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

[Jade jewelry from china]

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?)