Let's Make a Deal : The Legalese of PlameGate

Reuters is speculating that Special Counsel Patrick Fitzgerald may be offering putative defendants one last chance to make a deal in the Valerie Plame investigation.

The prosecutor investigating the outing of a covert CIA operative has yet to say whether he will bring charges, but he has decided to announce decisions in the case in Washington rather than Chicago, where he is based, his spokesman said on Monday....It is unusual for Fitzgerald's office to offer comment on any aspect of the case and Monday's statement led some observers to wonder if it might be a signal that a decision was imminent or that Fitzgerald was trying to increase pressure on potential targets to cut a deal.

It has to be a tempting offer for several of them.

The first reason is the expense of an Indictment. Those under the gun are not elected officials. Unlike Tom DeLay, and perhaps Karl Rove, for whom the radical right might spring to life, they may not be able to raise a significant amount of outside defense funds. It's one thing to represent someone pre-indictment in a criminal investigation. It's another to represent them post-indictment. I would guess anyone indicted in this case is looking at a minimum of hundreds of thousands of dollars in legal fees. Many will be tempted to cut their losses now, particularly if they can plead to a misdemeanor, rather risk a felony conviction and mortgage their families' future.

The second reason is the Federal Sentencing Guidelines. Even though the Supreme Court ruled earlier this year in Booker v. United States (pdf) that the guidelines are advisory rather than mandatory, judges still must compute the guideline sentencing range and give it substantial weight. The sentencing guidelines for charges like perjury, making a false statement and obstruction of justice most likely will be outside the range of straight probation. The Guidelines provide that some imprisonment is required except for those within Zone A or B of the Sentencing Table.

Check out that sentencing table. Even defendants with no prior convictions can get straight probation only if they are in Zone A, with an offense level between 0 and 8 (computing to a sentence of no more than six months.) If they are in Zone B, with an offense level of 9 or 10 (translating to 4 to 10 or 6 to 12 months) they must spend at least one month on home detention or in a half-way house. If they are in Zone C, with an offense level of 11 or 12 (and a term of 8 to 14 or 10 to 16 months) at least half of the minimum term must be served in prison. Think Martha Stewart.

If they fall anywhere in Zone D, they must serve their sentence in prison - albeit, for this group, that means a Club Fed. Good time only applies to prison sentences of more than 12 months and is limited to 54 days a year, after the first year.

As a corollary and practical matter, the only reduction under the Guidelines that a defendant can count on is one the prosecutor requests in exchange for providing substantial assistance in the investigation or prosecution of someone else. While such deals often are made after indictment, they may not be as sweet as those Fitzgerald offers before indictment. And they won't be available to those who go to trial.

I haven't even included in this calculation the possibility that Fitzgerald is threatening indictments for Espionage Act violations or disclosure of classified information for those who refuse deals. That would raise the stakes even higher.

This is the week that all of the subjects facing Indictment will be faced with their "come to Jesus" moment. Spouses will be telling them to cut their losses and think of the family. They will be forced to juxtapose their loyalty to the Administration with their loyalty to their families and their interest in self-preservation.

My experience tells me that only those who truly believe they are innocent -- and those whom Fitzgerald advises are looking at felonies and jail time even with a deal -- will hold out.

Update: The Velvet Revolution computes the guidelines and says life in prison is possible for RoveGaters.

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    There are many reasons that people refuse deals. Sometimes the person has lied to the family and cannot reverse course; public humiliation for that person is easier to bear than humiliation within the family. Many people cannot dispassionately evaluate and make what is in essence an economic decision and instead behave the same way that many gamblers and investors do and refuse a known small loss( i.e. a short jail term offered in a deal) and instead try the case in hope of a a huge win even while risking a large loss( i.e., a long prison term if the jury finds against them.) Instead of analysis they rely on intuition and sometimes intuition leads to decisions that are unsupported by facts. That sort of behavior is widespread among defendants. Many defendants start from a view that this disaster cannot happen to them. For some political types who have largely been successful and perhaps faced a difficult situation before, a clear evaluation of a criminal case is not easy even when he or she has good to excellent legal help. These peolple then believe their own stories that hard work can overcome adversity, and let arrogance and pride coupled with a false sense of their skill in talking with people cloud their thinking and result in their trying risky or unwinnable cases. They do not understand the fundamental differences between criminal proceedings and everyday life. The lesson can be painful.We will have to abide the event.

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#2)
    by cpinva on Sat Dec 17, 2005 at 01:05:06 PM EST
    one thing i'm sort of curious about: what evidence, aside from a cia complaint, is there that ms. plame was actually covert at the time her name was released? the fact that the cia complained means nothing, in and of itself, other than that they complained. we assumed this to be the primary focus of mr. fitzgerald's investigation, because that's what we've been told, by everyone but mr. fitzgerald himself. my understanding is that his mandate was much broader than that, which i think is what truly scares the bejeebers out of the various players in this multi-act comedy of errors. has there been any official documentation released that clearly states that ms. plame was a covert employee, at the time novak's column identified her to the world, or at the point when that info was first relayed to a non-qualified party?

    cpinva, my assumption has been that if Plame were not a covert operative, the Department of Justice would not have accepted the case. If she were not covert - if, despite all reports, she was in fact openly working for the CIA when Novak published in his column that she was a CIA operative - then presumably, the whole case would have fallen over two years ago. I see no reason to suppose that she was not a covert operative: do you?

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#4)
    by owenz on Sat Dec 17, 2005 at 01:05:06 PM EST
    There is a strong disinsentive to cutting a deal with Fitzgerald: excommuniation from the GOP lobbyist club. From Manuel Miranda to Ollie North to Ralph Reed, the Republican Party has always rewarded those who break the law in the name of the GOP with a well paying job as a lobbyiest, conservative talking head, or think tank wanker. If Karl turns on Dick to save his own skin...well...he's risking the cushy job.

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#5)
    by Beck on Sat Dec 17, 2005 at 01:05:06 PM EST
    Does the possibility of a lame duck presidential pardon figure into the decision equation?

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#6)
    by cpinva on Sat Dec 17, 2005 at 01:05:06 PM EST
    cpinva, my assumption has been that if Plame were not a covert operative, the Department of Justice would not have accepted the case.
    this goes to my point that i believe mr. fitzgerald's mandate has been underrepresented, it's beyond solely that one issue. if my suspicion is correct, than ms. plame's status, covert vs open, wouldn't be the sole determinent of acceptance by DOJ.
    I see no reason to suppose that she was not a covert operative: do you?
    conversely, absent some official evidence, i have no reason to assume she was. so far, i've not seen such evidence make its way into the public record, the braying of the (unofficial) talking heads notwithstanding.

    I found this from CNN stating that she was "covert". A senior intelligence official was quoted:
    Sources told CNN that Plame works in the CIA's Directorate of Operations -- the part of the agency in charge of spying -- and worked in the field for many years as an undercover officer. "If she were only an analyst, not an operative, we would not have filed a crimes report" with the Justice Department, a senior intelligence official said.

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#8)
    by squeaky on Sat Dec 17, 2005 at 01:05:06 PM EST
    cpinva-Larry johnston who came up with Plame in the CIA claims quite emphatically that she was covert at the time of Novak's article. He has much to say about those who claim she was not covert on his website No Quarter

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#9)
    by Che's Lounge on Sat Dec 17, 2005 at 01:05:06 PM EST
    cpinva, The investigation may very well have gone nowhere if some key players had not lied and blocked it. But lying was necessary to cover their crimes and that is where the Fitz is going. It all leads back to the original crimes. This is not directed to you in particular but just an observation. The hypocrisy of much of the conservative viewpoint playing down the issue of Plame's covert status is blinding. Debating Plame's status is like argueing with a traffic cop over a yellow light. It matters not what any internet pundits say her status was. It's what the CIA says her status was.

    cpinva, if you don't trust the CIA, consider this: The D.C. Circuit Court of Appeals heard Judy Miller's appeal in her effort to claim journalistic privilege. All 3 judges agreed, based on review of secret documents not summarized in the opinion, that Fitzgerald was indeed investigating a serious crime. How are those judges going to come to that conclusion if Plame wasn't even an operative?

    This issue just drives me crazy! LETíS PUT THIS TO REST FOR GOOD! It's unconscionable that this still gets bandied about. Covert intelligence is a WEB of information AND PEOPLE. Itís irrelevant whether she was covert at the time of her being outed. The point is that she used her own name while stationed abroad in the past, and her role was that she was just an ordinary employee for a U.S. based company, and that was her story. So, anybody who was associated with her or was an informant for her, is now potentially revealed to have been the source for information she gathered. For instance, if sensitive intelligence information found its way to the U.S., and criminals or foreign governments couldnít figure out how it got here, they now know (or can review past videotapes or other surveillance of suspected informants) that the pretty blond lady who befriended the informant WAS IN FACT A C.I.A. AGENT and was likely the source of the information. And as such, they can retaliate against that informant Ė yes, even years later. So, her exposure in turn may have a domino effect of exposing everyone she was ever seen with while overseas as a potential informant. It just makes me crazy that this basic issue (ďduh, she wasnít covert at the time, was she?Ē) is allowed to persist and persist, as a flimsy rationale for why her outing should not be considered a big deal. For heavenís sake, people, take this information and post it where others can see it. Itís just a travesty to let these inferences persist that would give a rationale for downplaying the story.

    CPINVA - A Special Weekly Report From The Wall Street Journal's Capital Bureau John Harwood. Wall Street Journal. (Eastern edition). New York, N.Y.: Jul 22, 2005. pg. A.4 Column Name:Washington Wire Section: Politics & Policy A key department memo discussing Joseph Wilson's Niger trip was classified "Top Secret," and the passage about his wife's CIA role was specially marked "S/NF" -- not to be shared with any foreign intelligence agencies.

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#13)
    by cpinva on Sat Dec 17, 2005 at 01:05:08 PM EST
    larry johnston, per his own bio, was not in the cia at the time of the plame "outing", so i would take his assertions with the same grain of salt that i take all other non-official "sources". she was a cia employee, a fact apparently well known in washington circles. of course, the cia has lots of employees, not all of them covert. it so happens i know several people that work for the "company", and their hq is right off of rt. 123, in mclean. you can't hardly miss it, it has a big sign right out front. was she covert, within the time frame required under the 82 law? beats me, and the rest of you as well. there has been no, i repeat, no official confirmation, by an identified official source, to confirm that. again, the cia filed a complaint with DOJ, no one here has the slightest idea what the actual content of that complaint was because, um, well, um..........it was secret!
    How are those judges going to come to that conclusion if Plame wasn't even an operative?
    couldn't tell you, and you don't know either, since, as you pointed out, the contents of whatever docs they reviewed were, um, secret. there's few things that would cause me to dance my "happy dance". the implosion of the present administration is certainly in the top five branches of that tree. unfortunately, all here is speculation, i think i'll wait until i see the end of mr. fitzgerald's movie. having lived and worked in d.c. and the metro area, for the past 40 years, i know what a rumor mill this place is, worse than a junior high hallway at lunch time. i've learned that 98% of them are plants, by parties with an agenda. the other 2% still require sifting, to seperate the wheat from the chaff.

    she was a cia employee, a fact apparently well known in washington circles. There is no evidence for this claim.

    That's a good question cpinva. I've wondered quite a bit about how any of us could know anything about anything. I spent a long time last week wondering what sort of meal might get served for dinner at the party I'm going to tomorrow. I couldn't possibly know. My wife suggested--quite clever she is--that perhaps we ought to bring our own food, so that we would 1) know what we would be eating (this is particularly important for her because she absolutely HATES shellfish) and 2) we actually had no way of knowing whether food would actually BE served. We had, of course, only received an invitation to "dinner", which could mean anything. I took issue with this point, as it's clear to anyone with a dictionary that "dinner" involves, one way or another, the consumption of an evening meal. She countered with the astute observation that actually, dinner means lots of things to lots of people--many Christians, for example, take their "dinner" shortly after church, or around 1pm. Since our invitation was for 8pm, it could well be that "dinner" would have ended 6 hours before, in which case we would be left high and dry! So I say--stick to your guns! Absolute knowledge is impossible, and no matter what sort of point you might be trying to argue, I'm sure you always are able to find a way to upend reality to suit your own narrow argument!

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#16)
    by squeaky on Sat Dec 17, 2005 at 01:05:08 PM EST
    cpnva-sad to see you repeating RNC talking points, I am surprised, especially as you attest to being well versed about the D.C rumor mill.
    she was a cia employee, a fact apparently well known in washington circles.
    She became known after the campaign to out her started. Whether it was to to discredit Wilson, or stop Brewster Jennings from whatever they were on to we may know later. Even though Larry Johnston was not an agent at the time of Plame's outing he is familiar with how 'the company' works and would not take such a strong position based on just a gut feeling or rumors he heard. He is not a leftie and has voted republican (bush). His outspoken position is as a patriot, pissed off at rhe current administration which deliberately compromised national security for petty partisan payback, or some other unknown reason.

    Re: Let's Make a Deal : The Legalese of PlameGate (none / 0) (#17)
    by squeaky on Sat Dec 17, 2005 at 01:05:08 PM EST
    cpinva-Take a look at the link posted underMyths About PlameGate for the fact that Plame was still a NOC when outed. think progress

    Don't be childish. No one will serve a day in prison. No one has to make deals. Bush learned some good lessons from the Iran Contra felons now in his White House - it's called PARDON. All this will be undone. Bush will pardon everyone prior to any trials. If you think Rove or Libby or Cheney or any of the WHIG criminals are going to serve time, think again.