July 7, 2007
Where's the Intent When the Crime is Backdating?
The first backdating case brought by prosecutors is proving to be - not so easy for the government - as the court is considering the defense motion to dismiss. The defense motion (here), in the case against former Brocade Communications CEO Gregory Reyes, has the court pondering whether the necessary mens rea exists to sustain this prosecution. According to law.com the court has given the government until 8 a.m. Monday to file a written brief explaining the basis for finding sufficient mens rea in this case. Several points to note here:
1. This is a case of turning the tables on the government. Typically it is the government that ruins defense counsel's weekend by providing discovery - like Jencks Act statements - on Friday afternoon before a Monday a.m. trial. It is good to see a judge applying this strict time-line for the government to produce its brief. Perhaps feeling these pressures, the government will let other offices in the U.S. know that they need to be more sensitive in providing discovery material sooner than the weekend before trial.
2. The basic premise is that "intent can be inferred from the circumstances." But it is also a basic premise that there needs to be some evidence in order for the case to move to the next level. The interesting question here will be whether the prosecution can provide enough links that will allow this inference to be made.
3. Prosecutions cost money. Is this the kind of case that requires the expenditure of tax dollars?
Feds Search NFL Star's Property Again for Dog Fighting Evidence
Federal authorities conducted a second search of the property of Atlanta Falcons quarterback Michael Vick in Virginia for evidence of dog fights conducted on the property. According to documents filed in connection with the search, the property was used as a staging area for housing and training pit bulls used in fights. An AP story (here) states that a backhoe dug up a 200-square foot area, apparently looking for carcasses of dogs used in fights. The federal involvement comes on top of a local investigation of the use of Vick's property for dog fights, and he has denied any involvement in the exhibitions. Like so many areas today, the use of animals for fighting is a federal offense under 7 U.S.C. Sec. 2156(a)(1), which provides "it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture, if any animal in the venture was moved in interstate or foreign commerce." The maximum penalty for a violation was increased from one to three years in the Animal Fighting Prohibition Act that Congress enacted in May 2007. Vick is not named in any of the court documents, and it is unclear at this point whether there is any evidence of his involvement in a dog fighting operation. The NFL is likely to take a close look at what was going on at his property, and may take action against him even if there is no criminal prosecution. (ph)
Lawyer Who Leaked BALCO Grand Jury Transcripts Agrees to Higher Sentence
The former defense attorney for the founder of Balco (Bay Area Laboratory Co-operative) agreed to an increase in the sentence that can be imposed as part of his plea bargain in the hope it will satisfy U.S. District Judge Jeffrey White, who rejected the earlier agreement that limited the sentence to two years. Troy Ellerman admitted to allowing a reporter for the San Francisco Chronicle to review the grand jury testimony of soon-to-be home run king Barry Bonds and other athletes about their receipt and use of steroids obtained through Balco. He had received the transcripts as part of the discovery in the narcotics prosecution of his client, and they were subject to a protective order. When the Chronicle reported on the testimony, he accused the government of leaking the transcripts in a filing with the district court.
Ellerman entered a guilty plea to obstruction of justice, filing a false declaration, and two counts of criminal contempt. Under the Federal Sentencing Guidelines, the range is from 24 to 33 months, and the new agreement authorizes a sentence up to the top end of the applicable Guidelines range rather than capping it at two years. Whether Judge White will accept the new plea agreement remains to be seen because the court has discretion to impose a sentence above the advisory Guideline for the case; a sentencing hearing is scheduled for July 12. Interestingly, the newly-agreed sentence is the same as that imposed on Victor Rita in the case recently decided by the Supreme Court upholding the appellate presumption of validity for sentences within the Guidelines, and only three months more than the sentence imposed on I. Lewis Libby before the President's commutation. No word on whether Ellerman's attorney will offer a "Libby motion" to reduce the prison term, but given the Judge's views on the need for an increased sentence an argument about it being "excessive" would be an exercise in futility. A Chronicle story (here) discusses the most recent plea agreement. (ph)
The Continuing Saga of Former Alabama Governor Siegelman
When former Alabama Governor Don Siegelman was sentenced recently to a fairly significant term of over seven years in prison for his conviction on corruption charges, you would think that the case would quiet down. Even though the appeal is headed to the Eleventh Circuit, there continues to be action surrounding the conviction in other fora. Alabama Congressman Artur Davis sent a letter (here -- courtesy of TPM Muckraker) to House Judiciary Committee Chairman John Conyers asking that the Committee investigate whether Siegelman was singled out for prosecution for political purposes. There have been allegations that Presidential aide Karl Rove said that the U.S. Attorneys in Alabama would work to eliminate Siegelman as a political player, claims that to this point are only hearsay. Back in the District Court, Siegelman filed a motion (available below) seeking to eliminate the restitution order requiring him to repay over $180,000 because it is based on a count on which he was acquitted. While opposing the motion, the U.S. Attorney's Office also requested (see below) that, if the court grants the motion, it increase Siegelman's prison sentence to make up for the loss of the restitution. Restitution is usually not viewed as a form of punishment but rather an equitable means to keep the defendant from enjoying ill-gotten gains, so the government's argument may misconstrue the nature of the court's order. Regardless, it's yet another dust-up in an extremely contentious case. (ph)
July 6, 2007
Could the Libby Commutation Impact the Sentencing Guidelines?
The President's Order of Executive Clemency that remitted the thirty-month prison sentence of I. Lewis Libby keeps raising new questions about federal sentencing now that the White House has determined any prison term was "excessive" even though the judge faithfully applied the Federal Sentencing Guidelines. This past Supreme Court term, the United States argued for the application of a proportionality principle when a sentencing judge departs from the Guidelines in issuing a sentence, the flip side of the reasonableness presumption for a within-Guidelines sentence. According to the government, the further the sentence fell from the Guidelines calculation, the greater the justification required for it, otherwise it would be disproportionate and result in uneven sentences. During the oral argument in Claiborne v. United States (here), Deputy Solicitor General Michael Dreeben asserted the following in response to a question by Justice Scalia about how to determine whether a particular Guideline sentence was reasonable:
I do think, though, that the Court should be concerned about each district judge formulating his or her own set of personal sentencing guidelines and then applying them in the court to the cases that appear on that judge's docket without any check on appellate review to ensure that, although the sentence might be in some possible world reasonable, it's out of whack with what the Sentencing Commission has prescribed and what other district judges are doing. If there is no check on appeal, then I do think that the clock has been turned back to the 1983 era before the Sentencing Reform Act; and that does not seem to me a reasonable interpretation of what the Booker remedial opinion thought it was accomplishing. What the Booker remedial opinion said that it was accomplishing was providing an important mechanism that Congress itself had intended, namely appellate review, in order to iron out sentencing differences.
And our submission is that inherently means some form of substantive proportionality review.
While the Court dismissed Claiborne because the petitioner was killed in a robbery before the decision issued, it granted certiorari in a nearly identical case from the same circuit that raises the issue of the reasonableness of a sentence that departs substantially from the Guidelines (Gall v. United States). During the upcoming argument, will the defense, and perhaps even members of the Court, raise the Libby commutation as evidence that the Guidelines may be askew in certain instances, especially when it involves a government official with a long history of public service who is a first-time offender?
Blog co-editor Ellen Podgor coined the apt term "Libby motion" to reflect the likely argument defendants will make in seeking a lower sentence from the trial court based on the commutation. The same argument can be made in the Court of Appeals, and perhaps even in Gall, that the proportionality principle offered by the United States overextends the Guidelines by ignoring crucial circumstances in particular cases -- as evidenced by the "excessive" sentence handed down to Libby that presumably complied in the main with the Guidelines. Proportionality does not work if the Guidelines themselves may lead to unreasonable sentence. Or so will Justice Scalia ask, perchance? (ph)
Reyes Gets Ready to Defend the Options-Backdating Charges
Former Brocade Communications CEO Gregory Reyes gets his turn to rebut the government's charges of conspiracy and securities fraud for options backdating at the company. First up is the defense Rule 29 motion for a judgment of acquittal, which will be decided by U.S. District Judge Charles Breyer. In the defense brief (available below), Reyes' counsel, Richard Marmaro, begins by asking, "After Two Weeks of Trial, the Prosecution Rests: Where Are We?" The defense answer should be obvious -- "The prosecution's proof is deficient on virtually every substantive element of every count of the indictment . . . Mr. Reyes is not a criminal. He did not commit a crime. No rational juror could find guilt beyond a reasonable doubt on this factual record. This case does not belong in a criminal courtroom, and we respectfully urge the Court to end it now."
While Rule 29 motions are very difficult to win, the government's case did not bowl everyone over, at least according the the CAL LAW Legal Pad blog (here), which found the connection between Reyes and the backdating at Brocade to be "smudgy." Judge Breyer turned down a number of defense motions for a mistrial, and I doubt he will take the whole case away from the jury, although he could dismiss a count or two. Then it's on to the defense case, which, if its rhetoric is to be believed, could be rather short. At least two prosecution witnesses testified about statements Reyes made regarding backdating options -- what the defense brief refers to as a "look-back process" -- that could push the defense to call him as a witness to explain what he did (or did not) say, and what he meant. If Reyes does testify, that should provide enough fireworks. (ph)
Indictment of Credit Suisse Investment Banker and Tippee in Pakistan
A grand jury indicted a former Credit Suisse banker for tipping a banker in Pakistan about deals on which the firm had an advisory role before the disclosure of the transaction. The investment banker was arrested on a criminal information in May 2007 (see earlier post here), and at that time the tippee was unknown. He has now been identified as a "Country Head of Investment Banking" at Faysal Bank Ltd., headquartered in Karachi, Pakistan, and now living in Canada after resigning from the bank in April 2007 (See Bloomberg story here).
The indictment, available below, outlines a conspiracy to trade on inside information in which the Credit Suisse banker would call the banker in Pakistan, after which trades were placed in companies that were the targets of takeovers. The largest deal involved call options in utility TXU before the announcement of its acceptance of a buyout proposal, which generated over $5 million of the alleged $7.5 million in trading profits. In addition to a conspiracy count, the defendants are charged with twenty-five counts of securities fraud. The TXU options trades are not included in the substantive insider trading counts because the securities were traded on the options market in Chicago, so there is no jurisdiction over the transactions in the Southern District of New York even though there is on the conspiracy count. (ph)
Standards for Commuting a Sentence
For those interested in the standards enunciated in 2003 by the White House for commuting the death sentence of a federal prisoner to a term of life imprisonment without possiblity of parole, check the post on The Legal Ethics Forum blog here. (ph)
July 5, 2007
Should Libby Have Been Required to Serve a Day in Prison?
The President's commutation of the thirty-month sentence of I. Lewis Libby has created a bit of a mess on a number of different fronts. First, was it really a commutation? The former Pardon Attorney at the Department of Justice, Margaret Love, explains that when the executive commutes a sentence it merely reduces the penalty, but does not eliminate it all together. In her view, it should be termed a remission and not a commutation because Libby never served any time in prison. While the President can issue a pardon, which would eliminate the punishment altogether, the commutation in this case is not the typical one.
To make things even more complicated, one rational offered for commuting the prison term was that Libby would still be subject to punishment, The President's Grant of Executive Clemency (here) states that "pursuant to my powers under Article II, Section 2, of the Constitution, do hereby commute the prison terms imposed by the sentence upon the said Lewis Libby to expire immediately, leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence." An order (here) issued on July 3, 2007, by U.S. District Judge Reggie Walton, who presided over the trial and sentenced Libby, questions whether the term of supervised release is legally permissible. The statue, 18 U.S.C. Sec. 3583(a), states that a term of supervised release may be imposed "after imprisonment," but of course Libby will not serve any time in prison. The Judge has asked the parties to the litigation for their position on the issue, and in a footnote raises the question whether the views of the President should be solicited. I doubt either party will encourage such a submission, and I suspect that even if asked, the White House would decline to participate lest it become mired further in the prosecution of Libby.
Finally, would any prison sentence have been acceptable to the President? While the U.S. Probation Office recommended a downward departure from the 10-16 month range called for by the Federal Sentencing Guidelines under its calculation, it did not recommend a specific term or even probation. But, according to the President's Press Secretary, Tony Snow, any time in prison would have been "excessive" and therefore would have triggered the grant of executive clemency, perhaps even a day. In a statement to the press (here), Snow asserted that "he [the President] said it was excessive, and he thought that any jail time was excessive. And therefore, he did not see fit to have Scooter Libby taken to jail." [Italics added] Snow went on to note, "You have obstruction of justice, and then you have mitigating factors that bumps it down. And the bump down gets you, according, again, to the parole commission, to an area where it would be appropriate, it would be within acceptable guidelines to have such things as home detention or probation. Probation is something that is going to be required in this case." Probation -- actually supervised release, but the Press Secretary may have watched one too many Law & Order episodes -- appears to have played a key role in the President's analysis of what was an "excessive" sentence, but in fact it may be off the table now under the governing statute for a term of supervised release.
Commutation, or remission, is certainly half-a-loaf, which may have been the President's design all along because a full pardon would have been viewed as a complete usurpation of the judicial process before the court of appeals even heard the case. But issuing it before the sentence began, even for a day, sends the message that factors outside the normal considerations of the appropriate punishment were at work in this case. When a term like "excessive" is used to justify the decision, the obvious question is, "Compared to what?" The Eighth Amendment contains a prohibition on excessive fines, which requires some consideration of the severity of the underlying violation. Similarly, the Supreme Court's pre-Booker analysis of sentencing departures in Koon required that the case be "outside the heartland" before a judge could grant a departure, meaning that it must be extraordinary compared to other cases. What makes the Libby sentence so different from those imposed in other perjury and obstruction of justice prosecutions, or other such defendants if one wishes to focus on the individual? The President's commutation means that there will not even be a term of home confinement, resulting in a punishment far less than almost all sentences for a felony in the federal system. Libby's public service and the fact that he is a first-time offender do not appear to be so distinctive as to require that there be no form of confinement, unless one wishes to make public servants convicted of crimes largely immune to prison terms because virtually none will ever have a prior conviction. Perhaps it is as simple as sentencing czar Doug Berman is quoted as stating in a Washington Post article (here) about the President's decision: "My friend Scooter shouldn't have to serve 30 months in prison because I don't want him to." (ph)
Stiff Sentences Handed Down to Enterasys Executives
Four former executives of Enterasys Networks, Inc., a Massachusetts network router company, received substantial prison terms for their role in an accounting fraud at the company in 2001. The defendants, who were convicted on a variety of charges including conspiracy and securities fraud, include Enterasys' former CFO, sentenced to over eleven years, and its former senior VP for finance, who received a sentence of over nine years. The other two executives received prison terms of eight and three years. Problems arose at the company as the tech bubble burst in 2000, and by 2001 the pressure was on to maintain the stock price in the face of declining revenues. According to a press release (here) issued by the U.S. Attorney's Office for the District of New Hampshire:
Evidence at trial showed that starting in the summer of 2001, the four defendants and other Enterasys executives inflated Enterasys’s revenue figures in order to satisfy the publicly reported expectations of Wall Street analysts and to increase, or at least maintain, the price of Enterasys stock. The conspirators backdated and falsified documents and concealed material terms of business transactions from Enterasys’s auditors in order to inflate revenues. The conspirators also fraudulently created false revenue by secretly investing company funds in other companies and causing those companies to use the investment proceeds in turn to buy Enterasys products. The court found that public investors lost at least $97 million as a result of the fraudulent scheme.
The company's former CEO earlier entered a guilty plea to charges. Don't think that sentencing in corporate fraud cases is diminishing. (ph)
Trading Ahead of the Hilton Hotels Offer
Trading in Hilton Hotels Corp.'s stock and call options jumped wildly right before the announcement after the close of trading on July 3 that Blackstone Group would take the company private at $47.50 per share. The stock price had been hovering in the low thirties, although on July 3 the shares jumped over $2 per share to $36, still more than $10 from the offer price. According to a Bloomberg story (here), trading in Hilton Hotels call options was up over nine times the average volume before the announcement, and a number of trades were in out-of-the-money contracts, indicating that -- here's a shocker -- someone had a pretty strong inkling something was about to happen to the stock. Another deal, another SEC insider trading investigation, in all likelihood. We'll see if anything comes of it. (ph)
July 3, 2007
SDNY Dismisses Counts in FCPA Indictment on Statute of Limitations Grounds
In a recent ruling, the Southern District of New York issued an opinion dismissing all counts of an Indictment, except false statement counts. The government argued that the statute of limitations should be tolled "based on the government's official requests for foreign evidence from the Netherlands and Switzerland. In rejecting this argument, the court stated that "because the government did not move to "'suspend the running' of the statute of limitations until after it had expired, the government is not entitled to any tolling under section 3292."
This case presents the difficult situation of trying to obtain evidence from a foreign country in a timely manner. Letters rogatory and use of treaties to secure this evidence can take time. In these situtations the government has the ability to request an extension from the court. The problem in this case was that the government did not make a timely request to the court.
The decision -
"Far from a Slap on the Wrist" - Libby's Sentence
"Far from a slap on the wrist," is what Tony Snow, white house spokesperson, said when talking about the fact that President Bush decided to commute Libby's sentence so that he will not have to serve any jail time. After all, Libby will have probation or is it supervised release, a fine, and the collateral consequences that white collar offenders often face. The court is faced with an unusual circumstance of how to deal with the supervised release in light of the fact that the accused did not serve a prison sentence. The courts order requesting the government and defense to submit briefs on this issue and commentary can be found here on Doug Berman's Sentencing Law & Policy Blog.
But will Libby be required to suffer all the indignities suffered by other offenders? Will he have to pee in a cup? If it becomes probation then 18 U.S.C. 3563 (5) may apply, which states:
"for a felony, a misdemeanor, or an infraction, that the defendant refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant's presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant;"
Will the court waive this one? Or will this be the point that President Bush steps in to pardon Libby? (see NYTimes article discussing Bush's response to a question on a possible pardon of Libby)
Perhaps No Dismissal in Stein (KPMG) Case
Judge Lewis Kaplan's initial decision in the Stein case left many wondering what would happen if the case landed back on his desk. Would he dismiss the matter, or proceed to trial? What would be the remedy for the government's conduct/misconduct (see here) Despite government briefs that allowed for a dismissal, the court may be reconsidering this position. Lynnley Browning reports on this case in a NYTimes article titled, "In a Shift, Judge Demurs on Dismissing KPMG Case."
The Libby Motion
Will we be seeing defense counsel making "The Libby Motion," what will the motion contain, and how will judges react?
Clearly, every criminal defense lawyer who practices in the white collar arena is asking him or herself - why shouldn't my client have this same privilege? After all the client may have been convicted of a perjury or obstruction charge, may have children, may be suffering the collateral consequences of the loss of a law license, may have served their country - perhaps in war, and may be a first offender. Should they not receive the same sentence of "no time."
One should expect that there will be Libby Motions made, and/or motions that contain this language in a request for a departure from the guidelines. The motion will likely include a comparison to the client's circumstances with that of Libby. It will probably also contain language from the U.S. Sentencing Guidelines that speaks to a basic policy consideration of the guidelines being to obtain "reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal conduct." And after all, the guidelines permit departure for factors that were not considered by the U.S. Sentencing Commission. Did the Commission consider that a President would take an entire sentence and commute it prior to the individual even seeing one day in jail? And understanding that the U.S. Sentencing Commission did not consider this, should a departure therefore be allowed?
And the judges, what will they do with these motions? The activist ones - might follow the activist executive and say - yes this is grounds for departure. But more likely we will see judges continue to follow the flow of the guidelines and sentence individuals as if the Libby case did not exist.
And we law professors will be left to try and explain this to students.
Commentary on Bush's Commuting of Libby's Sentence
This is clearly a controversial move by President Bush - to commute the prison sentence of Libby. Some thoughts:
1. The Timing - Why did President Bush commute this sentence just hours after a three court panel (made up of two Republicans and one Democrat) had ruled that Libby would not receive bond pending appeal?
- President Bush states that the prison sentence here is "excessive" - but there is a big difference between 30 months and no time. One has to wonder why he didn't wait until Libby had served some time and then commuted the sentence. Was he afraid of Libby cooperating to avoid jail time? Was it necessary to commute the sentence immediately to avoid Libby moving from being a jailer to a cooperator? Bush's immediate dismissal of the entire jail sentence is suspect when he could have adjusted the sentence by waiting until Libby served some time, before issuing him a free "get out of jail card."
- And if he planned to commute the sentence, was this prosecution really worth it? Will it have a deterrent effect absent the jail time? How much money was spent on this prosecution and as a taxpayer was the dollar spent wisely here? If the goal was not to have Libby serve jail time, would an earlier resolution have been more appropriate.
2. Was this a political decision?
- Whether one calls this political or a benefit for the privileged, it is clear that the typical person convicted of a crime would not receive this benefit. This is a scenario so far removed from the norms of the system that one has to recognize that this action is clearly suspect.
- The judges involved in this case are far from individuals who would be considered activist judges - does this make the executive - the President - the activist?
3. What does this say about the Federal Sentencing Guidelines?
- A new departure from the guidelines has been created. It can only occur when the President of the United States authorizes it. It is not founded on any departure law considered by the U.S. Sentencing Commission or Congress. It is premised on whether you have a direct connection to the President.
- Can future defendants who are convicted with similar conduct argue that they should receive a sentence of no time so that like defendants receive like punishments?
- This sentence, perhaps high, was within guideline range. Does this case represent the need to revise the guidelines to offer first time white collar offenders softer and more reasonable sentences. Or is this case a one-time exception?
4. Recognizing the effect on third parties is important.
- President Bush recognizes the effect of this conviction on Libby's wife and children - they have suffered. It is good that Bush understands the injustice in society to innocent parties when someone is convicted of criminal conduct. But is this not something that all families of the convicted face. Should courts and the U.S. Sentencing Commission consider this in recommending a sentence?
Perhaps President Bush is correct that Libby did not deserve jail time. But what is bothersome here is that one elite individual is receiving this benefit while others with comparable circumstances will not have this benefit - it all comes down to who has access to the President. Is this equal justice under law?
July 2, 2007
Comment of Attorney Ted Wells
Attorney Ted Wells, Libby's lawyer issued a statement as follows:
“Mr. Libby and his family wish to express their gratitude for the President’s decision today. We continue to believe in Mr. Libby’s innocence. Scooter and his family appreciate the many Americans who have supported them over the last two years.”
Prosecutor Patrick J. Fitzgerald's Response
In a most professional way, Prosecutor Patrick J. Fitzgerald responds to the President's statement commuting Libby's sentence. He states:
"We fully recognize that the Constitution provides that commutation decisions are a matter of presidential prerogative and we do not comment on the exercise of that prerogative.
We comment only on the statement in which the President termed the sentence imposed by the judge as "excessive." The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country. In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws. It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing.
Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process."
Statement here -
Stay tuned for Commentary.(esp)
Bush to Commute Libby's Sentence
The Wall Street Jrl headline is: "Bush Spares Libby From Prison Term." (see also CNN) Just hours ago a three judge panel ruled against Libby's request for an appeal bond (see here). We are now seeing President Bush's response to this ruling. Commuting the sentence will mean that I. Lewis "Scooter" Libby will continue to have a federal conviction. He will have to pay his fine and will remain on probation. It will mean, however, that the 30 month sentence will not have to be served. Obvious questions:
Is Libby receiving treatment that other offenders are not given - e.g. - Siegelman, Scrushy, Olis, Ebbers, and the long list of other individuals convicted of white collar crimes. And how about all the other offenders serving time in prison? And how will Martha Stewart feel about this - she served a sentence for similar alleged conduct?
Does Libby deserve this special treatment? Many claim he does and many say the opposite? Does this presidential decision negate the U.S. Sentencing Guidelines - a move to keep sentences equal for like defendants?
It will be interesting to hear the President's comments on why this decision was made. Obviously more Commentary will follow.
UPDATE: The President's statement is available here. He explains:
I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.
My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.
The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.
D.C. Circuit Denies Libby Bail Pending Appeal
The District of Columbia Circuit Court of Appeals denied the expedited motion of I. Lewis Libby for bail pending appeal of his convictions on perjury, obstruction of justice, and false statement charges (see earlier post here). Libby's name is already listed on the Bureau of Prisons website under its "Inmate Locator" under Register Number 28301-016, which likely means they are preparing for his placement in the federal correctional system. Possible locations near Washington, D.C., where his family lives, include the Morgantown, West Virginia, FCI, which currently houses former Representative Bob Ney of Ohio. Other possibilities are the FCI in Cumberland, Maryland, where former lobbyist Jack Abramoff is serving his term, or Petersburg, Virginia, which has a minimum security camp. Of course, there is also pressure being put on President Bush to issue a pardon for Libby, which would eliminate his going to prison and negate his appeal. An AP story (here) discusses the D.C. Circuit's decision. (ph)