Defense: Libby Was Never Charged With the Underlying Crime, Should Not Have to Serve Time
Judge: I Just Cannot Buy In On That as Good Social Policy, There is a Price to Pay for Not Telling the Truth...
By Margie Burns on 6/6/2007, 11:05am PT  

*** Special to The BRAD BLOG
*** by Libby/CIA Leak Trial Correspondent Margie Burns

As the headlines report, yesterday Judge Reggie Walton, U.S. District Court of D.C., sentenced I. Lewis “Scooter” Libby to 30 months in prison and fined him $250,000 following Libby’s conviction on four counts of perjury, obstruction of justice and lying to a grand jury in the Valerie Plame CIA leak case. In the crowded courtroom where I sat were the defense and prosecution teams; a front row of prominent Libby supporters including lobbyist and former DOJ spokesperson Barbara Comstock, Republican commentator/advisor Mary Matalin, Republican polemicist/attorney Victoria Toensing; Libby’s wife and friends; and full pews of press and spectators.

Defense attorney William Jeffress brought out some new items at the sentencing hearing: 1) CIA public affairs officer Bill Harlow had a “conversation” with Bob Novak that “didn’t come in” at the trial; 2) back in 1998 Valerie Plame was brought back to the United States, Jeffress asserted, because it was “feared her cover had been blown”; and 3) Mr. Wilson had conversations with “almost total strangers” in which he revealed his wife’s employment. Actually, that last item has been suggested before by the ‘noise machine’ (David Brock’s phrase).

If the past is any guide, we shall see these items again in coming weeks/months; the question is whether they will be recycled by the echo chamber or outsourced to the MSM. (Former WH staffer David Gergen said on NBC News last night that the president will be under HUGE pressure to pardon Libby, thus applying pressure). Will Bob Woodward divulge behind-the-scenes discussions about these items, like sinus medicine in a time-release capsule, over the next six or eight months or in a book published around the time Libby’s appeal is argued?

The appeal will follow next week’s hearing on bail. For now, the question immediately before the court is how soon Libby should go to prison....

Defense attorney Theodore Wells asked for “48 hours” to file arguments for Libby’s being out on bail pending appeal. The request was granted, with prosecution and defense already agreed on a “reasonable surrender date” of some time in the next six weeks or so.

Note: This accommodation differs from that well-known “Step back!” kind of trial. The nice man sitting next to me gave me a quick murmured description of his own experience as a convicted defendant, in a genuine hanging-judge courtroom in Virginia where the defense never won a single motion. Short and sweet. One minute you [defendant] get the judge’s ruling; the next minute the judge says, “Step back,” and you back up two steps into the firm grasp of two marshals waiting to haul you straight out of the room to jail without passing Go, much less being free on bail while your half-dozen attorneys perfect their appeal.

Walton set deadline for defense submissions tomorrow, June 7; deadline for the government’s response next Tuesday, June 12, at 9:00 a.m.; defense response June 13 at 9:00 a.m. Bail hearing is scheduled for 1:30 on June 14.

Sentencing itself followed arguments during the hearing, after filings by prosecution and defense in response to the Probation Office’s Pre-Sentence Investigative Report (PSR). The PSR is not released publicly; apparently this one tracked fairly closely with defense arguments.

Libby said in a short oral statement before the judge that he had spent over 1,000 hours in the Prettyman Courthouse over the past year and a half and had “received nothing but kindness” from courthouse staff, listing several offices including Probation. As the defense Sentencing Memorandum On Behalf of I. Lewis Libby put it, “A fitting example of Mr. Libby’s approachable, down-to-earth demeanor is the way that he interacted with the staff in the E. Barrett Prettyman Courthouse. Beginning in December 2005, Mr. Libby began to spend a significant amount of time in the Courthouse, because it provided the only facility where he could review classified discovery materials. The staff grew to have great affection for him,” and quotes a March 2007 WashPost article quoting a courthouse employee who speaks favorably of Libby’s friendliness.

Each courthouse in the federal system has its own local rules along with national rules. According to Public Information Officer Karen Redmond, replying to questions, “there are currently 45 probation officers in the U.S. Probation Office for the U.S. District Court of the District of Columbia.” Redmond says that usually the same officer who did the Pretrial report for a particular defendant also does the Presentencing investigation.

The PSR itself consists of the following:

- Information about the history and characteristics of a defendant, including any prior criminal record, financial condition, health, and any circumstances affecting behavior that may be helpful in imposing sentence or in correctional treatment.
- Classification of the offense and classification of a defendant under the categories established by the Sentencing Commission in 28 U.S.C. § 994(a).
- Any pertinent policy statement by the Sentencing Commission.
- Verified information on the impact of the offense on any victims.
- Information on non-prison programs and resources available to a defendant.
- Information regarding restitution in appropriate cases.
- Any other information required by the court.

Following the sentencing hearing, the Probation Office will revise its calculations. Meanwhile, I have to admit that this particular wrinkle on income inequity in our courts system came as a bit of a shock to me. We all know that having a Legal Defense Fund makes a difference. We knew already that being able to hire some of the best legal talent makes a difference. But before this case, I am embarrassed to admit, it had not occurred to me what an advantage the affluent defendant has also, in being able to spend a year and a half in and out of various offices in a courthouse, where personnel can see what a nice guy he is.

While we all know that a grateful nation expects an awful lot of honesty and integrity from even the most modestly paid federal employees and subcontractors, presumably the federal system has plugged up any conceivable loopholes to ensure, at a minimum, that no high-priced law firm has quiet connections to any courthouse employee’s husband or brother-in-law. (It would be a shame if any did, since given the shape our newspapers are in nowadays it could probably be done with impunity. Imagine Bob Woodward nowadays catching something like that.) Still, setting aside any John Grisham-like fiction, the perfectly legal avenue of leisurely access by a privileged few – however little the defendant himself enjoys it – remains wide open.

This PSR, according to the Government’s Memorandum of Law, says among other things that

  1. the Probation Office “could not locate a reference in these proceedings establishing Ms. Plame as a ‘covert’ agent.” (Prosecution says the unclassified CIA summary re: Ms. Plame’s CIA employment was given to Defense in discovery on June 9, 2006.)
  2. “the criminal offense would have to be established by a preponderance of the evidence.”
  3. “the defendant was neither charged nor convicted of any crime involving the leaking of Ms. Plame’s ‘covert’ status.”

These are precisely the arguments made by the defense team and by Libby supporters in the public discourse.

Legal cases cited by the prosecution, the judge and even by the defense apparently establish that successful conviction on the underlying crime does not have to be achieved in a case about obstruction. Since I am not a lawyer, there is little point in listing the string of cases (defendant names include McQueen, Arias, LeMoure, etc). Anyway, defense attorney Jeffress acknowledged this point in the sentencing hearing. To say otherwise does not work in court; unfortunately, it carries the day with the noise machine.

Prosecutor Patrick Fitzgerald pointed out clearly that Libby knew there was an investigation going on when he gave his sworn statements; he knew what the investigation was about; he had the benefit of attorneys; he was an experienced attorney himself; and he had other options than the false statements he made. In an excellent and concise presentation, Fitzgerald argued that the sentencing should reflect two things: 1) that the truth matters, in an investigation; and 2) that a person’s station in life does not matter.

Reflecting prosecution and defense arguments, the judge acknowledged Libby’s position in government. Walton also said, however, that there is a “heightened responsibility” for a well-placed government official, when he is notified that there is an investigation. Walton said, “I just can’t buy in on that being good social policy” that a government official convicted of obstruction should get off. “Knowingly obstructing the process,” Walton said, “I think there’s a price to pay. If you know there’s an investigation going on, you come forward, you tell the truth.”