photo: Bob Bauer (PolicitalActivityLaw via Flickr)

photo: Bob Bauer (PolicitalActivityLaw via Flickr)

Glenn Greenwald has a post hitting on an op-ed Bob Bauer — Greg Craig’s replacement as White House Counsel — wrote supporting a pardon for Scooter Libby. (h/t BayStateLibrul) Glenn focuses on these passages…

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. . .

Now, as it happens, I didn’t write about this when it first came out. And to be honest, I’ve got mixed feelings about it. After all, Bauer did something that few people in DC were doing at the time–pointing to Bush’s own involvement in the leak of Plame’s identity.

A presidential pardon is finally an intervention by the President, his emergence from behind the thick curtain he has dropped between him and these momentous events involving his government, his policy, his Vice President. By pardoning Libby, he acknowledges that Libby is not really the one to confront the administration’s accusers. Now the president, the true party in interest, would confront them, which is what his opponents have demanded all along.

[snip]

But if the President pardons Libby, and by this act makes the case his own, he will have picked up a portion of the cost. Libby will fall back, restored to obscurity. Bush will step forward and take the lead role. He will have to explain himself; he will have to answer questions.

Even though I had already pointed to evidence showing Bush was involved–and may have even ordered OVP’s campaign against Joe Wilson in June 2003, when Bauer wrote this, almost no one would utter the possibility that Bush was somehow in the loop on the Plame outing. I think I remember being mildly grateful that someone would even point out that Bush ultimately bore responsibility for the Plame outing.

That said, I think Bauer was, on two counts, hopelessly naive. First, he suggested that if Bush were to pardon Libby, there would be a political firestorm that would exact some kind of price for Plame’s outing.

If the pardon would be politically explosive, then this is what the administration’s critics, hungering for accountability, have been waiting for.

Didn’t happen that way, Bauer, and the muted response to the commutation (in several ways worse than a pardon) was entirely predictable, not least because of the Press’ own complicity in this case.

Furthermore, Bauer predicted that Scooter Libby would not flip on Cheney.

Libby is not going to flip; he is not going to rat out Dick Cheney. He will just be the Fall Guy, the minor actor in a play that, if Bush never takes the stage with a pardon, closes soon to disappointing reviews.

Now, I have no way of knowing whether or not Libby would have flipped. He seemed willing to play the good solder, but his wife certainly seemed unwilling to have her children forgo their father all to benefit Dick and Bush.

That said, when Bush commuted Libby’s sentence, he completed the cover-up. Which is my biggest complaint about Bauer’s op-ed–his utter lack of consideration of how further details about the outing might be exposed. The commutation itself was part of the crime, yet Bauer pitched a pardon as the acceptance of responsibility for that crime.

Which is one more point: apparently Bauer didn’t consider the possibility of a commutation, which served to keep Libby quieter than a full pardon would have. Did Bauer not anticipate that? Because people on The Next Hurrah threads were predicting that route.

I have interacted with Bauer in a teeny teeny way once, and he struck me as a solid partisan unafraid to fight the good fight. I fear he will be even more competent than Greg Craig at reinforcing executive power at the expense of balance of powers, though I expect he will be less willing to put up with GOP stonewalling.

But my impression of his op-ed is that he’s simply naive about how DC worked in this particular case, naive about Bush’s ability to evade all responsibility for his actions, and naive about the press.