Looking Out for No. 2

[babylonsister]

http://public.cq.com/docs/cqw/weeklyreport110-000002546517.html

Craig Crawford’s 1600: Looking Out for No. 2
By Craig Crawford, CQ Staff

By deciding to keep a loyal former White House aide out of jail, George W. Bush has done an even bigger favor for his vice president, probably ensuring that he’ll be legally in the clear at the end of his time in office.

The president’s legal finagling last week — commuting the 30-month federal prison sentence of I. Lewis “Scooter” Libby but not pardoning him for the crimes he was convicted of this spring — means that Dick Cheney’s former chief of staff can legally continue to keep silent about his former boss’s role in the events that led to Libby’s lying to authorities and otherwise obstructing justice.

A full pardon would have made it tough, if not impossible, for Libby to claim a Fifth Amendment privilege against self-incrimination if called to testify in a related case — or possibly even before a congressional committee. Since an 1896 Supreme Court ruling, once a convict is pardoned or otherwise given immunity, the constitutional privilege of refusing to give self-incriminating testimony no longer applies.

The legal principle is that whenever a pardon forbids the prosecution of any crimes related to the offense that’s actually being forgiven — which is the boilerplate language in most presidential reprieves — then there is no danger in making self-incriminating statements, and so the shield against doing so becomes simply unnecessary.

In other words, a pardoned convict can be compelled to testify about crimes that he, or anyone else, committed. And so for the White House, a pardoned Libby could be a dangerous thing indeed. Even the casual observer of the Libby trial could readily conclude that the vice president was an active player in the White House leak of CIA operative Valerie Plame’s identity soon after her husband, former Ambassador Joseph C. Wilson IV, sought to rebut a central part of the administration’s rationale for the Iraq War.

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Clearly, a world where Libby tells all he knows is a world that potentially threatens the White House. Allowing him go to prison might have given him an incentive to come clean with prosecutors in hope of a reduced sentence. Hence, the commutation. But a full pardon would no longer protect Libby from being forced to talk. While it seems unlikely that any other prosecutions will arise that could require his testimony at a criminal trial, without the Fifth Amendment privilege he might be compelled to testify to Congress, or in the civil suit the Wilsons have brought against Cheney.

By not pardoning Libby and keeping him out of jail, the president has pardoned Cheney from possibly ever having to explain his role in this bizarre case.