status of Valerie Plame was all but nonexistent (the definition of “covert” defies adequate description) and was compromised or allowed to wither earlier when her name and CIA job appeared in a popular Washington governmental directory and her photo (albeit with dark glasses), name and CIA job were published before the crisis in the popular “Washingtonian” magazine. Second, Scooter has been convicted of four felonies for misstating when he first heard a certain piece of information—the identity of Valerie Plame. Try for a moment to remember when you heard her name for the first time. For instance, Ari Fleischer, Bush’s onetime press secretary testified under oath that he had not told “Washington Post” reporter Walter Pincus about Plame; but Plame testified under oath that Fleischer definitely had. I had a job as press secretary to a Minnesota governor when I was 33 (twenty years younger than Libby is now). My phone at the office and at home was ringing off the hook with names, names, names. There were times when I honestly could not for sure identify where I heard certain information. I’ll give you an example.

In December, 1961 my governor was pondering as to whether or not to call a special session of the legislature. Winter in Minnesota: the streets and highways were covered with ice so rather than have a personal meeting in his office with the legislative leaders, he staged a telephone conference call with a then archaic (by today’s standards) amplification. I was in the room when he discussed over the phone with the equivalent of the Big 4 in Illinois today—the Republican leaders of both chambers and the Democratic leaders. It was the governor’s recollection that three of the four wanted a special session; it was my recollection that two of the four wanted it. We called the special session and there has never been certainty as to when a consensus was arrived at—if there was one. That was an honest mistake caused by four people talking almost at the same time. If you compound that by 100 calls a day that Scooter must have been taking, why is it concluded that he lied rather than perhaps was in conscience wrong?

Third, everybody agrees that the perjury case against Libby hung on the testimony of NBC’s Tim Russert. Libby said he heard about Plame from Russert; Russert said he never discussed it. The jury believed Russert. But we do know that Russert once called a Buffalo “News” reporter (from Russert’s home town) to complain about a story. Russert later denied calling the reporter. But when shown the evidence of the call, he agreed that he had genuinely forgotten. I know this can happen. But proof of Russert’s failure to remember was never given to the jury because the judge would not allow it, since the judge was angry at Libby for not testifying.

That’s three points anti-Libby and three points pro. Where do I come down? I believe (a) Patrick Fitzgerald should not be condemned for following the clear intent of the law so far as his intelligence can guide him. It is ridiculous for conservatives to praise the prosecutor for his laudable work to convict George Ryan and numerous Daley patronage hires while screaming against him when the axe falls here…although assuredly I do not share his contention about Libby. But (b) there is no reason why men of good conscience should not advocate the pardon of Libby—and it does not mean that we recognize Libby is guilty (which I don’t believe he is). We wholeheartedly do not but we must not spurn use of the process of free him.

Nor is the pardon what others mistakenly see it as: an extra-curricular to vitiate the legal process. That is not the constitutional view of pardon. Far from it. In Federalist 74 Hamilton has argued that “humanity and good policy” require “the benign prerogative of pardon” is necessary to mitigate the harsh justice of the criminal code.” He does not apply it to people whom he believes are guilty solely. One purpose is to temper justice with mercy. In the case of Libby, it is to temper an injustice with mercy.

The power to pardon comes from the royal English Prerogative of Kings dated from before the Norman invasion is a settled feature of our jurisprudential tradition. The pardon survived parliament’s attempt to kill it in 1701 but grounds for impeachment were exempted that year.

. That our founders were aware of its need came when neither the New Jersey Plan nor the Virginia Plan included the pardon power—whereupon on May 29,1787 Charles Pinckney introduced a proposal to give the president the same pardon power as pertained to English monarchs i.e. complete power with the exception of impeachment. One purpose of the pardon power is to temper justice with mercy which makes sense in this case.

Another purpose: We are at war and Scooter Libby was a high officer of the United States during wartime. In United States v. Wilson (1833), Chief Justice John Marshall wrote “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” I personally give Libby the benefit of the doubt and feel he is “guilty” only of a faulty memory. But President Washington granted pardons to those who participated in the “Whiskey Rebellion” which challenged the authority of the nation; Lincoln issued amnesties to those involved with the Confederates in the Civil War.

Those who argue that by pardoning Libby, Bush would somehow perform a dishonorable act do not recognize constitutional law. The pardon power has potential to ease or increase animosity. There is no doubt that the president by pardoning Libby would increase the already heavy animosity that exists against him. But he has that obligation.

At bottom, only the wisdom of the president can make certain it is used appropriately. In behalf of Scooter Libby, it would be. And it would be unconscionable for this president…in whose behalf Libby took such great risks…to turn his back now in order to shore up presidential prestige which by every index is almost nonexistent.

It is inconceivable for a man who wants to grant amnesty to 12 million who have entered this nation illegally to deny a pardon for one who has fought against terrorism to defend the American people. I have always believed this president will come out as prescient in the end regarding the Iraq War (however mismanaged), but if he allows Scooter Libby to twist slowly, slowly in the wind, George W. Bush will be justly condemned by all future generations for the dishonor. They will rightly judge that denying a pardon here would show an enormously grave defect in the president’s character.

Jack Franks.



State Representative Jack Franks (D-McHenry), chairman of the House Committee on Government Operations, Tuesday issued a statement that constitutes probably the most eloquent case against this governor. It cannot be improved upon by leaders of either party. It has all the singularity of Edmund Burke’s positions wherein in 1765 he argued eloquently against free-wheeling and unrestrained royal power and his support of principled opposition to prevent abuses by the monarch. The fact that Franks is a young Democratic member and has often taken issue with the governor of his own party underscores his independence and courage. The speech is my estimation is the most eloquent and comprehensive critique of this governor that has been issued by either party. It should be recognized among the great documents of Illinois history, delivered as it is by a leader of the governor’s own party.


Full text of the statement follows:

Today my office called each state agency in an effort to schedule meetings between me and each director to discuss their budget priorities. I wanted to ask some of them why they allowed the governor to loot $1 million from their line items to pay for the administration’s legal fees defending his violent video games legislation when their agencies had nothing to do with the litigation. Surely they could provide some suggestions on where to cut from their budgets since, based on their generosity to the governor’s legal defense, it seemed they had more than enough money to give.

However we found that only eight out of 29 randomly selected agency directors contracted are in Springfield today.

With no immediate end in sight to the budget impasse, each agency head ought to be in Springfield to be available to answer questions from members of the General Assembly concerning their budgets. They are a necessary party to this dialogue and their attendance should be mandatory. The governor’s office spent about $26 million on transportation for its staff last fiscal year. At the very least, they should be here while we are in session.

As budget negotiations continue, I am pleased to see that the governor has finally managed to visit Springfield more than once a week. However, he should have been here for the last five months, as the General Assembly has been. He should have shown leadership on the electric rate debacle that he helped create by stacking the Illinois Commerce Commission with his cronies. His absence during the legislative session and his disdain for the legislative process has put many Illinois families in crisis.

For the governor now to berate the House for not working five days a week while the Senate will meet for only one day this week and while the governor has spent more time jogging in Chicago than he has spent in Springfield all session, is tantamount to lunacy. The governor spent more time on running diary tracking his running time, temperature and wind speed that he has on any legislative item.

The House has passed a budget and has done its job. Once the electric rate issue is settled, the Senate can pass the House budget if it desires. The onus is squarely on the governor to address the electric rate issue forcefully and with finality.,

The governor has shown that he can campaign but he has yet to show that he can govern. His hypocritical stance on the House’s work ethic is insulting. He has failed to spend the necessary time and energy in Springfield and has created a mess of budget when he had a real opportunity for reform. Instead we get the same old tired complaints, business as usual and a budget crated on dead-end tax schemes.

Since we will be here for so long, the governor ought to expend some energy and help pass Representative Fritchey’s bill to ban large campaign contributors from getting state contracts. , resurrect his long-dormant ethics proposal that was supposed to “rock the system” or work on the school funding formula instead of gimmicks.

The reason the governor is not pounding his bully pulpit is because he can’t. Like the emperor of our children’s tales, he can’t afford to be exposed. He can’t and won’t answer qu4stion s about whether his campaign has been subpoenaed. He can’t and won’t answer why he appointed Ali Ata to a directorship of a state financial agency after Mr. Ata gave over $50,000 to the governor’s campaign. He can’t and won’t answer when and how the indicted Tony Rezko introduced Mr. Ata to the governor. He can’t and won’t answer how Beverly Asaridis got a job after her husband gave the governor $1,500. He can’t and won’t answer a simple question about the number of subpoenas his administration has received from the federal government even thohgh he has been directed to answer by the Attorney General.

The governor needs to come clean and answer all of our questions and should sit here with each of his directors and make them defend their budgets line by line. The governor should submit himself to a continuous Committee of the Whole and agree to answer every question.

With this process, we would be able to craft a better budget by eliminating waste and duplication. The governor says that there isn’t enough money to accomplish his agenda. Perhaps with an honest and open examination of his proposed budget, we can get there.

The governor needs to stop playing games and posturing and actually do some heavy lifting. He needs to speak for himself and not hide behind his aides. He needs to be honest with the citizens of Illinois and “get to work.”’ That’s the least he can do.