Friday, May 25, 2007

Government pushing for around 3 years for Libby

As previewed here, the Libby sentencing story is now to start heating up with some tough government advocacy and guideline recommendations.  How Appealing has the basic media coverage here and TalkLeft and Firedoglake have good early analysis.  I'll post a lot more when I take it all in this weekend.  In the meantime, readers go at it.

UPDATE:  I have now had a chance to give the Government's intricate guideline calculation memo and its broader sentencing memo.  Both are amazing documents that suggest that Judge Walton will have a lot to sort through when sentencing Libby on June 5.  I surmise that Libby's lawyers are going to be asking for probation, that the government wants at least a 30-month prison sentence, and that the presentence report has suggested something in between these pretty wide extremes.

As I was reading both of the government's Libby sentencing filings, I could not help thinking about Victor Rita, whose 33-month sentence is currently pending before the US Supreme Court.  (I have previously stressed Libby-Rita parallels in posts here and here.)  For so many reasons, the context and import of Lewis Libby's perjury seems far, far, far worse than Victor Rita's perjury.  Though Rita's 33-month sentence may be reversed by the Supreme Court, it will be quite telling if Libby gets a sentencing term that is lower.

May 25, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

Libby sentencing buzz starting

Josh Gerstein has this article in the New York Sun previewing the upcoming sentencing of Lewis Libby.  Here are excerpts:

Prosecutors and defense lawyers for a former White House aide, I. Lewis Libby Jr., face a deadline Friday to give their final recommendations on the sentence he should receive for his conviction on charges of perjury, obstruction of justice, and lying to the FBI. However, the real cliffhanger at the sentencing hearing, set for June 5, is not what punishment Judge Reggie Walton imposes, but whether he allows Libby to remain free while pursuing his appeal....

Bail for Libby would amount to a reprieve for President Bush, who would then have until next year to make the politically sensitive decision about a pardon for the former chief of staff to Vice President Cheney. However, if the judge orders Libby jailed forthwith, Mr. Bush will face intense and immediate pressure from many of his supporters to commute the sentence or grant a pardon.

A former U.S. attorney for the capital, Roscoe Howard Jr., said he doubts Judge Walton will allow Libby to delay serving his sentence until his appeals are resolved. "I don't see that here," the ex-prosecutor said.

Some Libby sentencing posts:

May 25, 2007 in Libby sentencing | Permalink | Comments (0) | TrackBack

Thursday, May 10, 2007

More on Scooter's coming sentencing

US News & World Report has this new piece discussing the preparation of Scooter Libby's presentence report.  Here is how it starts:

Lewis "Scooter" Libby — the former top aide to Vice President Cheney who was convicted of obstruction of justice, perjury, and lying to the FBI in March — will be a step closer to learning his fate next week, when the presentencing report for his case is due to be completed.

Libby's lawyers and special prosecutor Patrick Fitzgerald will get their hands on the report May 15, but the document will not be publicly released–not before Libby's June 5 sentencing nor after. The report will include a probation officer's calculation of what sentence Libby should receive under federal guidelines and a judgment on whether the case merits a different sentence.  Lawyers on both sides can contest parts of the report, and the judge ultimately can depart from its findings, but it will serve as a kind of first draft of the eventual sentence.

Some Libby sentencing posts:

May 10, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

Wednesday, May 09, 2007

Will VP Cheney help Libby at sentencing?

The scheduled sentencing of Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, is now less than four weeks away.  If all is moving on schedule, the lawyers' presentencing work should be quite advanced now, and it is fun to speculate about whether and how Libby's defense team may be reaching out to his old boss for sentencing support.

This recent commentary from John Mashek at US News & World Report makes a strong plea for VP Cheney to make a strong plea for Libby.  Here are excerpts:

On June 5, Lewis "Scooter" Libby will face a probable prison sentence of around two years.  He should not stand alone. As the apparent fall guy in the perjury case over the outing of a CIA agent, he deserves a personal and forthright appearance by his former boss, Vice President Cheney....

Cheney needs to step up and say more in Libby's behalf other than argue that he is a fine man and a good public servant.  Libby deserves more from the vice president.  The presiding judge in the formal sentencing should hear directly from Cheney–in person and not in writing.... Cheney should at least be willing to put in that personal plea for Libby before his former chief of staff is led away to jail.

Some Libby sentencing posts:

May 9, 2007 in Libby sentencing | Permalink | Comments (1) | TrackBack

Monday, March 26, 2007

Intriguing op-ed on pardon realities

With the Lewis Libby case in mind, George Lardner Jr. has this interesting op-ed about pardon law and realities in today's New York Times.  Here is a taste:

Mr. Libby may escape prison time, but if he accepted a pardon, he (and Mr. Bush) would have a hard time continuing to insist that he was an innocent victim of a vengeful prosecutor. It would also undermine the claim that the Plame investigation was a partisan ploy to discredit the White House, and leave another stain on Mr. Bush's legacy. Here's why: If Mr. Libby were to accept a traditional presidential pardon — a "full and unconditional" grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I.

Perhaps it shouldn't be that way, but it is — no ifs, ands or buts about it.  So, while many who have been pardoned like to claim they have been "exonerated," that simply isn’t so.  The Supreme Court laid down the law in 1915 in a case that, paradoxically, grew out of a debate over the sanctity of a newspaperman's sources.

Some recent related posts:

March 26, 2007 in Clemency and Pardons, Libby sentencing | Permalink | Comments (8) | TrackBack

Sunday, March 11, 2007

A Libby pardon and DOJ guidelines

A helpful reader pointed me to this effective Newsweek article spotlighting that President Bush would have to skirt the Justice Department's internal guidelines in order to grant Lewis Libby a pardon.  Here is a snippet from the piece:

[T]here's one significant roadblock on the path to Libby's salvation: Vice President Dick Cheney's former chief of staff does not qualify to even be considered for a presidential pardon under Justice Department guidelines.

From the day he took office, Bush seems to have followed those guidelines religiously. He's taken an exceedingly stingy approach to pardons, granting only 113 in six years, mostly for relatively minor fraud, embezzlement and drug cases dating back more than two decades.  Bush's pardons are "fewer than any president in 100 years," according to Margaret Love, former pardon attorney at the Justice Department.

Following the furor over President Bill Clinton's last-minute pardon of fugitive financier Marc Rich (among others), Bush made it clear he wasn’t interested in granting many pardons.  "We were basically told [by then White House counsel and now Attorney General Alberto Gonzales] that there weren’t going to be pardons — or if there were, there would be very few," recalls one former White House lawyer who asked not to be identified talking about internal matters.

The president has since indicated he intended to go by the book in granting what few pardons he'd hand out — considering only requests that had first been reviewed by the Justice Department under a series of publicly available guidelines.  Those regulations, which are discussed on the Justice Department Web site, would seem to make a Libby pardon a nonstarter in George W. Bush's White House.  They "require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application," according to the Justice Web site.  Moreover, in weighing whether to recommend a pardon, U.S. attorneys are supposed to consider whether an applicant is remorseful.  "The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to ... victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication," the Justice Web site states.

Of course, there is nothing that requires Bush to follow these guidelines in reviewing a pardon for Libby (whose lawyer, Ted Wells, stated on the courthouse steps Tuesday that he intended to push for a retrial, adding that he has "every confidence that Mr. Libby will be vindicated.")  As Love, the former pardon attorney, points out, "the president can do whatever he wants."

Some recent related posts:

March 11, 2007 in Clemency and Pardons, Libby sentencing, Who Sentences | Permalink | Comments (4) | TrackBack

Thursday, March 08, 2007

Will Libby get bail pending appeal from the courts? Can he get it from the President?

Though all the Libby talk today is about a possible pardon, I would be quite surprised if the President granted a pardon now, especially because Libby is still a free man at least until his sentencing by Judge Walton.  The sentencing is scheduled for June 5, though I suspect that date will get pushed back for various reasons.

Based on the guidelines and other factors,  I expect that Judge Walton will impose a prison term whenever sentencing takes place, and that's the moment at which Libby's liberty is brought seriously into question.  Most defendants must start serving their prison term soon after sentencing and are not granted bail pending appeal.  (For example, Jeff Skilling has started serving his sentence though his appeal is still being briefed before the Fifth Circuit.) 

Because pundits are saying that Libby has few strong appeal issues (a key bail issue if the defendant poses no flight risk), Fitzgerald's team likely would oppose bail pending appeal.  I am less certain whether Judge Walton would grant bail pending appeal, nor do I have a sense of the DC Circuit's general approach to these issues.

I am eager to hear from informed folks about either Judge Walton's or the DC Circuit's general approach to bail pending appeal.  And, here's a fun follow-up constitutional brain-teaser for pardon/clemency gurus: if Libby is ultimately denied bail pending appeal by the courts, would the President's "Reprieves and Pardons" power under Article II, Section 2 allow him to order Libby's freedom (as a reprieve) during the pendency of his appeal?   

March 8, 2007 in Libby sentencing | Permalink | Comments (19) | TrackBack

Wednesday, March 07, 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 in Libby sentencing | Permalink | Comments (4) | TrackBack

Tuesday, March 06, 2007

More Libby sentencing speculation

The speculations about sentencing in the Libby case are already quite interesting: US News has this brief piece headlined "Libby Looking at 15 Months to Three Years, Experts Predict"; Wonkette has this more fun piece entitled "EXCLUSIVE LEGAL MUMBO JUMBO: What Will Happen to Scooter?"  Here is the tail end of the Wonkette coverage:

[A]ssuming that Scooter doesn't have more than one previous conviction for something like DUI, he's got a guideline Offense Level of 17 or 20 points, with no other enhancements bringing it up or credits bringing it down.  That's 24-30 months or 33-41 months.  Keep in mind that the Judge can use his discretion to go outside the guidelines in any one of 3 ways: give Scooter 2 points off for accepting responsibility (which is unlikely, 'cause it'd require that either effectively confess guilt, ending any appeal hopes, or that the Judge find that the guy has accepted responsibility when he clearly hasn't -- but hey, Martha Stewart’s judge did exactly that); find that his age or health entitles him to some downward departure; or just scrap a bunch of time for shits and giggles.

My guess is 24 months -- the low end of the range for a 17 point offense level. There's also a possibility that the US Attorney could ask for a reduction under Rule 5K or Rule 35 for some sort of substantial assistance, but I wouldn’t hold my breath that Scooter's now going to help, and I wouldn't imagine that Fitzgerald is going to do anything unless Scooter can give up the secret information tying W to Saddaam in a gay sex-for-drugs scheme that took place in Rumsfeld's den.

On related fronts, here at CNN legal analyst Jeff Toobin is exploring "can Scooter Libby extend his time outside of prison long enough to get to that lame duck period when he might actually get a pardon?"

Related Libby sentencing posts:

March 6, 2007 in Libby sentencing | Permalink | Comments (4) | TrackBack

Comparing Lewis Libby and Victor Rita

Among the fascinating aspects of Lewis Libby's now upcoming sentencing is that his high-profile case resembles in various ways the case of Victor Rita, the defendant whose 33-month (within-guideline) sentence is currently under review by the US Supreme Court.  I detailed some Libby-Rita parallels in this post last month, and here are the major highlights.

1.  The parallel nature of the crimes.  Like Lewis Libby, Victor Rita got caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that he lied under oath as part of the investigation.  And, like Libby, Victor Rita asserted his innocence and exercised his right to a jury trial.  (Victor was convicted of all five counts at trial; Libby's was acquitted on one of five counts, but that may not matter much for sentencing purposes.)

2.  The parallel personal history.  Like Lewis Libby, Victor Rita is an atypical federal defendant because of his career in government service.  Rita served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, received over 35 military medals and awards.  Libby's pre-conviction resume is (equally?) impressive.  The federal guidelines do not provide any formal breaks for government service or prior good works.  But, with Booker making the guidelines advisory, federal judges have more discretion to consider these matters at sentencing (though Rita's sentencing judge decided just to follow the guidelines).

Since Victor Rita's crimes seems, in context, to be less serious than Lewis Libby's crimes, I view Rita's 33-month sentence as a possible benchmark for Libby's sentence.  Moreover, I have heard that Judge Walton has a reputation as a tough sentencing judge, and so Victor Rita's 33 month sentence might even be viewed as just a floor for considering Libby's fate.

JULY 2007 UPDATE:  Welcome Huffington Post readers!  For more on Victor Rita's case and fate, check out more recent posts here and here.  For lots more Bush commutation discussion, check out the latest Libby posts.

March 6, 2007 in Libby sentencing | Permalink | Comments (141) | TrackBack

First-cut Libby guideline calculations?

In this post early during the Libby deliberation I encouraged thoughtful musing about the advisory guideline range that Libby might be facing were he convicted on all counts.  (As regular readers know, for sentencing purposes, conviction on four of five counts is good enough for government work.)

A number of commentors set forth a number of guideline calculation scenarios.  It is easy to conclude that Libby falls into Criminal History Category I, but commentators suggested his offense level could be 14 or 17 or 19 or 24 or 27 or 30.

If Libby's calculated offense level is as low as 14, his advisory guideline sentencing range would be only 15-21 months;  if it is as high as 30, his advisory guideline sentencing range would be only 97-121 months.  Big difference (and this analysis does not even begin to cope with Booker and 3553(a)).

March 6, 2007 in Libby sentencing | Permalink | Comments (34) | TrackBack

On to sentencing, Scooter!

I just got this news alert from the Wall Street Journal:

A federal jury found Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, guilty of obstruction, perjury and lying to the FBI in an investigation that originated from the leak of the identity of a CIA operative.  The jury, which was reduced to 11 jurors after one juror was dismissed after being exposed to case-related information, found Mr. Libby guilty of four of the five counts he faced.  He was found not guilty of one charge of false statements. Sentencing was set for June 5.

I will, of course, have a lot to say about the sentencing in the days ahead (and I have now created a new Libby sentencing category archive).  Let me start this discussion by reviewing some prior posts on this topic:

March 6, 2007 in Libby sentencing | Permalink | Comments (5) | TrackBack