Inside Bush and Cheney's Final Days

[Spirit of Vengeance]

Inside Bush and Cheney's Final Days
By Massimo Calabresi and Michael Weisskopf Friday, Jul. 24, 2009



Bush and Cheney, pictured in October 2001, planned the war on terrorism but broke over whether to pardon one of its key architects
Brooks Kraft / Corbis for TIME

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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.

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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.
(See pictures of George W. Bush.)

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.

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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?

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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.

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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.

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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.)

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After a seven-week trial, Libby was found guilty on March 6, 2007, of obstructing justice, perjury and lying to investigators. He was sentenced to 30 months in prison and a $250,000 fine, a precipitous fall for a man known as the Vice President's alter ego and formerly a prestigious lawyer at a premier Washington firm. He fought the verdict, his legal bills paid by a defense fund that raised $5 million, but a federal appeals court ruled on July 2, 2007, that Libby had to report to jail.

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The White House was prepared for the ruling, in part because after six years in Washington, Bush had finally found himself a White House counsel who was up to the job. Fred Fielding, a genial, white-haired, slightly stooped figure in his late 60s, had cut his teeth as an assistant to John Dean in Richard Nixon's counsel's office and served as Ronald Reagan's top lawyer as well. He had unrivaled experience managing allegations of White House misconduct. He also was one of the few people in Washington who had served in as many Republican Administrations as Cheney had, which meant he had uncommon stature in the West Wing. And he was everything Bush's two previous counsels, Alberto Gonzales and Harriet Miers, hadn't been: strong-willed, independent and fearless. Says an old friend: "Freddy isn't afraid of anyone. He will slit your throat with a razor blade while he is yawning."

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Fielding's arrival in early 2007 was one of several signs that the balance of power in the Administration had shifted against the Vice President. Fielding reviewed the Libby case before the appellate verdict came down and recommended against a presidential pardon. Cheney's longtime aide hadn't met the criteria: accepting responsibility for the crime, doing time and demonstrating remorse. "Pardons tend to be for the repentant," says a senior Administration official familiar with the 2007 pardon review, "not for those who think the system was politicized or they were unfairly targeted."

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The verdict was one thing. Libby's sentence was another matter. Fielding told Bush that the President had wide discretion to determine its fairness. And within hours of the appeals-court ruling, Bush pronounced the jail time "excessive," commuting Libby's prison term while leaving in place the fine and, most important, the guilty verdict — which meant Libby would probably never practice law again. Fielding's recommendation was widely circulated in the White House before it was announced, and there is no evidence of disagreement. If Cheney and his allies were disappointed with Bush's decision, they did not show it, several former officials say, in part because they were, as one put it, "so happy that [Scooter] wasn't going to jail."

The response was predictable: conservatives cheered the commutation; liberals deplored it. But among Bush aides, the presidential statement was seen as a fail-safe, a device that would prevent a backtrack later on. Fielding crafted the commutation in a way that would make it harder for Bush to revisit it in the future. Bush not only noted his "respect for the jury verdict" and the prosecutor, he also emphasized the "harsh punishment" Libby still faced, including a "forever damaged" professional reputation and the "long-lasting" consequences of a felony conviction.

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And there were these two sentences: "Our entire system of justice relies on people telling the truth," Bush said. "And if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable." Particularly if he serves in government. Bush's allies would say later that the language was intended to send an unmistakable message, internally as well as externally: No one is above the law.

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The Special Relationship
A former White House chief of staff, Congressman and Pentagon boss, Cheney had an uncanny ability to guide Bush's decisions. Even as he claimed expansive Executive powers for the President, Cheney salted the bureaucracy with allies who could alert him in advance about policy disagreements, help him influence internal debates at key moments and give him a leg up in framing issues for the President. He was always deferential to Bush, often waiting with head down and hands clasped behind his back to address the President. Both by habit and by design, he cultivated a relationship that suited Bush's view of their roles: the President as the "decider" and Cheney as the éminence grise who counseled him. In reality, by wiring the bureaucracy and being the last person Bush spoke with on many key decisions, Cheney became a "sounding board for advice he originated himself," as biographer Barton Gellman put it.

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Plamegate, as the leak scandal was dubbed, tested the trust between the two men like nothing before. Bush had promised high ethical standards after the Clinton era and a "fresh start after a season of cynicism," a veiled reference to Clinton's troubles with truth-telling under oath in the Monica Lewinsky scandal. In the Plame investigation, a prosecutor with broad authority jarred Bush's White House by issuing deposition orders and demands for documents. Bush himself was interviewed by Fitzgerald on June 24, 2004, as was Cheney some four months later.

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The investigation also coincided with the darkest period of the Administration: the Iraq war's dramatic downturn, the absence of WMD and festering problems in Afghanistan. And it unfolded as Bush was launching a wholesale course correction of his presidency in his second term. The pivot was hard to miss. Where Cheney had urged unilateral U.S. action in the first term, "in the second term we're going to be doing more diplomacy," Bush told top aides. Where Cheney had orchestrated a secret push to embrace the "dark side" in the war on terrorism, Bush instructed aides in 2005 to begin to seek congressional approval for some of the Administration's most controversial programs, such as its terrorist-detention policies. At the State Department, Bush installed Condoleezza Rice, for whom some Cheney allies had open contempt. As Secretary of State she would spend the next several years trying to repair damaged relations with allies around the globe and opening diplomatic initiatives that Cheney and his team had spent several years shutting down.