Good morning firepups!

Back here at Prettyman Courthouse. The old rules apply.  Don't refresh wildly. I'll timestamp updates. If you haven't bought my book, buy that. If not, buy the new book out today by our own Jeff Lomonaco and some guy named Murray Waas.

If you haven't already read it, I recommend you read this post by Jeralyn, describing the normal process for someone turning himself in. Shorter Jeralyn: Libby's not getting a frogmarch today, so don't get your hopes up.

And just a reminder–here's the scope of what people are talking about. The PSR has recommended a sentence of 15 to 21 months (though the PSR also recommended that Libby get time off because he incurred such big legal bills and his friends had to pay for it). The Defense has asked for probation. And the Prosecution has asked for a sentence of 30-37. We'll start with a discussion about what the appropriate range for sentencing will be, and then we'll talk about bumping that up (because public officials and lawyers shouldn't lie) or downward (because Libby tried really hard to protect the country). 

The courthouse is filling up–most of the prosecution team is here, several of them wearing nice springy suits rather than the dark winter ones (though Debra Bonamici is wearing a dark jacket–methinks she's determined to win her book-throwing argument). Fitz is wearing his favorite seer-suckery suit and bright blue tie.

Okay, the defense is coming in now–with everyone who has ever been associated with the case. It looks like Harriet is getting hugs right off. They're all wearing dark suits. Presumably because they get paid more and therefore dress more corporate. Libby is maintaining his cool, smiling, shaking hands. I couldn't see who came in with them, but they seem to have a bunch of people with them.

Some nervous joking between Wells, Fitz, and Jenna. Walton in.


Walton: [Walton is no nonsense, seems almost tired today] First matter calculation of appropriate guideline. I assume that both sides agree that if cross-referencing is no appropriate then guideline is 15-21 months.

Fitz: no your honor.

Walton: You're saying 3 levels

Fitz: Substantial interference with justice.

Walton: and if cross-referencing is held to be applicable, is there any disagreement that guideline is 30-37 months.

Fitz: Not from govt.

Jeffress: govt has suggested in papers and argued at trial given admission of non-disclosure that one of the issues was negligent disclosure. If your honor applied cross-reference to statute, punishing negligent disclosure under espionage, the guideline would be 2m3.4 and guideline would be 12.

Walton: Let's deal with the easier of the three issues. Anything the govt wants to add to false statements. Govt acknowledges that is the toughest argument to make, it would be inappropriate to cross-reference. In reference to perjury and obstruction offenses, there is different language used in guidelines related to those two offenses. While I appreciate that in the guidelines those are treated similarly, not identically, the language suggests that the perjury guideline is not as broad. 

[Well, Walton is thinking really seriously about cross-referencing]

Walton: Let's look at obstruction. I've looked at Defense filing and cases, while none of the cases may be factually directly on point, it does seem that [names a bunch of circuits] have all indicated that you don't look at weight of evidence, you only make assessment whether there was an appropriate investigation and if that determination is made, all circuit courts seem to indicate cross-referencing is mandatory.


Walton: [reading from circuit decision] It makes no difference whether the case is proveable.

Jeffress: Queen, Arias, do suggest what your honor says. I would point out that there was no question–there was a question whether the defendant had participated in underlying offense, and some cases where nobody had been convicted. In each one of those cases, there was an offense charged or clearly established by the evidence. We do not argue here that defense has to commit offense. But in none of those cases did the courts face a situation such as we have here, where no one was ever charged, no one pled guilty, and two, the govt didn't establish the commission of an offense.

Walton: Your position would seem to promote someone engaging in obstruction and therefore impeding govt's ability to prove, [Reggie's not buying this]

Jeffress: that's not the case. [Jeffress emphasizes the "for an offense" language in all the cases] The problem with taking the cases to the extreme that the govt wants to take them is that a defendant who is tried for plain obstruction, is to be sentenced based simply on what he was told when he came before GJ. Then a defendant who is found to commit perjury if a murder was suicide. 

Walton: What if you can never establish whether there was a murder or not, and the person impeded the ability to make that assessment. There's a suggestion that at some point Plame was in a position where her job was classified.

Jeffress: [laughs] that is something I'll need to address when we get to other issues. If the defendant's lies actually impeded the successful prosecution of  

Walton: A defendant who was under investigation relating to missing person,

Jeffress: in that event, the case would fall under commentary under guidelines where defendant prevent establishment of case [kind of like this one, Jeffress]  Let's says someone is brought in on plot to blow up Brooklyn Bridge, which turns out to be a teenage prank. if someone lies about knowing that teenage prank, he'll be put away for a very long tim.

Walton: He knew the nature of the investigation he was obstructing.

Jeffress: The intent argument is contrary to what was established in this case. The only offenses we're talking about here deal with GJ testimony.

Libby is siting half facing the front of the courtroom.  

Jeffress: the jury has never made a finding that IIPA was committed, and the facts don't support this case. Nobody has said that Libby or the witnesses who testify were aware Plame was covert. As to the issue of covert.

Walton: is that something the jury has to determine? Does the jury have to make a factual determination? I don't think that's the law.

Fitz: for purposes of sentencing guideliens we thought it appropriate that he disclosed info on covert agent, he was given information concerning a covert agent. [this is a distinction between whether he normally would have known Plame's identity or whether he just stumbled on it]

Jeffress: what IIPA requires is that agent has to have served abroad in past five years. We were given no discovery other than statement prepared by CIA stating she had traveled abroad on temporary duty, TDY, there's never been a case, any discussion whether that  

Walton: [Getting animated] I think here they have a legitimate concern about this info being disclosed. CIA contacts justice. Justice goes about to seek to investigate that. They make inquiries of high govt official and he prevents them from investigating that case. You seem to be suggesting that cross-referencing doesn't apply. [He's pissed]

Jeffress; they need to establish there was an offense. 


Jeffress: to have defendant sentenced as if there was an offense of murder is irrational. The govt admits that. We're talking about the rationality of the guideliens. We submit to your honor that it is fundamentally unfair, in a case in which defendant … it's not just that there was no proof at trial, the fact is that there were tons of circumstances, Harlow's conversation with Novak, Harlow doesn't say she's covert. Handwritten notes of interview in which he told investigators that he inquired and Plame not undercover. State memo, which says she's WMD managerial type. YOu have fact–or at least published reports–that she was a covert agent that she was brought back in 1998 after her cover feared to have been blown. Witnesses willing to come that Mr WIlson himself revealed his wife's place of employment with almost total strangers. And besides that, the number of people who were told is inconsistent with, as Armitage said in a published report, with the way CIA treats covert agents. [Actually, Armitage talked about the INR memo, whcih is not CIA, but facts don't matter] We're still in the position where we don't know if she was covert. It is fundamentally unfair when we try a case, we don't get discovery, we exclude it.

Walton: I don't think we can equate relevance of my ruling wrt culpability if you felt that info was important for your client to obtain fair sentencing. I would have entertained that, but I got no request as it relates to sentencing. 


Jeffress: if you honor concludes that factual finding on that matter needs to be done, certainly we'd like to see that, it never occured to me CIA would be willing to disclose that, and the govt would be willing to share it.

[Jeffress has fucked up, and he's trying to hide the fact that he now realizes he should have asked for that] 

Walton: I looked at Arias case, it seems a clear statement of court's perspective that 

Jeffress: What  court is talking about is whether it was provable against defendant.

Walton: they didn't say that.  And if you look at the other, it looks at what GJ was investigating. Otherwise obstructors of justice would benefit from obstruction that prevented govt from investigating.

Jeffress; nobody claims that Libby prevented them from finding an obstruction

Walton: No one may ever know–and that's what the instruction goes to–they don't want people to benefit from obstructing an investigation to prevent this from ever being rpoved.

[Jeffress goes back to his teenager lying about blowing up Brooklyn Bridge again, but Walton points out that if the teenager told the truth about it.]

Walton: Further comments, govt? 

Fitz: I think your analysis is exactly right. In arias: No court of which we are aware would permit discovery into evidence behind it. In McQueen they said, when it came to whether cross-reference applied, claim is meritless, in other words, all that mattered is that he's indicted for it. If a jury finds someone innocent of charges that were brought, the guideline is applied. If a jury finds someone innocent, but accessory applies, but if underlying offense isn't tried to jury, you also make accessory. Another case, they literally said whether he used flashlight matters–notwithstanding a factual finding by jury, the enhancement should apply. Your honor is exactly right that policy reasons justify it–you shouldn't reward someone for obstructing justice by being so good at obstructing that they were sensitive. [Fitz now rehearsing the evidence that supports the argument witnesses were concerned about the sensitivity of Plame's ID] This case is actually stronger, because in other cases, the people didn't know what was being investigated, here, Libby was told what was being investigated.

Jeffress: Let's look at the Arias case, if you look at that, they're talking about whether the defendant participated. 

10:02 Going to new thread now 



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.