Hours before they were to leave office after eight troubled years, George W. Bush and Richard B. Cheney had one final and painful piece of business to conclude. For over a month Cheney had been pleading, cajoling, even pestering Bush to pardon the Vice President's former chief of staff, I. Lewis (Scooter) Libby. Libby had been convicted nearly two years earlier of obstructing an investigation into the leak of a covert CIA officer's identity by senior White House officials. The Libby pardon, aides reported, had become something of a crusade for Cheney, who seemed prepared to push his nine-year-old relationship with Bush to the breaking point and perhaps past it over the fate of his former aide. "We don't want to leave anyone on the battlefield," Cheney argued.
Bush had already decided the week before that Libby was undeserving and told Cheney so, only to see the question raised again. A top adviser to Bush says he had never seen the Vice President focused so single-mindedly on anything over two terms. And so, on his last full day in office, Jan. 19, 2009, Bush would give Cheney his final decision.
These last hours represent a climactic chapter in the mysterious and mostly opaque relationship at the center of a tumultuous period in American history. It reveals how one question whether to grant a presidential pardon to a top vice-presidential aide strained the bonds between Bush and his deputy and closest counselor. It reveals a gap in the two men's views of crime and punishment. And in a broader way, it uncovers a fundamental difference in how the two men regarded the legacy of the Bush years. As a Cheney confidant puts it, the Vice President believed he and the President could claim the war on terrorism as his greatest legacy only if they defended at all costs the men and women who fought in the trenches. When it came to Libby, Bush felt he had done enough.
But the fight over the pardon was also a prelude to the difficult questions about justice and national security inherited by the Obama Administration: How closely should the nation examine the actions of government officials who took steps legal or possibly illegal to defend the nation's security during the war on terrorism? The Libby investigation, which began nearly six years ago, went to the heart of whether the Bush Administration misled the public in making its case to invade Iraq. But other Bush-era policies are still coming under legal scrutiny. Who, for example, should be held accountable in one of the darkest corners of the war on terrorism the interrogators who may have tortured detainees? Or the men who conceived and crafted the policies that led to those secret sessions in the first place? How far back and how high up the chain of command should these inquiries go?
As Attorney General Eric Holder weighs whether to name a special prosecutor to probe reports of detainee abuse during the Bush era, Democratic lawmakers are trying to determine why Cheney demanded that Congress be kept in the dark about some covert CIA plans after 9/11. There is no guarantee that these and other probes won't at some point require the testimony of the former President and Vice President. While Bush has retired to Texas to write his memoirs and secure his legacy by other means, Cheney is settling in for a long siege in Washington, where he will soon be installed in a conservative think tank and where, Republicans say, he will pull levers on Capitol Hill to make his voice heard. Above all, Cheney will continue to insist that the Commander in Chief and his lieutenants had almost limitless power in the war on terrorism and deserved a measure of immunity for taking part in that fight. That's a conviction Cheney made clear to all those involved in the Libby affair including, in his final hours in power, the President himself.
The Commutation Fail-Safe
This Libby-pardon fight an account pieced together from dozens of interviews with former officials who agreed to speak only without attribution began two years earlier, in the federal district courthouse in Washington. In a case that gripped the capital but often mystified the rest of the country, Cheney's former top aide on domestic and foreign policy stood accused of obstructing a federal investigation into the source of an egregious media leak: the identity of an undercover CIA officer named Valerie Plame. Her husband Joseph Wilson, a former diplomat, had written an Op-Ed for the New York Times in July 2003 claiming to have evidence that the Administration had lied to bolster the case for war in Iraq. Within days, in an effort to discredit Wilson's story, a conservative columnist had revealed the identify of Wilson's wife. Plame's "outing" was seen by her husband and his fellow Democrats as an act of revenge orchestrated by Cheney himself and the most extreme example of how far an Administration would go to cover its tracks in a war gone bad.
Libby maintained his innocence throughout his trial, claiming that any false statements he had made to investigators resulted from bad memory, not deception. But Libby had reason to lie: his job was at stake, and his boss's was on the line too. Bush had declared that anyone involved in leaking Plame's identity would be fired. Cheney had personally assured Bush early on that his aide wasn't involved, even persuading the President to exonerate Libby publicly through a spokesman. Special counsel Patrick Fitzgerald, who prosecuted the case, said Libby's obstruction had prevented investigators from uncovering the truth about Cheney's role. "There is a cloud over the Vice President," Fitzgerald said in his closing arguments. (Matthew Cooper, then a TIME correspondent, was a witness in the case against Libby. Cooper had spoken to both Libby and Bush aide Karl Rove in July 2003 about Wilson's relationship to Plame. Time Inc. turned Cooper's notes over to Fitzgerald after fighting the subpoena all the way to the Supreme Court, which declined to hear Time Inc.'s appeal. Rove was not indicted.)