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June 1, 2007

Exactly what sentence should/will Scooter Libby get?

Howard Bashman helpfully collects here major press coverage of the sentencing filings by the defense team for Lewis Libby's upcoming sentencing.  In addition, Jeralyn TalkLeft has this thoughtful post with a review and analysis of the defense filings (which can be accessed here and here).  Here's Jeralyn's take on what's likely to be the outcome of Libby's June 5 sentencing:

I'm wondering if Judge Walton will have the wherewithal to sentence Libby to probation given the high profile nature of the case.  But, in an ordinary case, given a pre-sentence report as favorably described as this one, I think that would be the outcome.  Because this case is being watched by so many, I suspect Walton will decide Libby needs some time.

My prediction at this juncture: The Government loses on its sentencing arguments for heavier guideline calculations, the Court finds at least one departure ground and Libby gets a split sentence of 10 months, with 5 spent in prison and 5 on home detention.

In answering the question post in the title of this post, I keep returning to the fact that Victor Rita, whose sentenced in now being reviewed by the Supreme Court, was sentenced to 33 months for similar (but less serious) crimes as Libby.  I think, for a variety of reasons, Libby should/will get some prison time, and my money would be on him getting something between 1-2 years.

Please use the comments, dear readers, to argue about what you believe Libby should or will get.  (For all we know, Judge Walton and/or his clerks read this blog, so the comments might provide a setting for filing a bloggy amicus brief.)

June 1, 2007 at 07:31 AM | Permalink


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» The Libby Sentencing from White Collar Crime Prof Blog
The sentencing of I. Lewis Libby is set for June 5 before U.S. District Judge Reggie Walton, and the defense sentencing filings are now available below. In sharp contrast to the government's recommendation of a 30-37 month prison term under [Read More]

Tracked on Jun 2, 2007 6:15:46 AM

» Where the Libby Case All Started from White Collar Crime Prof Blog
Although I. Lewis Scooter Libby was convicted of perjury, false statements and obstruction of justice, the case originates from an investigation involving the unauthorized leak of information about Valerie Plame's role as a CIA operative. It is therefo... [Read More]

Tracked on Jun 3, 2007 1:41:24 AM

» The Forthcoming Libby Sentencing from White Collar Crime Prof Blog
I Scooter Libby is set to be sentenced Tuesday for the crimes of obstruction of justice, false statements, and perjury. The predictions are certainly the focus of much commentary (e.g., here, here, and here). But with many looking at the [Read More]

Tracked on Jun 3, 2007 2:09:31 AM

» Scooter Libby To Be Sentenced Today: from Pajamas Media
Predictions in the legal blogosphere are running between a year and two years. TalkLeft has a preview. FDL will liveblog as usual. Clarice Feldman explains why she thinks Libby is a hero. (American Thinker)... [Read More]

Tracked on Jun 5, 2007 6:45:09 AM


24 months, no split.

Posted by: NCProsecutor | Jun 1, 2007 8:34:23 AM

The advisory range will be based on an offense score of either 16 or 19. The base offense level is 14, and there is a presumable 2 point bump for abuse of a position of trust. He could get a 3 point bump for interference in the administration of justice, as per the Guideline, even though that seems redundant with the obstuction charge. Under the 2003 SG, a 16 is 21-27 months and a 19 is 30-37 months. Both are in Zone D. I'm guessing 16, for an advisory range of 21-27 months, and a 21 month sentence. No Booker variance.

Posted by: Educated Guess | Jun 1, 2007 12:08:43 PM

I had calculated the offense level at 14. I am pleasantly surprised to find the Probation Office arriving at the same figure.

I really don't see the 2 point abuse of trust enhancement here. Neither the Probation Office nor Fitzgerald requested it. Libby was not acting as an officer of the court in making his statements and he did not use the power of his office to commit the charged crimes. (On the off-chance that the IIPA cross-reference applies, then I could see the enhancement appropriately incorporating Libby's misuse of information accessible to him only as a result of the trust placed in him.)

The three-point significant obstruction enhancement is a closer case. It's certainly possible to view Fitzgerald's approach, once appointed, as directed towards an investigation of process crimes and only incidentally touching on substantive crimes. But it's hard to argue that Fitzgerald would not have pursued and used the same information to prosecute a substantive crime if appropriate.

I predict 15-19 months, with 17 most likely.

Were Judge Walton to impose the more severe 37 month sentence recommended by Fitzgerald, I predict he would stay the imposition pending appeal because the necessary relationship of obstruction to alleged crime is far from settled in the DC circuit.

Posted by: Walter | Jun 1, 2007 1:00:43 PM

Scooter Libby should be shot as a traitor, not jailed as a liar
His boss, ElDuce should be shot and then hung from a lamp post

Posted by: ed pefferman | Jun 15, 2007 11:34:28 AM

He should have been tried for treason along with most of the Bush Administration and locked up for life, deported or hung.

Posted by: | Jul 22, 2007 11:17:03 AM

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