Tuesday, March 6, 2007

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?



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I was surprised to see the statement that "the government will prosecute individuals who leak classified information" in item #1. None of the 5 counts in the indictment is for the leaking of classified information. It appears that all 5 counts are based on what Libby said to investigators or the grand jury. Nobody has been accused of leaking classified information, and now that the investigation seems to have run its course, it does not appear that anyone ever will be.

Posted by: John H. | Mar 6, 2007 11:49:11 AM

I am suprised to see the statement "Nobody has been accused of leaking classified information" in the comment above. I would agree nobody has been legally charged; I believe there is evidence officials in the current administration shared information about Ms. Wilson's association with the CIA, learned through official channels, with members of news organizations. Mr. Fitzgerald stated he was 100% convinced Ms. Wilson's status was classified. I totally agree this case is over but have no trouble accusing the administration of a concerted effort to leak classified info for political purposes.

Posted by: andrew mcq | Mar 7, 2007 5:54:20 AM

Could somebody comment or blog on the issue of the materiality of Libby's grand jury testimony? At the time Libby gave it, the prosecutor knew that Armitage was the leaker, and presumably knew that the leak was not criminal. I blog on that here, with links to the indictment and other government filings.

More technically, if Libby wants to challenge materiality on those grounds, how would he do so? A motion to dismiss the indictment seems rather late.

Posted by: Eric Rasmusen | Mar 7, 2007 9:00:45 AM

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