Libby Sentencing

Marcy Wheeler is liveblogging the Libby sentencing hearing (1, 2, 3, 4, 5, 6, 7, 8).

I am particularly intrigued by the cross-referencing issue - in short, even though neither Libby nor anyone else was charged with violating the Intelligence Identities Protection Act, the prosecution has argued that Libby's sentence should be adjusted upwards for obstructing an investigation into whether a violation occurred.

Neither Judge Walton nor Libby's attorney Jeffress impressed me here:

Walton: Your position would seem to promote someone engaging in obstruction and therefore impeding govt's ability to prove, [Reggie's not buying this]

Jeffress: that's not the case. [Jeffress emphasizes the "for an offense" language in all the cases] The problem with taking the cases to the extreme that the govt wants to take them is that a defendant who is tried for plain obstruction, is to be sentenced based simply on what he was told when he came before GJ. Then a defendant who is found to commit perjury if a murder was suicide.

Walton: What if you can never establish whether there was a murder or not, and the person impeded the ability to make that assessment. There's a suggestion that at some point Plame was in a position where her job was classified.

Skip and:

Jeffress: [continuing on IIPA] If there had been a violation of IIPA, I'm sure the govt would have charged it.

Walton: I always hear lawyers say indictment doesn't matter.  The fact that someone is indicted, I tell people not to take that seriously. The fact that someone isn't found guilty, that's stronger than the fact that they weren't charged.

Jeffress: Govt has never shown that the offense was committed.

Walton: The objective behind cross-referencing as it relates to obtstruction is that it's envisioned when law enforcement officials start an investigation and they go to citizenry to find out whether an offense has been committed, it is the obligation of the citizenry to cooperate, when a person is put on notice of what the govt is investigating. I think that's what this cross-referencing provision is designed to reach. You only look at whether a legitimate investigation was taking place, it's my view the x-referencing does apply, as it relates to the obstruction. I may not reach wrt the perjury conviction, I have questions whether it would apply.

Groan - Jeffress is arguing that an IIPA violation was never charged; the obvious retort is that intent is a part of the crime, and Libby's lies made an evaluation of intent impossible - ergo, the obstruction succeeded!

What Jeffress ought to have been arguing is that no IIPA charge was possible regardless of Libby's lies or intent because the government never demonstrated that she was qualified as a covert agent under the statute.

To be fair, Jeffress does head in the right direction in the bit below.  Judge Walton, on the other hand, seems to be blowing smoke (or smoking something, anyway):

Jeffress: what IIPA requires is that agent has to have served abroad in past five years. We were given no discovery other than statement prepared by CIA stating she had traveled abroad on temporary duty, TDY, there's never been a case, any discussion whether that 

Walton: [Getting animated] I think here they have a legitimate concern about this info being disclosed. CIA contacts justice. Justice goes about to seek to investigate that. They make inquiries of high govt official and he prevents them from investigating that case. You seem to be suggesting that cross-referencing doesn't apply. [He's pissed]

Jeffress; they need to establish there was an offense.

...We're still in the position where we don't know if she was covert. It is fundamentally unfair when we try a case, we don't get discovery, we exclude it.

Walton: I don't think we can equate relevance of my ruling wrt culpability if you felt that info was important for your client to obtain fair sentencing. I would have entertained that, but I got no request as it relates to sentencing.

9:53

Jeffress: if you honor concludes that factual finding on that matter needs to be done, certainly we'd like to see that, it never occurred to me CIA would be willing to disclose that, and the govt would be willing to share it.

So, Walton's current position is that if the defense had insisted they needed this material, not to prepare for the trial, but to prepare for the possible sentencing, he might have granted it?  Given the latitude allowed to prosecutors in preparing sentencing memorandums, the defense could argue that almost anything is relevant on that basis. 

Well - presumably that is why we have laws, procedures, precedents, and appeals courts.  If Walton is right in suggesting that even though the defense was denied the relevant material at trial they should have asked for it again, surely there will be precedent to support him.  Life is full of surprises.

UPDATE:  30 months.  Whoa - that is near the maximum urged by Fitzgerald.  CNN does not mention whether Libby can stay free pending his appeals (I'll guess not, unless Judge Walton has devised some weird mixed-message sentence).  Sandy Berger is laughing out loud.

HERE WE GO: From Ms. Wheeler (8):

As to bond pending appeal, Walton basically said no, but Defense can submit a memo. That is due on Thrsday, and then the govt's is due on Tuesday, with Libby's response due on Wednesday. If Walton decides against bond pending appeal after reading those motions, then it all goes to the prison system and Libby goes to jail in normal schedule, which would be about 45-60 days.

The basis defense argued for appeal is twofold: that Walton rejected the memory defense, and Fitz' appointment in general. Walton basically said, "If you could introduce a memory expert on the basis of that hearing, we'd have to let in any thing, because there was no basis for applicability in this." As to Fitz' appointment, Walton said that, although no one oversaw Fitz' actions WRT this case, he was subject to normal discipline if he did anything bad. The fact that Sampson considered firing Fitzgerald is evidence of this in this case.

Reggie said something very important WRT this issue. He said that if Fitz' appointment were improper, then it would mean no one high in government, and no one in the justice system, could be held accountable for the things they did unless there were a way to appoint a prosecutor free of DOJ oversight in the particular case.

Oh, please - We the People let the Special Prosecutor law lapse for a reason.  if Judge Walton thinks it is his role to provide a replacement, he ought to re-read the Constitution.

That said, and re-reading (6), the defense is not limiting their appeal to the memory issue and Fitzgerald's appointment; those were just two issues that were cited:

Those by themselves would justify bail pending appeal. Other opinions your honor recognizes novelty. To the extent your honor would briefing, we could have briefing by eod Thursday. On those two issues alone, we meet the standard. We don’t have to establish with caselaw there is a probability, we only have to prove there are substantial questions, wrt to those alone, the court recognizes that the court was going into uncharted territory.

Comments

[Other Tom]

Strikes me that if the government wanted to include a determination of covertness as relevant to the sentence, the burden was on them to show it, not on Libby to disprove it. But we're pretty much through the looking glass here...

[Other Tom]

This is current from Breitbart:

"Though he saw no reason to let Libby remain free pending appeal, Walton said he would accept written arguments on the issue and rule later."

Someone said on the earlier thread that Fox News is reporting that he is free pending appeal. So what's up?

[Cycloptichorn]

An entirely predictable outcome to a sordid affair.

[Jane]

Fox News is indeed forcefully reporting that he's out pending appeal. They don't appear to have any doubts about.

[Other Tom]

Sordid all the way around, and widely predicted here.

[Sue]

The way I read it, he is out pending the judge's ruling next week. He has indicated he isn't inclined to allow him to remain out. Which way you think he'll rule? ::sigh::

[Appalled Moderate]

Cyclo:

It ain't done yet. Fitz wants the Vice President, and the Vice President wants Libby pardoned.

Be interesting how this turns out. Would you take a pardon in exchange for Cheney never having anything to do with foreign policy ever again? (I know I would!)

[Other Tom]

Interesting, Jane. I wonder if they're basing that reporting on the fact that he wasn't ordered to report immediately, or if the judge has in fact ruled to that effect. No one disputes that he is "free" as we speak, but that doesn't settle the matter.

[Pollyusa]

Wolfowitz

Wolfowitz commends Libby for protecting a covert CIA agent, he also relates how Libby helped Armitage with legal advice. Wolfowitz goes on say that Libby's wife is a "life long Democrat".

One involves his[Libby's] effort to pursuade a newspaper not to publish information that would have endangered the life of a covert CIA agent working overseas.

[]

I also remember how Mr. Libby offered his services pro bono or at reduced costs after he had returned to private law practice - to help former colleagues and friends with legal issues. In one case he helped a public official defend himself against libelous accusations, something that is extremely difficult to do for anyone in public office. The official in question was Richard Armitage who more recently served as - Deputy Secretary of State.
Wolfowitz letter 5/29/07

[Sue]

OT,

The judge is allowing written arguments on why Libby should remain free pending an appeal. He will rule next Thursday.

[Cycloptichorn]

AM -
Cyclo:

It ain't done yet. Fitz wants the Vice President, and the Vice President wants Libby pardoned.

Be interesting how this turns out. Would you take a pardon in exchange for Cheney never having anything to do with foreign policy ever again? (I know I would!)

I suppose so. Not that things are cut and dry in the real world, though.

[Jane]

I wonder if they're basing that reporting on the fact that he wasn't ordered to report immediately, or if the judge has in fact ruled to that effect.

OT,

The reporter talked at length about how an appeal could take 2-3 years and how Libby would be home with his small kids during that time.

[Other Tom]

AM, I don't understand your question. The only guy who can pardon him is Bush. Are you suggesting Bush would issue a pardon on that condition, or are you simply telling us your preferences?

Sue, no doubt in my mind which way the judge will go, given what he apparently said today. Bush now has one week to act. At this point I rather doubt he will.

By the way, I've seen nothing to suggest that Libby has anything to give on Cheney.

[hit and run]

Sorry, gotta repeat the text Polly posted from Wolfowitz' letter in support of Libby:

I also remember how Mr. Libby offered his services pro bono or at reduced costs after he had returned to private law practice - to help former colleagues and friends with legal issues. In one case he helped a public official defend himself against libelous accusations, something that is extremely difficult to do for anyone in public office. The official in question was Richard Armitage who more recently served as - Deputy Secretary of State.

Well of course. The icing on the turd cake.

[sylvia]

The whole thing is ridiculous. Maybe someone should open an obstruction case on Fitz because years later, we STILL don't know if Plame was covert.

I read an article in the London Times a few days ago on American justice

http://www.timesonline.co.uk/tol/comment/columnists/
william_rees_mogg/article1848345.ece
(hey sorry - don't like html slashes - come on, you all can cut and paste!)

At first I thought it was offensive, but now I'm thinking maybe the guy is onto something about the over aggressive prosecutors here. And read in the comments about the increasing reliance on the Federeral prosecutions, with their lower rights safeguards.

[lurker9876]

Fitz reported that he has no plans to charge anyone. He says that his investigation is on hold and told his team to go home to their day jobs.

I'm with OT. Bush won't do anything until the appeals process is complete. Walton wants Libby to spend jail time. I don't think Walton would let Libby go free pending appeals.

The sordid affair is caused by Fitz.

I don't think Libby ever had anything to give on Cheney.

Captain's Quarters agree with us.

[lurker9876]

Except Captain's Quarters doesn't fully understand all of the details. He also doesn't think the appeals would overturn Libby's convictions.

Well, perhaps Wells and Jeffress would do better with the conservative judges at the Court of Appeals.

[Appalled Moderate]

OtherTom:

There is some kind of odd battle in the administration between Cheney on one side and SecDef and Rice on the other. This might be a good way to settle the dispute in a way that keeps it under wraps. So, yeah, it's my preference, but it also seems like a possibility.

(Of course, Bush could simply choose a policy and freeze Cheney out. But that's another thread.)

[Tom Maguire]

OMG - the Libby-Armitage connection was reported back in Hubris, but it still rankles.

Well, the interplay of a Libby pardon, Bush, Cheney, and immigration is interesting - does Cheney have any sway on immigration? Does he still have sway on Libby? Might the base relent and take Bush back if Bush pardoned Libby? (I would guess not - immigration is reality, Libby is a pasttime).

[RichatUF]

...I think here they have a legitimate concern about this info being disclosed. CIA contacts justice. Justice goes about to seek to investigate that. They make inquiries of high govt official and he prevents them from investigating that case...

More wisdom from Judge Walton-if it were legitimate then why is Armitage free to travel the world saying how bad neo-cons are. If Libby obstructed the FBI's attempts to make inquiries of high gov't officials why is it that Grossman and Armitage could talk to one another before and after their FBI interviews.

Good leak-> Bush lied

Bad Leak-> Their were no lies

RichatUF

[Other Tom]

AM--God, I don't know. Obviously Bush could freeze Cheney out any time he wants, and he could pardon Libby any time he wants. Seems hard for me to imagine him feeling he needs to placate Condi and State should he elect to pardon Libby.

It certainly sounds to me like Fox has got egg on their face on this free-pending-appeal stuff. Seems to me as though Scooter better bring his toothbrush to next Thursday's hearing unless GWB steps up to the plate--and when was the last time he did that?

[sylvia]

"There's a suggestion that at some point Plame was in a position where her job was classified."

Well that quote from Walton kills me. There was a "suggestion"? Uhhh, aren't we supposed to KNOW at this point whether Plame was covert - especially since Libby is being SENTENCED for violating it?

It's not some unsolvable mystery like figuring out space and time and the grand unified theory. Figuring out whether Plame was covert would involve about 2 seconds of scanning her personnel file then releasing the relevant info. The fact that Walton can claim this as part of the sentence and not know this is scandalous.

[hit and run]

Other Tom:
Seems to me as though Scooter better bring his toothbrush to next Thursday's hearing unless GWB steps up to the plate--and when was the last time he did that?

In Tom's latest update from FDL:

If Walton decides against bond pending appeal after reading those motions, then it all goes to the prison system and Libby goes to jail in normal schedule, which would be about 45-60 days.

He would get time to put affairs in order???

[sylvia]

Can't get over these greatest hits from Walton:

"The fact that someone isn't found guilty, that's stronger than the fact that they weren't charged."

Huh? So Libby is being punished because because Fitz didn't have a case for the IIPA violations? So in other words, he's assumming Libby is probably guilty because he wasn't proven innocent?

"You only look at whether a legitimate investigation was taking place "

Well yeah. A legitimate investigation would be nice. Better than a corrupt investigation or a frivilous investigation. It sure would kind of suck serving jail time for an illegitimate investigation, wouldn't it?

[hit and run]

For the repub debate.....do candidates get asked..."show of hands if you would pardon Scooter Libby." Fred won't be there and we're sure he would raise his hand. Anyone else willing to do so at this point? I think everyone else would pretty much hem and haw about waiting for appeals process, etc.....

[centralcal]

H & R: You are right about the hemming and hawing from the Republican candidates (except Fred!) But, they are safe since most of the general public (sadly) doesn't have a clue about the Libby case or much care.

[Jane]

Fox is now hedging its bets on Libby being free pending appeal; They are now reporting that will be decided next week.

He would get time to put affairs in order???

Apparently the jail isn't quite ready.

[Other Tom]

Interesting question, H&R. Since these guys at this point are seeking the votes of GOP primary voters, you'd think one or more of them would say they'd pardon Libby. Rudy?

[topsecretk9]

--Wolfowitz goes on say that Libby's wife is a "life long Democrat".--

Well she is - she worked for the Democrat candidate for President Joe Biden and worked in behalf of the Anita Hill joke.

[sylvia]

Just on the few words I see from Walton, I can tell the guy isn't too bright. It seems that we have more than our share of not top quality judges in this country. Bill O'Reilly seems to like putting a spotlight on that and I think he's right on the mark for doing so. If only there was some better way to screen them in advance.

For instance in some small counties here, judges don't have to be lawyers. For example, a friend of mine had to postpone his small case in some hick town because the judge had to work late at her shift as a manager at the local Mcdonalds! So something needs to be done.

[alcibiades]

He would get time to put affairs in order???

Well, Paris Hilton did, why not him.

I knew Waltoon was going to do this. Given his mindset - straight down the line liberal - he probably saw clips from show trial on Plame and "realized" she was covert.

And of course he was emboldened by the fact that his "judicious" job on the Libby case awarded him a slot on the FISA court - geez, just the kind of mind I want working on National Security.

[hit and run]

From the Corner:

"There's a Hero in the Dock" [Kathryn Jean Lopez]

Clarice Feldman on Scooter Libby

06/05 12:59 PM

[alcibiades]

President Bush feels "terrible" for the family of I. Lewis Libby but does not intend to intervene now in the case of the former top aide to Vice President Dick Cheney who was sentenced to prison Tuesday, the White House said.

BTW, Tom M. - if Bush wants to antagonize his base even further than it is already, he'll keep up this attitude of non-intervention.

[Looking_For_a_Way_out]

TM

There is some significance to the defense's failure to pursue your take on the IIPA argument. Libby's attorneys would not pursue that argument if they believed they were likely to lose it. Jeffress did give you enough rope to keep you clinging to it, to leave you hanging, so to speak. The intent of this "bad" bit of lawyering was probably to keep the political ground for a pardon viable, and keep the defense fund donations rolling in. I Don't believe for a second that they "accidentally" missed a chance to vindicate their client. OTOH the Bush administration's hallmark has been to grossly overpay for incompetent performance. Maybe Libby's just like the rest of them.

[hit and run]

NRO's editorial on the Libby sentencing

We said it in March, when I. Lewis “Scooter” Libby became the only person convicted of any crime in the CIA-leak investigation, and we’ll say it again now that he has been sentenced to two and a half years in prison: President Bush should pardon Libby, and do it now.

[Paul]

Walton is definitely not bright, as Sylvia mentions above. That's one of the big problems here, that he was snowed by Fitz from the get-go.

There are lots of low-IQ people in the world and much of the time they don't cause serious problems. But when a low-IQ person is in a position of power, oh, let's say, a judge, then that's almost a prescription for disaster.

[Chants]

"What Jeffress ought to have been arguing is that no IIPA charge was possible regardless of Libby's lies or intent because the government never demonstrated that she was qualified as a covert agent under the statute." -- TM

If Jeffries added that no IIPA charge was possible because the government did not want to litigate the reasonable "affirmative measures" factor, then I think he may have been even more effective.

[Pollyusa]

Talkleft has all of the letters up in PDF here.

They are alphabetical, Hannah and Eric Edelman wrote letters.

[MikeS]

Since the pardon is certain to attract a lot of attention, I think the Administration should use reverse psychology by making it a media event. I’m imagining something similar to the stem cell announcement.

Bush could point out that while most pardons are granted without fanfare, this is an unusual case. In this case not only have 2 of the jury members suggested that they would not oppose a pardon, but much evidence has come to light since the case.

Evidence that Plame was indeed not a covert agent under the law at the time of the Novak article because
1. Her overseas duty did not meet the IIPA requirements per her service record.
2. Neither she nor the CIA were taking the reasonable affirmative measure of protecting her identity by telling people that information about her identity was classified.
3. The CIA did verify her employment to the journalist in question.

We now know that Mrs. Plame’s relationship was not even classified under an executive order.
According to the prosecutor there is no evidence that anyone in the administration ever thought she was classified in any capacity.

[cathyf]

OMG - the Libby-Armitage connection was reported back in Hubris, but it still rankles.

Yeah, it turns my stomach, too, but I'll still give voice to my inner pollyanna...

Suppose a WTC office worker is carrying an injured coworker down the stairs of the WTC on 9/11. He is exhausted, and he just can't carry her any further. He puts her down, goes the rest of the way down the stairway and escapes, while the coworker perishes. Do you blame the survivor? Or the terrorists?

This monster Fitzgerald is a scary guy. Sure, I'd really admire Armitage if he were out there putting his neck on the line to defend Libby. On the other hand, the cowering out of sight and mind hoping to escape Fitzgerald's wrath -- yeah, it's hard to blame him too much for it.

I've said all along that putting too much blame on Armitage is at least partially excusing Fitzgerald's behavior. And I will entertain no excuses for Fitzgerald's behavior.

[topsecretk9]

I put this in the other thread (I guess wrong thread)

Polly

Why did you highlight that Wolfowitz noted Libby's wife is a Democrat?

[Pollyusa]

topsecretk9

It was news to me, didn't realize it was common knowledge. Wolfowitz had quite a bit on Libby's non-partisanship in the section where he mentions Mrs Libby.

[topsecretk9]

Jackson Hogen, friend and ski partner of Scooter Libby: "She probably cancels his vote every four years. It's a credit to Scooter that he can maintain a friend like me and a wife like her all these years."
Source: New York Times, "As Trial Begins, Cheney's Ex-Aide is Still a Puzzle" by Scott Shane, January 17, 2007.

Harriet Grant was one of the senior Democratic lawyers to interview Anita Hill during the Senate hearings on the Supreme Court nomination of Judge Clarence Thomas.--Harriet Grant: Stay-at-home mom after their children were born, lawyer, former Democratic staff lawyer for the Senate Judiciary Committee under Senator Joseph Biden.

Libby's wife's eyes were red and puffy after sobbing in the courtroom. Her face was also flushed.

...after verdict read.

[PeterUK.]

I agree that many seemed frightened of Fitzgerald,and why not? He had the power of an Inquisitor,a Witchfinder General or a totalitarian political Commissar,anybody could be interrogated for hours,dragged before a Grand Jury and indicted on any inconsistencies.
Is it possible to enumerate,in brief, the irregularities of this trial of an Enemy of the People?
A few,
The Appointment of Fitzgerald himself.
The fact that the original leaker was known.
That it took the Special Prosecutor four years to come up with a process crime.
Fitzgerald was economical with the Truth with Judge Tatel.
An FBI witness "lost" notes.
There are many more,please add.

[Jane]

Guiliani applauds "live free or die" (good opening) McCain looks unhappy and got buzzed.
Ron Paul is the champion of the constitution.

Question 1 - was it a mistake to invade Iraq, Romney: It's a dumb question given what has happened. Harry Reid was wrong. The right thing to do is stabalize the central government in Iraq.

Reiterate the question: "Knowing what you know right now". Romney says it wasn't possible to know then what we kn ew now and it was right at the time.

Guiliani: It was absolutely the right thing to do. Stop loooking at iraq in a vaccuum. Democrats are in denial. Boy you gotta love Guiliani

[hit and run]

Jane --- I found you!!!!

OK, I'm here....

[Jane]

Brownback is introducing a plan tomorrow. I missed what it was. Gilmore says people should have read the NIE.

Look forward, McCain, lots of deaths in Iraq, hypothetically if Petraus says we lose in Sept, what do we do? McCain visited a soldier's family - he looks sedated. He wants a chance to let the strategy succeed because if we fail they follow us home. He bashes Hillary. "Presidents don't lose wars, political parties don't lose wars, nations don't lose war." (applause)

[hit and run]

McCain good jab at Clinton and her "Bush's war"........McCain never said "Clinton's war" re Bosnia, Kososvo

[Maybeex]

McCain is very upset when talking about giving up the war.

I think Tommy Thompson just called the leader of Iraq, O'Malliki.

[hit and run]

Tommy Thompson is trying the aggressive tone.....

(I'm sticking to general and snark, let Jane flourish on her substance)