There has been a lot of grist from the Beltway rumor mill of late on Scooter Libby and his upcoming sentencing hearing — but it has amounted to a whole lot of speculation and innuendo and wishful thinking, and not much substance with any real factual basis in which to dig. But today, Josh Gerstein has a piece in the NYSun which hits some of the legal points that I've been mulling recently as well, and so I want to go over a few things that Josh is writing about in more detail. (And a H/T to reader Helen who caught the article around the same time that I did.)
Let me start by saying that Josh has done some great reporting on the Libby case all along — even though I don't always agree with his conclusions — and that he has especially good sources in the "Team Libby" donation front (I will note for the record that Barbara Comstock was especially keen to chat up all the reporters in the courtroom — well, except for me and Marcy and Jane, who were recipients only of her stink-eye glare — to build media ties where she could, but I don't know that she succeeded with Josh or, more likely, whether he built up those contacts independently over the more than two years that he's been closely following the case. But I take any reporting and quotes with a grain of salt, as should all of you.). Anyway, here are the things that I think are worth either dissecting or amplifying.
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. (emphasis mine)
I checked the Pacer system this morning and didn't find any filings on this as yet. Lawyers tend to work right up to the deadline, though, so I'd expect things to be filed sometime this afternoon. I will keep an eye out for them this weekend and report back if and when they go live. If any readers catch them, and are willing to send me a copy, I would truly appreciate it: reddhedd at firedoglake dot com.
Gerstein's sources are correct that the question of Libby being allowed to remain free on bond awaiting appeal is a big one — because, generally speaking, such bond is only granted where a substantial question of law or fairness is substantially at issue in the case. Here is former USA Roscoe Howard Jr. in Gerstein's article:
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.
Federal law dictates that bail pending appeal be denied unless the appeal raises "a substantial question of law or fact" that could reverse the conviction or have a significant affect on Libby's sentence.
"Most people I talked to who followed the trial thought that the government's evidence, regardless of whether you though the prosecution was proper, was pretty strong," Mr. Howard said.
And, in the case of Mr. Libby, who was a public official in a substantial position of trust and a practicing lawyer to boot, the question of catching a break for bond in a conviction of multiple felonies involving deception and an attempt to subvert the integrity of the legal process is low, in my opinion — not impossible, but it is a very, very steep hurdle for Libby's defense team to leap.
There is also some discussion of sentencing in the article:
Libby faces a maximum possible sentence of 25 years in prison. However, lawyers not involved in the case said federal sentencing guidelines seem to call for 15 to 21 months of incarceration. Mr. Berman said there could be "a lot of flex" in the calculations, but not enough to allow the judge to impose probation instead of jail. "I would be shocked if the guidelines add up to allow for a non-prison sentence," the professor said.
Under a 2005 Supreme Court decision, Judge Walton has to consider the guidelines, but is not obligated to follow them. "He'd have to say, ‘I don't think the guidelines are appropriate under the circumstances,' and he'd have to explain," Mr. Berman said. Prosecutors would be free to appeal a sentence below the range and the defense could appeal one above it.
This matches up with the sentencing guidelines calculations that Jeralyn did shortly after conviction, and from my read and my own calculations I think this is about right. I'd look for there to be no downward departure, unless there has been some behind-the-scenes proffer of assistance from Libby for further prosecutions down the road and, as we have heard nothing — and I mean NOTHING — about that, I doubt it has happened. Just based on my own observations of Libby, I doubt he'll give up the "loyal soldier" persona that he has adopted to shield the Vice President from any further questioning, whether or not Cheney deserves the loyalty from him.
The fact is that where you have a defendant who has not admitted guilt, where the government has had to go through a full trial, and where part of the defense strategy was to maintain a full claim of innocence — it is very, very difficult for the judge to then accept a proffer of acceptance of responsibility from the defense. Libby will have an opportunity at the sentencing hearing to take the stand and place an acceptance of responsibility on the record and, also, will have had an opportunity to do so during the presentence investigation meetings with the federal probation officer who will have prepared the report for the judge with sentencing recommendations to the court.
But, in my experience with clients, doing so once you have already been convicted on multiple counts and where you try to skate the line of claiming innocence for appeal but appearing to have remorse — not for what you did, but more for getting caught at it? Judges don't take too kindly to that…not at all. And Judge Walton has a reputation for issuing tough sentences, so we'll see on June 5th, I suppose, how much of an acceptance proffer that Libby was willing and able to give, and whether anyone bought it.
And then, there is this bit:
The defense is expected to give Judge Walton letters written on Libby's behalf by his friends and supporters. "I just basically outlined all Scooter Libby's virtues and strong points and talked about his integrity," a former ambassador who has raised money for Libby's defense, Richard Carlson, said. " Libby's been a great public servant and I hope the judge takes that into consideration, particularly when deciding whether he can stay home with his family and continue working on all of the appeals."
Why yes, that is Tucker Carlson's daddy, who is one of the big shots in the Libby defense fund and yet, strangely, Tucker never bothers to publicly acknowledge that fact when he rants about what a meanie Pat Fitzgerald is on MSNBC. Can you say "conflict of interest"? I know that I can. How about "blatant self-dealing and parental interest promotion without a disclaimer"? Or "public relations collusion"? But I digress…
Mr. Howard noted that the emphasis on Libby's history of public service, which dates back to a State Department stint in the 1980s, could hurt the former official by underscoring that he abused a position of trust. "They don't reward you for that. They punish you for it," the former prosecutor said.
Libby's claim of innocence also makes it difficult for him to express the contrition that can bring a lenient sentence. "It's tough to sit up there and say … ‘None of this happened,' but he needs to address the court somehow. He's got to," Mr. Howard said. (emphasis mine)
This is exactly right. When you are in a substantial position of public trust, and you abuse that position and, further, you do so in a manner that attempts to undercut the system of justice, you generally are not given a lot of sympathy from judges during sentencing. If anything, you are punished for abusing the public's trust because you ought to have known better and you have a duty to live up to a higher standard of conduct by virtue of that public trust.
Indeed, Mr. Libby is doubly cursed in this because he is also a lawyer who worked with clients on white collar criminal cases and should have been very well versed in the penalties for perjury, obstruction and lying to federal investigators. Lawyers are expected to live up to their own standards of ethics and Libby's failure — and, truly, his blatant, repeated lying on tape before the grand jury which everyone got to hear throughout the trial — is something that Judge Walton will consider when making a determination on an upward or downward sentencing departure.
The Bush Administration may not take ethical considerations, the rule of law or a failure to live up to their fiduciary obligations to the public or the Constitution seriously but, in my experience, most federal judges are sticklers for that sort of thing. How inconvenient for Libby, eh?
But it is this bit at the very end of the article that most fascinated me:
Mr. Carlson said he wants Mr. Bush to offer a pardon, even if there is some political fallout. "People I know and admire are hoping the president will step up and do the right thing," Mr. Carlson said.
Well, that's as blatant a nudge at Dick Cheney and George Bush to "do right by Scooter" as I have ever seen in print. Could it be that the Veep has washed his hands of his loyal boy and the defense fund folks have soured on covering his bets? You will recall the Cheney I haven't spoken to Scooter since his conviction line in an interview some weeks ago. Or, more likely by my read, could it be that this was meant instead as a nudge to the White House — by inference from pals of Scooter and/or Cheney, if not by name — about what could come out should they (or at least people that Mr. Carlson "knows and admires" — read: pals of Scooter and/or Cheney) be displeased? In other words, is this a sort of politely worded veiled nudge?
My oh my, the possibilities here are quite interesting. And I will be keeping my ear to the ground on this one in the coming days. More as I get it.
One more news bit of note: Judge Walton has also recently been appointed to the FISA court. No surprise there, given his breadth of experience in handling classified matters (especially after the nightmare rounds of CIPA hearings for the Libby case alone). This is a separate duty, above and beyond his regular work at the DC Circuit, and will not change his status as a judge in the Libby matter. I had some questions on that earlier (from reader despairing and others), and wanted to be certain that was clear.
(H/T to Extreme Accounting for the graphic. Priceless.)