Not surprisingly, Fox News and the GOP Noise Machine are trying their level best to turn Scooter “Jailbird” Libby into a martyr for St. Dick of Wyoming. Let’s look quickly at how the law actually affects Scooter.

Firstly, an experienced prosecutor like Patrick Fitzgerald would have never indicted Libby if he wasn’t sure he had the goods to convict. Since proving false or inaccurate statements is not enough to establish perjury or obstruction, it can be very difficult to secure a conviction for these crimes.

In traditional criminal law doctrine, there are two main elements to each crime. One is actus rea, the conduct element of the crime, and the other is mens rea, the accused’s state of mind about the crime in question. In the case of perjury, it was Patrick Fitzgerald’s obligation to establish that Libby knowingly lied and misled the Courts and investigators. If Libby had merely misremembered, he would not have the required mens rea to be guilty of perjury.

Despite Libby’s vow to move for a new trial and appeal the decision, as is his right to do, it is highly unliklely that higher Courts will be eager to reverse the Libby verdict. Appellate courts do not look at facts anew when a case is before them; they look only to see if reversible errors of law were made at the trial level. Libby will certainly point to the media hullabaloo and the excuse of the 12th juror as grounds for a new trial. But the courts will be reluctant to give the circus another night under the big top, and will also give great weight to the moral authority of a jury verdict.

Libby’s best remaining shot at exoneration lies squarely in the hand of George W. Bush. Under Article 2, Section 2 of the United States Constitution, the President is given broad authority to pardon individuals for past crimes, as well as any offenses that person may commit in the future. Politically, it is highly unlikely Bush would dare to pardon a crony like Libby before Election Day 2008. To pardon Libby would risk giving a huge gift to Democrats in their goal to retain Congress and reclaim the White House. However, Bush could easily pardon Scooter Libby after Election Day and before the next President, Democrat or Republican, is sworn in. Republicans and Democrats alike were appalled by the pardons issued by President Bill Clinton right before W. moved into the White House, particularly the pardon of scumbag financier Marc Rich. To prevent just such an eventuality, Congressman Barney Frank and others have proposed amending the Constitution to bar last minute pardons after Election Day. Until that day, however, Bush is free to tarnish his legacy by giving Scooter a walk on his way out of the White House. Hopefully, the mainstream media will press Bush and Tony Snow on the pardon issue until 2008.