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Libby Sentencing Three

libby1.jpgHaving determined what the guidelines should be, I'll move to what the actual sentence should be.

Fitz: whatever sentence Your Honor imposes, needs ot make a clear statement that truth matters, when we think about how truth matters, as eloquent as SCOTUS is, your honor sees that every day, when people walk into a court room, the whole system depends on truth. If we lose truth in judicial system, then judicial system is lost. That is true in every case, but especially true in this cse. High level person,he knew he was going to be questioned, he had time to meet with an attorney, extended period of time, from October, instead of saying, you know what, I lied, he persisted in that lie. He walked into GJ, he raised his hand and lied again. When I read the sentencing letters that are quite eloquent, they describe someone who would not do such a thing. But the truth is, he did do such a thing. In a case such as that, we need to make the statement that truth matters ever so much.

[Libby looking off into wilderness. ]

Fitz: One' station in life does not matter.  Many defendants are first offenders, most defendants have family. We need to make clear that the truth matters and one's station in life does not matter.

Fitz: We need to make sure we don't make a special category of person who is not liable for their behavior. That is a terrible precedent, when we talk abotu govt corruption, if he doesn't have to tell the truth, that is dangerous. I don't think we should make a decision based on the policy decisions has made. We put that out the window and say, whatever policy decision he did in good faith, but many others have sacrificed for govt, but they all have to follow the truth. I don't think it's appropriate to consider impact of prosecution on him. No doubt it has impact on him, no defendant has stood before court, no defendant has better prospects for employment, even wihtout a law license Libby has many people who wrote letters who would said he would  trust him. He has better employment prospects than any other defendant, and he has means.

Fitz: I don't think he qualifies for aberrant behavior. The record here shows someone who lied in Oct, lying precisely about critical issues.  Persisted in lies despite training as lawyer, has shown absolute no contrition. We're not going to recommend any sentence. I do think the sentence has to make clear and loud that truth matters and one's station in life does not.


Wells: No question from Defense that Obstruction and Perjury are serious violations [then how come your client won't say so??]. Nor do we quarrel with Fitz' statement that truth matters.

Reggie has his reflective face on. 

Wells; Nor do we make any argument that because of Libby's status, he should be treated differently. It is wrong to sentence people based on their status. People should be sentenced based on their individual characteristics. But courts have made clear that although one may not be sentenced based on one's status, it is entirely appropriate for a sentencing judge to take into consideration the good works and good deeds. Be that person from a privileged background, or from the poorest background. If a person has engaged in exceptional efforts to help others, to help society, those personalized and exceptional efforts can be taken into consideration by a sentencing court. And to take into consideration such personal service, person community service. That is not in any way to give someone a break bc of his or her status, but to recognize that a person on a personal basis has lived his life in such a way that the court should give consideration to that in fashioning an appropriate sentence.

Wells; I stand before you in post-Booker era. After Booker, guidelines are not mandatory. One, but only one of the factors to consider is the sentencing range under the guidelines. After Booker, a court is no longer tied to sentencing guidelines. One might argue that the guideline range is presumptively reasonable. [Now we're back to jury nullification again, kind of] A sentencing judge cannot presume that sentencing guidelines are mandatory.

[This may not help you, Wells, Walton could ignore the guidelines upward… he sounded pretty pissed earlier…] 

Wells; it is our position as expressed in sentencing memo, whether you approach Libby's sentencing, that on the record before your honor, expressed in over 160 letters submitted, it will be within your honor's discretion to give significant credit to Mr Libby for his exceptional public service to our nation. And in giving credit to Mr. Libby that would not be giving Libby a break for his status. such a consideration would be consistent with the precedent.

Wells; WRT Mr Libby's exception public service–and again, that's based on his personal deeds, not his status, there are a lot of lawyers who do SQUAT for their country, a lot of people who work in govt service, 20, 30 years, who go to work every day and do not do anything that could be described as exceptional service.  [You mean like risking your life in other countries to counter proliferation?] Just as people from a particular background who do great things for their community, but also those who do nothing.

Wells; What I would like to do is read from about 6 letters. There were over 150 letters submitted.

[Hey, Ted, how come Abramoff got 262 letters and Libby only got 160?]


Wells; I'd like to take time to present compelling case of Mr Libby's service to justify sentence of probation.

[Reggie looks unimpressed] 

Wells: Admiral Joseph Lopez. Talks about Libby's contributions to first gulf war. Lopez writes, "Letter in support of Libby, I am one of two officers in history of USN to serve as  enlisted man and later achieve rank of 4 start admiral. Bc of roots in rural WV and naval service at enlisted ranks, I have an appreciation of the requirements of leadership. The first few days of my working with Libby were momentous. Day before August 1990 I became senior asst to Sec Def,. Within days, the department had to prepare for war. THe first person I saw every day was Scooter Libby.

[Let's take a moment to consider what Joe Wilson was doing at this moment. Anyone remember what he was doing when Libby was working 7 days? Oh, that's right, making sure Americans got out of Iraq. ] 

Wells: Libby worked 7 days a week, and equally well with civilian arm and military planners to ensure our war fighters.  Libby got funding resulting in 52 billion dollars to support war effort. Throughout my tenure, Libby was senior member of team for planning and implementing defense strategy. Lopez concludes by saying Libby has made significant postiive contributions to maintain peace and stability in our world. Just one person's comment. That's just one person's comment concerning the gulf war.

Walton: I have read all those letters.  

Wells: WRT Libby's contribution concerning ending Cold War.


Wells: [reading from letter to talk about transition to democracy in Eastern Europe] Advocate for greater freedom and quality of life for people in former Soviet bloc. These efforts reflect his belief in the dignity of all people.

[Walton is underlining something, not looking at Wells.] 

Wells: Mr Libby's former boss, Mr. Wolfowitz wrote, "When i was called back to Washington in 1989, to serve as undersec of defense, Libby assisted me on pro bono basis on planning reorg of office. Subsequently, I persuaded him to come back to govt. He made decisive contributions to our first post-coldwar defense strategy. Developed new relationships with leadership informer Warsaw block countries. Recognized Yeltsin. 

Wells: January 1993 [this is not in package]. Mr Libby received award of distinguished service. Award talks about exceptional service to country. Description written without any regard to this case. Totally consistent with comments submitted to court.

[Reggie really looks impatient and pissed]

Wells: talks about extraordinary strategic vision, just the type of extraordinary public service that case law permits court to recognized and give weight. Not a sentence based on his status, but based on his deeds as an individual. There's another letter by Seth Caris that talks about Libby's extraordinary contributions to protecting country from Bioterrorism. I believe that bioweapons are one of the biggest challenges facing the US in the 21st century. Libby has done more than any other single person. Goes on wrt Project bioshield. Just two more letters.

Wells: Dr. Anthony Fauci. Director of NIAID, component of NIH. Primary responsibility for conducting biomedical research in development of countermeasures to things like anthrax attack.

[Reggie still writing on something in front of himself–hello? Anyone around here know how to read body language???]

Wells: I do not believe we would have had bioshield legislation were it not for tireless efforts of Libby. Final letter Robert Blackwill [Condi's buddy]. During years at WH, encountered no one of better analytical temperament. Sacrificed personal prerogatives and family on behalf of country. Constantly in tense situations. Never once did I see Libby's humanist values slip in this situation. Always at center of policy debates.

[Reggie has his lips pursed right now, looking into space]

Wells; IN WH, in admin, he was an island of virture and good sense. I tried to develop students like Libby.


Wells: the letters only represent a fraction of the evidence supporting Mr. Libby's character.

Wells WRT collatoral consequences suffered by Libby. This is an exceptional case, exceptional degree of media coverage, bc of that, ramifications have been different.

[And I'm sure the Wilsons enjoyed that media attention, Ted]

Wells: Mr Libby has been exposed unlike people convicted in normal case, to overwhelming public scrutiny, exposed to ridicule.

[And standing ovations from his buddies the Neocons]

Wells: The social stigma of being so publicly humiliated, should factor in. It is a type of public humiliation that the guidelines didn't contemplate. It made it seem like MR Libby was the poster child for all that has gone wrong with this terrible war. [Hey, Wells is anti-war] Burden of media coverage has fallen on his wife and children. This is exceptioal pain. This is not a regular case.

[Say, how many kids do the Wilsons have?]

Wells: In addition to his family, Libby had two loves, govt service, and practice in law. No question that he is going to lose law license. No question he is no longer going to be able to serve in govt as NSA.

[Say, what is Eliot Abrams doing right about now???]

Wells: In terms of issue of deterrence, one of factors court required to consider. No reason to incarcerate Libby for deterrence. I don't think Mr LIbby is going to go out and do something wrong. In terms of general deterrance, because of exception publicity, the message sent to all public officials, the clear message is, if you find yourself in position like LIbby, consequences are huge. [Two words: Standing ovation] A tragic fall from public grace.

[Walton leaning back in his chair looking at Wells sideways]


Wells; I submit no need to incarcerate. Libby Public humiliation combined with exceptional public sevrice to nation, would justify court exercise not to incarcerate. To extent Your Honor requires incarcaeration, I'd ask some kind of split sentence, permit him to serve in home confinement or halfway house. Judge Urbina in sentencing Jamal, convicted of fraud gave Jamal probation.

[Walton looking up at ceiling]

Wells In fashioning sentencing, one's entire life should be taken into account, that is a factor that permits the court, should it so choose, to give credit to and depart from.  Libby few short remakrs.


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