To pardon or not to pardon? For Bush, it's a tough call

THE ISSUE The president is facing pressure to pardon his vice president's former chief of staff.

SHOULD a federal judge next week order I. Lewis Libby to begin his 30-month sentence for perjury and obstruction of justice, President Bush will have to decide whether loyalty -- a trait he highly values -- is owed more to the nation's rule of law or to a man who had been a central administration insider.

Ever since March, when Libby was convicted of four felonies in the CIA leak case, a cadre of Bush's faithful supporters has been pressing him to pardon Vice President Dick Cheney's former top aide. When U.S. District Judge Reggie Walton laid down the stiff sentence for Libby Tuesday, the pressure for Bush to pardon him grew swiftly and forcefully.

Throughout the legal proceedings, the president has kept a fixed distance. By correctly allowing the case to run its course, Bush also avoided confronting the prosecution of a member of his staff.

However, granting Libby a pardon is tricky. Bush would have to overrule the federal prosecutors who brought the charges, a jury's decision and a judge he appointed to the bench; in essence, repudiating the legal structure of government he is sworn to uphold as president.

Though his power to pardon federal crimes is unrestricted, Bush would have to sidestep Justice Department guidelines that require applicants to wait five years after conviction or release from prison, express remorse, accept responsibility and seek forgiveness rather than vindication.

There are other problems.

In the investigation of who leaked the identity of an undercover CIA agent, Bush and Cheney underwent questioning by special prosecutor Patrick Fitzgerald. Both men were witnesses -- possibly even participants, in Cheney's case, according to Libby's FBI statements -- in the effort to retaliate against the agent's husband after he publicly questioned the administration's truthfulness in starting the Iraq war. The situation does not allow Bush an impartial role to decide on a pardon.

Pardoning Libby also would have political repercussions. Some Republicans fear a voter backlash at a time when their stock has been sinking, while others say Bush is so damaged now that things can't grow any worse. But conservatives who have long stuck by the president are demanding a pardon. They claim Libby was merely found guilty of "process crimes," that his conviction was unwarranted given the prosecution was unable to charge anyone with the leak.

Their arguments don't stand up. Fitzgerald, in a sentencing memorandum, wrote that Libby's lying "made impossible an accurate evaluation of the role that Mr. Libby, and those with whom he worked, played in the disclosure of information" about the covert agent "and about the motivations for their actions." In other words, Libby succeeded in impeding the probe.