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June 8, 2007

Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable

As discussed here, former federal prosecutor Rudy Giuliani has already suggested that Lewis "Scooter" Libby's within-guideline sentence is substantively unreasonable.  Now I see from this Washington Post op-ed that former federal prosecutor William Otis, who advocates clemency for Libby, views Libby's within-guideline sentence as "excessive" and "unusually harsh" and "unnecessary."  Notably, Otis does not mention in his op-ed that Libby received a sentence at the bottom of the applicable guideline range.

Thankfully, Eric Muller, in this must-read post, effectively highlights the remarkable hypocrisy of these sentencing criticisms coming from Otis, who was not long ago a spokesman for the Justice Department decrying judicial decisions to sentence below the guidelines.  Here is one of the points Otis made in testimony to Congress complaining about sentences below the guidelines: "Even more than others, persons convicted of criminal behavior need — for their own good and ours — to turn away from the culture of grievance-building and excuse-making and join the culture of personal responsibility."

In addition, given his experience with guideline sentencing realities, Otis should know better than to call Libby's sentence "unusually harsh."  As I have highlighted in posts here and here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for far less serious instances of perjury and obstruction.  And yet, I do not believe that Otis has spoken out in support of Rita's appeal of his sentence to the Supreme Court.

I hope that the Justices considering Rita's appeal are taking note of how these "tough on crime" former federal prosecutors now are so ready to spotlight that the guidelines can sometimes produce unreasonably harsh sentence ranges.

Some recent related posts:

June 8, 2007 at 07:13 AM | Permalink


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a prosecutor prosecuting a non-crime that he knew was a non-crime--Fitzgerald should have the cell next to Libby's

A prosecutor wasting resources in such a manner, given the amount of crime in this country, is preposterous. It reminds me of the prosecution of the girl who sent a naked picture of herself to her boyfriend--nasty, mean-spirited and a complete waste.

By the way, no Democrat anywhere has the right to whine about Scooter's possible pardon. The stench from the Clinton pardons still lingers.

Posted by: federalist | Jun 8, 2007 7:35:22 AM

federalist, do you also think Victor Rita's prosecution for the same kind of crimes as Libby was a "complete waste"? At the very least, do you agree that Rita's punishment is unreasonably long? Just curious how far your outrage extends.

Posted by: Doug B. | Jun 8, 2007 7:39:45 AM

This is a perfect illustration of just how important the rights conferred by the Sixth Amendment are and how some courts ignore them - even in Booker’s wake. Notwithstanding the PSR calculation of a 15-21 month range (and acknowledgment that there might be reasons for a downward variance), the Court found a harsher “guideline range” by cross-referencing guidelines for offenses for which the jury returned no finding of guilt. Now, because of the DC Circuit’s posture that “guideline” sentences are presumptively reasonable, Libby is effectively precluded from prevailing on a “reasonableness” argument. Judge Walton had the em-PHAS-is on the wrong syl-LAB-le!

Paul Kurtz, Executive Director

Posted by: Paul Kurtz | Jun 8, 2007 8:28:11 AM

Doug B., to be honest, I don't have any familiarity whatsoever with the underlying facts of the Rita case.

I am not a big fan of perjury. And it should be prosecuted. That said, when the prosecution itself is unnecessary (and let's not forget how intrusive an investigation can be), the fault lies with the prosecution. See what I mean. Fitzgerald knew, he knew, no laws were broken, yet he subjected law-abiding people to a grand jury investigation anyway. That is an abuse. And it is reprehensible. Fitz has done a lot of good--but his actions in the Libby case taint his career.

Bush is a coward for even subjecting people to this. He never should have allowed the special prosecutor to be named in the first place.

Posted by: federalist | Jun 8, 2007 8:52:55 AM

Federalist: Fitz was appointed to investigate whether a crime was committed. In the course of his investigation, he interviewed many people. One of them lied under oath. You do not think this should should be prosecuted?

By the way, I have never seen any clear finding that no underlying crime occurred. Fitz apparently didn't find anything he could prove beyond a reasonable doubt (aside from Libby's perjury). That does not mean that no crime occurred.

Another b-t-w: Many of the people who disagree with the Libby prosecution were absolutely delighted to see Bill Clinton impeached. It's amazing how malleable people's opinions are, depending on the political party of the person being prosecuted.

Posted by: Marc Shepherd | Jun 8, 2007 9:22:01 AM

Fitz knew Richard Armitage was the so-called "leaker". The investigation should have shut down then. Disclosing Plame's identity was not a crime. That should have ended the investigation before it even started.

Posted by: federalist | Jun 8, 2007 9:44:13 AM

Come on folks, we all know this chatter is political. If you write an op-ed piece in the WaPo, and you don’t go into an analysis of the GSR, then you are just talking to the non-lawyers. It doesn’t matter what you tell them, because there is no possible way that they could understand the law.

Federalist, Libby’s lawyers had the opportunity to move for a motion to dismiss in court. And they could have appealed. Therefore, by your strange logic, not only is Fitzgerald wrong, but so is the judge. Again, I have mixed feelings on Libby, but if you were a lawyer you probably would have provided more analysis rather than just a political assault on Fitzgerald. This is why we cannot, and should not take the non-lawyers seriously. All they deserve is soundbites – and this is what they get!

Posted by: S.cotus | Jun 8, 2007 10:49:16 AM

The issue, S.cotus, is not Fitz' legal right to have conducted this investigation. The issue is one of the abuse of prosecutorial discretion. I'll give you a f'rinstance. In many states duress is not a defense to sexual assault of a minor. So, what happens if a 12 year old pulls a gun on an adult woman and sexually assaults her. Should the prosecutor file charges against the woman, even though, statutes, as drafted, would allow it? Most people would recoil at such an abuse.

The point, S.cotus, is that your focus on legal rights means that your evaluation of a particular situation is limited to legal rights. I am calling into question the need for having this investigation in the first place, but I am not arguing that Fitz didn't have the power to bring it.

Posted by: federalist | Jun 8, 2007 11:21:13 AM

I assume, then, that you were equally outraged at the impeachment of Bill Clinton, the biggest maniupulation and abuse of prosecutorial discretion in our country's history.

Posted by: Anon | Jun 8, 2007 11:31:20 AM

Okay, so let me get this straight: you're allowed to lie to investigators as long as you decide that there has been no underlying crime.

I also don't understand the argument that because Armitage leaked Plame's name, nobody else could have as well. (Indeed, it appears that more than one person leaked Plame's name.)

Posted by: Elson | Jun 8, 2007 11:44:58 AM

Paul Kurtz raises an exceptionally interesting point, and one which brings me back to a point I made in a post a few days ago: The real constitutional question with respect to "reasonableness review" is whether a within Guidelines sentence has a significantly higher probability of being affirmed as reasonable when compared to, inter alia, and above Guidelines sentence.

It is a red-herring to say that Libby's sentence is "reasonable" because it was "within the Guidelines range." The *only* reason it was "within the Guidelines range" was because Judge Walton made disputed *judicial findings of fact*, viz. that Libby's perjury was with respect to a violation of the Espionage Act. Regardless whether you think Judge Walton's findings of fact were accurate, those findings were made *by a judicial officer* by a *preponderance of the evidence,* and the posture of those findings was such that Libby did not have a chance to even contest them in a traditional adjudicatory procedure. Instead, whether the leak of Plame's identity violated the Espionage Act was a collateral issue that, for all intents and purposes, was contested only in the sentencing submissions of the parties.

Had Judge Walton not made these additional findings of fact, Libby's Guidelines range would have been much lower -- 15 to 21 months, as Paul Kurtz points out. In other words, if Judge Walton would have been *barred* from making additional findings of fact to "bump up" Libby's Guidelines range, the 30-month sentence would have been a fairly extreme *upward variance* that would have stood a significantly less likely chance of being upheld on appeal -- particularly if the Government were precluded from relying on judge-found facts to support the reasonableness of an upward variance (a rule that I think the Sixth Amendment requires, and which I think the Supreme Court will soon recognize).

While I have less sympathy for a guy like Libby than criminals who have received bad breaks their entire lives, I think the Libby case is a particular stark example of how the Guidelines, reasonableness review, and residual judicial fact-finding are continuing to be constitutionally problematic.

Let me ask you this: If Libby had been given 30 years in prison because Judge Walton "found by a preponderance of the evidence" that the obstructed crime was *treason,* would anyone here be saying, "Well, the 30-year sentence was at the bottom of the Guidelines range, so it's reasonable"?

Posted by: Aaron | Jun 8, 2007 11:50:10 AM

Elson, the "leak" of Plame's name wasn't even a crime. And the investigation was to get the person who leaked to Novak, right.

A stupid investigation. And stupid investigations are an abuse given their intrusiveness.

And no, I think Clinton should have been removed from office. Libby should not do time, but he should not be in government. Neither should Fitz.

Posted by: federalist | Jun 8, 2007 12:51:07 PM

Aaron, I agree that a within-guidelines sentence shouldn't be presumptively reasonable. But Aaron, do you agree that when sentencing for perjury/obstruction, the subject of the underlying investigation is relevant? Should lying about a parking ticket and lying about treason be treated identically?

Federalist, witnesseses testifying under oath must tell the truth, even if the underlying investigation is stupid. If no underlying Federal crime was committed, then Libby's lies are doubly perplexing. If no one did anything wrong, then why lie?

Posted by: Marc Shepherd | Jun 8, 2007 1:32:37 PM

I don’t see any abuse of prosecutorial discretion. Can you please cite to authority which holds that duress is not a defense to sexual assault of a minor? (I think you might be making this up, because a lawyer would have provided a some citations wherein a court so held.)

Your argument that the underlying “crime” is not a crime has been made before, but it doesn’t seem too relevant. Although it appears often in the internet, many people making those arguments are either 1) not lawyers; or 2) simply defending the administration. But, in this forum – amongst lawyers – you would have to do a lot more than just assert, based on things you read on the internet, that the underlying leak, if done deliberately was not a crime and someone so charged with it would be entitled to a dismissal of the indictment.

You seem to think that courts are irrational or politically biased. I suggest that they are simply persuaded by legal arguments that are grounded in authority and include citations.

Posted by: S.cotus | Jun 8, 2007 2:17:15 PM

As for the first part, see IC 35-41-3-8 (defense of duress under Indiana law, which does not apply to crimes against the person) and see IC 35-42-4-3 (Indiana's child molest statute, which is a crime against the person under the duress statute). Now it's certainly possible that a court would hold this to be an absurd result not intended by the legislature, but a prosecutor could certainly bring charges, and I think we'd all agree that they were an abuse.

As for the second part, no one seriously argues that Plame's status brought her under the identities protection act. Do you?

With respect to courts, I don't believe I said anything about Walton. I criticized the prosecution as a waste of resources and mean-spirited.

Nor did I say that Libby didn't have an obligation to tell the truth. Libby lied, I suspect, because he wanted to protect the Administration politically. Bush never should have allowed this prosecution to take place.

Posted by: federalist | Jun 8, 2007 2:40:45 PM


In most jurisdictions, duress is only a partial defense to murder. In some jurisdictions, particularly those that have adopted some version of the Model Penal Code, duress may be a defense to "lesser" crimes, but for the most part, federalist was right on that point.

I'm not saying that his court was irrational or politically biased, but that certainly occurs. Many judges are elected officials and to think that politics or irrationality never play into the equation is probably too charitable as an overbroad generalization.

And lastly, it appears pretty clearly established that Libby committed perjury and is guilty. But anyone who didn't complain about Marc Rich's pardon has no ground to stand on if Libby is ultimately pardoned - and he will be. It's just a question of when, probably in January 09, and whether he'll have served any prison time by then.

Posted by: Ben D | Jun 8, 2007 2:41:28 PM

An addendum to the second paragraph - most prosecutors are elected as well, so clearly some politics occurs in the administration of their positions - and I say this wanting to prosecute.

Posted by: Ben D | Jun 8, 2007 2:44:25 PM

federalist, what makes you say she wasn't covered by the statute since Fitz, in his sentencing memo, claims she was, or have you fallen for some random republican talking point?

Posted by: Elson | Jun 8, 2007 6:40:32 PM

Plame was a "covert agent" under Section 426 of the Act. Doubtful . . . .

Posted by: federalist | Jun 8, 2007 7:05:47 PM

Lets see. Who should I trust. Fitz who stated in a publicly filed court document that Plame was a covert agent. Or "federalist" who claims that it's "doubtful" that she was.

So, lets just be clear. Your moral outrage over this entire case is based on your belief that it's "doubtful" Plame was a covert agent. Uh, huh. Interesting.

Posted by: Elson | Jun 8, 2007 7:09:35 PM

I think that Prof. Berman was prescient when he said the defense made a big mistake by not arguing the 3553(a) factors. In particular, they should have argued that if (contrary to their contention) Ms. Plame was outed, then the outing of a secret agent stationed in Washington was far less serious than the outing of a secret agent stationed in (say) Iran. Since this particular guideline is rarely used (is this the first time?), it does not include such distinctions, but surely they are relevant to the severity of the crime being cross referenced, and therefore to the severity of the obstruction. If the defense had done this, Mr. Libby might very well not be looking at 30 months today.

Posted by: William Jockusch | Jun 8, 2007 8:02:31 PM

Given that she went to work at the CIA building every day . . . ., but no matter that . . . .

the guy who leaked isn't even being prosecuted . . . . actions speak louder than words

Posted by: federalist | Jun 8, 2007 8:33:29 PM

Keep back peddling federalist.

The guy who leaked isn't being prosecuted because through Fitz's investigation -- you know that one that even you admit Libby obstructed -- he learned that the leaker didn’t break the law since he didn’t have the requisite criminal intent. But since you’ve done so much research into this, I’m sure you already knew that.

Posted by: Elson | Jun 8, 2007 8:42:56 PM

Whatever. He learned it was Armitage--and took his word, ok, keep dreaming. And then kept going. This was a BS prosecution, and a colossal waste of scarce resources.

And like I said, I think it difficult to argue that a person who shows up to work every day at the CIA is a covert agent. Funny isn't it? Usually liberals get all bent out of shape about government overreaching.

Posted by: federalist | Jun 8, 2007 9:40:29 PM

Marc Shepard,

No, I don't believe that lying about a parking ticket and committing perjury with respect to a more serious crime should be treated the same. But if you want to base a sentence on the grounds that the perjury obstructed x-crime, then prove it to a jury. Why is that so damn hard?

Posted by: Aaron | Jun 9, 2007 12:11:15 AM

federalist, I've now completely lost your argument. Has it now just boiled down to your foot stomping and claim that this "prosecution is bs"?

I do get bent out of shape about government overreaching, but we obviously disagree on whether the government overreached.

Since your argument seems to just boil down to a temper tantrum, as opposed to some intellectually honest argument why Fitz acted improperly, I’m not sure there’s much else to say.

Posted by: Elson | Jun 9, 2007 2:22:35 AM

you mean that he continued an investigation of a non-crime in a town full of leaks--whatever--that's your idea of a meritorious prosecution--oh that's right, a Republican was the target--oh my bad . . . .

Posted by: federalist | Jun 9, 2007 3:33:32 AM

federalist, you keep returning to the same republican talking point that isn't true -- that Fitz knew there was no crime once he found out Armitage was a source for Novak. You have yet to explain why that's true. Just because somebody else leaked Plame's name without the requisite criminal intent, doesn't mean that somebody else couldn't have also leaked Plame's name with the requisite criminal intent. Moreover, even if there were no underlying crime, how was Fitz supposed to know that until he conducted a thorough investigation -- an investigation that you’ve already admitted that Scooter obstructed.

Posted by: Elson | Jun 9, 2007 12:43:32 PM

Sometimes, a discussion can get so involved with shooting down someone with an extreme viewpoint that other ideas can be lost in the shuffle. I really think that the defense should have made the case that if Ms. Plame was indeed outed, and this was a crime, (all contrary to their contention, but if the judge disagreed with them), then this instance was much less serious than outing an agent in general would tend to be.

Posted by: William Jockusch | Jun 9, 2007 3:33:24 PM

"Funny isn't it? Usually liberals get all bent out of shape about government overreaching."

Funny, isn't it? Usually conservative cheer when criminals are prosecuted and senteced. Oh, that's right, the defendant is a republican, my bad...

Posted by: Anon | Jun 9, 2007 4:18:00 PM

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