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March 7, 2007

Sentencing and pardon politics in the Libby case

At TalkLeft, Jeralyn now has this terrifically clear post discussing the legal basics of Libby's sentencing realities.   Though my post here spotlights that there may be more play in the guideline joints than Jeralyn details, her analysis provides a good starting point for an examination of the legal issues the Libby lawyers will be exploring as the sentencing process unfolds.

But, as everyone realizes, the Libby case cannot be fully understood or analyzed without an examination of its political dimensions.  And though Libby's jury, as detailed here, seemed to do a good job focusing on law rather than politics, the sentencing players will face various political realities as the Libby case moves forward.

One facets of these politics highlights the virtues of sentencing guidelines for judges and prosecutors in high-profile cases.  Judge Walton can (and many are suggesting he will) partially insulate himself from political allegations by following the advice of the guidelines at sentencing.  Similarly, Fitzgerald's team can (and likely will) recommend a guideline sentence even though they could legitimately argue that the sentencing instructions of 18 USC 3553(a) call for a sentence harsher than the guidelines will recommend.  Meanwhile, the defense team has to be attentive to these political realities and seek ways to push Judge Walton below the guidelines.

Another political dimension here concerns how the Bush administration, and especially vice-president Dick Cheney, will seek to support Libby at sentencing.  Both before and after Booker, the Bush Administration's Justice Department has been very pro-guidelines.  Against this backdrop, it might be hard for Cheney to publically urge a below-guideline sentence for his former employee.

Of course, as an inevitable pardon debate heats up, the discussion becomes all politics and no law.  There are no formal legal limits on President Bush's pardon power, so whether and how he helps Libby is all about political calculations.  And these political calculations not only could impact President Bush's thinking, but also the already-heated 2008 presidential campaign.  Assuming the Libby case continues to make headlines throughout 2007, it will be interesting to see how lawyer-candidates like Giuliani and Clinton and Obama respond to media questions about a possible pardon.  (Josh Gerstein's Libby piece in today's New York Sun is already all over these great political issues.)

March 7, 2007 at 07:46 AM | Permalink


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Where was your self-righteous outrage when Sandy Burgler was stuffing his socks with classified documents? What are/where the larger political implications? We'll never know.

I'm not a Republican (I think Iraq was a monumental mistake), but the Democrats (and their supporters) are nothing but a gaggle of hypocritical whiners.

Posted by: | Mar 7, 2007 12:09:36 PM

I'm a 1L student at the University of Oregon. I think I initially found your blog in a link from The Next Hurrah, but it may very well have been TalkLeft or How Appealing. I'm a daily reader now... although perhaps "skimming the headlines" doesn't really count as "reading."

(1) If Bush pardons Libby, can't Congress compel Libby to testify about Cheney's role in the leak? A pardon bars future prosecution for the pardoned crime, so Libby can't take the 5th, except about OTHER crimes he hasn't yet been pardoned for. So if he's subpoenaed and he takes the fifth, logically that means he's afriad he can be indicted for OTHER crimes. As I've written elsewhere: if Libby's crime is obstruction, Cheney's crime is treason. Libby must take care not to be implicated in a conspiracy to commit treason. Is Libby's sworn testimony in Congress a risk that Bush is willing to take? Or perhaps more to the point, is it a risk that Rove is willing to take?

(2) Libby is an embarrasment to the legal profession. Has he been disbarred yet? If not, why not? And to which bar association should we send our complaints?

Posted by: smiley | Mar 7, 2007 12:13:10 PM

and if you can do anything about the colors on your comment "preview" page, that would be awesome. Black text on red background is pretty hard to read.


Posted by: smiley | Mar 7, 2007 12:14:17 PM


I don't know if Libby should be pardoned or not; it's a tough call. But I would like to point out to anyone who doesn't know yet that someone put PardonLibby.org up for sale on eBay. I wonder what it'll go for. Here's the address:


Posted by: Buddy | Mar 8, 2007 10:46:32 PM

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