Sentencing Arguments Underway for Scooter Libby

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Tue Jun 05, 2007 at 09:25:52 AM EST
Tags: Libby Trial (all tags)

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Update: CNN: 30 months for Scooter Libby. Libby goes home. No ruling on appeal bond.

10:00 ET: The Judge is hearing legal arguments over the application of the federal sentencing guidelines to I. "Lewis" Scooter Libby.

Marcy is live-blogging at Firedoglake (Part 1 here, Part II here.) Judge Walton seems to agree with the Government that the cross-referencing guidelines are appropriate for at least the obstruction of justice count. All agree they don't apply to the false statement charge.

That's bad for Libby. His lawyer, Bill Jeffress, is now arguing that Valerie Plame was not covert, which is just wrong. She was covert.

10:11 am ET

....More

Very bad for Libby. Walton finds the cross-referencing guideline applies to the obstruction of justice count. From Marcy:

The objective behind cross-referencing as it relates to obstruction 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.

10:39 Judge Walton agrees three points should be added. I don't think a split sentence is in the cards for Libby any more. The court is in recess.

The sentencing letters have been posted on the Court's website. They are 373 pages, I've just sent them to Jane, Marcy and Christy. I won't post them until the sentencing is over. 11:09 am. Judge Walton says three points for perjury enhancement apply. From Marcy:

It's undeniable that Russert's testimony factored into equation whether Libby should be charged with perjury and obstruction. It could not have, based on what Libby said, adequately completed its investigation regarding conduct it was investigating without calling Russert before GJ. While Libby signed release, reality required govt to go before Chief Judge, accordingly consistent with case authority, since there was additional reason the addition 3 points would be appropriate.

11:15 am. The Court has found the applicable guideline range (I assume from Marcy's latest posting it's what Fitz asked for, level 19, 30 to 37 months.)

They are now having argument over what the sentence should be and whether Libby should get any departures or a non-guideline sentence.

Ted Wells is arguing this part. Judge Walton doesn't sound impressed so far and says he's read all the letters.

< Scooter Libby Sentencing Preview | Scooter Libby Sentencing Letters >

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Sentencing Arguments Underway for Scooter Libby | 14 comments (14 topical)

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I thought (none / 0) (#1)
by Deconstructionist on Tue Jun 05, 2007 at 09:36:19 AM EST

Fitzgerald's argument for applying the cross-reference was stronger than you wanted to concede when we discussed it this weekend. It sounds from that as if Libby is going to need VERY favorable rulings from the court on Chapter 5 departures or a § 3553 variance to avoid a substantial sentence of imprisonment. (and Zone D requiring full-term imprisonment begins at OL 13.)

: Decon (none / 0) (#2)
by Big Tent Democrat on Tue Jun 05, 2007 at 09:41:00 AM EST

Given Walton's views on cross-referencing, at least on obstruction, absent departures, whatwould Libby be looking at now? The 30-37 Fitz is asking?

I believe so (none / 0) (#3)
by Deconstructionist on Tue Jun 05, 2007 at 09:57:36 AM EST

but Walton would still have to consider Ch. 5 departures and the § 3553 (a) factors.

But if Libby starts at OL 19, (19 and CH I is 30-37)he'd need a pretty large departure/variance to avoid a relatively long period of incarceration and straight probation would seem to be a HUGE break for someone starting that high.

If he ends up 30-37 months on the number crunching even giving him half the minimum of 30 months would be generous and Walton is known for being tough at sentencing in most cases. Where Libby is still equivocating, I'd be REALLY surprised if he got less than that and not surprised if he gets 30. If he gets less than 15, I would join the chorus saying he got special treatment.

He's not in a split range, that's for sure (none / 0) (#4)
by Jeralyn on Tue Jun 05, 2007 at 10:04:26 AM EST

I don't see a 10 month split sentence anymore.

I'm not sure all of Fitz's enhancements to the cross-reference will still apply. So I'm not willing to go with the 30 to 37 months yet.

I also doubt Walton will agree all the departures Libby is seeking will apply. I still think he'll get less than 30 to 37, but perhaps not by much. Maybe 21 to 28 months or at best, 15 to 21 months.

Clarification (none / 0) (#5)
by Deconstructionist on Tue Jun 05, 2007 at 10:05:49 AM EST

It would be more accurate to sat that FITZGERALD is now openly asserting that Plame was "covert." The prosecutor asserting something does not make it a proven fact. The issue of whether Plame met the definition under IIPA has not been decided by any court. Libby's defenae argument that short duration overseas travel within 5 years is not sufficient under IIPA remains unlitigated.

Decon (none / 0) (#8)
by jimakaPPJ on Tue Jun 05, 2007 at 10:37:00 AM EST

Hmmm, let me brag.

I made that point at least a dozen times...

(Sorry folks...I just couldn't resist.)

Question:

How can he be an AAF of a crime that no one has been charged with, or convicted of??

And if it is claimed that the man perp is "unknown," wouldn't you have to prove that Libby knows who that person is??

And if not, what would that be like? Picking up a hitchhiker who has just robbed a bank?

Thanks


Try resisting next time (none / 0) (#9)
by Big Tent Democrat on Tue Jun 05, 2007 at 10:40:20 AM EST

Gawd knows Decon and I mix it up all too often but it seems a fair point for Decon to point out his analysis of the issue YESTERDAY!

Come on Jim, sparks fly enough as it is.


: BTD (none / 0) (#13)
by jimakaPPJ on Tue Jun 05, 2007 at 06:54:23 PM EST

I asked a question. That causes sparks?
And yes.... I made the not covert point...

How can he be... (none / 0) (#10)
by TomStewart on Tue Jun 05, 2007 at 11:53:47 AM EST

...convicted of lying to investigators and obstructing justice? It that what Jim is asking?


He was convicted (none / 0) (#11)
by Deconstructionist on Tue Jun 05, 2007 at 12:12:15 PM EST

because the jury was persuaded he did it. That's not the issue here.

The issue here is the argument that he should not have been sentenced under reference to the guideline for disclosing the identity of an "covert" agent where neither he nor anyone else has been shown to have unlawfully disclosed the identity of a covert agent.

Essentially, the argument was that it is unfair to apply the cross reference to § 2M3.9 (through 2X3.1 -acessory after the fact) where the prosecution was not required to prove the underlying offense was committed.

The answer is that until a higher court says otherwise, this court has determined the guidelines do not require proof of the underlying offense to allow the c-r in the obstruction guideline to be applied. It seems that this case now stands for the proposition that one who obstructs justice can be punished to a greater extent where he obstructs an investigation into a more serious offense based on the fact he knows the subject of the investigationand intentionally impedes it through an illegal act without proof of the fact that the investigation in question uncovers proof of the more serious crime.

: Thanks (none / 0) (#14)
by jimakaPPJ on Tue Jun 05, 2007 at 06:55:36 PM EST

If the C-R applies (none / 0) (#6)
by Deconstructionist on Tue Jun 05, 2007 at 10:14:44 AM EST

I don't think fitzgerald needs any "enhancements to put him at 19.

AOF is set at6 levels below the level for the underlying, and i believe this is the underlying guideline:

§2M3.9. Disclosure of Information Identifying a Covert Agent
(a) Base Offense Level:

(1) 30, if the information was disclosed by a person with, or who had authorized access to classified information identifying a covert agent; or

(2) 25, if the information was disclosed by a person with authorized access only to other classified information.

That would put him at 19 and the "enhancements" essentially become moot except to the extent thay would put him above 19 under the obstruction or perjury guidelines and Fitz does not seem to be have taken that position.

so, i think it's 19.

: Typo (none / 0) (#7)
by Deconstructionist on Tue Jun 05, 2007 at 10:16:28 AM EST

I meant to type AAf (accessory after the fact) not AOF.

: You're right (none / 0) (#12)
by Jeralyn on Tue Jun 05, 2007 at 02:05:13 PM EST

I just went back and re-read Fitz's brief on sentencing calculations. It's not a well-written brief in my opinion, very confusing.
It appears he's arguing that at least on the perjury counts, if the Court disagrees with using the cross-reference, Libby's guidelines should be increased three points for substantial interference with the administration of justice.