The Mechanics of Plea Deals in PlameGate

Reddhed at Firedoglake has posted a terrific primer on grand juries explaining extensions, sealed indictments and much more.

As to plea offers in the works in PlameGate, there are two components: the charges and sentencing concessions. Fitzgerald and defense lawyers are busy today trying to reach deals. The charges are of less importance to the defendants at this late hour than the sentencing concessions Fitzgerald is offering.

By this time, major players like Karl Rove have accepted that any deal will include a felony conviction. Right now, the critical issue is whether they can avoid jail.

Sentencing in federal cases is determined by the Federal Sentencing Guidelines. I outlined here how they affect those involved in the leaks case.

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 guidelines’ 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 1 month on home detention or in a halfway 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 those who refuse deals with indictments for Espionage Act violations or disclosure of classified information.. That would raise the stakes even higher.

Those who are indicted tomorrow will make grand claims of innocence. They should. They are innocent under our system until a jury or judge declares them guilty.

But I suspect those who make such pronouncements tomorrow will be those for whom Fitzgerald's deals included jail time.

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    Re: The Mechanics of Plea Deals in PlameGate (none / 0) (#1)
    by Al on Sat Dec 17, 2005 at 01:05:27 PM EST
    Also Bush has stated quite clearly that anyone who is convicted will be fired. I don't see how he can renege from this position. Even if Rove avoids jail time, for example, he must go. Or am I just being naive here?

    Re: The Mechanics of Plea Deals in PlameGate (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:27 PM EST
    Don't most of these guys have security clearances? Won't involvement in this case, even false statements or as an unindicted co-conspirator, result in loss of their clearance? If so, they won't be able to keep their positions in the White House.

    Re: The Mechanics of Plea Deals in PlameGate (none / 0) (#3)
    by squeaky on Sat Dec 17, 2005 at 01:05:27 PM EST
    Great info at reddhedd. So, if a regular grand jury can last 18 months with a six month extension, that means Fitzgerald' 22 month grand jury can go another 2 more months. Is that why he met with Hogan earlier this week, to get an extension? Can Fitzgerald upgrade to special grand jury where 32 months is the regular limit? reddhedd

    Re: The Mechanics of Plea Deals in PlameGate (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:28 PM EST
    THIS JUST IN: Richard Sale is reporting that Libby got his info about Plame from people under John Bolton at the State Department. The link is: here

    Re: The Mechanics of Plea Deals in PlameGate (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:28 PM EST
    The time limit on the standard grand jury did have an "except as provided by statute" clause to it, and the document from Fitzgerald that supports the term of the grand jury ending (roughly) today, is a few months old (unless I missed something) so perhaps due to late breaking news, the condition of extending it was met? I would think that those in charge of managing security clearances would have their own procedures for investigating and revoking clearances. Criminal backgrounds and evidence of lying to the feds, even without a conviction, can be enough to get a clearance declined, and if that happened to any of these people it would bar them from probably a pretty large portion of the job they are supposed to be doing. But as Brownie showed us, you just can't keep a good crony down. I bet they (at least Rove) will keep getting their checks even if they can't really perform their duties. If Bush's word was "convicted", it could be years until a jury trial actually eventually *convicts* anyone in this. Followed by a year or two of appeals, maybe push it up to the Supreme Court and try to cash in some favors there... An indictment, as bad as it is, isn't even close to a conviction. But even at that, the War Profiteer in Chief already backtracked from saying he'd fire anyone that was merely *involved* with the leak. He also said he'd jawbone OPEC to keep gas prices reasonable. Bush is not exactly someone who keeps his word. Ever.