Monday, June 24, 2013

The Wall Street Journal Takes Aim At Comey

by: Solomon L. Wisenberg

In what should be a surprise to no one, the Wall Street Journal editorial page today launched an attack on James Comey, President Obama's nominee to be the next FBI Director. The primary offenses? Comey's objection to the Bush Administration's illegal warrantless wiretapping and Comey's appointment of Patrick Fitzgerald as Special Counsel to investigate the Valerie Plame leak. The editorial is here. More commentary on this in the next few days.

Coming soon: Professor Podgor's analysis of the Second Circuit's opinion afffirming Raj Rajaratnam's conviction for insider trading violations.


June 24, 2013 in Current Affairs, Legal Ethics, Media, News, Plame Investigation, Prosecutions, Prosecutors, Statutes | Permalink | Comments (0) | TrackBack (0)

Thursday, March 20, 2008

Libby Disbarred

The District of Columbia Court of Appeals issued an order disbarring I "Scooter" Libby  from the practice of law in the District of Columbia.  The Order can be found here.


March 20, 2008 in Judicial Opinions, Legal Ethics, News, Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2007

Rove, Cheney, & Others Win Another Round One in Plame Matter

With the Libby commutation in hand, and no charges filed against any leakers in the Plame matter, the only remaining sign of the case was the civil action brought by Plame against several administration officials. And that too is now history as a result of the immunity provided to government officials.  The court dismissed Plame's lawsuit, noting its lack of jurisdiction. (See Washington Post)

So let me see if I understand the final results here. A prosecutor investigated the leak and indicted a senior level official on after-the-fact charges.  A jury convicted this individual, but the President commuted his sentence. Thus, the criminal process failed to ascertain who was responsible for the leak and the executive didn't seem to care.

And so the aggrieved party tried the civil process, but found that the executive has immunity.

And the executive is claiming executive privilege for certain former executive level employees who were called before Congress to testify about "firings" of US Attorneys.

I keep wondering how Alexis de Tocqueville  would have written this chapter in his book "Democracy in America."


July 19, 2007 in Plame Investigation | Permalink | Comments (3) | TrackBack (0)

Friday, 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)

July 6, 2007 in Plame Investigation | Permalink | Comments (1) | TrackBack (0)

Thursday, 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)

July 5, 2007 in Plame Investigation | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 3, 2007

"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)


July 3, 2007 in Plame Investigation | Permalink | Comments (1) | TrackBack (0)

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. 


July 3, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (2)

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 3, 2007 in Plame Investigation | Permalink | Comments (3) | TrackBack (1)

Monday, 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.”


July 2, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

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 -

Download us_v_libby_special_counsel_statement_july_2_2007.pdf

Stay tuned for Commentary.(esp)

July 2, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

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.


July 2, 2007 in Plame Investigation | Permalink | Comments (2) | TrackBack (0)

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)

July 2, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Sunday, June 24, 2007

Libby Bail Hearing Gets "Conservative" Judges

According to a post on the Libby Legal Defense Trust website (referencing an AP story on, the issue of an appellate bond for convicted I. "Scooter" Libby will be decided by appellate "Judges David B. Sentelle, Karen Lecraft Henderson and David Tatel."  Two were appointed by Republican Presidents and one by Clinton. Hon. David B. Sentelle was crucial in the appointment of Kenneth Starr.  Hon. Sentelle was also one of two judges (along w/ Hon. D.H. Ginsburg) that voted to reverse the conviction in the case of United States v. Poindexter, 951 F.2d 369 (D.C. 1991), a case dissented to by Judge Mikva.  But as noted by, Hon Reggie Walton, who was appointed by President Bush, refused to grant an appellate bond. Key to this decision will be whether Libby can show that his appellate issues raise a "substantial question of law or fact" that might result in an eventual reversal of the conviction.


June 24, 2007 in Plame Investigation | Permalink | Comments (1) | TrackBack (0)

Friday, June 15, 2007

Libby Denied Bail Pending Appeal -- On to the D.C. Circuit

Not to anyone's great surprise, U.S. District Judge Reggie Walton rejected the request by I. Lewis Libby for bail pending appeal of his conviction on perjury, false statement, and obstruction of justice charges.  The Judge sentenced Libby to a thirty-month term of imprisonment on June 5, and invited both sides to submit briefs on the issue of whether to grant him bail while he appeals to the D.C. Circuit Court of Appeals.  In addition, a brief submitted by a group of law professors argued that the issue of Special Counsel Patrick Fitzgerald's constitutional authority was sufficiently close to warrant a grant of bail under 18 U.S.C. Sec. 3143(b)(1)(B).  While the general presumption is that the defendant begin serving the sentence while appealing, bail can be granted if, inter alia, the court finds that an issue "raises a substantial question of law or fact" that would result in reversal of the conviction.  In denying the defense request, Judge Walton determined that there were no "substantial" questions likely to result in reversal, and he was not overly impressed with the contribution of the law professors.

Under Federal Rule of Appellate Procedure 9, however, the district court is just a way station on this issue, not the final word.  Rule 9(b) (available here) allows a defendant to obtain a fairly quick review of a district court order denying release pending appeal by filing a notice of appeal or filing a motion with the circuit court, at which point the procedures of Rule 9(a) kick in.  That provision provides: "After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed."  The bail request is rarely the subject of oral argument, and the court of appeals or even a single judge on the court can order the defendant's release pending the disposition of the substantive appeal (see Rule 9(a)(3)).  This procedure means that a decision on whether to grant Libby bail could come quickly, before he is due to report to the Bureau of Prisons and well in advance of the filing of full briefs challenging the conviction.  Even if he is denied bail at this point and begins serving his sentence, the D.C. Circuit could order his release after the oral argument if it determines that there's a likelihood of reversal, which happened to defendants in the Enron Nigerian Barge prosecution.

The process is more of a summary one in which the court of appeals makes a preliminary assessment of the issues in deciding whether to allow a defendant to remain free until the conclusion of the appeal.  Rule 9 gives Libby at least one more bite at securing his freedom while the appeal is pending, and if granted by the D.C. Circuit he is likely to remain free for upwards of another year or so while his appeal wends its way through the appellate process.  Given the close proximity of the District and Circuit Courts in the District of Columbia, it's really just a short hop to seeking another hearing on the issue. (ph)

June 15, 2007 in Plame Investigation, Sentencing | Permalink | Comments (1) | TrackBack (1)

Tuesday, June 12, 2007

Libby Facing Strong Prosecutorial Arguments Against Bond

The Wall Street Jrl reports on the position of  Prosecutor J. Patrick Fitzgerald on whether Libby should be allowed to remain free pending appeal.  The article is titled, "Prosecutor Pushes Libby Sentence."  No surprises here.


June 12, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Friday, June 8, 2007

Did the Prosecutor Have Jurisdiction in the Libby Case

With a 2 1/2 year sentence issued to I. "Scooter" Libby, it is not surprising to see people examining every aspect of this case. According to the New York Sun here, a group of "scholars," that includes Professors Alan Dershowitz (Harvard), Randy Barnett (Georgetown) and others, have filed an amicus brief challenging the prosecutor's jurisdiction to hear this case. Although it seems that their brief is not directed to the bail issue, it could significantly affect this decision.  If the defense can demonstrate a significant issue for appeal, a court is more likely to grant bail pending the appellate process.  Even if Judge Walton should deny bail, this issue and the expertise of this group of "scholars" could significantly influence an appellate tribunal in providing an order to release the defendant pending the appeal.


Howard Bashman at How Appealing has a copy of the order here allowing them to file the brief.  Check out the footnote.

June 8, 2007 in Plame Investigation | Permalink | Comments (1) | TrackBack (1)

Libby Seeks Bail Pending Appeal

I. Lewis Libby's defense team filed its brief with the District Court seeking bail while he appeals his conviction to the D.C. Circuit and, if he fails there, most likely to the Supreme Court -- assuming there's no pardon, which is a different issue altogether.  The brief (here, courtesy of TalkLeft), argues that there are questions about the conviction that are sufficiently close to permit U.S. District Judge Reggie Walton to find that the case meets the standard in 18 U.S.C. Sec. 3143.  The first step is a determination that the defendant poses no danger to the community and is not a flight risk, both of which are not disputed.  The more difficult issue is whether the legal issues Libby plans to raise on appeal meet the requirement of Sec. 3143(b)(1) that "the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial."  While judges are unlikely to second-guess themselves, many will permit bail if there are questions at least sufficiently close that reversal by an appellate court is a reasonable possibility, even if not likely.  White collar crime cases tend to have such issues, but while it may be more likely these days that defendants in such cases are allowed to remain free, it is certainly not universal, as former Enron CEO Jeffrey Skilling can attest from an FCI in Minnesota.

Libby's brief identifies issues regarding the constitutional authority of Special Counsel Patrick Fitzgerald, the exclusion of an expert on memory to testify about Libby's inability to recall conversations about former CIA operative Valerie Plame, Classified Information Procedures Act (CIPA) decisions, and the exclusion of certain classified evidence because Libby chose not to testify.  The constitutional issue is anyone's guess because Fitzgerald's appointment was unique in the post-Independent Counsel world.  The CIPA and evidentiary issues could result in a reversal, although these are the types of decisions appellate courts usually do not disturb on legal grounds or because the error is harmless.  That said, the issues look to be of sufficient weight that the D.C. Circuit could reverse the conviction, so bail pending appeal is at least a possibility.  As co-blogger Ellen Podgor discussed in an earlier post (here), even if Judge Walton turns down the defense request it can be renewed with the court of appeals, which may take a different view of the case. (ph)

June 8, 2007 in Plame Investigation | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 6, 2007

Commentary on Libby Sentencing

Receiving a straight guidelines sentence -- and one on the stiff side -- lets the administration feel the full effect of the guidelines sentences they created.  Some thoughts:

1. Convicted defendants who maintain their innocence are placed in a no-win situation when appearing for sentencing.  If they say anything, like for example express remorse, they can significantly hurt their chances on appeal. Judges are liable to shave months off a sentence for acceptance of responsibility.  But the individual who is convicted and still maintains his or her innocence is left in a situation of selecting whether to try and reduce his or her sentence, or risk the chance of success on appeal. And when the sentence is relatively low, taking a chance on the appeal may be better. Libby was respectful to the court, but he certainly did not express remorse, thus maintaining a stronger case for his appeal or possibly for a retrial.

2. Whether the judge will allow Libby to remain free on bail pending appeal is not as definitive as many people believe.  It is true that many white collar offenders do remain free pending appeal, but not all are this fortunate (e.g.,Atlanta Mayor Bill Campbell, Jeffrey Skilling, Jamie Olis). If Judge Walton decides to incarcerate Libby immediately, Libby may appeal to a higher court and ask for a stay pending the appeal.

3.  If Libby is ordered to jail, the question may be whether he is taken on the spot or allowed to report directly to an assigned facility.  There is a benefit to being allowed to report to a facility in that the individual will not be subjected to various prison facilities as they are transferred to their final destination.

4. The administration may be placed in a situation of making a quick decision on whether to pardon Libby or allow him first to serve his sentence.  The pardon would be in sharp contrast to other pardons issued by President Bush.  His past pardons have not been for individuals who were recently sentenced.

5. And then of course there is always the possibility - in criminal cases - of the newly sentenced individual deciding to cooperate with the government.  Even if Libby did have something to offer the government, it may not prove useful as a conviction for perjury and false statements would not make him a particularly credible witness in court.

Checkout - Doug Berman's Sentencing Blog here, discussing upcoming Supreme Court case that could prove helpful to Libby.


June 6, 2007 in Plame Investigation, Sentencing | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 5, 2007

Libby Gets 30 Months

Online press is reporting that I "Scooter" Libby was sentenced today to 2 1/2 years in prison. (e.g.,; WSJ, CNN, NYTimes) He was convicted of perjury, false statements, and obstruction of justice. The government asked for 30-37 months, with the defense asking for no jail time. This sends a strong message of deterrence that crimes with national security implications will not be tolerated. J. Patrick Fitzgerald wins yet another round of this trial in obtaining a sentence in the range that he requested. This is particularly significant in that according to the Washington Post, the probation department asked for approximately one half of the sentence issued by the court. (see here)

The WSJ notes that the court did not rule on whether Libby would remain free pending appeal. Many assume that this will be automatic, as it tends to be in many white collar cases.  But this is not always the case.  Former Mayor Bill Campbell of Atlanta was ordered directly to prison and not allowed to remain free pending his appeal.(see here)

But it is also important to remember that this case is not over yet.  There are several appellate issues that Libby is likely to raise in the next round. The inadmissibility of evidence that he wished to present will most likely be at the core of these arguments. (see WSJ here). 


June 5, 2007 in Plame Investigation, Sentencing | Permalink | Comments (0) | TrackBack (0)

Saturday, June 2, 2007

The Forthcoming Libby Sentencing

I "Scooter" Libby is set to be sentenced Tuesday for the crimes of obstruction of justice, false statements, and perjury.  The predictions are certainly the focus of much commentary (e.g., here, here, and here).  But with many looking at the numbers, it is important to recognize that this sentencing presents an opportunity for a judge to look beyond numbers and sentence the individual. The defense sentencing memorandum spends the first 23 pages of the 33 page document focusing on the individual.  Only after this part of the memo do we see discussion of the guidelines and the applicable law. Now there is a separate motion in opposition to the government's memo, but it is clear that the defense will be calling for the judge to sentence the individual, not individual "x" who has been convicted of committing certain crimes. The government will, as usual, likely be asking for the court to follow the strict numerical calculations of the guidelines.

In 116 Yale L.J. Pocket Part 279 (2007), I wrote, "The bottom line is that we need to return to individualizing the sentencing process because we do not sentence numbers - we sentence people.  If we really believe that the time should fit the crime, then we need to start realizing that not all crimes and not all criminals are alike." 

Whether this approach gives Libby a longer or shorter sentence is subject to debate.  But the interesting question will be whether the judge wants to be a part of this debate, or merely plug in numbers and sentence the next defendant in the courtroom.


P.S. - Check out Professor Doug Berman's analysis on the Sentencing Law and Policy Blog here.

June 2, 2007 in Plame Investigation, Sentencing | Permalink | Comments (0) | TrackBack (0)