Speaking of Pretty Impossible to Defend

It’s clear the President Bush is officially in the “Don’t Give A F**k” zone. And yes, I thought the sentence that Libby got was excessive.

But commuting the sentence of someone who was convicted under due process is just a lame waste of what little political capital Bush has left. There are important issues we will be dealing with for the next two years, and I’ll bet that he’s gonna miss it between now and Jan 19, 2009.

Sometimes people get sacrificed to the political process – think Breaker Morant – and guess what, that’s part of the political process. Bush did Libby a small favor and the rest of us no favor at all.

64 thoughts on “Speaking of Pretty Impossible to Defend”

  1. Why was the sentence excessive? Because he was “only” the fall-guy for his higher-ups? (Surely you wouldn’t try to claim that participating in the outing of an undercover CIA agent working on WMDs in this “Time of War” for purely domestic political retribution is not a trivial matter.) This line of thinking leads back to Bush and Cheney…which makes the commutation appear to be an obstruction of justice, not an exercise in clemency. Looks a lot like Impeachment Reason #14 to me.

  2. Surely you wouldn’t try to claim that participating in the outing of an undercover CIA agent working on WMDs in this “Time of War” for purely domestic political retribution is not a trivial matter

    No, we’d just claim that isn’t a remotely accurate description of what happened. (Cue unproductive screaming match…)

  3. “Why was the sentence excessive?”

    Because a fellow who admitted removing and destroying classified documents in his pants got a $50,000 fine and no jail time.

  4. _Why was the sentence excessive?_

    The independent probation officer reccomended a sentence of 15-21 months and consideration of three factors that would have lowered the sentence further. Had the judge followed the probation officer’s reccomendation its possible that Libby would have served no time in jail. “TalkLeft”:http://www.talkleft.com/story/2007/5/31/21232/8074

  5. Capotal C, the problem with your point of view is that the basis simply isn’t true. Plame was not “outed” by Libby, was not really “undercover” in any sense and there wasn’t any evidence of “domestic political retribution” in Libby’s contacts with reporters.

  6. AL,

    I don’t think that the commuting shows a lack of respect for law. He did NOT commute the entire sentence, which h could have done. He did leave in place the “mere” $250,000 fine.

    Since Fitzgerald never bothered to establish that Plame truly was covert agent, there’s room to wander how much “materiality” there was to Libby’s lies.

    That idea is futher supported by the fact that the person who DID “leak” her name to Novak, Richard Armitage, was not charged at all. That fact that Armitage was not charged surely raises some serious question as to whether or not any classified material was leaked by anyone, or, if it was, whether or not it represented a major crime.

  7. Ok. If its not a big deal to out Plame, then why would you lie about it to a federal investigator? Its not the crime its the cover up, just like Watergate.

    I think the executive branch would be well advised to think about the message its sending we the people. Its kosher to lie to federal investigators?

    I find it ironic that it was a lie about sex that got Clinton impeached, but lying about whether or not you outed an undercover CIA agent is only enough to get the VP’s assistant convicted.

  8. I gather the Libby’s “lie” was a discrepance between his account of the facts and a reporter’s one. Pretty unimpressive as the proof of the utter wickedness of Bush’s administration.

  9. I gather the Libby’s “lie” was a discrepance between his account of the facts and a reporter’s one. Pretty unimpressive as the proof of the utter wickedness of Bush’s administration./blockquote>

    It’s a little bit more than that but not that much more. Libby’s supposed “lie” consisted of him testifying that when he spoke to reporters (Russert, Cooper and another IIRC) that at the time he wasn’t sure whether Plame worked at the CIA and that he thought he had learned of that from talking to other reporters. The indictment against him included this excerpted testimony and alleges that these are false statements because there were several meetings before Libby’s meeting with reporters in which it was claimed that Libby was told that Plame worked for the CIA. The reason I put “lie” in quotes is because after reading the excepts used to indict him, they read more like him saying in his testimony he wasn’t sure at the time rather than making a categorical “I didn’t know she worked for the CIA.” Also the time between these meetings in which Libby was supposedly told Plame worked for the CIA and his meeting with the reporters was about a month apart (June through July 2003) and he was trying to recall who said what to him and in what order about eight to nine months later when he testified (March 2004).

  10. But commuting the sentence of someone who was convicted under due process is just a lame waste of what little political capital Bush has left. There are important issues we will be dealing with for the next two years, and I’ll bet that he’s gonna miss it between now and Jan 19, 2009.

    I disagree for two reasons.

    First, with the current Democrat Congress, I doubt that they are going to deal with any important issues between now and the next presidential election.

    Second, as far as use of political capital goes, it may not have been a dumb move on his part because the base of the GOP was pretty upset earlier this week over the immigration reform bill. Libby (right or wrong) is seen as someone who was treated unfairly by many in the GOP base particularly compared to the likes of Sandy Berger who got off with a much lighter sentence for what many consider to be a more severe offense. Commuting his sentence is probably going to mend some fences with the base (he still pays a heavy penalty but gets to continue his appeal out of jail) and as far as any negative fallout – few will remember and few will even care a week from now.

  11. Because a fellow who admitted removing and destroying classified documents in his pants got a $50,000 fine and no jail time.

    That fellow also showed remorse(well, at least said he did), and plea bargained. Libby did no such thing. This happens every day, and is a key in plea bargains throughout state and federal law. Accept this deal, or we’ll give you more when we win at trial.

    As stolen from “Captain’s Quarters”:http://www.captainsquartersblog.com/mt/archives/010173.php

    Obstruction of justice is a level 14 crime for sentencing purposes, and even with no criminal record, a single count at that level brings a 15-21 month sentence, as the DoJ chart shows. It also carries a 3-level upgrade if “the offense resulted in substantial interference with the administration of justice.” That puts Libby’s level at 17, with a 24-30 month sentence. If the defendant/convict abused a position of “special trust” — and as a high-ranking government official, Libby qualifies — the level on sentencing has to be increased two levels to 19. That puts the potential sentence at 30-37 months — and that’s not accounting for multiple convictions for perjury.

    This does not sound as excessive as people are saying it is, based on sentencing guidelines. Even still, if Bush allowed Libby just one day, or one month in prison, it would not have been as bad.

  12. Thorley Wilson raises an important point here.

    Bush has gotten a lot of bad publicity for various blunders recently. By commuting Libby’s sentence he turns that into *the* issue and all the rest gets put aside.

    And as long as this stays an issue of “What should Bush have morally done?” there’s no real consequence.

    If evidence shows up that it was part of an attempt on Bush’s part to obstruct justice by rewarding Libby for not informing, then it turns into a piece of an impeachment. Then it matters. But likely it will never get that far.

  13. Armed Liberal: “And yes, I thought the sentence that Libby got was excessive.

    But commuting the sentence of someone who was convicted under due process is just a lame waste of what little political capital Bush has left. […]

    Sometimes people get sacrificed to the political process – think Breaker Morant – and guess what, that’s part of the political process.”

    Pardoning people and commuting the sentences of people who are being unjustly punished is part of George W. Bush’s job. I think that means that sucking it up and taking the political heat for doing what’s right as best God has given him the light to see it in these cases is also part of George W. Bush’s job.

    This is something he should have done a lot more of, rather than less of. It would not have been going too far for him to pardon the single worthiest person his agents could find every day or at least every week of all his years in power. (And I think it would be a good thing for the American President to have the power to pardon / spare anyone a court may condemn to death even or especially if they are not accused of any crime, as in the Terri Schiavo case.)

    Upholding the law is one of the three top priorities I said (link) an American President should implement. Pardoning people when you should because it’s right (as far as you can see) and when it’s politically inconvenient to do what’s right is very much part of that.

    br. Sometimes people get sacrificed to the political process – think Breaker Morant – and guess what, that’s part of the political process.

    Once again, we have a major moral difference. In cases of justice for particular persons, where it was mine to say if justice or injustice happened, I would always, always be officially in the “Don’t Give A F**k” zone. And proud of it.

    (By the way, I think Breaker Morant was guilty as sin, but quibbling over the example would be pointless. We both know what we’re talking about here.)

    (I also don’t think much of Lewis Libby, and I don’t think that’s to the point either.)

  14. For what I’m saying to hold up, I have to say also that George W. Bush could conscientiously have believed that Lewis Libby’s sentence was more severe than it should have been.

    Belar makes a case for that view (link), and it is good enough that a reasonable man could be convinced by something like this line of reasoning.

  15. _If the defendant/convict abused a position of “special trust” — and as a high-ranking government official, Libby qualifies — the level on sentencing has to be increased two levels to 19. That puts the potential sentence at 30-37 months . . ._

    The prosecution didn’t seek an enhancement for “special trust.”

  16. OTOH, the Probation Department recommended consideration of downward departures because of Libby’s special position:

    bq. _In this case, the PSR identifies at least three mitigating factors that are present to such a significant degree to warrant downward departure: (1) Mr. Libby’s outstanding record of public service and prior good works; (2) collateral employment consequences for Mr. Libby, including the expected loss of his license to practice law; and (3) the improbability of any future criminal conduct by Mr. Libby._

    Two of these would be sufficient to earn no jail time.

  17. from Dave at 6:00 am on Jul 04, 2007

    Berger’s remorse!

    We have just recently found out A. The archives lied to investigators about the extent of his thefts, and that Berger lied to the investigators.

    I would suggest that Berger has breached the court agreement, and the Justice Department, if it is set on ensuring justice was served, should be taking him back to court.

  18. A.L.:

    Do you believe it’s ever OK to commute the sentence of someone who was tried and convicted?

    I am troubled by your assertion that sometimes people get sacrificed to politics, and that’s just too bad. We’re not just talking about someone losing his job. We’re talking about a criminal conviction with serious lifetime repercussions.

  19. AL:

    Are you suggesting that if Lord Kitchener had decided to commute Morant’s sentence he should not have done so.

  20. MEET VICTOR RITA….In light of Scooter Libby’s scandalous commutation this week, here’s an apples-to-apples comparison that the White House may struggle to spin.

    [I]n a case decided two weeks ago by the United States Supreme Court and widely discussed by legal specialists in light of the Libby case, the Justice Department persuaded the court to affirm the 33-month sentence of a defendant whose case closely resembled that against Mr. Libby. The defendant, Victor A. Rita, was, like Mr. Libby, convicted of perjury, making false statements to federal agents and obstruction of justice. Mr. Rita has performed extensive government service, just as Mr. Libby has. Mr. Rita served in the armed forces for more than 25 years, receiving 35 commendations, awards and medals. Like Mr. Libby, Mr. Rita had no criminal history for purposes of the federal sentencing guidelines.

    The judges who sentenced the two men increased their sentences by taking account of the crimes about which they lied. Mr. Rita’s perjury concerned what the court called “a possible violation of a machine-gun registration law”; Mr. Libby’s of a possible violation of a federal law making it a crime to disclose the identities of undercover intelligence agents in some circumstances.

    When Mr. Rita argued that his 33-month sentence had failed to consider his history and circumstances adequately, the Justice Department strenuously disagreed.

    Both Rita and Libby are first-time offenders; both were convicted of the exact same crime. One lied about gun registration; the other lied about his role in outing a covert CIA operative during a time of war. The president believes the prior should be away for nearly three years, but believes the latter shouldn’t spend a single moment behind bars.

    I anxiously await the explanation from White House sycophants about Bush’s deep and abiding respect for a justice system in which all Americans are equal under the law.

    A few other commutation notes to keep in mind today:

    * Sentencing experts cannot find a single other instance in American history in which someone sentenced to prison had received a presidential commutation without having served any part of that sentence. (Bush is quite a trailblazer.)

    * Defense attorneys can’t wait to take advantage of the can of worms the president has opened. One legal expert said, “I anticipate that we’re going to get a new motion called ‘the Libby motion.'”

    * “According to federal data, the average sentence for those found guilty of obstruction of justice defendants was 70 months, not zero.

    * And Bush couldn’t even thumb his nose at the rule of law competently. In his commutation order, the president said Libby should still get two years probation. The law says that “supervised release,” as it is called, can only follow an actual prison sentence. Now, Judge Walton doesn’t know how to reconcile Bush law with real law.

  21. From what I’ve seen of the Berger case, my guess is that he was hiding evidence that would be embarrassing to both the Clinton and the Bush administrations. And his plea bargain helped keep that evidence secret.

    So I would welcome re-opening the case in some way that would get that evidence revealed. I don’t care at all about embarrassing Clinton and I welcome a giant embarrassment for Bush.

    I don’t see that Berger should be any precedent for Libby. If it turns out that Berger — a democrat — had blackmail evidence that got him a good plea bargain while Libby was not part of any conspiracy, then there’s no comparison.

    And if Libby — a republican — also had blackmail evidence then Bush should not give in. It is in fact an impeachable offense for him to give in to blackmail that way.

    It’s peculiar that people who like Libby would automatically put him on the same level with Berger.

  22. Armed

    I don’t accept your reasoning here. The amicus briefs filed “on behalf of” Libby were not so much concerned with treatment of him as an individual but rather with a broader principle.

    I don’t have to care about Libby as a person (although I might) to be in favor of a pardon (or short of that, a commutation).

    Libby’s prosecution and sentence were outrageous because they condoned a very dangerous process of the criminalization of politics and I don’t regard it as much more than that. The “Sometimes people get sacrificed” position I find hardly compelling in light of the broader issues at stake and the additional fact that Libby may have been unfairly sacrificed is perhaps an additional consideration but not necessary to my point.

    I was opposed to Clinton’s impeachment or to the UK’s imprisonment of Pinochet for analogous reasons. “Shit happens” but it shouldn’t happen in such a way that it gets spread around too much.

    Gabriel

  23. It is not correct that Rita was a first time offender, he had a previous conviction, something that is being misreported. Reading the actual court opinion reveals the errors in reports claiming the contrary. Rita’s case also was about the investigation of a real crime. So Rita’s situation is not equivalent to Libby’s.

  24. Robin, a US judge and jury believed that Libby committed a real crime. You can choose to believe he didn’t, but due process is against you. Even Bush is against you on that one.

  25. I believe Libby should have gone to jail for leaking the name or at least Armitage should have. Libby should have been shamed out of position, fined, and maybe done a month or so for Perjury lying under oath a crime of moral turpitude but not so much a true crime.

    But I am a old schooler who believes “classified” means classified and to reveal such is treated as Treason as it very well should be.

    Sandy Berger Straight Stole Classified records

    NYT Reporters Released classified after classified leaks with NO CONSEQUENCE

    Senator Rockefeller leaks the Stealth satellite program no consequence

    on and on and on and on and on and on

    Bush’s weakness is not pardoning Scooter but that his utter weakness in pursuing other leaks has lead to a “its OK business as normal attitude”.

    I have said it many times we need LEADERSHIP we need leadership with BALLS or we are in for some seriously rough times ahead with massive unneeded sacrifices.

  26. Robin #30-

    This is what is claimed:

    “Like Mr. Libby, Mr. Rita had no criminal history for purposes of the federal sentencing guidelines.”

    Unless you can prove your assertion (“It is not correct that Rita was a first time offender, he had a previous conviction”) and substantiate it’s exculpatory value in this case, it will be judged as a misdirection.

    C-Low #32-

    Balls are worthless for an American leader without impeccable honor and integrity. Bush has plenty of the former and absolutely none of the latter…so be careful what you wish for.

  27. Capotal:

    Since this is Independence Day, I’ll dust off my libertarian dinner jacket (gee, it used to fit!) and bloviate for a few paragaphs.

    My chief problem with politics is that — frame it how you like it, as a matter of accountability, expectations of the electorate, size-of-government, size-of-nation, or whatever — it’s hard enough electing a county dogcatcher that possesses honor and integrity.

    [Sidebar: I have direct experience with corruption at the county level, where a truly bad guy got elected Sheriff. It didn’t just happen in places like Bloody Kansas, it happens in California in the present day. Go figger.]

    If we ever got a POTUS with oodles of honor and integrity, he’d still have to be such an adept swimmer-with-sharks as to be one in a billion. And that would likely mean that he’d take relatively few opportunities to show his genuine character, “Profiles in Courage”-style. So we wouldn’t *know* that he had them, necessarily, except in extremis. If his feet had been in the fire in earlier elected positions, there might be a chance of guessing at that. Maybe.

    (Insert “he/she” or “they” above if it blows your dress up)

    We need a whole raft of people with honor and integrity — a national cultural emphasis on same; I look around me at the electorate and the elected, and I don’t see that in the ascendancy. If it were, accountability would be less of an “issue” and more business-as-usual.

    The other problem with honor and integrity is that old angels-n-devils battle of deontology vs consequentialism. All of which is too foo-foo and intellectual to ever make it even in private policy wonkfests, let alone here on this blog.

  28. Re: #32 from C-Low: good points.

    This situation is a mess, with moral indications pointing in all sorts of directions. Leaking things that should remain secret is very bad. Lying under oath is bad. Politicized trials are bad. For the American President to pardon or commute the sentences of people on his side when they get nailed in court is not the right solution. And so on.

    Things got this way through years of negligence. When necessary rules demanding secrecy are neglected, the problem grows. When the American President barely uses his power of executive clemency, it creates a worse impression when one time he does use it – in favor of someone on his side. When the immensely important job of Attorney General is handed out effectively as a favor to an old friend who isn’t up to it, legal problems naturally grow. And so on.

    Taking the easy option looks OK at first. Don’t enforce laws that demand secrecy, because you’ll look like a bad guy if you do. Sign that unconstitutional law, because you’ll be painted as against clean elections if you veto it. Don’t object to the criminalization of politics and the politicization of justice, because you’ll look more presidential if you stay above the fray. It’s easy, and the problem of the day goes away.

    But then tomorrow’s problems arrive, and they start with more and more serious leaks, because everyone has seen that the laws are not really in force. As General Patton said: when you see the problem and fail to fix it, you set a new and lower standard.

    Washington seriously needs a chief executive with a passion for upholding the law and willingness to be painted as self-righteous, legalistic and a bad guy.

  29. A bit of fact-checking:

    _Sentencing experts cannot find a single other instance in American history in which someone sentenced to prison had received a presidential commutation without having served any part of that sentence._

    Nixon was pardoned without serving any part of a sentence, let alone being convicted. That was a pardon, not a commutation, but commutations are “relatively rare”:http://www.usdoj.gov/pardon/actions_administration.htm to begin with (Bush I granted 3 commutations and 74 pardons), so its not surprising that experts didn’t find anything.

    _Defense attorneys can’t wait to take advantage of the can of worms the president has opened. One legal expert said, “I anticipate that we’re going to get a new motion called ‘the Libby motion.'”_

    That makes no sense. The President’s pardon power is at his own discretion. There is no standard. Thus no motion. The lawyers can send commutation petitions to the President if they think their situation is exactly the same, but that’s hardly a can of worms.

    _According to federal data, the average sentence for those found guilty of obstruction of justice defendants was 70 months, not zero._

    More biased reporting of statistics. The actual data shows that 25% of people found guilty of obstruction of justice served *no jail time.* Of the remaining 75%, the average was 70 months. The reccomendation from the probation office indicated that no jail time was a reasonable option in Libby’s case.

    _And Bush couldn’t even thumb his nose at the rule of law competently. In his commutation order, the president said Libby should still get two years probation. The law says that “supervised release,” as it is called, can only follow an actual prison sentence. Now, Judge Walton doesn’t know how to reconcile Bush law with real law._

    This is more complicated than suggested. Libby has been booked, assigned a prison number, and has received one day of jail credit for doing so. “Discussion here.”:http://www.talkleft.com/story/2007/7/4/14187/26315

  30. PD,

    “More biased reporting of statistics.”

    You surprise me with this. Where do you get “more” from, not having established any earlier instances?

    Your first argument is in two parts. One, that Nixon didn’t serve time, which you then point out is irrelevant since he was pardonend and not commuted (raising the question of why you mentioned it in the first place.). The 2nd part, only argues that the statistic in question isn’t surprising. But that, too, is irrelevent as no one was arguing that it is surprising, just that it is so.

    Your next point refers not to statistics but to a quote by a defense lawyer.

    So where does this “more” emerge from? The implication is that you have uncovered a series of biased statistical reporting (which you haven’t) and are about to deliver to us yet another one. That one turns out to be very weak, indeed.
    It hinges on the difference between those convicted and those sentenced. And since a full 75%, according to you, of those convicted ARE sentenced and the “fact” in question is true about them, the original point seems to hold up and the accusation you made seems to miss its intended target.

  31. Defense attorneys can’t wait to take advantage of the can of worms the president has opened.

    Who are these defense attorneys, and why are they such morons? What would such a motion say? “Comes now the Defendant and moves this Court to pretend it’s the President and communte the sentence”? (OK, there are crazier motions out there).

    And why can’t people seem to include links, especially on legal questions where the need to see what cases/codes/guidelines actually say (as distinguished from what reporters say they say) is acute?

    The Rita case is actually a pretty big deal, though. It finds guideline sentences presumptively reasonable, which will almost (though not quite) make the guidelines mandatory again.

  32. Rob, I don’t have the link (or know how to post a link) but if you are interested it shouldn’t be diffiuclt to find. It was a front page NYTimes analyis of how the Justice Dept has been fighting against arguments made by defense attorneys about sentencing (there seems to be some sort of movement pushing for change). The sentences are considered too harsh.
    Here are some quotes from the piece that may help flesh out who these attorneys are.

    Critics of the system have a long list of complaints. Sentences, they say, are too harsh. Judges are allowed to take account of facts not proven to the jury. The defendant’s positive contributions are ignored, as is the collateral damage that imprisonment causes the families involved…..
    “The Bush administration, in some sense following the leads of three previous administrations, has repeatedly supported a federal sentencing system that is distinctly disrespectful of the very arguments that Bush has put forward in cutting Libby a break,” said Douglas A. Berman, a law professor at Ohio State University who writes the blog Sentencing Law and Policy….
    The Libby clemency will be the basis for many legal arguments, said Susan James, an Alabama lawyer representing Don E. Siegelman, the state’s former governor, who is appealing a sentence he received last week of 88 months for obstruction of justice and other offenses…..
    As a purely legal matter, of course, Mr. Bush’s statement has no particular force outside Mr. Libby’s case. But that does not mean judges will necessarily ignore it.

    In the discusson, there are several other attorneys cited. The article is still on the website. In short, the attorneys who have been pushing for change in sentencing, looking for more leniency, have found some hope in the reasoning behind Bush’s communtation. They’re hope is that the movement for change will gain more credibility and support. The irony, of course, is that the Bush Administration is firmly against such changes that would result in more leniency.

  33. _You surprise me with this. Where do you get “more” from, not having established any earlier instances?_

    My view is that the argument that there appears to be no precedent for commuting a sentence that hasn’t yet begun is a form of selection bias. I don’t see much difference between pardons and commutations with respect to whether any part of the sentence should be served. (Note, that a pardon doesn’t imply innocence, it’s an act of forgiveness)

    I expect one’s millage might vary, I did try to recognize that a distinction between the two does exist. But it still raises a number of questions. Do we have enough data points to extrapolate useful information from the record of commutations? Does the lack of prior experience reflect changes in communications technology? Or court practice (did it used to be more common that the convict would leave the sentencing and go right to jail?)?

  34. PD, I don’t think there is an argument that there is little precedent for commutation before time served. That’s a pretty well established fact. You seem to be saying that not much should be drawn from this particular fact and that’s fair enough. But to accuse others of fact selecting or biased use of statistics is unfair.

    However, I don’t sense that any one is drawing major conclusions from the fact that there is little precedent for commutation prior to time served, so much as they are noting it and saying that it is one more example of the bizarre nature of the entire affair. Everyone seems to agree that precedent has no bearing for what the president can or cannot do. I think that for some people who already hold him in low esteem, the fact that he acted in this manner without precedent, however irrelevant a role precedent might appear to play in this case, he has slipped another moral notch lower in their judgement.

    Even if there were only two prior relevant cases in the past 400 years, and that this was merely a third instance and one that is a departure from the previous two, I don’t think that would make a dent in the opinion of many that President seems to hold himself above the law. It’s more about an attitude than any actual legal formula or base of data points.

  35. The Libby clemency will be the basis for many legal arguments

    I don’t see a single legal argument in that excerpt. I see some emotional arguments, and perhaps a policy argument or two, but no legal arguments.

    Meanwhile, Rita provides a template for avoiding reversal on appeal: give a guideline sentence.

    Congress made the Sentencing Guidelines (well, by delegation), and Congress can unmake them. Maybe the Democrates will seize on this commutation and run in 2008 on a soft-on-crime platform. But there’s no reason to expect reasonably professional judges to care at all (excessively political judges might). These lawyers are flogging their pet cause, nothing more.

  36. Rob, you are free to disagree with Susan James, the attoreny quoted. But it is pretty clear to me that by legal argument she meant an argument made in court, even if you feel that argument is an emotional one. The people who are making these claims may well be wrong, as you seem to feel, but I think the article is a sound one inasmuch as it shows a descrepency between the rationale put forward by Bush in one case, and the rationale put forward in others by the Justice Dept.

    We will we see when the times come how effective any arguments put forward by defense attorneys for leniency will be and in exactly what manner they are put forward.

    But keep in mind, that people are trying to change laws and guidelines and practice…these are 3 different things…to reduce the harshness of sentences in certain cases. Bushes arguments for leniency for Libby are the similar to arguments these defense attorneys are making….making in court, where judges have some discretion, making to the Justice Dept., and making to legislators in order to urge them to change the law. This argument, and the story in the Times, is a much broader one than the limited,narrow one you are reacting against.

  37. The people who are making these claims may well be wrong, as you seem to feel

    I express no opinion on whether the guidelines are too harsh, nor on the question of whether Bush is a flaming hypocrite who lets his friends out of jail while other more worthy people rot, or whether Libby was unfairly chased by a publicity-seeking prosecutor who knew he wasn’t the leaker.

    My only opinion is: this will have zero effect on judges.

    The people in the exerpt are clearly plumping for a cause, and spinning in a way that they hope will help them in the court of public opinion. The quoted opinions are to reasoned legal analysis as a TV ad is to a Consumer Reports review. As regards individual defendants, they’re saying “It’s just not FAAAAAAIIIIIIIRRRR,” and that argument will have about as much effect in court as it does when your kids say it. Might work on the blogs, though.

    There’s nothing wrong with plumping for a cause, of course, so long as it is recognized for what it is.

  38. Rob, flogging pet causes is usually the first required step towards change. It’s how women got the vote, e.g. It’s why car emissions don’t pollute as much as they used to. Why kids go to school and not to work. I think you are wrong about the effect such arguments might have upon judges who have a certain degree of latitude within which to work. They make human decisions within the framework allowed.

    Look at the Libby case itself, for instance. His lawyers argued for probabation and fine, using certain arguments. The judge could have accepted those arguments and granted probation and fine. The next time a similar case comes up and the defense attorney’s make similar acceptable arguments to a judge that has the discretion to grant probation and fine, those lawers will be able to add the additional argument that the President of the United States is on record as believing that anything more than probation and fine is too harsh.

    Since it ultimately comes down to a judges personal opinion and is not a matter of law, I can’t see how you can believe that such an argument might not have an effect upon some judges.

  39. mark, if the argument is that the sentencing guidelines are too strict or inflexible, I’m all for that. I don’t like the sentencing guidelines, I’d like to go back to the old system.

    As I’ve written in the comments here before, I also don’t like the application of the “cross reference” guideline, but I wouldn’t eliminate the concept completely. I think it makes complete sense that an obstruction of justice sentence be greater when a murder investigation is underway than a jaywalking investigation. OTOH, it should also matter whether or not a murder occurred. The circumstances should matter. That’s a policy change in the guidelines I would support.

    However, part of my problem with the Libby cross-reference that is unique to him is that he was denied access to information about the underlying crime. National security prevented access to information about Plame’s status, her employment history, the existence of previous leaks and the nature of the steps taken to protect her identity. I understand the national security issue, but there is also an unfairness here.

    My personal preference would have been to let Libby stew in jail until the appeals are exhausted. I think Libby had a few good grounds for reversal, but that’s what appeals courts are for.

  40. However, part of my problem with the Libby cross-reference that is unique to him is that he was denied access to information about the underlying crime. National security prevented access to information about Plame’s status, her employment history, the existence of previous leaks and the nature of the steps taken to protect her identity. I understand the national security issue, but there is also an unfairness here.

    Not to be too snarky, but it would have been a very good thing if he’d familiarised himself with all that back when his security clearance would have given it to him, before he decided to participate in outing her.

    Of course that’s irrelevant to the court case that came up after he didn’t do it.

  41. PD, there is an important piece in the Libby case that I think you are leaving out in terms of the cross-referrence component. As I understood it, the prosecution was claiming that that it couldn’t prove whether or not a crime was committed BECAUSE of Libby’s obstruction of justice. I.e, his “faked” memory lapse prevented the gov’t from pursuing the case to the point where it could be determined whether or not a crime was committed. Having successfully obstructed the investigation, Libby could not very well then put forth a claim of leniency due to the fact of no crime having ever been proven.

  42. mark, first of all, I don’t take the prosecutor’s words at face value; he/she needs to present evidence.

    But accepting the sand-in-the-eyes metaphor, there are two possible outcomes. The runner is safe or out. We could take the position of maximum deterrence and always call the runner out. We could take the position of presumption of innocence and always call the runner safe. I believe we should try to assemble what evidence there is first before being forced into an either/or position.

    The maximalist position poses the risk that the liar could be sentenced for conspiring to commit a crime that never occurred. Some of the key evidence in the case: whether Plame was covert as defined by the statute was solely in the possession of the CIA.

    I believe that if Fitzgerald didn’t want to make that information available (either because of national security concerns or because it would hurt his case), then Libby should have been sentenced for a run-of-the-mill obstruction of justice claim. That’s what the probation department recommended.

  43. Mark, I’m not opposed to advertising or spinning for a cause, just to confusing spin with reality.

    I can’t see how you can believe that such an argument might not have an effect upon some judges.

    Because ultimately, a district judge wants to get it right. And where the rubber meets the road, “get it right” means not getting overturned on appeal.

    After Rita, a sentence within the guidelines is presumed reasonable and will be overturned only in the most extreme circumstances. Sentences outside of it get no presumption and are therefore more likely to be overturned. Some circuits have already been slapping down judges who go outside the “advisory” guidelines.

    Net effect: the judge who wants to avoid being overturned will stick very close to the guidelines or have really, really good reasons to depart. The fights will thus be over what the right guideline level is, and you won’t find “Libby communtation” anywhere in the manual.

    But you will find Rita in the U.S. Reports.

    Maybe the “Libby brief” will get someone a low-end sentence rather than a high-end sentence; I don’t dispute that it’s possible. There tends to be about a 20% range in guideline sentences, so that might save someone some meaningful jail time.

    Still, not a revolutionary event from a legal perspective.

  44. PD, in light of the jury’s verdict I think you have to take Fitzgerald’s claim at face value. Libby DID obstruct justice and comit perjury. If he is not telling the truth to investigators, those investigators cannot make a case. I think it is fair to assume that Libby lied and obstructed justce IN ORDER to prevent the case from going forward. If Libby believed that no crime had been committed, there would have been no motive to obstruct the investigation.

    Your safe/out analogy presumes some sort of overseeing God who can make some absolute determination. But in the real world an umpire has to SEE whether the runner was out or safe. In other words, it requires knowledge, but the basis for that knowledge is perception. Libby’s obstruction makes the perception impossible.

    You say “we” should try to assemble what available evidence there is. That is exactly what Libby sought to prevent from happening. He should not then be able to rely upon successful obstruction as the basis for an appeal of leniency.

  45. Rob, who exactly is it that you believe is confusing spin with reality? I truly do not understand.

    All anyone is claiming is that within the discretion offered by the guidelines, the “Libby” argument may have some effect upon judges when determining sentence.

    The other thing that is being advanced is the discrepancy between the rationale Bush offered in the Libby case and the rationale his justice dept pursues in other cases. In assessing Bush’s character, this is useful information.

    Your this: Maybe the “Libby brief” will get someone a low-end sentence rather than a high-end sentence; I don’t dispute that it’s possible. There tends to be about a 20% range in guideline sentences, so that might save someone some meaningful jail time.

    is at odds with your other this: My only opinion is: this will have zero effect on judges.

  46. Mark, perhaps I should have said, “zero measurable effect on judges.” Nobody will get a below-guidelines sentence because of this. Certainly nobody will be dropped from 33 months to zero (as Libby was) because of this. No opinion will be written which cites this act as a justification for a below-guidelines sentence (or if it is, the appeals court will reverse it fast enough to cause whiplash). So, while it might help someone somewhere, it will be impossible to tell if this is having any effect or not.

    Speaking as someone with at some familarity with federal sentencing, I still think any effect at all will be very minimal. Personally, I would never raise this argument because it’s most likely just going to annoy the average judge. Most judges don’t like to be bothered by paperwork that raises utterly irrelevant points, and some of them will get positively angry at lawyers who try to fluff up weak arguments like a grouse looking for a girlfriend. Most good lawyers know this, so the “Libby brief” is not likely to be particularly popular in day-to-day, low profile, not-appearing-on-nightly-news lawyering.

    Low popularity + low effect = zero or almost zero impact on judges.

    As for spin, I think “Transmission from the dark side” and, to a lesser extent, the NYT, are confusing the lawyer’s spin with the reality that this lacks the slightest legal impact. It changes nothing about the law. At best, it gives an emotional argument that will have small to zero, or even negative, impact.

  47. mark, I can agree that Libby lied and obstructed justice without following the trail you lay out. The simplest explanation for it all is that Libby’s job has always been to spin to make himself look good, his bosses look good and his administration. He crossed the line from spin to deceit. He lied to avoid political embarrassment. He lied to avoid the appearance that the administration was playing hardball. These are not defenses to obstruction of justice. AFAIK Fitzgerald never presented evidence that would rule out a political motivation for lying.

    _You say “we” should try to assemble what available evidence there is._

    I meant that Libby should have access to the information to independently determine whether Fitzgerald had evidence that a crime had been committed, whether Libby’s lies materially interfered with an investigation, etc.

  48. I meant that Libby should have access to the information to independently determine whether Fitzgerald had evidence that a crime had been committed, whether Libby’s lies materially interfered with an investigation, etc.

    Doesn’t that invite the same argument we use to deny similar information to accused terrorists?

    Show him what the investigation has and he can pass it on to the important guys who’re at risk.

    It’s more important to keep our secrets from the bad guys than it is to give them fair trials.

    Given the importance of the topic — restoring our intelligence services so they can get WMD info — Libby and all other suspects ought to be getting interrogation in Gitmo with no trial and no habeas corpus, and they should stay there until we are certain they present no danger to the republic.

  49. PD, “The simplest explanation for it all is that Libby’s job has always been to spin to make himself look good, his bosses look good and his administration. He crossed the line from spin to deceit. He lied to avoid political embarrassment.” In the absence of any evidence whatsoever put forth by the defense that these were the reasons for his lies and obstruction, why would the court, when sentencing, assume such speculations on its own. Fitzgerald put together a lenghty case, which the jury found convincing, that Libby deliberately lied in order to obstruct a particular investigation.

    Fitzgerald didn’t need evidence that a crime had been committed because he was assigned by the Justice Department to investigate that very issue. Libby obstructed that investigation and, partly as a result of that obstruction, no determination was ever made about whether a crime was committed or not.

    What you are saying is that Libby should be allowed to prove to the court that no crime was ever committed and that his obstruction of justice was moot. But that was never an issue at his trial, nor under the circumstances, should it have been at his sentencing.

  50. Rob, I read nothing in the NYT that suggest the authors of the article in question are confusing lawyers’ spin with reality. Impact on judges was only a part of a wider discussion regarding the issues involved. Most quoted lawyers were saying they intend to use the argument. I understand that you believe their use will be ineffective.

  51. Rob, PD, I’m off to meet AL for a drink down in Chelsea. We can pick up tomorrow, if you still feel like chewing over the Libby sentence.

  52. Mark,

    Reading my posts, I see I’ve been a bit incoherent because there are several different issues that I failed to separate out clearly.

    I also see that, given my employement, I should have kept my mouth shut. Which is what I will have to do from now on.

  53. Well I guess we should all look forward to the Nifongs and Fitzgeralds running the justice system according to the editor. All hail the show trials.

  54. The avearge sentence for the same crime is 50 months. Of course that is just a reflection of the sentencing guidelines.

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