The art of not serving a day in jail

It's fair to speculate that I. Lewis "Scooter" Libby, the former aide to Vice President Dick Cheney, will not serve a day in prison. The question of a presidential pardon is mainly a question of timing, as President Bush made clear when he said he would stay out of the situation until the legal process has run its course.

Mr. Bush has clearly learned the lesson of how much political harm a premature pardon can do.

Days after coming into office in 1974, President Ford gave a blanket pardon to Richard Nixon, and that may have cost Mr. Ford his own election in 1976. Another president, Bill Clinton, waited until hours before leaving office to pardon the fugitive financier Marc Rich.

So what are the prospects of Mr. Libby facing a probable prison sentence of 1-1/2 to 3 years on his conviction for perjury and obstruction of justice?

The legal process in a case such as this can take a long time, especially when the defendant, free on bail, has every interest in dragging it out. So first, the motion for a new trial. That will probably be denied. Then an appeal to a three-member panel of the court of appeals. That process could be stretched out by applying for a hearing en banc – that is, by all 12 members of the court. And it could conceivably end up in the Supreme Court, if four justices agree to hear the case.

There is a possibility that the legal process could take us up to, and even past, the 2008 election. Bush has no direct stake in that election, but a pardon before the vote could well have an impact on the fortunes of other Republicans.

So when Bush says I am "pretty much going to stay out of it," he could have added "until Election Day anyway," with a silent prayer that Libby's legal team will be still arguing in the courts. Then Bush can issue his pardon days before the inaugural without facing the worst consequences.

Daniel Schorr is a senior news analyst at National Public Radio.

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