How the President Should Play It

Proclamation of the President of the United States

Pursuant to my authority under Article II, Section 2 of the U.S. Constitution, I hereby bestow a full and irrevocable pardon upon I. Lewis Libby, Jr., for any and all charges, current or future, related to the matter of the investigation into the release of the identity of Valerie Plame Wilson, including all charges of perjury and/or obstruction of justice concerning the same. I do so because, notwithstanding a jury finding to the contrary, I fully believe that Mr. Libby is not guilty of the charges leveled against him.* I further believe that Mr. Libby’s predicament is entirely the result of a political dispute emanating from his service to the nation under my direction, and that the proper focus of contention should be my conduct, not his own. I cannot in good conscience allow a man to serve a prison sentence for a crime I do not believe he committed, for duties undertaken at my behest.

To this pardon, I affix my official signature under the Seal of the United States.

George W. Bush
President of The United States of America

*An explanation of this conclusion will be released by my press office.

Explanation of the President’s Belief in the Innocence of I. Lewis Libby *
* Not a part of the official pardon statement, but an explanation thereof for distribution to the American public via the working media.

I, George W. Bush, President of the United States of America, believe that I. Lewis Libby is not guilty of perjury or of obstruction of justice. In saying this, I do not say that the jury necessarily erred on the basis of the evidence presented to it, nor do I say that the judge necessarily made (or did not make) a mistaken ruling on the law. But I do believe, regardless of the legal admissibility of evidence the defense was not allowed to present to the jury, that had the disallowed evidence been presented at trial alongside all the other evidence that was admitted, a fair-minded jury would certainly have concluded, as I do, that Mr. Libby is not guilty.

I do not believe that Mr. Libby intentionally lied to, or otherwise obstructed, a grand jury or any federal agents.

I believe that the case against Mr. Libby revolves entirely around an instance of instances of honestly mistaken recollection — and that such mistaken recollection may or may not be that of Mr. Libby. I think it is unknowable whose recollection or recollections were mistaken. I further believe that Mr. Libby had absolutely no motive to lie to or otherwise obstruct the investigation at issue — and that said lack of motive further bolsters my conclusion that Mr. Libby did not lie or obstruct said investigation.

It is evident that the original jury convictions of Mr. Libby, which (absent my pardon of Mr. Libby) might or might not be overturned on appeal, all relied in whole or in overwhelming part on the difference in recollections between Mr. Libby and the estimable Mr. Tim Russert. Every one of them. With that in mind, there are only two relevant questions. First, whose recollection is correct? Second, if and only if Mr. Libby’s recollection is incorrect, was that mis-recollection intentional?

I believe the answer to the first question is unknowable. I believe the answer to the second question is “no.”

As for my first belief, about the unknowability about whose recollection is correct, I believe that evidence withheld from the jury would convincingly bolster the defense’s contention that Mr. Russert’s memory is utterly unreliable — unintentionally unreliable, certainly, but unreliable nonetheless. The defense already introduced evidence that showed several instances of crucial memory lapses by Mr. Russert. It was denied permission to introduce other compelling evidence to the same effect. The defense also made a compelling case that Mr. Libby’s memory is unreliable — unintentionally unreliable, but unreliable nonetheless. Within the executive branch, I personally know a number of honest people who will testify that Mr. Libby’s memory, when not referring to detailed notes, is reliable only to the extent of the “big picture,” not as to details.

With regard to both the memory of Mr. Libby and that of Mr. Russert, the defense was further prohibited from introducing evidence about the reliability of memory in general. I believe that all of this testimony, and that described in the previous paragraph, would have convinced any fair-minded jury that the facts are sufficiently in dispute for there to be too much doubt for any conviction on the merits. I further believe that the entirety of the evidence, both allowed and disallowed, would convince any fair-minded jury that ANY mis-recollections were quite likely unintentional.

This is crucial. For the record, I note two items. First, I note the FBI report of its original interview with Mr. Russert. To quote from that report, Mr. Russert told the FBI that “he could not completely rule out the possibility that he had such an exchange [as described by Mr. Libby]…. Russert acknowledged that he speaks to many people on a daily basis and it is difficult to reconstruct some specific conversations, particularly ones which occurred several months ago.”

I then quote from the instructions provided by the judge to the jury: “A person who makes a statement based on a belief or opinion which he honestly held when the statement was made has not violated the statutes the defendant is charged with violating in this case merely because the statement turns out to be inaccurate, incorrect, or wrong. Making an honest statement that turns out to be inaccurate, incorrect or wrong because of mistake, confusion, or faulty memory, or even carelessness in one’s recollection, does not rise to the level of criminal conduct.”

As to motive, I think there is no evidence, none whatsoever, that Mr. Libby had any motive to lie to the grand jury. The supposed lies did not and could not benefit him. The alleged lies did not and could not protect him from anything. The alleged lies did not and could not benefit or protect his boss — the vice president — or the administration he served. The alleged lies did not even involve the only matter that he believed was under investigation, namely the “leaking” of a CIA agent’s name to columnist Robert Novak. Finally, if Mr. Libby were to have chosen to lie despite the utter lack of motive for doing so, there is no way that a man as intelligent as Mr. Libby, and as well-trained a lawyer as Mr. Libby is, would have chosen as his corroborating witness an independent journalist who had no reason to cover up for him if he were indeed lying. In short, not only did Mr. Libby have no motive to lie, but he also had especially no motive to concoct a lie involving Mr. Russert. Combined with the weakness of the evidence as to whose recollection of a long-ago conversation was correct, I therefore fully believe that Mr. Libby did not intentionally lie to, mislead, or obstruct anybody at all in the course of the investigation at issue. He had no reason to do so.

Reporter Judith Miller put things in perspective in her interview of December 18, 2004. This is what she said: “All of this only became important after this whole issue blew up and became a huge controversy. It was not important at the time.” To Mr. Libby, who by established fact was not involved in any way with the “leak” to Mr. Novak, the question of whether it was Mr. Russert who told him of the CIA agent’s name, or whether it was instead Mr. Novak or reporter Bob Woodward or reporter Matthew Cooper, was immaterial to any case that involved him. In short, as Ms. Miller said, “it was not important at the time.”

There is no reason for a man to lie about something that to him was unimportant. Therefore, I believe, again, that Mr. Libby did not commit perjury. It is on that basis — and on the totality of the other evidence, which I will not rehash here — that I pardon Mr. Libby.

Further Note: It will be remarked that the President of the United States cannot and should not make himself the judge of the facts of a criminal trial, substituting his determination for that of the jury that directly heard all the evidence. That observation is correct. But it is immaterial to this case. There is a subsidiary duty that adheres to the presidential oath. That duty is to protect the entire ideal of public service by protecting those who serve at the president’s discretion and direction, if — and only if — the public servant is put at legal risk specifically because of that direction; and if — and only if — the president believes that the public servant is entirely innocent of charges that themselves arise because of the position that he would not be in, in the first place, if the president or his immediate designee had not put him there.

No man should suffer for honest and innocent public service at the request and direction of the president. If there is inadvertent fault in the performance of such duty, the fault should be laid at the feet of the president he serves. I cannot let another man be punished for a crime I do not believe he committed, in the performance of responsibilities I myself put on his shoulders.
— George W. Bush, President of The United States