Libby's Sentence

Libby is sentenced to thirty months but will be free pending a resolution of whether he should be allowed to remain free on appeal - the defense and prosecution will file briefs and next week Judge Walton will rule on whether Libby's grounds appeals are sufficiently novel and substantial that he should be allowed to remain free while the appeals percolate through the system.  Per Marcy Wheeler's liveblog, the judge is not being asked to rule on the likelihood that Libby's appeals will be successful:

Mr. Libby’s status. Only issue is whether appeal would raise substantial questions of law or fact.

Wells: Our position that based on number of extensive opinions your honor could rule form bench that there are substantial issues.

Walton: I think all those opinions are correct. [And who does not respect a judge with self-confidence?  TM]

Wells:  ...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.

My guess - next week Judge Walton will send Libby to the slammer, which seems to mean he would report in 45-60 days.

Assuming that to be the case, what does Bush do next?  Does Dick Cheney still have any sway in this Administration, and how hard will he push for a Libby pardon?  Will a Libby pardon be offered as an olive branch to the righties who are furious with Bush over immigration?  Would such an olive branch be accepted by a newly-reconciled right, or would it be used to smack Bush forcefully about the head and shoulders?  After all, immigration reform will have a much greater impact on people's lives than the question of whether Libby does or does not go to jail.

If Bush wants to mend fences with the right, he better start mending the border fence.

And if Bush wants his comprehensive bill, maybe a Libby pardon that alienates the media and a big chunk of the public in a futile attempt to placate the right will not be seen as the best way to get it.  (Hmm, am I saying a Libby pardon would be stupid and ineffectual?  Call it a lock, then!)

Last wrinkle - Fred Thompson has been a big Libby backer.  He laid out his objections to the process that led us to Fitzgerald last winter.  And he makes similar points here - his main theme is that there was no IIPA violation because Ms. Plame was not covered by the statute:

The only problem with this little scenario was that there was no violation of the law, by anyone, and everybody — the CIA, the Justice Department and the Special Counsel knew it. Ms. Plame was not a “covered person” under the statute and it was obvious from the outset.

He may be right about that.  A bit more:

I have called for a pardon for Scooter Libby. When you rectify an injustice using the provisions of the law, just as when you reverse an erroneous court decision, you are not disregarding the rule of law, you are enforcing and protecting it.

OK - does a Libby pardon become a hot potato for the other Republican Presidential aspirants?

ADD THIS:

Thursday, May 03, 2007
Pardon Scooter Libby?
WASHINGTON (CNN) -- Of the GOP presidential field, only Reps. Duncan Hunter of California and Tom Tancredo of Colorado raised their hands to indicate they would pardon Lewis "Scooter" Libby, Vice President Cheney's former chief of staff.

Libby was convicted in March of lying and obstructing an investigation in the Valerie Plame leak case.

-- CNN Political Researcher Xuan Thai

But wait - last May, "let the case play out" was the dodge.  What now, assuming Libby is sent to jail?

If Judge Walton, President Bush, and Citizen Libby can agree, would Libby take this: no jail pending appeals in exchange for no pardon now or ever?

MORE: 

ROSTOCK, Germany (AP) - 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.

Bush was informed by aides of Libby's sentencing in Washington two 2 1/2 years in prison after he got on Air Force One Tuesday to fly from the Czech Republic to Germany for the G-8 summit of industrialized nations.

They can kick this down the road at least until the judge rules next week.

EQUAL JUSTICE:  Jeff Goldstein is vivid on the gap between the Libby and Berger coverage:

For months and months now we’ve been hearing that the Libby trial was about the dangers of the “powerful” covering up their secrets—that Plame’s “outing” could actually jeopardize national security, and other self-righteous, hyperbolic, and patently absurd justifications for pushing forward in the hope of grabbing a Republican scalp.

Meanwhile, right here in front of us, we have a case where Sandy Berger, a former National Security Advisor, has voluntarily surrendered his law license rather than come clean about what documents he destroyed, why he destroyed them, and who he was trying to protect in doing so.

When I begin to hear the same people who’ve been braying for Libby’s blood take similar aim at Berger—and by all rights, their animus should be even more concentrated, given Berger’s position and power, and given the nature of his crime, which involved the pilfering and destruction of classified documents. 

No reason to think of this as Berger protecting a former President; think of it as Berger protecting a future First Spouse.

Well, Berger can become an issue as Hilary runs.  And her supporters can claim she is being swift-boated, and the media will continue to ignore Berger, and the right (yes, me, dammit!) will seethe... Barack, anyone?

WHILE MY GUITAR KEYBOARD GENTLY WEEPS: On the off chance that someone is wondering just what in the world my official editorial position is on any of this (and because having an official editorial positions seems so very tidy and responsible), let me reprise some of my commentary following the Libby verdict last March.

On the underlying validity of the Fitzgerald investigation - this relates to Fred Thompson's point that the DoJ should have shut this down:

From Mar 6, 2007:

Obviously in some cases, there is no argument that obstruction can obstruct an investigation.  However, in this specific case Mr. York could have been more emphatic - Libby's alleged lies did not, for example, obstruct an investigation into murder, because there was no dead body anywhere in evidence.  Similarly, it can be argued (as by York or Toensing) that Libby's testimony did not obstruct an investigation into the outing of a covert agent because Ms. Plame was not "covert" as defined by the Intelligence Identities Protection Act.  Similarly, the Espionage Act has hurdles that no reasonable prosecutor could have hoped to overcome, beginning with the intent clause of the first sentence:

Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States...

In this view, Fitzgerald spent two years investigating whether the Administration attempted to manipulate the media and avoid embarrassment while rebutting a critic.  Since those activities are not crimes, Libby's testimony could not have obstructed a criminal investigation.

Of course, the Department of Justice could have made this determination before appointing Fitzgerald as Special Counsel, so the real failure of leadership was elsewhere.

I think Fitzgerald was handed a perjury/obstruction case and ran with it, which is fine as far it goes, since those are crimes, too.  However, Fitzgerald's pretense that he was engaged in a search for "the truth" is not sustained by his own record:

In Jan 2004 Fitzgerald learned from Ari Fleischer that David Gregory had received a leak on the morning of July 11, which certainly gave Russert time to chat with Gregory and then with Libby.

Did Fitzgerald call Gregory to verify Fleischer's testimony?  No. Why not?  Ask Fitzgerald.  But my guess is that he figured that Gregory would only undermine the case he was constructing against Libby, and building that case was more important than learning the truth.

Let's note that I am using the word "learned" loosely there - John Dickerson denied (in print, not under oath) receiving that leak from Ari Fleischer; Fleischer's story was that he leaked to both Dickerson and Gregory while chatting in Africa.

But as of Jan 2004, as best Fitzgerald knew Russert's colleague had received a leak on July 11.  Where was the follow up?  And when will NBC News follow up on this loose end?  (NBC's timetable revealed!)

My position on Ms. Plame's covertiness is that it is a subtle legal point that has never been fully briefed or litigated, and we still don't know enough to know.  I also have an original thought about a place to look for non-definitive guidance that I think the Libby defense overlooked, to wit, Ms. Plame's  pension calculation; by law, she receives additional credit for service abroad, a key point of dispute in the applicability of the Intelligence Identities Protection Act.  (A religious question - since I think Ms. Plame's covert status is knowable but currently unknown, I am rejecting the label of "agnostic".  Am I right on the usage?)

On the broad question of Libby's guilt, I am not chasing him with a noose or pitchfork but I am not pretending he is an angel, either: (or Raw Story)

Maguire doesn't completely buy Libby's "I forgot" story, and believes that it's possible that the former vice president aide was just trying to keep his boss's involvement hidden.

"Personally, I think the single most probable scenario is that Libby uhh, shaded his testimony to keep Cheney out of the story," Maguire says.

And on the pardon question, my temporizing suggestion was that Bush ought to declassify some of the underlying material so that We the People can see for ourselves the seriousness of the crime and the Fitzgerald investigation - my goodness, the judge just sentenced Libby for obstructing an investigation into whether Ms. Plame was covert, and the judge still does not know if she is covert (He does know that the CIA says she is covert under their definition, and that their definition does not mirror the IIPA - quite a difference.)  Time to find out.

FEEL THE LOVE:  Scooter's letter, mostly positive, at The Smoking Gun.

NRO Editors - Pardon Libby.

Comments

[hit and run]

Carrying this forward from last thread, from 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.

[alcibiades]

Will a Libby pardon be offered as an olive branch to the righties who are furious with Bush over immigration? Would such an olive branch be accepted by a newly-reconciled right, or would it be used to smack Bush forcefully about the head and shoulders?

Everyone who has thought about it knows that Bush is soft on immigration. That's his genuine position. People were enraged that the language he used insulted the base.

But not pardoning Scooter would show something altogether different. A lack of regard for the people who work for him. And
also that he believes justice was done in this case.

The lack of regard ties into the reason that the base is already mad at him - because it shows a disrespect for the people who put it on the line for him, and have done so, time and again.

And, publicly, being in accord with the justice of the verdict and sentence lines him up squarely with the left.

[hit and run]

Will Bush read the over 160 letters written on Libby's behalf? I would like him to -- and would like to be assured that he has.

[clarice]

I do not think that failing to grant a pardon before appeal represents a judgment on his part respecting the justice of the verdict, Alcibiades. If Libby wins on appeal it is as if he were never convicted. Bush may prefer to wait for that. But before the sentencing, Libby's legal fees were $5 million and the damage that will be done to him and his family will be done if he does not remain free pending a disposition of the appeal.

I'm with Fred on this one, however. The case stunk from beginning to end and to let it continue lets the Wilsonista lies and the media perfidy continue. Bush could do this in a way that didn't hurt him much but only if Mary Matalin wrote the speech.

[hit and run]

I put the link to NRO's editorial calling for Bush to pardon Libby in the last thread.

I only mention it hear to note the intersection of Libby and the immigration bill -- that NR is on the opposite side of the immigration issue from the president.

And then note also that Fred has come out against the immigration bill.

Hmmm, any prominent pro immigration bill voices prominently calling for a Libby pardon?

I haven't looked, so I am NOT insinuating anything.

[hit and run]

Ahhhh, Fred Barnes? (I haven't kept up with tv folks, so that is a guess)

[Lesley]

H&R: IIRC, not all of those 150 letters were pro-Libby (Byron York update?). Ofcourse, that doesn't change your point, per se, but do they include both throw-the-book-at-the-SOB and spare him views.

[seamus]

Didn't Libby lie to the FBI and the Grand Jury to obstruct justice and cover for Cheney? What kind of cretin is Cheney to let his faithful servant take the fall all alone?

[hit and run]

Good point Lesley. I was going off of the FDL not-a-transcript from Wells...

Wells; it is our position as expressed in sentencing memo, whether you approach Libby's sentencing, that on the record before your honor, expressed in over 160 letters submitted, it will be within your honor's discretion to give significant credit to Mr Libby for his exceptional public service to our nation.

[Rick Ballard]

"A lack of regard for the people who work for him."

Technically it's the same lack of regard for Cheney that allowed the incompetent Bartlett (currently riding on AF-1, although soon to be gone) to foist the even more incompetent Martin (still Bartlett's sidekick) upon Cheney, which in turn generated an ill considered response that was the genesis of Libby's problem.

I have always understood the true depth of the President's "compassion" and his lack of response on this matter will be entirely consonant with its shallowness. It's the Bush equivalent of "I feel your pain". He's as compassionate as he is conservative and he's never hidden it.

That he's still taking Bartlett's bad advice explains a great deal concerning his standing in opinion polls.

I doubt that the other contenders for the nomination will do much more than stutter and fumble. Except for Rudy, perhaps. As a SDNY prosecutor he was in the forefront over twenty years ago in developing the tactics employed by Fitz. His stutter and fumble will reflect the fact that he would prefer that particular to go unnoticed.

[clarice]

From the editor of AT:
"Thomas Lifson
Following the outrageous sentence of 30 months dealt to Scooter Libby, Judge Walton is allowing him to remain free - for a short while. AP reports:

Walton did not set a date for Libby to report to prison. 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
Had he ruled that Libby be immediately jailed, President Bush would have faced immediate pressure to issue a pardon, something he is obviously not anxious to do, and for which he would no doubt receive a lot of flak.

It is obviously preferable that Libby's conviction be overturned during the appeals process. But subjecting him to imprisonment while the appeal is being heard would be unacceptable. A pardon, necessary to free him, would prevent the appeal from ever being heard.

I deeply fear that Judge Walton will accordingly send Libby to jail during the appeals process, thereby completing the chain of injustices surrounding this travesty of a legal proceeding, and forcing the President into an unpopular but necessary pardon."

[boris]

It appears that Bush suffers from BPS.

Battered President Syndrome.

[hit and run]

If you haven't gotten there yet, Scooter Libby Love Letters on the Smoking Gun

[boris]

If he doesn't come to his senses he will be suffering from BFS ...

Battered % Fried Syndrome.

[hit and run]

Interesting, the letter written by Mary Matalin, written in the first person representing herself nevertheless was also signed by her husband James Carville.....

[alcibiades]

I do not think that failing to grant a pardon before appeal represents a judgment on his part respecting the justice of the verdict, Alcibiades. If Libby wins on appeal it is as if he were never convicted. Bush may prefer to wait for that. But before the sentencing, Libby's legal fees were $5 million and the damage that will be done to him and his family will be done if he does not remain free pending a disposition of the appeal.

I would agree with you, Clarice, if I thought that Walton was going to leave Libby free. But he's already told us what he is going to do.

So he'll read arguments and decide with Fitzgerald, the way he has, for the most part, which he has already told us he will do.

I think Waxman's show trial and his promotion to FISA court judge have been made him feel secure about the blinders he has worn in this case.

And why the heck has Alberto Gonzales' DoJ rewarded him for this.

Bush's hand has been forced. I'd much rather Scooter go to appeal as well and hopefully got the sentence repealed, but not with him in jail.

[Rick Ballard]

Boris,

If he doesn't wake up it's going to be BF&ES - Battered, Fried & Et Syndrome.

[hit and run]

Lesley, that smoking gun link says:

Of the 198 letters sent to Judge Reggie Walton, 174 referred positively to Libby, while the balance urged Walton to throw the book at the convicted felon.

[PatrickR]

'...what does Bush do next?'

If Walton rules Libby goes to prison now, and Bush doesn't step up and pardon him, then I'll change my mind about what Ace of Spades said about him.

[clarice]

Thursday, May 03, 2007
Pardon Scooter Libby?
WASHINGTON (CNN) -- Of the GOP presidential field, only Reps. Duncan Hunter of California and Tom Tancredo of Colorado raised their hands to indicate they would pardon Lewis "Scooter" Libby, Vice President Cheney's former chief of staff.

Libby was convicted in March of lying and obstructing an investigation in the Valerie Plame leak case.

-- CNN Political Researcher Xuan Thai

Posted 5/03/2007 10:25:00 PM | Permalink

[Lesley]

H&R, muchas gracias for the link.

I did a quick scroll and it seemed to me that the letters on Smoking Gun were the "positives." Would be interesting to read the "negatives" - both the arguments contained therein AND the signatories, eh?

[clarice]

I consider those positive letters a roll of honor.

[alcibiades]

I just heard Fox announce that a Bush spokesman said that Bush has not ruled out a pardon for Libby.

[DEMO]

From Joe Wilson

Thank you Jane, Marcy, Christy, and all the Firedoglake stars and firedogpups for your tenacity and support through all this.

Below is our statement on the sentencing.

As Americans, both Valerie and I are grateful that justice has been served, reconfirming that our country remains a nation of laws.

We are also saddened for the pain that Mr. Libby has inflicted on his family, friends, and the nation. Mr. Libby benefited from the best this country had to offer: the finest schools, a lucrative career as a lawyer and many years of service in Republican administrations. That he would knowingly lie, perjure himself and obstruct a legitimate criminal invetigation is incomprehensible.

It is our hope that he will now cooperate with Special Counsel Fitzgerald in his efforts to get to the truth. As Mr. Fitzgerald has said, a cloud remains over the Vice President.

Every official in this administration must be held accountable for their actions

[clarice]

Speaking of immigration--Here's today's numbers from Mickey Kaus:

Endangered Pander? McCain supports legalization of illegal immigrants, loses 5 points over the month among Hispanic Republicans in California, according to SurveyUSA. Fred Thompson blasts the legalization bill from the right and his support among Hispanics quintuples, putting him ahead of McCain (and Giuliani) among Hispanics. ... P.S.: These are Hispanic Republicans, of course. But they are not insignificant, making up 17% of "likely Republican Primary voters" in Survey USA's model. ... P.P.S.: McCain's loss (and Thompson's gain) was actually greater among Hispanics than among GOP voters generally. ... P.P.P.S.: You don't even want to see what happened among black Republicans. ... 8:52 P.M.

A Poll Number WaPo Omitted: In that recent ABC-Wash Post poll, mentioned by Jonathan Weisman in this morning's Kyl-side--spinner, only 29 percent approved President Bush's handling of the immigration issue, a "career low." ... 64% disapproved. Many of those disapproving are obviously people who believe Bush's approach isn't permissive enough. Still, the fall seems significant, coming in the middle of a week of righteous Bush moralizing in defense of his position. When people pay attention, he seems to lose ground. ... Bush's support on the issue among Republicans plunged from 61% to 45% in a month. ... See Gary Langer's write-up. ...

[hit and run]

Clarice, here was my take on the pardon Libby question in the first debate....but, it was on in the background and I was 2-3 bourbons in...so...I easily could have missed Hunter raising his hand...

heh, didn't change channels, it's in the background...."should libby be pardoned"

everyone says,,,,,,,,not yet, let case/appeals play out. No one says yes.

Oh, wait, Tancredo say yes.....

What would Fred say?

Posted by: hit and run | May 03, 2007 at 09:23 PM

[Jane]

Fred has said "yes" many times before. He's in. It's time to arrest Joe and Val.

[hit and run]

Sorry, you're right Jane...I shoulda said that. In fact, that night you said the same thing - and I agreed. It was rhetorical then and now.

[clarice]

I'm in Jane--Got my cowgirl outfit and deputy's badge. I'll fly to Santa Fe, pick up my horse at the airport and ride out to their hacienda and cuff those two lying scum.

[Rick Ballard]

"It's time to arrest Joe and Val."

No, no, no - Fitz first (perjury and filing a false affidavit) then Joe and Val. Hopefully while they're trying to flee the country.

[Jane]

Boy those are some pretty amazing letters. SOme brought tears to my eyes. What on earth could Walton be thinking? Oh that's right, he's a liberal and Fitz is a saint.

You go Clarice, and then you and Other Tom and I can take turns being prosecutor, defense attorney and Judge. We can replicate justice as well as anyone.

[Other Tom]

Seamus says, "Didn't Libby lie to the FBI and the Grand Jury to obstruct justice and cover for Cheney?"

We know (or at least I accept) that he lied to the FBI and the grand jury, and that those lies legally supported a finding of obstruction of justice (although as far as I know there was no finding of an intention to do so.)

But "cover for Cheney?" We deal pretty much in evidence here, Seamus. So did Fitz, and he adduced none. Maybe you have some?

[hit and run]

I'm on the jury! I'm on the jury!

[clarice]

The next time I'm called for jury duty, I will say that I have nothing but contempt for LE, prosecutors and the D.C. judges as a result of this case and that there is grave doubt on my part that I can fairly sit in judgement on any case brought here .

[Jane]

You can be the entire jury if you like H&R or pick your fellow jurors. WE will make it like American Idol.

[Other Tom]

Jane, do prosecutors, judges and juries have to swear off the Martinis? If so, I'm prepared to issue a statement that would make Sherman look like Hamlet.

[Rick Ballard]

"We can replicate justice as well as anyone."

Don't worry about that. Just follow the form of the process.

Roughly, you understand? Don't be too damned picky about it. After all, the verdict's the thing.

[hit and run]

I've said it before regarding Santa Fe.

One of us here, is already there.

[Jane]

In the new Courts Other Tom martini's are de riguer, starting at breakfast - if you can manage it.

I've always thought Sherman should look like Hamlet, so this should be fun.

And Rick you are right - the verdict is the thing - along with the sentence which I believe will be waterboarding followed by a year at Gitmo.

[Jane]

BTW does anyone else find the poll that asks you to pick a president by his last name, offensive? Or is that just a Jane thing?

[PeterUK.]

"As Americans, both Valerie and I are grateful that justice has been served, reconfirming that our country remains a nation of laws.

We are also saddened for the pain that Mr. Libby has inflicted on his family, friends, and the nation. Mr. Libby benefited from the best this country had to offer: the finest schools, a lucrative career as a lawyer and many years of service in Republican administrations. That he would knowingly lie, perjure himself and obstruct a legitimate criminal invetigation is incomprehensible.

It is our hope that he will now cooperate with Special Counsel Fitzgerald in his efforts to get to the truth. As Mr. Fitzgerald has said, a cloud remains over the Vice President."

To quote
Mandy Rice-Davis,"He would,(say that) wouldn't he?

[topsecretk9]

Polly

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

[manys]

I didn't get very far into the letters, but I thought it illuminating that John Bolton would assert that Libby only ever dealt with the substance of what he had to do, never personalities and politics. Yet this is exactly what Libby himself asked the court to take into consideration for his sentence. It would seem that Bolton - and most of those supporting him in the batch of letters I read - would prefer Walton to use information other than the substance of the case when deciding on sentencing.

[Enlightened]

"It would seem that Bolton - and most of those supporting him in the batch of letters I read - would prefer Walton to use information other than the substance of the case when deciding on sentencing."

Only an idiot could post this drivel.

[Enlightened]

"It is our hope that he will now cooperate with Special Counsel Fitzgerald in his efforts to get to the truth. As Mr. Fitzgerald has said, a cloud remains over the Vice President."

And I thought you couldn't make this shit up. This idiot did - my bad.

[anduril]

Isn't it obvious to everyone that Tom is right on this one:

My guess - next week Judge Walton will send Libby to the slammer, which seems to mean he would report in 45-60 days.

This has been a political case from beginning up to this point. Why in the world would Walton do anything to make life easy for Bush? If the Dems get into the WH, he stands to benefit because he's shown he puts service to his liberal masters before everything: conscience, ethics, decency, law--choose your own order. If the GOP keeps the WH, they're too feckless to seek revenge, even where vengeance is justified. So Walton will do the obvious political thing and send Libby to the slammer, thereby putting the ball in Bush's lap, rather than potentially letting him wait till the end of his term while the appeal goes on.

I will say that I admire Libby for not seeking mercy but only decency.

[sammy small]

My bet is that GWB won't pardon Libby until the end of his term. After all, didn't he instruct all of his administration people to cooperate. Libby didn't, he lied. It is the only thing that came of the entire charade and it would have pissed me off if I were Bush.

It also pisses me off that the Plames have skated and that Berger got a slap for what is so obvious it hurts.

As for Fitz, well, he is just part of the thousands of government workers who did his job and used his position against the administration's interests over the years. Same old same old. Once January 2008 rolls around, this will all stop for at least four years.

[topsecretk9]

--Posted by: Enlightened | June 05, 2007 at 04:09 PM--

Well Enlight, OtherTom called it...they are trashy people, and do trashy thing.

[clarice]

I'm going swimming..

[Enlightened]

This is going to be a very telling episode in our Judicial history folks.

Just wait until the Jefferson case - we will all be witness to the absolute certainty that there are no Rules of Law.

If Scooter Libby had any balls, he should tell the world that George Bush was the original leaker. No matter if true or not.

In less than 10 seconds Scooter Libby would go from convicted felon to deified whistleblower with book and movie offers.