June 02, 2007
The Libby Sentencing
The sentencing of I. Lewis Libby is set for June 5 before U.S. District Judge Reggie Walton, and the defense sentencing filings are now available below. In sharp contrast to the government's recommendation of a 30-37 month prison term under the Sentencing Guidelines, lawyers for the former chief of staff to Vice President Cheney ask for probation. The Probation Office's presentence report, which is not available, determined that the Sentencing Guidelines provide for a base offense level of 14, which calls for a sentence of 15-21 months. Both the prosecution and defense agree with the base offense level calculation, but the government has argued for enhancements to increase the sentence. Libby's team agrees with the Probation Office's recommendation that the Judge depart downward based on three grounds: Libby's history of public service; the collateral consequences on his career from the conviction; and, the criminal conduct represents aberrant behavior unlikely to be repeated. Based on these grounds, the defense seeks the sentence of probation.
What will the sentence be? Jeralyn Merritt from TalkLeft guesses (here) that the sentence will be the Martha Stewart double-nickel: five months imprisonment and five months home confinement. Professor Doug Berman of the Sentencing Law & Policy blog (here) hedges his bet on the sentence by guessing a range of "something between 1-2 years" -- that would cover a departure in either direction. If those interested are in a sporting mood, a better approach is to wager on the over/under. I would put that line for over/under at a sentence of one-year-and-one-day, a particular favorite in white collar crime cases. The extra day means that the prisoner is eligible for the 15% good time credit under the Bureau of Prisons rules, so the actual sentence is a bit over ten months. Moreover, the last portion can be served in a half-way house, so the time in an FCI is more like 8+ months.
I peg my own guess at a year-and-a-day because that means the Judge could depart a bit from the Guidelines range, per Probation's suggestion, and still impose a substantial prison term. Given that Judge Walton was not always pleased with the defense during the trial, I suspect he might not cut as much slack as he would otherwise. After imposing the sentence, I also suspect the Judge will allow Libby to remain free on bail pending appeal. Despite the statutory presumption that a convicted defendant goes to jail after sentencing, the trend in white collar crime cases has been to allow the defendant to remain free while pursuing the appeal, and there are certainly legal questions in the case that are sufficiently close to justify permitting Libby to remain out on bail. (ph)
May 26, 2007
Fitzgerald Asks for Up to Three Years for Libby
Special Counsel Patrick Fitzgerald has asked U.S. District Judge Reggie Walton to impose a sentence of 30 to 37 months on I. Lewis Libby, the former chief of staff to Vice-President Dick Cheney who was convicted on perjury, false statement, and obstruction charges. The range is based on the Federal Sentencing Guidelines, which the Judge is likely to use in calculating the prison term. The government's Sentencing Memorandum (available below) takes issue with letters submitted by supporters of Libby arguing that the punishment should not include a prison term because of his public service and the fact that this was a politically-motivated prosecution. On the issue of the propriety of a perjury prosecution when there are no charges on the underlying conduct, the Special Counsel writes:
[T]he suggestion that there is something unusual or inappropriate about pursuing a prosecution for a crime of obstruction where the underlying crime is not prosecuted is a red herring (and oddly suggests that Mr. Libby’s prosecution would not have been “wrongful” if only the government had brought more charges against him or others). Such perjury prosecutions are hardly unusual; indeed, as the Supreme Court noted in Mandujano. Our system of justice would break down if witnesses were allowed to lie with impunity. This is especially true where the lies at issue succeeded in preventing the investigators from determining with confidence what had occurred.
No word yet on what sentence Libby's lawyers will argue for, but there's no doubt it will be much lower, perhaps even a request for probation or home confinement. Sentencing is set for June 5, 2007. (ph)
April 14, 2007
Libby Abjures a New Trial Request
An AP story (here) discusses a filing by I. Lewis Libby in which he dropped his request to the district court for a new trial and instead will pursue an appeal of the conviction in the D.C. Circuit. New trial requests are usually coupled with a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29, but a defendant need not make that request to the trial court and can pursue a reversal of the conviction in the appellate court. I suspect Libby's lawyers determined that their Rule 29 acquittal motion is unlikely to succeed, and a new trial motion (which is made pursuant to Rule 33) was just as unlikely, and so need not be pursued at this time. With sentencing set for June 5, the next issue will be whether U.S. District Judge Reggie Walton permits Libby to remain free on bail pending appeal.
Under 18 U.S.C. Sec. 3143(b)(1), the statutory presumption is that the defendant begins serving the sentence unless there is a determination that the person is not a flight risk and the appeal "raises a substantial question of law or fact" that would result in an acquittal or new trial. The recent pattern in high-profile white collar crime cases has been for defendants to remain free on bail pending appeal, which was the case with Bernie Ebbers of WorldCom and John Rigas of Adelphia Communications. But it is not universal, as former Enron CEO Jeffrey Skilling is in an FCI in Minnesota while his lawyers pursue the appeal in the Fifth Circuit. I suspect Libby will be granted bail during the appeal rather than sent to jail shortly after the sentencing, but there are no guarantees. (ph)
March 11, 2007
Libby Juror Writes Opinion Piece
Jurors often talk after a trial, but it is not often that a juror writes an opinion piece for the Washington Post. But perhaps it is not so strange considering that the juror is Denis Collins, a former reporter for the Washington Post. Collins is listed in the piece as being the author of a book titled - Nora's Army. The piece does not mention a second book by Collins, which is - Spying the Secret History of History.
March 09, 2007
Was the Libby Conviction Fair or Unfair?
Professor Stuart Green, the L.B. Porterie Professor of Law at Louisiana State University, has published an interesting op-ed analyzing whether the conviction of I. Lewis Libby was fair. Professor Green is a leading cirminal law theorist, and his recent book, Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime, provides a systematic analysis of a range of criminal offenses, including perjury and obstruction of justice, that is well worth reading. He writes that to judge whether a prosecution like the Libby case is proper, three factors should be considered: first, the seriousness of the conduct being covered up; second, the legitimacy of the government's investigation into the underlying conduct; and, third, the significance of the cover-up itself. Professor Green argues:
In the Libby case, the answers to these questions now seem fairly clear. With respect to the first factor, being part of a scheme to leak classified information about the identity of a CIA covert operative in a time of war undoubtedly qualifies as serious. (Granted, there is controversy over whether the leak really was illegal, but it was serious enough to warrant appointment of a special prosecutor.) As for the second factor, compared to Kenneth Starr's Whitewater fishing expedition, Libby special prosecutor Patrick Fitzgerald's investigation seems to have focused fairly narrowly on finding the source of the leak.
It is the third factor, though, that is likely to be the most significant in assessing the propriety of the Libby conviction, as well as the other cover-up prosecutions. Libby's lie to the grand jury was harmful because it made it more difficult, perhaps impossible, to know the facts of the underlying leak case. As Fitzgerald himself stressed in his closing argument, Libby "threw sand in the eyes of the grand jury."
The op-ed is available from the Philadelphia Inquirer (here). (ph)
March 07, 2007
The Growing Libby Pardon Debate
The ink on the jury's verdict in the I. Lewis Libby prosecution was hardly dry before the issue of whether President Bush should issue a pardon came to the forefront. The Wall Street Journal's print edition for March 7 has only two news stories on the Libby case, one primarily devoted to the pardon issue and another on the lesson to be taken from the trial about asserting the Fifth Amendment rather than testifying or speaking with investigators. There was hardly any direct coverage of the verdict of the type seen in other major newspapers like the Washington Post or New York Times. Interestingly, the Journal has as many editorials calling for the issuance of a pardon, one called "The Libby Travesty" and the other an op-ed by Professor Ronald Rotunda arguing "The Case for a Libby Pardon." Professor Rotunda writes, "Among the unhappy precedents if the Libby verdict stands: Executive branch officials will hide from the press, which is unfortunate because "leaks" can be an important check on all three branches of government. And even innocent officials will not be forthcoming when it comes to cooperation with future prosecutors. ('I don't recall . . .') Perhaps the worst precedent would be normalizing the criminalization of policy differences. Many of those who loudly demanded Mr. Fitzgerald's appointment -- and who applauded yesterday's verdict -- offered no more compelling reason than that somebody should pay for the Bush administration's decision to go to war in Iraq." It is interesting that the Journal's coverage seems to be so heavily slanted toward the pardon issue, at least in the print edition, and I suspect the editorials were written well in advance of the jury's verdict.
The usual procedure for a pardon is to file a request through the Department of Justice's Office of the Pardon Attorney. Under the Rules Governing Petitions for Executive Clemency § 1.2, "No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release." Under this provision, Libby would not be eligible to go through the DOJ's normal pardon process at this point because he hasn't even been sentenced, much less served any punishment imposed for the conviction (assuming it is upheld).
Of course, Libby is not limited to the Pardon Attorney process, and the Rules note that they are only an internal procedure and do not "restrict the authority granted to the President under Article II, Section 2 of the Constitution." Presidents have granted pardons outside the normal channels, particularly in cases involving senior officials such as those involved in the Iran-Contra affair pardoned in 1993. President Clinton's pardon of Marc Rich in 2001, which was also outside the usual DOJ procedure, even triggered a brief grand jury investigation regarding whether it was obtained improperly.
One of the benefits of using the Department of Justice to vet an application is that it provides a President with some cover because the decision to grant (or deny) a pardon is done by an objective review procedure. For President Bush to pardon Libby, it will require him to take full, direct responsibility for a decision that will be made outside the normal process. To this point, the Administration has granted a relatively small number of pardons, and all of those have been done through the Pardon Attorney procedure. An interesting question is whether a pardon at this point would serve Libby's interests so long as the appeal process for his conviction remains open. While Libby and his attorneys have proclaimed his innocence, would a pardon now be viewed as some type of acknowledgment that he is guilty of the crime and is simply spared any punishment? (ph)
March 06, 2007
What Happened to All the Secret Evidence at the Libby Trial
One of the issues that slowed the prosecution of I. Lewis Libby related to national security evidence that Libby sought to use at his trial. The procedures mandated by the Classified Information Procedures Act (CIPA) can be quite onerous, and just getting the necessary clearances for the defense lawyers can add months to a prosecution on top of the process of reviewing the documents, redacting certain classified information, and determining appropriate substitutions and stipulations. Having fought through the CIPA issues, U.S. District Judge Reggie Walton was rather peeved when Libby's counsel announced that his client would not testify but still wanted to introduce the evidence to establish the lack of memory -- or better, the distracted public servant -- defense. As discussed in an earlier post (here), the Judge said he agreed to allow the evidence to come in on the understanding that Libby would testify, and without him testifying, he would exclude the classified information.
I expect the decision to exclude evidence that related to a key component of the defense because Libby chose not to testify will be a major issue on appeal. The defense is likely to argue that Libby's due process right to present a defense was undermined by Judge Walton's decision to condition admission on testifying, putting Libby in the position of being forced to waive his Fifth Amendment right if he wanted to introduce evidence to show how distracted he was at the time of the conversations with various reporters. The Supreme Court acknowledges the defendant's right to offer a defense, but it is not an unconditional right and trials are still subject to the rules of evidence. In Holmes v. South Carolina, 547 U.S. 319 (2006), the Court stated, "While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury."
The fight on appeal will be whether Judge Walton's decision was "disproportionate to the ends that they are asserted to promote," and whether the court made Libby's decision not to testify too costly. Unlike ordinary evidentiary rulings, for which judges have wide discretion, the presence of core due process and Fifth Amendment rights will make this a bit closer question. The odds of Libby, like any convicted defendant, of winning on appeal are not very high, and the high-profile nature of the case made Judge Walton tread especially carefully because an appeal is inevitable after a conviction in a case of this type. The issue is close enough, however, that predicting how the D.C. Circuit will rule is hazardous. (ph)
Initial Thoughts on Libby Verdict
I. Lewis "Scooter" Libby was convicted of 4 of 5 counts. After 10 days of deliberation, an 11 person jury returned with convictions of obstruction of justice, false statements and perjury. Libby was found not guilty of one count of false statements. Some thoughts:
1. This is clearly a victory for the CIA. The government will prosecute individuals because of a leak of classified information, no matter how high up the individual is within the administration. (Thanks to the commenter below -- Libby was not prosecuting for leaking classified information, and no one was actually charged with leaking classified information. But it does show the government was willing to investigate based upon the leaking of information).
2. The investigation and prosecution of crimes needs to be non-political so that prosecutions such as this can continue. The recent "firings" of U.S. Attorneys causes some concern here.
3. Sentencing is set for June 5th. Obstruction of Justice comes under 2J1.2 of the US Sentencing Guidelines and has a base level of 14. Perjury is under 2J1.3 and also has a base level of 14. Check out Professor Doug Berman's Sentencing Blog for some of the forthcoming sentencing issues. I keep wondering if the prosecution might say that Libby had a "special skill" and try to increase the sentence for this - 3B1.3 states that "[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense..."
4. Martha Stewart now has company in the obstruction of justice club.
5. Obviously he was allowed to be free pending the sentencing. Many defendants are not given this opportunity, but rather are incarcerated immediately upon conviction. Clearly, people do not consider Scooter Libby as a threat that he needs to be incarcerated immediately.
6. President Bush should be pleased that this prosecution moved slowly and did not occur prior to his re-election.
7. Did the executive have an "effective program" to keep crimes from occurring within its midst? Did they operate with "due diligence" to make certain that confidential information was kept secret? If these rules apply to organizations under a respondeat superior rule, should they also apply to the executive?
Libby - Guilty
Libby - Guilty on 4 or 5 counts. More to follow. Indictment is here.
March 04, 2007
Libby Case- What is Reasonable Doubt?
TalkLeft has a copy here of the latest notes sent out by jurors in the Libby case. So what is reasonable doubt? Defining reasonable doubt has been a subject of some controversy. It will be interesting to see the court's response. It will be more interesting to see if the jury is able to reach a decision.
March 01, 2007
The Libby Jury's Emily Litella Moment
The jury considering the charges against I. Lewis Libby has been remarkably quiet since receiving the case on February 21, initially asking only for some office supplies and pictures of witnesses. Aside from the dismissal of a juror for contact with media reports about the trial, not much has emerged about the pace of the deliberations, and even when they asked a puzzling question they took it back the next morning. A note from the jurors (here thanks to TalkLeft) asked about the meaning of Count 3 of the indictment, charging Libby with making a false statement to the FBI about his conversation with Time reporter Matthew Cooper. Another note (here), sent before U.S. District Judge Reggie Walton could answer the question, came out saying that "we are clear on what we need to do. No further clarification needed. Thank you. We apologize." This may be among the most courteous juries around. It's not clear where they are in the deliberations, unless one assumes they began with Count 1 and so are at least through the first two, which may not be the case at all. The jury watch continues, second only to watching paint dry on the courthouse walls. (ph)
February 27, 2007
No News in Libby Case
The jury continued to deliberate today, with no clue as to whether they will be able to reach a verdict in this case. The press describes every move here (San Diego.Com - AP)
February 26, 2007
Juror Dismissed from Libby Trial
U.S. District Judge Reggie Walton dismissed a juror from the I. Lewis Libby case because she was exposed to information about the prosecution during the weekend break. Jurors are routinely instructed not to look at any media reports about a case or discuss it with anyone, an admonition particularly important during the deliberations. According to an AP story (here), Judge Walton decided not to call on one of the two remaining alternate jurors to join the deliberations because that would require the jury to restart the consideration of the case from the beginning. Instead, the court relied on its discretionary authority under Federal Rule of Criminal Procedure 23(b), which provides that "a jury of fewer than 12 persons may return a verdict if the court finds it necessary to excuse a juror for good cause after the trial begins." The D.C. Circuit recognizes that judges have significant discretion in deciding what is "good cause" for the dismissal and the decision to proceed with eleven jurors (see United States v. Harrington, 108 F.3d 1460 (D.C. 1997) ("Rule 23(b) explicitly and without reservation assigns the stop/go decision to the discretion of the trial court, and nothing in the accompanying Advisory Committee notes, or in any case of which we are aware, cabins this discretion in a way that would call this judge's decision into question."). The judge's decision may indicate that the jurors are close to a verdict, but that is not necessarily the case for the decision to go with an eleven-person jury, and only time will tell how far the jurors had gotten. While Libby could object to the use of an eleven-person jury, it is very difficult to win an appeal on this issue if he is convicted. (ph)
February 20, 2007
Libby Case To The Jury Today
The trial of I. "Scooter" Libby will reach the jury today with instructions being given to them this morning. The final arguments, described in the Washington Post here, have the jury deciding if Libby deliberately told a "dumb lie" or whether he was just a hardworking employee. Perhaps a subsidiary issue that the jury may turn to will be whether this alleged lie warrants a criminal conviction. Check out Neil Lewis descriptive article in the N.Y.Times highlighting key points made by the parties in their closing arguments.
February 19, 2007
Who Really Deserves to Be Indicted in the Libby Case?
An opinion piece in the Washington Post by Victoria Toensing, a former deputy assistant attorney general in the Reagan administration and now a Washington lawyer, provides a long list of "possible" indictments resulting from the circumstances surrounding the Libby trial. It includes everyone from the prosecutor J. Patrick Fitzgerald, the CIA, to the DOJ. It is the kind of article that makes one wonder whether we really do need to reexamine the wide breadth of prosecutorial power given individuals who have the ability to ruin people's lives, put people in jail, and also decide who will walk free.
February 18, 2007
This Week in Libbyville
The case of I. "Scooter" Libby is likely to head to the jury this coming week with closing arguments set for Tuesday. The Washington Post has an interesting piece titled, "Almost Everyone Lies, Often Seeing it as a Kindness." The article speaks with Robert Feldman, "a social psychologist at the University of Massachusetts, who studies lying in everyday life." I guess I keep wondering what Martha Stewart would say about all of this.
Talkleft here has Libby's Revised Proposed Theory of the Defense Instruction. And the government has filed an objection to this Instruction and proposed its own final jury instructions. (see here from TalkLeft).
Instructions can be important in a case. Most juries try to follow the law and the instructions provide them with the applicable law to follow. Many instructions are difficult for a jury to follow, as the legal language can be problematic, especially for those without a legal background. Instructions can also be crucial if there is a conviction, as this is an avenue that can be used to present issues for review in the appellate court. For example, the Arthur Andersen case was reversed premised on an instruction given in the trial court.
February 15, 2007
Libby Trial Ends With a Whimper
The big finale of the trial of I. Lewis Libby was something of a dud, with neither Libby nor Vice-President Cheney called to testify. Indeed, the last day involved no new witnesses, and Special Counsel Patrick FItzgerald did not even put on a rebuttal case, apparently unconcerned about not having the last word in the evidentiary phase of the trial. The end was not without some legal controversy, however, as U.S. District Judge Reggie Walton refused to permit the defense to introduce various items of classified information to butress Libby's claim that his focus in June and July 2003 was on matters of great national importance, and not little ol' Valerie Plame and her husband, Josephy Wilson.
Judge Walton came across, from the sound of the media reports (see CNN.com here), a bit peeved at the defense for claiming before trial that Libby would testify and needed the access to extensive classified information, and then declining to call him to testify but still seeking to introduce the evidence. The requirements for handling such information, under the Classified Information Procedures Act (CIPA), are quite complicated and appear to have occupied a significant amount of the judge's time and energy. By not testifying, Judge Walton determined that the information was irrelevant or inadmissible hearsay because only Libby could provide the context for the information. Judge Walton's position was clear when he said that "[i]f I get reversed on that one, maybe I need to hang up my spurs." The exclusion of evidence that a defendant claims is central to his defense is likely to be a significant issue if there is a conviction.
Professor Doug Berman of the estimable Sentencing Law & Policy blog raises an interesting question (here) about the defense's decision not to call Libby to testify after indicating repeatedly in pre-trial proceedings, particularly the CIPA hearings, that he would testify: did the lawyers intentionally mislead the court? As he notes, if Libby were convicted, one possible enhancement under the now-advisory Federal Sentencing Guidelines is obstruction of justice under Section 3C.1.1. If the defense lawyers misled Judge Walton, it could be a basis for an increased sentence under that provision. I suspect it's unlikely a judge can increase a defendant's sentence for exercising his Fifth Amendment right, but then, defendants are penalized all the time for just going to trial, so an increased sentence for invoking a constitutional right is nothing new.
General Douglas MacArthur once said that "old soldiers never die, they just fade away." The end of the Libby trial certainly has the feel of a proceeding just fading away. Closing arguments are set for Tuesday, February 20, and the case will likely go to the jury shortly thereafter. Then, the really boring part begins -- waiting for a verdict. (ph)
February 14, 2007
Libby to Keep Mum
I. Lewis Libby made it official in responding to a question by U.S. District Court Judge Reggie Walton that he decided against testifying in his perjury, obstruction, and false statements trial. While once almost a foregone conclusion that Libby would take the stand to offer his memory (or "dedicated but overworked public servant") defense, his lawyers have succeeded in getting at least some information before the jury about how busy he was during the relevant time. John Hannah, Libby's successor as Vice-President Cheney's national security adviser, testified that Libby was very forgetful -- what a surprise -- and that he dealt with a wide variety of pressing issues that could easily distract him. Earlier media witnesses testified that Libby did not tell them about Valerie Plame's status with the CIA, apparently to buttress the claim that he did not speak to anyone about her because he did not know her role (except for the forgotten information from Vice-President Cheney). Another potential witness who will not be called is the Vice-President, who may have done Libby harm regarding the focus on Joseph Wilson's charges against the Adminnistration. While the outlines of Libby's defense have been presented to the jury, an AP report (here) states that Judge Walton will not allow references to whether Libby considered the Niger trip of Wilson, Plame's husband, to be something of importance because only Libby can testify as to what was on his mind, and that won't be happening now.
The decision whether to testify, particularly in a white collar crime case, is always risky, and there is no template to tell a witness or defense counsel which is the better course. The list of cases in which a defendant testified and was convicted (e.g. Bernie Ebbers, Jeffrey Skilling) can be matched by those who did not and were acquitted (e.g. Richard Scrushy). The jury's verdict will be ascribed, at least in part, to this decision, so if there's a conviction the defense lawyer will be wrong either way, while an acquittal will be attributed to the prescience of the decision. (ph)
February 12, 2007
The Defense - Libby Trial
For details check out TalkLeft's Jerri Merritt blogging at the Huffington Post here discussing a description of testimony by David Sanger and Bob Woodward. At Firedoglake here you'll find reporting on testimony given by Glen Kessler and Bob Novak. The Wall Street Jrl article titled, "Woodward, Novak Say Libby Wasn't Leak," says it all. Probably what is the most amazing aspect here is how quickly the defense is moving. This many witnesses in a short period of time indicates very pointed questions focusing on specific areas.
What's Up in the Scooter Libby Trial This Week
With the prosecution resting in the I. Lewis "Scooter" Libby trial, the defense now has to decide what, if anything, it wishes to present. TalkLeft has linked the motions of this weekend, here and here , that speak to the government's desire to keep certain evidence from the jury. The evidence would be coming from Andrea Mitchell and the issue to a large extent relates to the reliability of the testimony, a key component of hearsay. But the real question for the next week is whether Libby will testify. If the case is strong it is likely that the defense will rest without his testimony. But, on the other hand, despite being told that an accused does not have testify, jurors want to hear what the witness has to say, and defense counsel often factors that into their decision. Stay tuned.