Pardon Scooter Libby

As President-elect Obama selects his team, it is to America's advantage that he recruit the best-qualified people possible. Yet the treatment of I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney and now my colleague at the Hudson Institute, may make Obama's task more difficult because it warns good men and women to stay away from government service.

Libby was accused of having confirmed Valerie Plame's nonpublic CIA employment for two reporters and lying about it afterward. He was acquitted of that. Prosecutors knew all along that Richard Armitage, then deputy secretary of state, disclosed the information. As the judge found, Libby never knew that there was anything secret about Plame.

Instead, he was convicted of lying about a single phone call in which the prosecutors maintained Plame's name never came up. Uncontested evidence showed that around the same time there were other calls with reporters that Libby could have innocently confused, and that he had no motive to lie about the call at issue.

Memory is uncertain. Think back two years to January 2007, if you can remember that far. Iraq was in turmoil. Democratic majorities in the Senate and House were just taking over after a November 2006 election seen as a referendum on the Bush Iraq policy. Despite this, Bush announced the surge. Americans demonstrated against the president in some cities and called for his impeachment.

That was the atmosphere in which Libby's trial opened in January 2007. After the jurors emerged with a verdict two months later, they said that they liked Libby, they regretted that they were judging him and some wondered why they weren't judging Karl Rove or Vice President Cheney.

That question suggests that the jury didn't view the issue as whether Libby lied about a single phone call, but viewed it as whether the administration had lied to America about Iraq. Libby is paying the price.

Libby had worked 14-hour days as Cheney's national security adviser and chief of staff. To protect America, he focused on our nation's most important secrets, including protection from further attacks after 9/11. But when it came to defending himself, the prosecutor wouldn't allow Libby to see these classified materials to refresh his memory--let alone present their details as evidence.

Were these secrets important or terrifying enough to have helped a jury understand why Libby may have misremembered a brief telephone conversation in which Plame's name did not come up?

We know they were, because George Tenet, the former CIA director, openly wrote about the same kinds of secrets in his 2007 memoir. Millions of dollars for Tenet--and a jail sentence for Libby.

After Libby sought to introduce expert testimony on how memory can fail, the judge ruled that such information would confuse the jury. Yet, during its deliberations, the jury asked why they had not heard from a memory expert. In many other scientific areas such testimony would have been permitted.

When it was time for sentencing, over 150 people who knew Libby wrote of his kindness to others and of what he had done for America over the past 25 years. He helped secure the freedom of Eastern Europe, reduce nuclear arms and improve America's bio-defenses.

Bush commuted Libby's sentence but did not pardon him, so he cannot practice law, his chosen profession. He spent over two years of his life fighting the charges and incurred millions of dollars in legal fees.

When government destroys the careers of public officials who did no harm, it does more than punish particular individuals. It ensures that others who might best guide our country in the right direction will not wish to take the risk of serving in government.

President-elect Obama and all of us may be the losers.

This commentary appeared in Forbes.com on January 15, 2009.