Assumptions

Brendan Nyhan criticizes liberals for simply assuming the existence of an underlying crime in the Scooter Libby case and sweeps my post here into that rubric, wondering of Libby "Couldn't he just be protecting his superiors from exposure of embarrassing but non-criminal conduct?" He certainly could. But let's assume that's true. Is "I broke the law to help my boss cover-up embarrassing but non-criminal conduct" a reasonable case for lenience? No. Is "he broke the law to help me cover-up embarrassing by non-criminal conduct" a reasonable case for granting someone clemency? Also no.

The bottom line is that on one theory -- Libby broke the law to spare his superiors embarrassing revelations of their lawbreaking, and is being pardoned by those same superiors to help perpetuate the cover-up of their embarrassing lawbreaking -- Libby deserves to go to jail and Bush has seriously abused his power by pardoning Libby. On Nyhan's alternative theory -- Libby broke the law to spare his superiors embarrassing revelations of their embarrassing non-criminal conduct, and is being pardoned by those same superiors to help perpetuate the cover-up of their embarrassing non-criminal conduct -- Libby also deserves to go to hail and Bush has also seriously abused his power by pardoning Libby.

This -- that the President of the United States is abusing his power in a serious way -- is a substantially more important issue than the question of whether Josh Marshall should be slightly more circumspect in his characterization of the serious abuses of power.

UPDATE: See Brendan's update. Bottom-line, I think it's rock solid that Bush abused his power, and until someone can offer a plausible account of what kind of non-criminal conduct Libby is helping to cover-up, I'm not going to be too upset if people assume that what's being covered-up was, in fact, a crime. The fact that Bush is actively and openly participating in the cover-up (and there's no serious doubt that something is being covered-up) naturally whets one's suspicions. Bush and Cheney are, however, clearly entitled to a legal presumption of innocence.