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June 7, 2007

Dissecting the key guideline calculation in the Libby sentencing

Though talk is already turning to pardons in the wake of Lewis Libby's sentencing, I am very pleased to see that Edward Lazarus in this very effective FindLaw column is looking more closely at the key guideline determination that led Judge Walton to give Libby a sentencing of 30 months.  Here are snippets from the column:

Amid the[] politically-driven reactions, it is worth pausing to consider the Sentencing Guidelines calculation that led to Libby's sentence.  When the issue is viewed through this admittedly narrow and incomplete prism, I would argue that Libby's 30-month sentence is justifiable, but that a more lenient outcome would also have been appropriate....

Under the Guidelines, the offense severity for someone convicted of perjury or obstruction is the greater of either the severity rating for generic perjury/obstruction, or the severity rating of the offense being lied about or covered up. In essence, the Guidelines treat someone guilty of perjury or obstruction as an accessory after the fact to the offense underlying the lies and obstruction.  Some thoughtful commentators have started complaining about the fairness of this approach. But as a general matter, it makes very good sense. Not all lies are created equal. The reason for the lie ought to matter....

Moving from the general to the specific, Libby's case presents a close question for whether cross-referencing the underlying offense being investigated, for purposes of Guidelines calculations, makes sense. Here, Libby himself was not charged with violating the IIPA or the Espionage Act and, perhaps even more important, neither was anyone else.  A reasonable argument can be made that cross-referencing doesn't make much sense when it may well be the case that no one actually committed the crimes being investigated.

Is it really fair, after all, to up Libby's punishment for obstructing an investigation in which there was no underlying crime charged (or perhaps even committed)?

Some related posts:

June 7, 2007 at 07:54 AM | Permalink

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Comments

Fitz abused his power. No doubt about that. And that has to be taken into consideration. Just like, in other contexts, if the entrapment defense is close . . . .

Posted by: federalist | Jun 7, 2007 9:44:45 AM

If prosecutors failed to charge obstruction whenever the underlying crime was uncharged, that would be a pretty terrific incentive for everyone to work as hard as they could to make sure underlying crimes are obstructed completely.

Posted by: Tom | Jun 7, 2007 10:53:34 AM

And conviction of that underlying crime isn't incentive enough? ("But the punishment would be higher if there were also an obstruction conviction," you say? Likely not under the Guidelines' grouping rules.)

Posted by: | Jun 7, 2007 11:32:55 AM

So we can all go on knowing that Fitzgerald abused his power because federalist decreed that there is "no doubt about that." Whew...thanks federalist, I (and maybe you?) was beginning to start, well...thinking, but luckily that comment took away the need.

In fact, it's hard to say he abused his power when it was the judge who decided the 30 month sentence was appropriate. I'm no fan of Libby, but the guideline calculation was likely correct.

Posted by: | Jun 7, 2007 11:43:41 AM

I don't think Fitzgerald abused his power. The problem with special prosecutors is that when you ask someone to investigate one incident -- and that incident alone -- they tend to expend vast government resources on trivial matters. Fitzgerald didn't ask for this assignment. But once it was given to him, he followed the time-honored special-prosecutor tradition (see "Starr, Kenneth"): he swatted a fly with a sledgehammer.

Having said that, I agree with Judge Walton that the evidence of Libby's guilt is overwhelming. I am not so sure I agree with the enhanced sentence. Given that practically any prison term is a substantial penalty for someone like Libby who has lived a life of privilege, I think substantially less than 30 months would have sufficed in this case.

Posted by: Marc Shepherd | Jun 7, 2007 12:50:24 PM

To the last sentence I would add that Libby's team quite rightly argued that not only was no one charged with a crime, but that the prosecutor had not even shown that it would have been POSSIBLE for some to have committed a crime: i.e., there were serious and legitimate doubts about whether Libby or anyone else could have been convicted for revealing Plame's identity even if they had held a press conference to announce that fact, because she was likely not "covert" for purposes of the statute, and because she was likely not stationed abroad long enough to meet the requirements of IIPA.

Fitzgerald should not have been allowed to use the punishment of a crime that was potentially impossible to commit to punish a man who was never charged for that crime, particularly where he had earlier deliberately withheld access to information that could have been used by the defense to prove the impossibility of committing any such crime.

Posted by: Josh Chandler | Jun 7, 2007 5:03:52 PM

To the last sentence I would add that Libby's team quite rightly argued that not only was no one charged with a crime, but that the prosecutor had not even shown that it would have been POSSIBLE for some to have committed a crime: i.e., there were serious and legitimate doubts about whether Libby or anyone else could have been convicted for revealing Plame's identity even if they had held a press conference to announce that fact, because she was likely not "covert" for purposes of the statute, and because she was likely not stationed abroad long enough to meet the requirements of IIPA.

Fitzgerald should not have been allowed to use the punishment of a crime that was potentially impossible to commit to punish a man who was never charged for that crime, particularly where he had earlier deliberately withheld access to information that could have been used by the defense to prove the impossibility of committing any such crime.

Posted by: Josh Chandler | Jun 7, 2007 5:03:53 PM

To the last sentence I would add that Libby's team quite rightly argued that not only was no one charged with a crime, but that the prosecutor had not even shown that it would have been POSSIBLE for some to have committed a crime: i.e., there were serious and legitimate doubts about whether Libby or anyone else could have been convicted for revealing Plame's identity even if they had held a press conference to announce that fact, because she was likely not "covert" for purposes of the statute, and because she was likely not stationed abroad long enough to meet the requirements of IIPA.

Fitzgerald should not have been allowed to use the punishment of a crime that was potentially impossible to commit to punish a man who was never charged for that crime, particularly where he had earlier deliberately withheld access to information that could have been used by the defense to prove the impossibility of committing any such crime.

Posted by: Josh Chandler | Jun 7, 2007 5:04:03 PM

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