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"Neither Prison Nor Pardon":

Former federal prosecutor William Otis has an interesting op-ed in the Washington Post today suggesting that President Bush should consider commuting Scooter Libby's jail term instead of pardoning him. I found it fairly convincing. It begins:

Scooter Libby should not be pardoned. But his punishment — 30 months in prison, two years' probation and a $250,000 fine — is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.

There is a legal principle at stake in this case greater than either Libby or the politics of the moment. It is a fundamental rule of law that the grand jury is entitled to every man's evidence. The grand jury cannot survive as the essential truth-finding tool it is if witnesses can lie with impunity. True, Libby committed a "process crime" — that is, so far as has been established in court or even alleged by the prosecutor, he committed no crime until after the government initiated its investigation of the underlying act (namely, the revelation of Valerie Plame's CIA employment). But for obvious reasons it is not for grand jury witnesses to determine when an investigation is legitimate. As the Supreme Court has noted, there are many ways to challenge questions one believes the government should not be asking, but "lying is not one of them."

I agree with Orin below that perjury and obstruction of justice are very serious crimes, particularly when committed by a high-level government official. I did not follow the trial closely enough to have a judgment on Libby's guilt, but he was convicted by a jury of his peers. Absent strong evidence he is truly innocent of the crimes for which he was committed, commutation seems more reasonable than a pardon. As Otis concludes:

To pardon Scooter Libby would not be consistent with the imperative that the mechanisms of law be able to demand, and receive, the truth. But to leave the sentence undisturbed would be an injustice to a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal. Commutation offers a middle ground.

UPDATE: Edward Lazarus argues that, under the Federal Sentencing Guidelines, "Libby's 30-month sentence is justifiable, but that a more lenient outcome would also have been appropriate."

FURTHER UPDATE: Eric Muller thinks Otis' argument is "garbage" and hypocritical given Otis' defense of the sentencing guidelines (which, Muller notes, were followed in Libby's case). I readily confess that I probably know less about federal sentencing than either Muller or Otis has forgotten, but this also means I am not wedded to the idea (that Otis has apparently defended) that the federal guidelines produce fair and just outcomes.

Meanwhile, "X-Judge" Lee Sarokin has some "Interrogatories for Prosecutor Fitzgerald."

FINAL(?) UPDATE: Ed Morrissey thinks Judge Walton may have gone easy on Libby. There's also lots more here at Sentencing Law & Policy.

Anderson (mail) (www):
perjury and obstruction of justice are very serious crimes, particularly when committed by a high-level government official ... and therefore, Libby should get no jail time?

That is the worst thing I have ever read in a post on this blog.
6.7.2007 12:49pm
KevinQ (mail) (www):
And yet, I suspect that commutation would still leave upset the people who want him pardoned, as it leaves the conviction on Libby's record. Unless the suggestion is commutation now, pardon at the end of the term.

K
6.7.2007 12:50pm
Steve:
I understand the impulse to favor the "middle ground" approach, but we don't have a criminal justice system where we take the actual sentence, compare it to the sentence urged by the defendant's supporters, and work out some kind of compromise. Libby was sentenced according to fair procedures and, unless the appellate court finds some defect, there's no more justification to commute his sentence than anyone else's.

The fundamental problem here is that there's a non-trivial number of people, apparently including the defendant, who believe that what Libby did was no big deal. Indeed, many of them see it as a miscarriage of justice. Under those circumstances, it's particularly important for the justice system to send the message that those people are wrong, and that these were in fact serious crimes.
6.7.2007 12:57pm
M. Gross (mail):
Under those circumstances, it's particularly important for the justice system to send the message that those people are wrong, and that these were in fact serious crimes.

The Justice System? I was under the impression the pardon was entirely in the hands of George W. Bush.
6.7.2007 1:00pm
Alex 2005 (mail):
If the conservative commentators are so eager to pardon/commute Mr. Libby for his "not so serious offense" because the sentence is "harsh," I wonder if these same commentators will come out in full force to support commuting/pardoning low-level drug users who are sentenced to inexplicably long and harsh sentences?
6.7.2007 1:01pm
nunzio:
Maybe Bush should commute the sentence of everyone convicted of lying to the grand jury.

It would look horrible to just commmute Libby's sentence.
6.7.2007 1:02pm
uh clem (mail):
Given the millions of dollars that have flowed into his legal defense fund, a $250,000 fine without jail time is less than a slap on the wrist. A short phone call to someone like Richard Mellon Scaife will take care of that piddling amount in a heartbeat.

So in practice, what Otis is calling for is no punishment.
6.7.2007 1:08pm
Henry (mail):
I generally oppose prison sentences for non-violent criminals, because they cost $35,000 a year, break up families, and often include being raped. For high government officials, however, they are needed as a deterrent. A fine in this case surely wouldn't be a deterrent; even if, in the unlikely event that coming up with the money would be difficult for Libby, his political supporters would help him out.
6.7.2007 1:09pm
Richard Aubrey (mail):
We would certainly hate to have Bush descend to Clinton's level in pardoning low-lifes. But if he does pardon Libby, he won't be even close to his predecessor's efforts.
It's the question of who owns the gored ox, again.
Or the question of whether Libby did anything wrong. We had dueling recollections on trial and Fitz decided that Libby's was the one he wanted criminalized.
Pardons, like commutations, are designed in part to correct obvious miscarriages of justice. There's more room for that view here than in some other cases.
6.7.2007 1:13pm
badger (mail):
One thing that doesn't come up much in these dicussions of who should and shouldn't be pardoned is their relation to the President and the appearance of impropriety. There have been so many high-profile pardons (Nixon, Poindexter, Rostenkowski, etc.) that we lose sight of just how removed from consideration convicted administration officials should be from pardon consideration. Because Presidents have unitary discretion in who they give pardons to, Presidents should, except in the most serious of circumstances, never grant pardons where they have a conflict of interest. Pardoning a VP CoS who committed a clear violation of the law in possibly obstructing an ongoing investigation into the White House, couldn't possibly be a clearer conflict of interest. And the idea of simply "trimming around the edges" by taking away prison time and leaving the fines is almost worse, since it concedes the validity of the conviction but substitutes the President's partisan judgement for that of an impartial jurist. It is sick how so many have lost perspective on this matter.
6.7.2007 1:14pm
Anderson (mail) (www):
Fitz decided that Libby's was the one he wanted criminalized.

The Republican contempt for the jury system really is something that needs to be more widely publicized. Voters should know in what esteem they're held by the GOP.
6.7.2007 1:15pm
Atlantic06 (mail):
From a purely partisan position, I hope that Bush pardons Libby as quickly as possible -- I'd love to see the Republican candidates answer questions on that in future debates.
6.7.2007 1:21pm
whackjobbbb:
They already have, and most seem to favor a pardon.
6.7.2007 1:22pm
Dr. Scott (mail):
Commuting the sentence is a great idea. It immediately eliminates the injustice of a prison term, while preserving his ability to be completely cleared through an appeal. I'd commute most of the fine, as well. What fine did Sandy Berger end up paying? One-tenth of that would be about right...
6.7.2007 1:22pm
badger (mail):

We would certainly hate to have Bush descend to Clinton's level in pardoning low-lifes. But if he does pardon Libby, he won't be even close to his predecessor's efforts.

But what do you think of those who advocate descending to Clinton's level? Maybe I'm too young to remember, but I don't remember a groundswell of support among liberals and liberal opinion journals for pardoning Roger Clinton, the FALN guys, and Rostenkowski.
6.7.2007 1:24pm
Steve:
You know the old joke, Anderson. A conservative is a liberal who's been mugged, and a liberal is a conservative who's been indicted.

It saddens me that there's simply no pleasing these people. You had a Republican-appointed prosecutor in charge of the investigation, a guy universally respected, stellar reputation. Everything is done above board, you have a scrupulous investigation remarkably free from Starr-type leaks to the press. And still, they're willing to regard him as some runaway prosecutor, the equivalent of the Duke lacrosse guy. It seems like there is literally no system of justice they would regard as fair and unbiased when it's one of their own guys being targeted.
6.7.2007 1:25pm
GeoffBro (mail):
Jonathan,

Could you elaborate on your reasoning here? Otis seems, to me, to be arguing for commutation for two primary reasons:

1.) Libby did not commit the crime out of greed or malice, he is not a career criminal, and he is not a "danger to the community."
2.) Sandy Berger did not receive a similar sentence for a crime that is at least as severe.

As far as I can tell, these are the only bases for Otis's argument. (If Libby did commit a "process crime," Otis proceeds in the same paragraph to state - correctly, I believe - that this fact is irrelevant to sentencing.)

However, these seem to be terribly flawed rationales for either pardon or commutation. With respect to the first, sentences are not designed simply to punish greed or malice, or career criminals - although these elements may exacerbate a given case, they do not define them. (In Libby's case, 30 months is no where near the maximum possible sentence for these crimes, let alone the maximum recommended by the sentencing guidelines.) The same logic applies to the "danger to the community" approach; although that may be a good reason to extend a sentence, it is hardly a requirement to impose one.

Regarding the second reason, this too seems misguided. It seems like an argument that Berger's sentence is too low, not that Libby's is too high. (This leaves aside the fact that the real reason this comparison is made is because Berger represents of an administration loathed by Libby partisans.)

Given this reasoning, I fail to see any convincing rationale for commuting Libby's sentence. There are many, many other cases far more deserving of such consideration.
6.7.2007 1:26pm
whackjobbbb:
I'm not familiar with all this, but as I recall, Bill Clinton pled guilty to a similar crime the afternoon he was leaving office in 2001, and the penalty wasn't anything like 3 years in jail. Libby might be an idiot, but is that any reason to slap down so hard?

OT: G. Gordon Liddy was being interviewed yesterday, and he said while he was in jail, he used to counsel the other convicts that if called down to the warden's office, and only one person in the room... go ahead and enter freely. If more than one in there, don't go in, because anything from that point forward can lead to trouble for you. Libby shoulda taken that advice, rather than play games.
6.7.2007 1:27pm
Guest101:
If you truly believe that the outcome of Libby's sentencing process was unjust, why not favor broader-ranging reform of the sentencing system so as to avoid the same kinds of injustice that are imposed every day on federal criminal defendants who don't happen to have the connections or high profile necessary to cause the public to give a damn about the situation? Carving out a special exception for Libby won't do anything to mitigate the draconian federal sentencing scheme, but I don't see any high-profile Republicans bemoaning the fact that thousands of other criminal defendants are exposed to equally harsh sentencing rules, including sentencing enhancements on the basis of facts never alleged nor proved to a jury, every year in federal courts across the country. Funny how the law and order party's rhetoric suddenly changes when "getting tough on crime" affects one of their own.
6.7.2007 1:31pm
Steve:
as I recall, Bill Clinton pled guilty to a similar crime the afternoon he was leaving office in 2001, and the penalty wasn't anything like 3 years in jail.

Are you thinking of Clinton agreeing to give up his law license? Completely different thing.

It's true that if Libby had pleaded guilty, he may well have received a much lighter sentence. Instead, to this day, he continues to deny responsibility. It does make a difference.
6.7.2007 1:31pm
Observer (mail):
My only question is why you would bother citing Ed Lazarus for any purpose? If you recall, he violated his oath of confidentiality by publishing a tell-all tall tale about the Supreme Court following his clerkship there. How can you trust anything he would write?
6.7.2007 1:33pm
SAN (mail):
I do find it amusing about the whole "harshness" issue, since increasing your jail sentence for acquited conduct (or non-charged conduct) is very normal in the current justice system. If you think it is too harsh when applied to Libby, then it is too harsh when applied to others. Deal with the cause, not the effect.

As far as Bush pardons go, the problem is the US federal pardon system (and many if not most US states) is effectively dead and been dying for the last decade or two - Bush has just put the final stake in the heart. Do a crime when you are 18, live 50 years without any more legal problems, raise kids and grandkids and you still won't get a pardon in 99% of the cases. The next president needs to resurrect a system to allow those people convicted to get their sins absolved after some reasonable time if they have turned a new leaf.
6.7.2007 1:35pm
SDProsecutor:
Alex2005- Perhaps you can share with us one example of a 'low level drug user' getting an 'inexplicably long and harsh' sentence?

No? Not surprising. It's the 'inexplicably' part you're having trouble with, right? See that's what happens when the legislature enumerates crimes, and ranges of punishments for those crimes, and factors in things such as past criminal activity. So, the question for you is: do you think that anyone, government official or not, should get a 30 month sentence for a non-violent, non-financial crime, when meth dealers are getting three to six months? Surely you agree that meth ruins more people's lives than incarceration (which Henry tells us breaks up families). As Jonathan Adler would say: discuss.
6.7.2007 1:35pm
badger (mail):

What fine did Sandy Berger end up paying?

Cripes. There really is nothing that conservatives won't excuse by citing Sandy Berger, or Bill Jefferson, or, if they're really in trouble, Gerry Studds. Was Sandy Berger tried in a different legal system than Scooter Libby? Did he receive any undue leniency from conflicted government officials? No. He was prosecuted by a Republican Department of Justice and his judge even hit him with heavier fines than the prosecutors requested in the first place.

His sentence was lighter because he committed a different crime and because he entered into a plea agreement. Not because the Department of Justice and the federal judiciary are biased against conservatives and lenient towards Democrats.
6.7.2007 1:36pm
Sigivald (mail):
Alex: I'm sure the pro-legalization people at National Review would be happy to suggest that harsh sentences for drug possession be commuted. Both support for and criticism of the war on drugs are bipartisan, remember.

Steve: Perhaps "they" think he's a bit overboard because he brought up the IIPA at sentencing to get a harsher sentence despite having not only not addressed it in trial (since Libby was not charged with violating it!) but actively preventing it being brought up?

And because the entire conviction is based on Libby ... not correctly remembering when he said something to someone? If that suffices for perjury and obstruction of justice, we're all in deep water, aren't we? I'd be much happier with a conviction if there was strong evidence that this was more than memory failure and a prosecutor desperate to get someone.

Anderson: I think you'll find that juries aren't the ones who press charges and present cases. Fitzgerald is the one who gets to decide what he wants punished, though the jury can certainly decide not to.

And I notice you don't seem to think much of the calls from some of the jurors for a pardon, that I've heard of. Why might that be, if you don't have "contempt" for the jurors?

Might it be that neither you and them mean ol' Republicans actually have contempt for juries or this jury, but realise that the jury both 1) had evidence and context excluded from them and 2) didn't decide the sentence?

It's not showing contempt for a jury to overturn a conviction later on new evidence, or order a mistrial because important evidence was not presented. Suggesting, as some have, that a pardon be granted hardly seems more expressive of contempt, in a case where jury members have suggested it, no?

(Full disclosure: I don't care about pardoning Libby one way or another - I have neither proposed or supported it, nor would I be upset if it happened - but I've thought the entire "Plamegate" thing transparent nonsense from the start, and I stand by that wholeheartedly.

And I haven't seen any reason to believe that Libby did more than misremember something that he would have had no particular reason to note carefully at the time, in the face of an exaggeratedly hostile prosecution.)
6.7.2007 1:37pm
Tom952 (mail):
"...convicted by a jury of his peers."

We don't have peerage in the United States.
6.7.2007 1:40pm
A.S.:
Agree with Jonathan that perjury and obstruction are serious crimes, especially when committed by high government officials like Bill Clinton and Scooter Libby. But the disparate treatment of Clinton and Libby is disturbing. The appropriate thing to do is commute Libby's sentence so that Libby is punished the same as Clinton was punished.

Anybody who recommends that Libby's punishment exceed Clinton's punishment is an obvious partisan.
6.7.2007 1:43pm
badger (mail):

So, the question for you is: do you think that anyone, government official or not, should get a 30 month sentence for a non-violent, non-financial crime, when meth dealers are getting three to six months?

Do you think that the US Code should be changed to create a reduced sentencing system for people who derive no financial benefit from perjury or obstruction of justice? Did you believe that before you ever heard the name "Scooter Libby"? Do you believe that people should be sentenced according to the law that is or the law that should be?
6.7.2007 1:44pm
Respondent (mail):
Given Bush's policy of refusing to pardon anyone who hasn't yet completed his sentence, a lack of compassion unprecedented before the Reagan administration, a pardon here would be an exercise of serious ypocracy. No matter how compelling the case for a pardon here, it is absolutely implausible that there were no other equally compelling cases for a a pardon existent among the thousands of pardon applications President Bush has routinely turned down on grounds that the sentence had not yet been competely served.
6.7.2007 1:46pm
Anderson (mail) (www):
It's not showing contempt for a jury to overturn a conviction later on new evidence, or order a mistrial because important evidence was not presented.

And that applies to Libby how?

As for some jurors' suggestions about a pardon, when I say "jury," I mean "jury sitting as a jury." They're finders of fact; legal conclusions are not their job.
6.7.2007 1:48pm
A.S.:
Appears to me that the disparate treatment of Republicans and Democrats is much, much worse than the disparate treatment of crack and cocaine.

Republican government official commits perjury and obstruction: 30 months in prison and $250,000 fine.

Democrat government official commits perjury and obstruction: $25,000 fine.

There certainly appears to be a bias.
6.7.2007 1:51pm
Respondent (mail):
ypocracy--> hypocracy
Also, "thousands of pardon applications" should be "thousands of applications for a pardon or commutation", as approximately 5,000 commutation and 500 pardon requests have not been granted. (Hat tip- Doug Berman)
6.7.2007 1:53pm
Jonathan H. Adler (mail) (www):
GeoffBro --

I think the core of Otis' argument is that a 30 month jail term is disproportionate given the offense committed. Whether or not he has to pay for the fine out of his own pocket, the record of a conviction will almost certainly lead to Libby losing his law license and prevent future government service. This is not a trivial thing for someone in Libby's position. So, in my view, commutation of the prison sentence is not tantamount to an actual pardon. Given that, as I understand it, Fitzgerald never proved that an underlying offense was committed, commutation of the jail time would seem to me to be a just outcome.

JHA
6.7.2007 1:56pm
whackjobbbb:

Are you thinking of Clinton agreeing to give up his law license? Completely different thing.


How so, Steve? Both criminal cases, I believe but correct me if necessary... both having to do with testimony shenanigans of some sort... both guys with a "guilty" after their name. One guy gets 3 years... one guy gets much less. What gives?
6.7.2007 1:57pm
J. F. Thomas (mail):
Bill Clinton pled guilty to a similar crime the afternoon he was leaving office in 2001, and the penalty wasn't anything like 3 years in jail. Libby might be an idiot, but is that any reason to slap down so hard?

Well, the general way things work is if you admit wrongdoing and plead guilty, you are entitled to a lesser sentence. Libby has no one to blame but himself. He has adamantly refused to admit that he did anything wrong. Heck, Fitzgerald gave him ample opportunity to "correct" his story in front of the Grand Jury and escape the charges altogether. Yet he stubbornly refused to do so. Apparently, that is why Rove was not convicted even though he lied through his teeth the first couple times he testified. Fitzgerald apparently told Rove "we know you lied, would you like to come back and tell us how your memory was 'incorrect' the last time." Rove, not being the complete idiot Libby is, did the ignoble thing, and told the truth.
6.7.2007 2:08pm
J. F. Thomas (mail):
So, the question for you is: do you think that anyone, government official or not, should get a 30 month sentence for a non-violent, non-financial crime, when meth dealers are getting three to six months?

Where did you dig up this little factoid? I have a friend whose nephew (not a bad kid, just stupid, from a middle class family, just got in with the wrong crowd) got busted for dealing meth. He got seven years in federal prison, not three to six months.
6.7.2007 2:12pm
Steve:
Perhaps "they" think he's a bit overboard because he brought up the IIPA at sentencing to get a harsher sentence despite having not only not addressed it in trial (since Libby was not charged with violating it!) but actively preventing it being brought up?

But of course he brought it up at sentencing; a key issue in sentencing for obstruction of justice is how serious an investigation you obstructed. The judge fully addressed this at the sentencing hearing; the issue is the seriousness of the investigation at the time the obstruction occurred, not whether it turns out the underlying crime was committed.

And because the entire conviction is based on Libby ... not correctly remembering when he said something to someone?

Not at all. You don't seem very familiar with the facts of the case.

The issue is when Libby was told of Plame's employment with the CIA. In fact, he was told by sources within the government no later than June 12, 2003, as his own contemporaneous notes reveal. He then ran around for the next several days talking with people at the CIA and looking into this further. He went on to reveal the information to a reporter, Judy Miller, on two separate occasions, and to repeat it to Ari Fleischer at a lunch meeting, with Libby saying the subject was "hush hush" and "on the QT." Libby also had a phone conversation with his deputy in which he informed her that the information about Plame could not be spread publicly, and that he couldn't discuss it on a non-secure telephone line.

And what did Libby tell the grand jury? That the first time he heard about Plame was not as confidential information from within the government, but as a statement made to him by a reporter, Tim Russert, who supposedly already knew about it from someplace else. There's no dispute that this was false and that Libby knew the information well in advance of his conversation with Russert; the only issue is whether Libby simply misremembered.

So to believe Libby's story that he misrecollected who originally told him about Plame, you have to believe that he forgot about all the conversations with people in the CIA and the White House. You have to believe that he told Ari Fleischer the information was secret even though he had supposedly heard it from a reporter. You have to believe that he instructed his deputy that they couldn't reveal the information to the press, even though it was information he had gotten from the press.

This was far from a "he said, she said" case. As the judge said at sentencing, the evidence of guilt was frankly overwhelming.
6.7.2007 2:15pm
Steve:
Both criminal cases, I believe but correct me if necessary...

I thought I did correct you. Agreeing to give up your law license is part of a regulatory process with the State Bar. It has nothing to do with any sort of criminal proceeding.
6.7.2007 2:18pm
J. F. Thomas (mail):
I generally oppose prison sentences for non-violent criminals, because they cost $35,000 a year, break up families, and often include being raped.

His fine will more than pay for his incarceration. And I doubt the prison where he will spend his time (where he will be surrounded by people like Bernie Ebbers and Duke Cunningham) has much of a rape problem. Of course that argues for making prisons safer for all inmates, not an argument for not sending people to prison at all.
6.7.2007 2:19pm
Guest101:

Anybody who recommends that Libby's punishment exceed Clinton's punishment is an obvious partisan.

Anyone who makes that statement is both obviously partisan and obviously clueless. Can you remind me, please, at what point Bill Clinton was convicted of any crime in federal court? He paid a fine pursuant to a civil contempt citation in federal court; his Arkansas disbarment was also a civil proceeding. At no point was Clinton subject to the United States Sentencing Guidelines, nor was he ever convicted of a felony. So you're comparing apples and Oldsmobiles, as one of my law professors used to say. Obviously, there's nothing inappropriate about disparate outcomes between an individual who pays a fine pursuant to a civil contempt order, and a defendant who is convicted by a jury and sentenced subject to the federal Guidelines.
6.7.2007 2:19pm
Kevin! (mail):
Why are you Conservatives so gung-ho about saving Libby's ass?

This is a perfect place to take the moral high ground. If Libby swings, so to will every corrupt Democrat and Liberal convicted of any crime. Your press to throw the book at Clinton will be morally and legally consistent with how you treat convicted Republicans. YOU will be the true party of Rule of Law.

But if Libby walks? Now you're the same as Liberals that excused perjury and put Party before Law.

So again, what does Libby's freedom represent for you? Is it worth all that you're giving up?
6.7.2007 2:23pm
Kevin! (mail):
Why are you Conservatives so gung-ho about saving Libby's ass?

This is a perfect place to take the moral high ground. If Libby swings, you will have unimpeachable moral authority to press for the equal treatment of every corrupt Democrat and Liberal convicted of any crime. Your press to throw the book at Clinton will be morally and legally consistent with how you treat convicted Republicans. YOU will be the true party of Rule of Law.

But if Libby walks? Now you're the same as Liberals that excused perjury and put Party before Law.

So again, what does Libby's freedom represent for you? Is it worth all that you're giving up?
6.7.2007 2:23pm
tjvm:

a person who, though guilty in this instance, is not what most people would, or should, think of as a criminal.

I find this phrase very revealing. He's guilty of a crime, but he's not, you know, a criminal. Just look at him.

As others have noted, many of Mr. Scooter's supports are staunch "tough on crime" types. Implicitly, however, they assume that this toughness will be applied to, shall we say, certain sorts of people. When someone they identify with gets even a moderately severe sentence, they find it quite alarming.
6.7.2007 2:31pm
badger (mail):

"Given that, as I understand it, Fitzgerald never proved that an underlying offense was committed, commutation of the jail time would seem to me to be a just outcome. "

Obviously, Fitzgerald felt that federal law didn't require him to prove an underlying offense, and the jury, the judge, and (I expect) the appeals court agree with him. Are you saying he should have made his already fairly complicated case even more complicated just in case Scooter Libby was going to be held to a lower standard of law than the rest of us?
6.7.2007 2:32pm
Guest101:

Where did you dig up this little factoid? I have a friend whose nephew (not a bad kid, just stupid, from a middle class family, just got in with the wrong crowd) got busted for dealing meth. He got seven years in federal prison, not three to six months.

There is no way any meth dealer is getting six months from a federal court, unless the judge grants a very rare, steep departure from the guidelines that would almost certainly be reversed on appeal. I suspect that SDProsecutor was equivocating between state and federal sentencing outcomes.
6.7.2007 2:37pm
cameron King (mail):
What actually happened in this investigation? Press reports indicate that the special prosecutor knew fairly early in the investigation that Richard Armitage was the one who first revealed Valerie Plame's CIA connection. Regardless of statements he made recently, the only rational conclusion that can be drawn from the fact that Mr. Armitage was not charged is that Valerie Plame did not meet the statutory definition of a covert agent. That being the case, why did the investigation continue? Here, the only logical conclusion is that the investigation continued because the prosecutor had to "get" somebody to justify the millions he spent on this totally pointless investigation. Mr. Libby is the unfortunate victim who made statements that did not match exactly with those made by various reporters, and since reporters never get anything wrong, he must have been lying, and therefore guilty of perjury.
6.7.2007 2:45pm
Philistine (mail):
SDProsecutor:


Alex2005- Perhaps you can share with us one example of a 'low level drug user' getting an 'inexplicably long and harsh' sentence?


Umm.... perhaps you might want to look at Orin's post of two days ago.

There, for possession of 18.5 grams of meth, a woman was sentenced to 292 months. The concurring judge called this "wildly excessive" but was bound by the sentencing guidelines.

While perhaps in State prosecutions, low level drug dealers are getting light sentences—that is certainly not the case in Federal Court, which, after all, is where Libby was convicted.

—Philistine
6.7.2007 2:47pm
AppSocRes (mail):
I hope that Ms. Plame, who clearly lied under oath to Congress about her role in getting her husband a government-payed junket to Africa see details here will be frog-marched to court and given at least as much punishment as Libby.
6.7.2007 2:48pm
justanotherguy (mail):
It seems to me that the real issues here are the severity of the result of criminalizing politics. We can play games about "a jury convicted him" but Sandy B didn't go to a jury all day. What upsets the republican base it this really seems to be the game of politics played in the criminal justice system with severe results.

No one seems to mind when the investigations mere destroy credibility, bank accounts paying for defense, and result in ending careers. But jail time...this is something else.

Of course this is the logical result of the criminalization of politics that has been going on for decades. It is probably the reason why those willing to take on senior roles in the government have overall have been showing less and less sterling resumes.

The entire investigation was a witch hunt. Very hard to dispute that there was no basis for the investigation. A political battle from within and without the administration. Was there really any question about the operatives status or the leak outside of an hysterical media? But once political battles start using the power of the courts... no one is safe so most stay out of the battle. The CIA should have had to assert the agent's status before any investigation went forward. Now we find out that they were unsure of the status, even though it was a widely-known fact to the elite of DC. But if the CIA is disagreeing with the administration, why not by hardball and request "innocently the DOJ investigate.

We will see more and more ideological followers braving the fire to go into government while the sane and rational ones leaving... If we want more resumes with Regent University instead of Harvard, then we can continue the what should be political battles using special prosecutors.
6.7.2007 2:52pm
Steve:
Regardless of statements he made recently, the only rational conclusion that can be drawn from the fact that Mr. Armitage was not charged is that Valerie Plame did not meet the statutory definition of a covert agent.

How about the notion that Plame was a covert agent, but that Armitage didn't know of her classified status, a requirement for liability under the IIPA? Or, alternatively, that Fitzgerald didn't think he could prove Armitage knew, which amounts to the same thing.

Not only is this a plausible scenario, but it's the exact thing Fitzgerald has said in response to the question of why no IIPA violation was charged against anyone. The fact that you use the ridiculous phrase "the only rational conclusion" shows that you don't understand the law, and are merely parroting arguments you've read at Powerline or someplace similar.
6.7.2007 2:54pm
Bill Dyer (mail) (www):
I have been in the minority of conservative legal pundits (along with Patterico, NRO's Andy McCarthy, and some of the contributors here) who've been unwilling to attack the legitimacy of Fitzgerald's prosecution or to trumpet Libby's innocence. But I'm still troubled by the case, and I was intrigued enough by Otis' commutation argument to sketch out the speech Dubya could give as he announced it. But he should only do it if Libby is denied bail pending appeal after the hearing next Thursday, and if the DC Circuit leaves that decision standing.
6.7.2007 2:55pm
r78:
To suggest that when such a high level government official is convicted of serious crimes that he should be fined $250K - the amount one can spend on a sports car or a starter home in the suburbs of Akron - is just flat out disgusting.
6.7.2007 3:02pm
badger (mail):

It seems to me that the real issues here are the severity of the result of criminalizing politics. We can play games about "a jury convicted him" but Sandy B didn't go to a jury all day. What upsets the republican base it this really seems to be the game of politics played in the criminal justice system with severe results.

This "criminalization of politics" line has been ridiculous since day one. Patrick Fitzgerald, the judge, and the jury are not politicians. Grand Jury testimony is not a political forum. Giving knowingly false testimony is not a political speech. Republicans just think: "Well, liberals didn't like Scooter Libby or his boss, so his convictions could only be a result of that dislike." It is absurd. If you intentionally lie to a special prosecutor or USA in sworn testimony, they will prosecute you. It doesn't matter how many wars you started, crappy novels you wrote, or who your boss is.
6.7.2007 3:05pm
whackjobbbb:
Oh well, life goes on. Bush started off all this foolishness, by appointing a special prosecutor in the first place... as if he shouldn't have known the foolishness to follow that foolish decision.

And now future Libby's can take the 5th as a matter of course... should they choose, like that other government lawyer did recently. Or how about, "I don't recall"... if you're looking for some wiggle room... especially about events from years ago. Libby was obviously very stupid.

Plus, we've established a nice precedent... that reporters must testify if legitimately called upon to do so... or else.

If Libby admits he did wrong, I'm imagining Bush will pardon him, but we'll see.
6.7.2007 3:18pm
Richard Aubrey (mail):
Steve. How about this: Plame wasn't covert.

If she was covert, though, and Armitage didn't know it, then he was not guilty under IIPA. But how do we know Armitage was ignorant? I presume somebody asked--stupid me for thinking this--and he claimed to be surprised. But, since the Libby trial was about what you knew when and forgot when, Armitage would, logically, have been pushed pretty hard to see if he could make a case passing the laugh test that a guy in his situation didn't know this. I haven't heard it happened. Anybody else know? If Libby is indicted for what amounts to memory problems, then Armitage surely should be. Problem: You can't get to Bush or Cheney through Armitage.

Another part of IIPA tells us that if the name is already outed, further mention is not illegal. So if Armitage outed a covert Plame because he didn't know she was covert, any further mention of her name is meaningless. Whether the first outing was illegal under IIPA or not is not relevant.
6.7.2007 3:27pm
rarango (mail):
With any luck, Mr. Libby's situation should serve as a reminder to anyone wanting a political position inside the beltway and who choose to engage in leaks to a favored member of the press corps. All the Bush administration had to do was have a press conference, go through the facts as they knew them, challenge Mr. Wilson on the substance of his article, and be done with it. Instead, they chose the leak strategy. I mean: how stupid is that?
6.7.2007 3:31pm
Archon (mail):
Libby will get pardoned or his sentence will get commuted purely because the final decision to issue such a declaration will fall conveniently into the political time line (assuming the judge lets him stay out of jail pending appeal):

July 2006 - Notice of Appeal filed
Summer 2007 - Circuit court panel issues decision

(assuming affirmation)

September 2007 - En banc review most likely denied
November/Decemember 2007 - Cert petition filed
January 2008 - Cert most likely denied/Bush leaves office

What happens every night before a sitting president leaves office? He issues a slew of pardons. I bet you Libby's name will be on that list. Bush can easily defer the question, especially if Libby isn't sitting in jail, until the appellate review runs its course. Luckily for Libby, it will run out just about the time Bush is leaving office.
6.7.2007 3:33pm
Philistine (mail):

Another part of IIPA tells us that if the name is already outed, further mention is not illegal.


Fascinating.

Could you do us the favor of identifying that other part of IIPA, then?
6.7.2007 3:36pm
Guest101:
Archon,

As much as some of us might wish it were otherwise, Bush is not leaving office until January 2009, not January 2008.
6.7.2007 3:37pm
Philistine (mail):
Archon:


January 2008 - Cert most likely denied/Bush leaves office



Bush leaves office in January of 2008
6.7.2007 3:38pm
Philistine (mail):
Ooops, not only am I late, but my typo completely negates my point.
6.7.2007 3:39pm
Steve:
Another part of IIPA tells us that if the name is already outed, further mention is not illegal.

I was already chuckling as I read your post but this literally made me splutter. Seriously, you guys will swallow whatever line gets fed to you, won't you?

You heard it here first, folks - once ONE PERSON finds out about a covert agent's status who isn't entitled to know, bang, that's it, no more covert status forever! That's the law on Planet Aubrey.

Stepping back, it's pretty hilarious that liberals have suddenly become staunch defenders of the prerogatives of the CIA. Not exactly the position they teach you in Liberalism 101. But on the other side of the aisle, what the heck has happened? If the New York Times reveals a classified program, they should be prosecuted for treason, but if someone outs a CIA operative working on weapons of mass destruction, any technicality will do if it helps the perpetrator escape liability? Have you guys really decided that the CIA is our enemy in the war on terror?
6.7.2007 3:41pm
rarango (mail):
"Have you guys really decided that the CIA is our enemy in the war on terror?"

Is the CIA our "enemy?" No; butit is a bureaucratic organization that can be very dysfunctional, it maintains its own "iron triangles," and apparently does all of the things that bureaucratic organizations tend to do.
6.7.2007 3:51pm
Richard Aubrey (mail):
Steve. That's an old game. Colin wasn't the first to wear it out.
The Phillip Agee spy-outing law--named after one of your faves--has a huge number of requirements to qualify. One of them is that if the name is already out, it's no longer covert. Which, when you think about it, is sort of obvious.
The idea that Armitage could get off because he didn't know--if that's the reason Fitz didn't charge him--is kind of odd, don't you think? Can you think of other laws--"honest, officer, I had no idea that necklace was in my pocket when I left the jewelry store"--where claiming ignorance is an iron-clad defense? The entire law is full of such oddities. The CIA has to be making an active effort to protect the identity of the agent. You have to be doing it maliciously, with intent to damage the US. But, in any event, Libby wasn't charged with leaking, but with fibbing about what he remembered.

So, Armitage is the guy who leaked it. There doesn't seem to be material to charge him, which means there was no underlying crime. Those who are concerned about some front corp checking into Iranian nukes or whatever it was ought to look at Armitage, crime or not. Crime or not, there were consequences, if you say there were. That Armitage is the leaker doesn't mean that, whoops, no consequences.
6.7.2007 3:56pm
Anderson (mail) (www):
N.b. that Otis and Adler aren't calling for a commutation down to, say, the lower range under the Guidelines -- 15 to 21 months.

They're calling for NO jail time, for what Prof. Adler, in a stunning display of something I won't name, calls "very serious crimes, particularly when committed by a high-level government official."
6.7.2007 3:57pm
Archon (mail):
Yeah, I apologize for my stupidity. For some reason I was thinking the election was this year. I forgot the presidential race now last 3 years.
6.7.2007 3:57pm
badger (mail):

No; butit is a bureaucratic organization that can be very dysfunctional, it maintains its own "iron triangles," and apparently does all of the things that bureaucratic organizations tend to do.

So, being concerned when senior administration officials endanger the lives and livelihoods of employees and [intelligence] assets in order to settle political grudges is now a trait of a disfunctional bureaucracy? I need to get out of the private sector and get me some dysfunction.
6.7.2007 3:58pm
Ron Hardin (mail) (www):
The pardon would be for the justice system machinery working on a witch hunt, which is inappropriate. The pardon is precisely because the justice system sees the sentence as the correct result.

It's a view from outside.

Balance of powers and all that.
6.7.2007 4:00pm
SDProsecutor:
J.F. Thomas- Factoid? Do you practice criminal law? If so, you don't really think that the 'wrong crowd' and 'not bad, stupid' factors in mitigation ought be more heavily weighted?

And thanks to Guest101 for realizing that I was referring to state sentencing norms, as a means to shape a discussion rather than make an inapposite comparison for my political purposes. Which leads me to...

Philistine- if you're going to try and defend an argument, read it more carefully. I challenged Alex to name a 'low-level drug user'. Your comments address a dealer.
6.7.2007 4:01pm
Steve:
One of them is that if the name is already out, it's no longer covert. Which, when you think about it, is sort of obvious.

Not only is that not obvious, it's a flat-out misstatement of the law. Nowhere in the IIPA will you find the statement that once one person leaks a name, it's now fair game for the whole world.

The idea that Armitage could get off because he didn't know--if that's the reason Fitz didn't charge him--is kind of odd, don't you think? Can you think of other laws--"honest, officer, I had no idea that necklace was in my pocket when I left the jewelry store"--where claiming ignorance is an iron-clad defense?

Virtually every law has an intent element. You have to know that someone's employment status is classified before you can be convicted of violating the IIPA by leaking it. That hardly means that "claiming ignorance is an iron-clad defense" - seriously, who do you think you're kidding here? - but it means the government has the obligation to prove that you knew.

You have to be doing it maliciously, with intent to damage the US.

Once again, you're just inventing stuff that isn't in the statute. I realize this doesn't matter to you, but in point of fact, it actually does impair the credibility of your argument.
6.7.2007 4:03pm
Guest101:
"Can you think of other laws--"honest, officer, I had no idea that necklace was in my pocket when I left the jewelry store"--where claiming ignorance is an iron-clad defense?"
Um, any law that requires intent or knowledge as a mens rea?
6.7.2007 4:04pm
rarango (mail):
Badger; what in the world are you talking about? My comment was addressed to Steve's point about the CIA being an enemy. at no time have I ever justified the actions of the administration in this whole shoddy story.
6.7.2007 4:07pm
badger (mail):
rarango: I think steve's post was referring to the way many conservatives seek to discredit the CIA for pushing for a special counsel, for maintaining that Valerie Plame was covert, and for employing a "moonbat" like Plame in the first place, despite having been strong proponents of the CIA in the past and in the present, when it serves their political purposes. I interpreted your response to be attributing the CIA's actions to be part of it's nature as a "dysfunctional bureaucracy".
6.7.2007 4:16pm
Richard Aubrey (mail):
Guest 101. Close. Not quite on, but close. The point about the jewel thief is that it is quite difficult that he would have the necklace in his pocket accidentally. But the burden of proof is on him to make it clear. He grabbed somebody else's coat or something.
In the case of IIPA, the claim of ignorance is irrefutable, unless the guy left some contradictory documentation around.

"I didn't know." means exactly that and there's little way to prove it's not true. Whatever the case, Armitage wasn't charged. What, in the law, do you think let him walk? Nobody was charged, and Fitz knew in advance one of the leakers--Armitage--and could have charged him. He can still be charged. If there were four leakers, how come none are charged? People seem to be pretty certain Plame was in an IIPA situation wrt Libby's trial, although he wasn't charged with leaking. If she was in IIPA territory, that's where she was. How come nobody's charged?

If the IIPA doesn't exclude those who talk about the agent after the agent's been outed, isn't everybody here up for IIPA prosecution? If you don't need to have a malicious intent to damage the country, shouldn't we all get lawyers? Novak could be prosecuted. After all, if he hadn't passed on Armitage's leak, hardly anybody would have known. Seem Novak in the dock?

The law has limits for obvious--sometimes--and practical reasons. Toensing has discussed how narrowly it was written.

But the bottom line is, if it's good enough for Libby, why isn't it good enough for Armitage?
6.7.2007 4:21pm
Steve:
If the IIPA doesn't exclude those who talk about the agent after the agent's been outed, isn't everybody here up for IIPA prosecution? If you don't need to have a malicious intent to damage the country, shouldn't we all get lawyers? Novak could be prosecuted. After all, if he hadn't passed on Armitage's leak, hardly anybody would have known. Seem Novak in the dock?

The statute answers all these questions, but you have to actually read it. It's becoming painfully obvious that you've been making authoritative pronouncements on the requirements of the IIPA without having any idea what it really says.
6.7.2007 4:26pm
Guest101:

Guest 101. Close. Not quite on, but close. The point about the jewel thief is that it is quite difficult that he would have the necklace in his pocket accidentally. But the burden of proof is on him to make it clear. He grabbed somebody else's coat or something.

But that's just not an accurate statement of the law. Mens rea is an element of the crime, and the burden is on the prosecution to establish it beyond a reasonable doubt. The fact that, in your jewelry hypothetical, the fact that the necklace was found in the defendant's pocket gives rise to a strong inference of intent from which most juries would (or reasonably could) conclude that the prosecution has met its burden on that point doesn't change the fact that there is no burden whatsoever on the defendant to disprove anything.


In the case of IIPA, the claim of ignorance is irrefutable, unless the guy left some contradictory documentation around.

How so? Circumstantial evidence is perfectly legitimate for establishing mens rea-- see, e.g., your jewelry hypothetical.
6.7.2007 4:26pm
Guest101:

The fact that, in your jewelry hypothetical, the fact that the necklace was found in the defendant's pocket gives rise to a strong inference of intent from which most juries would (or reasonably could) conclude that the prosecution has met its burden on that point doesn't change the fact that there is no burden whatsoever on the defendant to disprove anything.

What was it Prof. Volokh was saying yesterday about the value of proofreading? Oh well-- it's been a long day.
6.7.2007 4:31pm
Richard Aubrey (mail):
Guest 101. The circumstantial evidence that Armitage didn't know--presuming this is the case--would have to be contradictory documentation or somebody he talked to. If he kept his mouth shut, there is absolutely no possibility of circumstantial evidence contradicting him.
Even if he'd been to a CIA meeting, he could claim he'd had too much iced tea and been in the can when the subject arose.
It's certainly possible that he was able to make that claim successfully. But we don't know anything at all about why he wasn't charged. It looks as if Fitz found out about him, said, "oh." and went on his way. Those who are seriously concerned about leaks without partisan considerations ought to show some interest in why Armitage is sleeping the sleep of the just and righteous. Or at least the unaccused.

Steve. I know the statute answers those questions. But if there were no limits, it wouldn't. There are limits, and being second to the party is one of them.
6.7.2007 4:44pm
Steve:
There are limits, and being second to the party is one of them.

At this point, it's clear you're intentionally lying about what the statute says in an attempt to confuse people. There is not one word in the statute that says the second leaker cannot be charged. Not one word.
6.7.2007 4:47pm
A.S.:
Can you remind me, please, at what point Bill Clinton was convicted of any crime in federal court? He paid a fine pursuant to a civil contempt citation in federal court; his Arkansas disbarment was also a civil proceeding. At no point was Clinton subject to the United States Sentencing Guidelines, nor was he ever convicted of a felony.

But of course, the Independent Prosecutor, while finding that sufficient evidence existed to prove in court that Clinton committed a crime, declined to prosecute because of the other sanctions to which Clinton was subject.

Hence my claim that the sanctions should be comparable. If the Democrat can get away without criminal prosecution because he suffered some degree of sanction as a result of his perjury and obstruction, the Republican should be subject to similar sanction for his perjury and obstruction.

To believe otherwise is simply partisanship.
6.7.2007 4:59pm
Guest101:

But of course, the Independent Prosecutor, while finding that sufficient evidence existed to prove in court that Clinton committed a crime, declined to prosecute because of the other sanctions to which Clinton was subject.

Hence my claim that the sanctions should be comparable.

What utter nonsense. We don't punish people on a prosecutor's say-so, not even that of the lofty Kenneth Starr. We punish people after they have been convicted by a jury in federal court. As you've conceded, Bill Clinton was never tried or convicted in court. Again, you're trying to argue that the penalty for being convicted by a jury of perjury and obstruction should be the same as civil contempt-- that's not only unconstitutional, it's ludicrous.
6.7.2007 5:08pm
Anderson (mail) (www):
See what a difference a link makes, AppSocRes? The item you cite is genuinely interesting &certainly new to me.

Byron York quotes a Feb. 12, 2002 memo by Plame:

So where do I fit in? As you may recall, [redacted] of CP/[office 2] recently approached my husband to possibly use his contacts in Niger to investigate [a separate Niger matter]. After many fits and starts, [redacted] finally advised that the station wished to pursue this with liaison. My husband is willing to help, if it makes sense, but no problem if not. End of story.

Now, with this report, it is clear that the IC is still wondering what is going on… my husband has good relations with both the PM and the former minister of mines, not to mention lots of French contacts, both of whom could possibly shed light on this sort of activity. To be frank with you, I was somewhat embarrassed by the agency's sloppy work last go-round, and I am hesitant to suggest anything again. However, [my husband] may be in a position to assist. Therefore, request your thoughts on what, if anything, to pursue here. Thank you for your time on this.


Now, whether she suggested Wilson, and whether she perjured herself in saying she didn't, are less interesting to me than to some; but a little googling has failed to bring up any response to the York article from any of the usual liberal spots (Firedoglake, TPM, dKos), or indeed any rebuttal at all that I can find. So I join AppSoc in bringing this to wider attention.
6.7.2007 5:14pm
badger (mail):

Hence my claim that the sanctions should be comparable. If the Democrat can get away without criminal prosecution because he suffered some degree of sanction as a result of his perjury and obstruction, the Republican should be subject to similar sanction for his perjury and obstruction.

To believe otherwise is simply partisanship.


So I guess I'm partisan because I believe that they should both be subject to whatever penalties the US justice system fairly decides upon.

But your analogy is still weak. Just because Starr and his successor claim that they could make a federal case out of it, doesn't mean that a jury and judge would convict. Fitzgerald already has his conviction. And, what you're really complaining about is the fact that different federal prosecutors approach what you think are similar cases differently. And besides the fact that the two cases really aren't that similar (in terms of availiable evidence, and chance of obtaining a conviction) prosecutors making different judgement calls is really part and parcel of the entire justice system. Starr and Fitzgerald were appointed by different administrations and quite possibly have different believes about appropriate sentences, like just about every prosecutor. And while you are so desparate to attribute the variation to partisan concerns (despite the fact that both men are Republicans, appointed by Republicans, and with several Democratic scalps on their respective belts) there is no evidence of this whatsoever.
6.7.2007 5:17pm
A.S.:
You misstate what I wrote, Guest 101.

It is inaccurate to write, as you do, that we "punish people after they have been convicted by a jury in federal court". That is merely one means of punishment. The Independent Prosector (Robert Ray, not Kenneth Starr) believed that Clinton had already incurred sufficient non-criminal punishment for his crime -- among other things, his fine and loss of law license. Since Clinton had already incurred sufficient non-criminal punishment, it was not in the interest of justice to criminally prosecute.

Accordingly, we have set the bar at what constitutes adequate sanctions for this type of behavior. Whether the person has been convicted by a jury is simply not relevant to the inquiry. If it was adequate sanction for Clinton, it should similarly be adeuqate sanction for Libby.
6.7.2007 5:29pm
A.S.:
We don't punish people on a prosecutor's say-so, not even that of the lofty Kenneth Starr.

BTW, Guest101, that is EXACTLY what occurred in the Libby case. Libby was prosecuted based on Fitzgerald's "say-so" that Plame was covert. That was not proven in court; indeed, it was deemed irrelevant in court. And yet it provided the basis, in part, for Libby's punishment.
6.7.2007 5:31pm
Richard Aubrey (mail):
Okay, Steve. Leakers one through four can be prosecuted. When do the trials start? Should be four of them, at least.
6.7.2007 5:41pm
A.S.:
And, what you're really complaining about is the fact that different federal prosecutors approach what you think are similar cases differently. And besides the fact ... prosecutors making different judgement calls is really part and parcel of the entire justice system.

Yes, that is what I am complaining about. That "prosecutors making different judgement calls" is "part and parcel of the entire justice system" doesn't mean it is fair. Heck, I'd be satisfied with keeping Libby's sentence exactly the same if we simply increased the punishment of Clinton to a commensurate amount. But that ain't gonna happen.
6.7.2007 5:41pm
Guest101:

It is inaccurate to write, as you do, that we "punish people after they have been convicted by a jury in federal court". That is merely one means of punishment. The Independent Prosector (Robert Ray, not Kenneth Starr) believed that Clinton had already incurred sufficient non-criminal punishment for his crime -- among other things, his fine and loss of law license. Since Clinton had already incurred sufficient non-criminal punishment, it was not in the interest of justice to criminally prosecute.

Accordingly, we have set the bar at what constitutes adequate sanctions for this type of behavior. Whether the person has been convicted by a jury is simply not relevant to the inquiry.

Welcome to the world of prosecutorial discretion. Sometimes prosecutors choose to prosecute, sometimes they don't. But your argument that a person who is prosecuted and convicted shouldn't be punished simply because another prosecutor chose not to pursue other criminal charges against another potential defendant is just nonsensical. Does that mean that we shouldn't punish Drug Dealer A, who was tried and convicted, simply because another prosecutor in another jurisdiction, ten years ago, chose not to prosecute Drug Dealer B?


BTW, Guest101, that is EXACTLY what occurred in the Libby case. Libby was prosecuted based on Fitzgerald's "say-so" that Plame was covert. That was not proven in court; indeed, it was deemed irrelevant in court. And yet it provided the basis, in part, for Libby's punishment.

No, that enhancement was not based on Fitzgerald's word-- it was based on the finding of Judge Walton by a preponderance of the evidence. If you'd care to argue that the "advisory" Sentencing Guidelines, which permit a sentence to be enhanced on the basis of uncharged behavior that is never submitted to a jury or proven beyond a reasonable doubt, is grossly unfair, welcome to the club. But Libby wasn't treated any differently than any other criminal defendant in that respect-- and, as I noted above, I haven't observed a Republican groundswell in support of sentencing reform generally in response to the Libby case.
6.7.2007 5:41pm
Anderson (mail) (www):
A.S. forgets that Fitzgerald's was one side of the adversarial process; if Plame *wasn't* covert under the IIPA, then her attorneys needed to come up with evidence to that effect. They didn't, leaving the judge to balance (1) the CIA's avowal that she was covert, against (2) nothin'.
6.7.2007 5:44pm
Steve:
Okay, Steve. Leakers one through four can be prosecuted. When do the trials start? Should be four of them, at least.

I already addressed this in my 1:54pm post, which ironically is the post that prompted you to start arguing with me. I won't play this game of circular argumentation any longer, though.
6.7.2007 5:48pm
A.S.:
But your argument that a person who is prosecuted and convicted shouldn't be punished simply because another prosecutor chose not to pursue other criminal charges against another potential defendant is just nonsensical.

That's not what I argue. And moreover, why would it be nonsensical? Disparate treatment of similarly situated persons is inherently unfair. Inevitable, sure, but unfair nonetheless. Hence my complaint. I similarly feel it is unfair that habeas requests are treated so incredibly differently in the 6th circuit based on the luck of the draw on judges. Is that complaint similarly "nonsensical"?
6.7.2007 6:24pm
A.S.:
the CIA's avowal that she was covert

Wait, the CIA said she was covert, for puposes of the IIPA? Link, please!
6.7.2007 6:25pm
Guest101:

That's not what I argue.

Then what do you argue? I note that after first denying that I had adequately described your position, you then go on to defend the view that you claim not to hold. If I'm missing some key point of your argument, what is it?


And moreover, why would it be nonsensical? Disparate treatment of similarly situated persons is inherently unfair. Inevitable, sure, but unfair nonetheless.

Being concerned about disparate treatment of similarly situated defendants is a far more nuanced position than arguing that anyone who doesn't agree that Libby shouldn't be punished any more severely than Clinton was is "obviously partisan," which is where you were when we started this discussion. But the argument that I described above-- that we should never punish anyone convicted of a crime when a similarly-situated defendant was not prosecuted-- is indeed nonsensical, because it would lead rather directly and immediately to the grinding halt of the criminal justice system. Name a crime, any crime, and someone, somewhere, has gotten away with it. That's just not a basis for declining to punish people that we do catch and successfully prosecute. Moreover, "similarly situated" is a slippery concept. Among all of the other factors that go into the exercise of prosecutorial discretion-- the strength of the evidence, the availability of resources, the existence of more pressing or worthwhile matters to pursue-- is the notion that prosecutors to some extent should take the personal characteristics of a particular defendant into account when deciding whether to press charges. The principle underlying your argument-- that all perpetrators of the same crime should be punished in the exact same way-- is therefore just not valid.


Hence my complaint. I similarly feel it is unfair that habeas requests are treated so incredibly differently in the 6th circuit based on the luck of the draw on judges. Is that complaint similarly "nonsensical"?

Again, that's far different from saying that anyone who thinks that Libby's punishment is fair is "obviously partisan."
6.7.2007 6:31pm
uh clem (mail):
Link, please!
Link.

Or if you're a stickler for primary source, Link 2
6.7.2007 6:34pm
badger (mail):

Wait, the CIA said she was covert, for puposes of the IIPA?

Where do you even get this idea that the CIA has different kinds of "covert"? What's the point of having a law that protects the identities some covert agents, but not others? Who would even think to write such a law? What's the point of calling someone "covert" when their identity isn't protected by law? Could her coworkers legally sell her identity to the KGB?
6.7.2007 6:42pm
Anderson (mail) (www):
Uh Clem, I think the link to the employment report is this one, which is included at your first link.
6.7.2007 6:48pm
A.S.:
Or if you're a stickler for primary source, Link 2

Nowhere in the sentencing memo does the CIA say she was covert, as defined by the IIPA.
6.7.2007 6:52pm
J. F. Thomas (mail):
Nowhere in the sentencing memo does the CIA say she was covert, as defined by the IIPA.

I see, it all depends on what the definition of "covert" is. Are there several different definitions of covert when you travel overseas? Double super-secret covert as opposed to not very covert?
6.7.2007 6:56pm
Anderson (mail) (www):
Sigh ...

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States;


Her CIA role was classified, and she traveled "at least 7 times to more than 10 countries," always undercover, as part of her CPD work.

You want to argue that she didn't travel thusly from 1998 to 2003? Be my guest.
6.7.2007 6:59pm
A.S.:
Uh Clem, I think the link to the employment report is this one, which is included at your first link.

As the defense notes, the CIA provided a "companion summary" along with the information in the linked Exhibit A, in which the CIA defined "covert" as a "CIA employee whose employment is not publicly acknowledged by the CIA or the employee."

That, of course, differs from the definition under the IIPA.

Sorry, try again.
6.7.2007 7:08pm
A.S.:
she traveled "at least 7 times to more than 10 countries,"

Does travel meet the statutory requirement of having "served outside the United States"? That's dubious, at best.
6.7.2007 7:10pm
RSwan (mail):
Anderson,
Served is taken to mean "lived abroad" not took a trip overseas. I think there is actually some language somewhere stating that, but I'm too lazy to look that up so take for what it means.
6.7.2007 7:10pm
A.S.:
A.S. forgets that Fitzgerald's was one side of the adversarial process; if Plame *wasn't* covert under the IIPA, then her [sic - I assume you mean Libby's] attorneys needed to come up with evidence to that effect. They didn't

BTW, never had a chance to respond to this.

The reason that Libby's attorneys never were able to "come up with evidence" that Plame didn't meet the statutory definition of "covert" under the IIPA is that the judge denied them discovery on the subject... because he ruled it was irrelevant!

Nice legal system - rule that the defense can't take discovery on a subject, and then when the prosecutor introduces it in sentencing, rule for the prosecution on the basis that the defense didn't produce any contrary evidence. That's what I'd call "railroading".
6.7.2007 7:15pm
Anderson (mail) (www):
the judge denied them discovery on the subject... because he ruled it was irrelevant

Maybe it was on the other thread, but that was re: the guilt phase; if they thought it was relevant to the sentencing, they could've sought discovery then. Bottom line is, they are either the world's most incompetent attorneys, or they had reason to believe that there's no "there" there.

Whom should I believe -- Libby's own attorneys, or some blog dude? I'll trust their actions over blog dude's words.

Served is taken to mean "lived abroad" not took a trip overseas.

I'll believe it when I see it. The plain language suggests otherwise. Interestingly, James Bond would not be "covert" under the IIPA, on that theory.
6.7.2007 7:19pm
Guest101:

Nice legal system - rule that the defense can't take discovery on a subject, and then when the prosecutor introduces it in sentencing, rule for the prosecution on the basis that the defense didn't produce any contrary evidence. That's what I'd call "railroading".

If Anderson is right that this was in the guilt phase rather than the sentencing phase, then it's no problem. The evidence deemed relevant and admissible at sentencing is much broader than that deemed relevant and admissible at trial, and the defendant has a constitutional right to demand an evidentiary hearing (in the Second Circuit we call them Fatico hearings) on any disputed point that the court may take into account at sentencing. Defense attorneys often make the tactical decision not to demand such hearings, because they often make their clients look worse. If that's what happened here, then Libby's lawyers weren't incompetent-- they just knew they didn't have a strong argument on the question of whether Plame was covert and figured it was in his interests not to draw the judge's attention to the matter by holding a hearing on it.
6.7.2007 7:28pm
Richard Aubrey (mail):
Steve. Got any evidence of an investigation into the minds of leakers one through four? After all, your 1:54 speculates Armitage didn't know. How do we know that's the case? Another poster said circumstantial evidence could disprove that assertion, if there was any.
Did Fitz take Armitage's word unsupported? Did he investigate Armitage's word? Or was he simply not interested in Armitage for some other reason?
You gave a reason IIPA might not--I emphasize "might"--apply to Armitage and apparently think that's good enough.
But you haven't demonstrated anything but a speculation.

BTW: If the CIA is making a positive effort to conceal the agent's identity, how would one know? If it were that positive, it would probably be useless.
6.7.2007 7:32pm
A.S.:
if they thought it was relevant to the sentencing, they could've sought discovery then.

Libby's attorneys stated that they were not given the opportunity to rebut Fitzgerald's statement. So it appears you are wrong.

The plain language suggests otherwise.

I don't see that the plain language speaks to travel at all. What conduct constitutes "serv[ing] outside the United States" in ambiguous. And according to the Rule of Lenity, in construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant.
6.7.2007 7:32pm
Christopher Cooke (mail):
Richard:

You miss the point of Steve's prior posts. The fact that others leaked Plame to the press doesn't mean they committed a crime. To violate the IIPA, you have to knowingly leak the identity of a covert agent (knowing that the agent is covert), to someone who is not authorized to receive this information, and you must have learned of the covert agent's status from a classified source.

The last requirement ---that you must have originally learned of the agent's covert status from a classified source--- is what gets us off the hook: we learn of Plame status from the press, so we can say what we want about her. This requirement is what apparently led Libby to lie about how he had learned of Plame's status as a CIA employee. He talked to DAvid Addington about this statute (IIPA), who told him about these elements. After that conversation, he talked to the FBI and told them he learned of Plame's identity as a CIA employee from the press, which the jury found to be a lie.

My guess, which is supported by Fitzgerald's statements in the sentencing memo, is that he concluded that Armitage and Rove and Libby, may not have known that Plame was a covert agent, they just knew that she worked for the CIA.

Rove didn't get indicted for perjury and obstruction of justice apparently because his lawyers wisely had him go back to the grand jury, after his memory was refreshed about his talks with reporters, to correct things. Also, his attorney (Luskin) apparently was able to convince Fitzgerald, via a declaration, that one of the facts that refreshed Rove's memory was something that Luskin learned from a reporter and then passed on to Rove.

Armitage didn't get indicted for perjury or obstruction because he told the truth to Fitzgerald.

AS: your discussions on the Rule of Lenity and the IIPA are misplaced, because Libby wasn't charged or convicted under that statute.

Fitzgerald's argument about the IIPA in the memo was mainly to rebut points made by Libby allies, along the lines that Fitzgerald knew that no IIPA crime had been committed from the outset of the investigation.

And, if Plame's status as a "covert" agent were an important fact that Libby disputed for sentencing purposes, as another poster notes, Libby's lawyers could have requested a hearing on this point prior to any sentence being imposed.

You are confusing political talking points, asserted to make Libby sympathetic among the President and the public, with evidence relevant for sentencing purposes. Also, I doubt whether Mr. Wells would want that point established, because the truth would likely make Libby look bad if she was a covert agent, and the disclosure of her identity was potentially very harmful to sources with whom she had worked.
6.7.2007 8:40pm
A.S.:
AS: your discussions on the Rule of Lenity and the IIPA are misplaced, because Libby wasn't charged or convicted under that statute.


No, but he was sentenced as if he was convicted under the IIPA. Accordingly, the Rule of Lenity should apply.
6.7.2007 8:58pm
A.S.:
Also, I doubt whether Mr. Wells would want that point established, because the truth would likely make Libby look bad if she was a covert agent, and the disclosure of her identity was potentially very harmful to sources with whom she had worked.

You are clearly wrong about this, since Wells tried to get discovery on the point initially, and was refused.
6.7.2007 9:00pm
Bored Lawyer:
Wonder if the failure to order discovery will be raised as an issue on appeal. I haven't done criminal procedure in a long time. Does the defense have to ask for it a second time at the sentencing stage?
6.7.2007 9:19pm
Guest101:

No, but he was sentenced as if he was convicted under the IIPA. Accordingly, the Rule of Lenity should apply.

That would only make sense if the government was held to a beyond-reasonable-doubt standard at sentencing. When the court is permitted to enhance a sentence beyond the otherwise-applicable Guidelines range on the basis of facts never submitted to a jury, but rather proven to the court by a preponderance standard, clearly the rule of lenity has gone out the window a long time ago.

Mind you, I'm not saying that's a good thing. But I also don't think your rule of lenity argument is particularly persuasive, because I don't see that the statute is at all ambiguous. Even if "served" has been read to mean only "lived abroad," a point that has not yet been established by any citations to case law, I would say that's just not a reasonable interpretation of the text-- cf. the James Bond example.
6.7.2007 9:22pm
luagha:
Again, uh clem, those links don't state whether or not Valerie Plame was acting as a covert agent under cover in a foreign operation as necessary for the statue. They simply say she was 'covert.' At some point. Somewhen. Somehow.

It has never been unequivocably stated that she qualifies for the statute, or qualified for the statute at the time of the noted leakings. Since she was overseas, one presumes that she must have at been at one time.... but I can't hang a prosecution on that.

If I recall aright, the statute has a five year window and a ten year window for certain kinds of foreign cover and certain kinds of foreign operations. And we are not being told if those windows and covers are met.

That we are repeatedly not being told is suspicious, but again, I can't hang a lack of a prosecution on that. I can only be suspicious.
6.7.2007 9:22pm
Guest101:

Also, I doubt whether Mr. Wells would want that point established, because the truth would likely make Libby look bad if she was a covert agent, and the disclosure of her identity was potentially very harmful to sources with whom she had worked.

You are clearly wrong about this, since Wells tried to get discovery on the point initially, and was refused.

That's not at all true. If the D.C. Circuit works like the Second Circuit, there wouldn't be round of discovery on this disputed factual issue prior to sentencing, there would be an evidentiary hearing, at which the judge would be present and testimony would be presented. The judge would then be required to make a finding of fact, deciding whether or not Plame actually was covert within the meaning of the IIPA. Unlike discovery, then, it wouldn't be a situation where the government hands over a bunch of documents to the defense, which is then free to comb through them and use, or not use, whatever they like in court. At a pre-sentencing evidentiary hearing, the judge would be present for all the testimony presented, which, as I mentioned earlier, is why defense counsel frequently decline those hearings-- they know that nothing good can come of it for their clients. So, the fact that Libby's counsel wanted to conduct discovery on this point prior to trial doesn't necessarily mean they thought they had a strong case on this point, while the fact (if it is a fact) that they did not request a pre-sentencing evidentiary hearing does suggest that they may well have believed that the outcome of that hearing would not be favorable to their client.
6.7.2007 9:33pm
Public_Defender (mail):
Accordingly, the Rule of Lenity should apply

The Rule of Lenity is a mirage. It appears on the horizon of your case, but disappears anytime you are about to get close enough to drink its waters.

Has anyone ever won a case based on the Rule of Lenity?
6.7.2007 9:44pm
Richard Aubrey (mail):
Christopher. Fitz may have concluded. Well, he did conclude. My question is why. Armitage had to have heard it from somebody. Who was that? And if that person didn't qualify under IIPA, the third person in the chain did, and if not the third, then the fourth. Did he try going back along that chain?
You speculate that Fitz concluded Armitage didn't know, or got it from a non-official source. Any evidence?
The difference between Fitz concluding as you say and concluding that Armitage didn't lead to Cheney and so was no use looks the same without evidence.
Just to make things square, I'd like to know where Armitage got his info. My guess, as you guess your conclusions, is that it was common gossip. For Armitage's sake, it had better be that excuse. But that makes any leak charge, or the use of a leak in sentencing, shaky.
6.7.2007 9:48pm
A.S.:
When the court is permitted to enhance a sentence beyond the otherwise-applicable Guidelines range on the basis of facts never submitted to a jury, but rather proven to the court by a preponderance standard, clearly the rule of lenity has gone out the window a long time ago.

The word "clearly" in that sentence is clearly misused. There is no reason to believe that the Rule of Lenity should be dismissed merely because we are at sentencing, rather than guilt.

Even if "served" has been read to mean only "lived abroad," a point that has not yet been established by any citations to case law, I would say that's just not a reasonable interpretation of the text-- cf. the James Bond example.

The lack of case law on the subject militates in favor of invoking the Rule of Lenity, not against it. It establishes that there is no definitive statements clarifying the statute's inherent ambiguity.

And the James Bond example is unhelpful because (a) there is no reason to believe that James Bond was meant to be covered by the statute and (b) James Bond is a fictional character.
6.7.2007 9:55pm
A.S.:
At a pre-sentencing evidentiary hearing, the judge would be present for all the testimony presented, which, as I mentioned earlier, is why defense counsel frequently decline those hearings-- they know that nothing good can come of it for their clients.

That seems to me to be wrong in this case. If the evidence was helpful to the prosecution, the prosecution would have permitted to be introduced into the guilt phase. That the prosecution fought so vociferously to keep it out, and away from the defense, shows that the information is helpful to the defense.

One wonders why the judge refused to hold an evidentiary hearing on the matter, since the defense disputed the prosecution's statement that she was covert and asserted they they were not provided the relevent evidence. As I said, "railroaded" is the word that comes to mind.
6.7.2007 10:00pm
NickM (mail) (www):
To me, a far better point of comparison is Martha Stewart. She ended up only getting 5 months in prison and 5 months of house arrest, following conviction on one count of conspiracy, one count of obstruction of justice, and two counts of making false statements to investigators. Her sentence was also stayed pending appeal.

Seriously, how many people would really be upset if Bush pardoned Libby in January 2009 after Libby had served 19 months in federal prison?

Nick
6.7.2007 10:34pm
Steve:
One wonders why the judge refused to hold an evidentiary hearing on the matter, since the defense disputed the prosecution's statement that she was covert and asserted they they were not provided the relevent evidence. As I said, "railroaded" is the word that comes to mind.

My god, how they cry and cry when it's one of their own actually having to face justice like the little people. After being prosecuted by a Republican-appointed prosecutor in front of a Republican-appointed judge, his case now goes before an appeals court dominated by Republican appointees as well. Do you think they'll ever stop whining about how poor Scooter was denied his due process?
6.7.2007 11:08pm
Anderson (mail) (www):
Bush pardoned Libby in January 2009 after Libby had served 19 months in federal prison?

As opposed to Adler's ZERO jail time?
6.7.2007 11:34pm
Randy R. (mail):
Aubrey: " But, in any event, Libby wasn't charged with leaking, but with fibbing about what he remembered."

Ah yes. that's the new standard that the Bush Administration has itself lowered to: we expect our public servants to fib about what they remembered to stay out of jail, and that's perfectly fine. We know that Lurita Doan has done it, and Gonzalez, and many other fine upstanding members of this administration. If you fib about what you remembered, it's not such a big thing, and you certainly shoulnd't receive jail time.

Bush truly has restored integrity to the White House!
6.8.2007 2:09am
NickM (mail) (www):

Bush pardoned Libby in January 2009 after Libby had served 19 months in federal prison?

As opposed to Adler's ZERO jail time?


No. Standing on its own.

Nick
6.8.2007 2:27am
Richard Aubrey (mail):
Randy R. What are you talking about? Do you think Fitz filed the wrong charges?
Libby wasn't charged with leaking. So your statement has no value.
6.8.2007 8:12am
Randy R. (mail):
He was charged with lying about what he remembered. You have been defending him this whole thread. Therefore, I can only assume that the new Republican position, as advocated by you, is that lying under oath shouldn't be punished or even pursued.

As for the leaking, Fitzgerald didn't prosecute because he didn't have enough evidence, not because there was no illegal leak.

Bottomline: undermining our CIA in their fight in terror for political purposes, lying to a grand jury -- this is the behavior that the Bush administration has dragged our country down to. To defend any of this is reprehensible. And you would agree if it were a Democrat who did it.
6.8.2007 9:50am
Richard Aubrey (mail):
Yeah, Randy. He was charged with lying. I have not been defending him from leaking, since he wasn't charged with leaking. It is kind of lame, though, to question a bunch of people and, based on varying stories which are based on their memories and their say-so, that Libby's memory is the one which is accurate. That's the point. Libby's memory has been found to be complete and accurate. That's the implication and the foundation of his conviction. So saying something else is lying and not faulty memory. Lame as hell.

I've been attacking the entire leak issue.
To say that somebody who leaked ought to be charged has no connection to the Libby case.
No evidence of an illegal leak. Okay. How do you know it was illegal? Do you have evidence Fitz missed?
Hell, Fitz didn't even try to find the leaker. Or, if he did, there's no evidence of it.

Libby didn't undermine the CIA. The CIA sent Wilson and he lied in his op-ed. Libby, or whomever, when asked who sent this moron to Niger, said it was probably his wife. How did they know? Who told them? At some point, if it was illegal to tell these guys, somebody told them illegally. Who? Anybody got any interest in that question? Didn't think so.
And when the next question came up--what's his wife got to do with the trip--the answer was she works at the CIA. How did anybody know that? Who told? Who's bothering to try to find out?
You miss the elephant, Randy. If Plame was an IIPA agent, the only way the information could get out was FROM THE CIA. Who in the CIA let it out originally? Anybody interested? Nope.
The original investigation was to find the leaker. It wasn't to go after Libby. (That's their story and they're sticking to it.) But they haven't found the leaker, and they have avoided following solid-gold leads. Such as Armitage. How did he know? Yawn.
6.8.2007 10:34am
Anderson (mail) (www):
Libby was not merely "charged" with lying; he was convicted of lying. The difference is important.
6.8.2007 11:36am
Richard Aubrey (mail):
Anderson. I guess the difference is important in some respects. But it hardly applies to the fact that he wasn't charged with leaking and the effort to find the original leaker seems to be between actually non-existent and invisible.
6.8.2007 11:48am
Guest101:

One wonders why the judge refused to hold an evidentiary hearing on the matter, since the defense disputed the prosecution's statement that she was covert and asserted they they were not provided the relevent evidence. As I said, "railroaded" is the word that comes to mind.

Can we confirm exactly what happened here, procedurally? It would seem to make perfect sense that the judge would rule that the question of whether Plame was covert was irrelevant, and therefore inadmissible, during the guilt phase-- it was irrelevant to the question of whether Libby lied during his grand jury testimony. And it's not at all unusual for prosecutors to reflexively oppose any defense requests, whether or not those requests are particularly damaging to the government's case. If the defense attorneys requested and were denied an evidentiary hearing on this point during the sentencing phase, and Judge Walton subsequently relied on his finding that Plame was covert to increase Libby's sentence (which he apparnetly did), then, and only then, does the appearance of "railroading" have any validity.
6.8.2007 12:11pm
Bob from Ohio (mail):
1997: Liberals say perjury no big deal, conservatives differ.

2007: Conservatives say lying no big deal, liberals differ.

1977: Liberals say CIA cannot be trusted, conservatives differ.

2007: Conservatives say CIA cannot be trusted, liberals differ.

Interesting how things go around.
6.8.2007 4:01pm
Richard Aubrey (mail):
Bob. As to the trust in the CIA, you may be right.

I think the lying issue is different. Speaking only for myself, the Libby prosecution is lamelamelame. They had to prove, in some fashion, that his memory was perfect. If they hadn't done that, a misstatement would be excused as a misrembering. Happens all the time.
So we have a jury deciding, whatever the formal charge was, that Libby's memory was perfect for that issue. If that were not true, the charge would fail.
So it's kind of lamelamelame, compared to other lies tried and found to be lies.
6.8.2007 4:24pm
Guest101:
Richard,

How does any prosecution for perjury or false statements not require proving that the defendant's memory was not faulty? This goes back to what we were discussing yesterday-- the prosecution must prove, beyond a reasonable doubt, that the defendant intended to lie--i.e., that he did it on purpose-- or no crime was committed. Apparently, the jury was satisfied that Libby didn't just conveniently forget important facts during his testimony; why is this perjury case any different than any other such case?
6.8.2007 7:53pm
ATRGeek:
The contortions of Libby's defenders are priceless. It is a good bet that when someone has to cite the "rule of lenity", they have more or less run out of meritorious arguments.

And even their "rule of lenity" argument is nonsense. The statutory phrase is "served outside the United States". There is nothing particularly ambiguous about that phrase: if you were doing your job outside the United States, it would seem obviously to apply to you. This idea that you must have "lived abroad" has no textual basis, and indeed it would introduce a host of unnecessary ambiguities into an otherwise relatively clear phrase (what does it mean to "live" somewhere as opposed to merely "travelling" there?). And, of course, it would be a nonsensical distinction in light of the purposes of the act: part of the idea is to protect not just the officer in question, but also any people that officer may have been working with in foreign countries, who could potentially be identified once the officer's cover is blown. Whether that officer made contact with those people while living abroad or travelling abroad is immaterial--either way, blowing this officer's cover puts those people at risk.

But all this just indicates the fundamental lack of seriousness on the part of those defending Libby. As I noted elsewhere, this is not about the facts or the law for them, but rather it is about loyalty to one of their own.
6.9.2007 11:37am
ATRGeek:
Oh, and to make further hash of this rule of lenity argument (not that it needs it):

50 USC 426(4) actually contains three different definitions of "covert agent". The language in question is in 426(4)(A)(ii), and is relevant because Plame was an officer of an intelligence agency.

However, if you are not an officer of the United States but are a US citizen you can still qualify under 426(4)(B):

"(B) a United States citizen whose intelligence relationship to the United States is classified information, and -

(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or

(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation."

This relevant because it shows that when the statute makes residing outside the United States an element of the definition, it does so explicitly. Accordingly, under familiar principles of statutory construction, the fact that 426(4)(A)(ii) does NOT explicitly require residency outside the United States implies that a court should not read such a requirement into that part of the statutre (again, not that the language would support such a claim anyway).

Again, though, I am sure all this is irrelevant to Libby's defenders, since they are not truly interested in the law and its application to his case.
6.9.2007 11:48am
Richard Aubrey (mail):
Guest. The way you prove perjury is you have circumstantial evidence outside the supposed memory--if it's a matter of memory and misspeaking--that contradicts the statement under question. You have, for example, notes written in different ink purporting to have been contemporary instead of later insertions--I believe that was one of Stewart's problems.

In this case, nothing but Libby's memory was at issue. And the jury was deciding on a memory. That would be, if I were on the jury, a really, really tough sell. I would know it could be a lie, but the presumption is of innocence.
I went to a reunion of some folks I worked with forty years ago. It was like recalling two separate programs, one of which I did not attend. Somebody's memory was wrong, and that was a program whose intensity was seared, seared, into my memory.

Recalling a casual conversation among many a week ago, or a year ago...I go with the guy claiming to have misspoken, even if I think he may be fibbing.

The contortions of Libby's attackers are priceless. We have a faithful, courageous CIA agent outed to the danger of her, her family, and the nation. The leaker(s) must be found and punished. Well, we found the leaker(s). And nobody cares. None of the leakers lead to Cheney, so what the hell good are they. At least we can slam somebody for a lamelamelame conversation based on dueling statements of people who all have a lot at stake.
Well, I suppose it's better than nothing.
Losers.
6.9.2007 11:53am
ATRGeek:
Richard,

If you believe that Libby is factually innocent, then the proper remedy is an appeal (the COA can decide that the evidence was legally insufficient for the jury's verdict).

Incidentally, others besides Libby could still be held legally liable for their actions in this matter. Of course, your argument is nonsense anyway--even if the others responsible for outing Plame somehow escape being held legally liable, that doesn't absolve Libby of his crimes.

Finally, I will note again that I know several Republicans who are not defending Libby's actions and/or arguing for a pardon/clemency. Generally, it is obviously wrong to imply that those who think Libby did in fact commit the crimes of which he was convicted bear him some sort of ill will--many of the jurors, for example, made it clear they actually liked Libby personally. Indeed, the judge (a Bush II appointee, I might note) did not seem unsympathetic to Libby. So, it is all part of the smokescreen to claim that those who are not willing to defend Libby's crimes are somehow interested in "attacking" him.
6.10.2007 12:29am
Richard Aubrey (mail):
ATR. If you look carefully, I am not defending Libby's actions. I am saying he probably did not commit the action for which he is convicted.

I am saying further that the idea this was all about leaks and not all about Cheney is absurd. Had it been all about leaks, Libby would have had to take a number while Armitage and several others named, and some not named by Fitz, such as Andrea Mitchell, are grilled extensively on their knowledge fo this gaping hole in national security and the outrageous act of treason, or whatever you all called it.

Actually, it is correct to think that those who think Libby committed the crime hate his everloving guts--he's a republican and he's as close as they can get to Cheney and Bush. There may a few viewing this objectively, but only a few. Pay attention.

So when Fitz gets another budget bump to allow his office to go after the guy who told Armitage, get back to me.
6.10.2007 9:43am
ATRGeek:
Richard,

Of course, Fitzgerald is a Republican, as is the judge who sentenced him. And again, the jurors who were interviewed made it quite clear that they did not "hate his everloving guts".

But trust me, I understand: if the talking point is that this was simply an anti-Republican effort, then the fact that Republicans carried out this prosecution and sentencing is just another fact to be ignored.
6.10.2007 1:23pm
Richard Aubrey (mail):
ATR. You did not refer specifically to the folks in the courtroom. You should be paying attention. Libby, being available, has taken on the diabolic charasteritics of the Bush administration.
Somebody, with more time than I, chased down Fitz' political allegiance and it appears he has done enough on one side or another that he can be a republican when dems applaud his going after republicans and he can be a dem when republicans laud him for going after dems. IOW, nothing important there. So that ignoring Fitz' political allegiance is a prudent thing to do, no matter which side he's alleged to be on at one time or another.

So, when are you guys going to wipe your chins and start clamoring for investigation into the leak?
6.10.2007 2:32pm
ATRGeek:
Richard,

What other people outside the courtroom think of Libby is irrelevant. Libby was prosecuted by Fitzgerald, found guilty by the jury, and sentenced by the judge. I know those are inconvenient facts for your little conspiracy theory, but there they are.

As for Fitzgerald, he was appointed as the USA for ND Ill by George W. Bush. Walton, of course, was also appointed to the bench by George W. Bush. Libby must have gotten darn unlucky to have not one but two separate Bush appointees go renegade and join the conspiracy to destroy him because they hate his everloving guts. Unless they actually believe that they are upholding the law ... nah, it is definitely hate of Libby that motivates them. That makes the most sense, definitely. Definitely.

Incidentally, I don't know what you mean by "you guys" (I am an individual, not a collective). But to state the obvious, there IS an ongoing investigation into the leak. So, why would I "clamor" for something that already exists?
6.10.2007 10:22pm
Richard Aubrey (mail):
ATR. You're getting a bit defensive. All you have to do to find people who hate Libby's guts is read blogs, columns, listen to talk radio, and see the nuance TV puts on the reporting.


The clamor was pretty loud for something that already existed when it looked as if a Bush person would be in the dock. So the lack now doesn't square with a quiet satisfaction that justice will be done.

My prediction is that a source in the CIA did it, and will never be found out. Among other things,if she had been legally IIPA qualified, only the CIA would have known it. Nobody else could tell. There are reasons he'll never be found, but they all will come down to he will never be found out. After that,after an iteration where somebody who hears and passes it on can claim with more credibility than Libby had that he didn't have a clue, it will be be a matter of common knowledge. And when even Andrea Mitchell said everybody knew about it, it's no longer illegal.
6.10.2007 10:34pm
ATRGeek:
Richard,

You originally stated that "it is correct to think that those who think Libby committed the crime hate his everloving guts." I take it you are now backpedaling from this statement, and are currently just asserting that some people, somewhere in the world, hate Libby's guts. That may be true, but I don't see how that is relevant to his indictment, trial, conviction, and sentence.

This, of course, is yet another problem reasonable people face when dealing with the talking points crowd. On each individual point they eventually are forced to retreat, as you just did, but then they just cycle to the next talking point on the list. Eventually they get to the end of the list and go back to the top, and then they start over with their talking points as if nothing had been discussed before.
6.10.2007 10:51pm
Richard Aubrey (mail):
Okay, ATR, I exaggerated. Most people who think Libby committed a crime hate his guts.

I don't think I'll be going back to the top of the list to demand some indication of interest in the leak. I'll be at the top of your (first) list. Hope you don't mind being occasionally reminded of it.

And I'm not partisan. I can vote to convict somebody who is personable and friendly. I can vote to acquit somebody who is obviously a scum sucking bottom feeder who makes my back hairs stand up. I have done considerably more against my own interest when necessary.
After a happening when in the service, an enlisted man said to me, "You officers are like Mr. Spock. But I guess you're supposed to be." I was and still am.

My concern with the Libby situation is that, IMO, he almost certainly didn't do it. Just as I am convinced that OJ did it. And if Nifong had managed to bring the laxers to trial in the toxic jury pool of Durham, they'd have surely been convicted, although innocent. So don't pretend the jury system is either infallible or beyond reprocah.
"DNA? What do I know about DNA. I ain't no Catholic", quoth a juror after acquitting the murderer of a nun.

In any event, as others have noted, Fitz found no crime and got Libby confused as to what he'd said about it, using as proof the statements of others who knew less than Libby did about who, what, when, where. If Libby were a democrat, I expect you'd find this kind of lame.
6.10.2007 11:53pm
ATRGeek:
Richard,

Again, if the evidence is legally insufficient for the jury's verdict, his conviction can be set aside on appeal. Of course, the trial judge should never have let it go to the jury, so I gather the trial judge disagreed with you. But what does he know? He just presided over the trial.

Anyway, since "he almost certainly didn't do it," I assume you think it is likely his conviction will in fact be set aside on appeal. Unless, of course, the DC Circuit is in on the conspiracy too. Care to make that call in advance, or will you only know if they are in on the conspiracy after they render their decision?

By the way, to the extent I understand your claim about the facts, it is incorrect. Libby's "confusion" (or what he lied about) is not just about what he said to other people, but also about what other people, including other government officials, said to him. And Fitzgerald used as evidence the testimony of those other people, who presumably know just as well as Libby what they said to him.

Finally, I have no idea what you are assuming about me. But if you are assuming that I am a Democrat, you would be wrong.
6.11.2007 12:16am
Richard Aubrey (mail):
Libby was not charged with what other people said to him. He was charged with what he said to a GJ.
In another blog, a LE type asserted that, when the FBI interviews you, they take handwritten notes. So you tell them the truth. Then you go to court and you tell the court the truth. The FBI guy's notes don't quite agree. Presto, you're a perjurer or you lied to a federal officer.
I don't know if this is true, in detail, but the larger point is that if you say the same true thing in two separate venues, you're vulnerable, if the prosecutor wants you.
The solution is to either tape the conversation and keep the tape, or say nothing at all at all at any time to anybody under any circumstances.
Due to a wartime overload, I was issued two birth certificates, slightly different. I could, if somebody like Fitz wanted me, get in a heap of trouble just giving the court my full name. "On, no,", say the lawyers, waiting for just such a chump to fall into their grasp.
6.11.2007 12:37am
ATRGeek:
Richard,

With all due respect, are you actually familiar with the facts of the case and the evidence Fitzgerald presented at trial?

For example, do you know who Marc Grossman, Robert Grenier, and Cathie Martin are? Do you know why their testimony was relevant?
6.11.2007 12:49am
ATRGeek:
As an addendum:

Have you read the indictment?
6.11.2007 12:58am
Richard Aubrey (mail):
ATR. Been following it in excruciating detail at Just One Minute, (Tom Maguire) blog. See an extensive discussion about the covert issue up this morning.
6.11.2007 7:11am
ATRGeek:
Richard,

That did not answer my questions. Have you read the indictment? Do you know who those three witnesses are and why they are important?
6.11.2007 9:00am
Richard Aubrey (mail):
No. And yes.

And I think you ought to see the current discussion on covertness at Just One Minute to get an idea of the depth of discussion. Makes this blog look lazy.
6.11.2007 11:16am
ATRGeek:
You haven't read the indictment but you are sure Libby didn't do whatever he was indicted for doing?

Hmmm.

Anyway, if you understand that significance of Marc Grossman, Robert Grenier, and Cathie Martin, then your other comments make no sense to me. Can you explain why in your view their testimony is not evidence that Libby lied to the FBI and the grand jury? Please be specific.

By the way, I don't care what blogs you read, and I'm not sure why you think I would. But if it helps, I will not blame your apparent misunderstanding of the facts of Libby's case and the evidence presented at trial on that particular blog.
6.11.2007 2:03pm
Richard Aubrey (mail):
ATR. You must have thought my reference to another blog was designed to impress you. Do you think I have any interest in your opinion of me? I hope not. That would be a mistake. Look up "aubrey reference person list". You're not on it.

The three folks you mentioned have all claimed to have talked to Libby about the Wilson trip. Grossman, for example, talked about the Wilson trip but has, at least at one point, denied or refused to address the question of whether he mentioned Plame.

The conversations each references seem to be vague on the subject of Plame.

In addition, they seemed to know about Plame. So it appears the leak was already leaked unless they were qualified to know the supposed IIPA information. If they were qualified, they were not supposed to tell. In either case, Libby was not getting illegal information, if he actually got it at all. Even if the leaker was qualified to know all about Plame and her 007 status, and was forbidden to tell, and told anyway, Libby would have had to be told in the same conversation all about the IIPA status with all its conditions in order for his further conversations to be actionable.
However, that is bringing us to the leak issue which is not Libby's indictment.

Back to his indictment. The question is whether Libby lied. If you are mistaken, you didn't lie. Libby claims to have been mistaken due to faulty memory. So whatever the honorable people you mention said, they do not directly address the question of whether he forgot something.

You will recall endless congressional hearings where witnesses insisted they did not recall one thing or another. Other than skeptical looks from the congresscritters, nobody put much effort into trying to prove they had better memories than they let on and were thus committing perjury. It can't be done, absent some contemporary hard evidence such as a letter. I suppose you could always find several people who claim to have talked to the guy and make it dueling memories. My point is basically that in a matter of dueling memories, the presumption of innocence must apply because all memories are subject to the same presumption of acuity or fumbleness.

I do note that an FBI agent has testified that her notes do not include information to which she testified about what Libby said, so she had to make a correction, probably to avoid a perjury indictment at the hands of the ever-vigilant Fitz. So her testimony now stands on her memory, not the notes which she either did not take, lost, or discovered did not fit Fitz' requirements. So why is her memory superior to Libby's?

The reason I suggested checking out the other blog is to learn more than you apparently know.
6.11.2007 2:53pm
ATRGeek:
Richard,

I'm sorry, but you really appear to be ignorant of the indictment and how those witnesses testified, or you are deliberately trying to mislead people who may not be familiar with the case.

The most relevant lie that Libby told to the FBI and the grand jury is that Russert told Libby on July 10th or 11th that Plame worked for the CIA. Libby also told the FBI and the grand jury that he was surprised to learn this fact.

Russert denied Libby's account of that conversation (he said they never discussed Plame), but that was actually not the worst problem for Libby. Rather, the worst problem was that the three witnesses I named all testified that they told Libby BEFORE July 10th that Plame worked for the CIA. Additional evidence indicated that Vice President Cheney also told Libby about Plame before July 10th.

Incidentally, the evidence also showed that before July 10th, Libby told both Ari Fleischer and Judith Miller that Plame worked for the CIA (the latest such occasion being July 8th, two or three days before his conversation with Russert).

That is why all that testimony is relevant: for Libby not to have lied to the FBI and the grand jury, it would have to be the case that in those two or three days he somehow completely forgot that all these other people, including his boss, had told him about Plame working for the CIA, and that he had turned around and relayed that fact to Fleischer and Miller. In fact, for Libby not to have been lying he would have to become such a blank slate that Russert supposedly mentioning this fact to him would not have refreshed his memory.

That is the story that the jury did not buy (that somehow Libby forgot all this ever happened when he talked to Russert, even assuming that Russert is wrong and Libby is right about that conversation). And with good reason: it is basically an unbelievable story.

Now, one of two things is true. Either you understood all that and yet you decided to misrepresent the facts of the case anyway, or you made your judgment about the case without understanding the facts. Unfortunately for Libby, I don't think he can expect the Court of Appeals to follow your lead.
6.11.2007 4:33pm
Richard Aubrey (mail):
The three witnesses you mention mean two things:

One is that they have to be telling the truth about talking to Libby, and secondarily that the content of the conversation was as they say it was.
And the subject of Plame's employment was sufficiently important that he would remember.

The other point is that either the people who told him were doing illegal leaking--or somebody prior to them in the info chain had. The Libby leak theme is thus ruined, which Fitz knew from the beginning.

Grossman had an early statement that he talked to Libby about that time regarding Wilson and didn't mention Plame. He refused to discuss the question further. So we know, probably, that Libby and Grossman talked, but we have, at least, some ambiguity as to whether Plame came up. So Libby can be trying to remember a conversation which mentioned Wilson, and, given the circumstances in which he found himself and the ubiquity of Plame's name, who is married to Wilson and would be likely to be part of a conversation, be unable to recall whether he heard it from Grossman that time, or later, or conflated it with some other conversation at some other time.

BTW, at the earlier-referenced blog, an ex NOC said Plame was breaking a number of superspy rules. The entire leak thing is probably bogus due to her activities. She wouldn't have been breaking the rules if she'd considered herself a covert operator. Or, if she did consider herself NOC, her actions disqualified her. Affirmative actions to cover her would have, among other things, caused her bosses to have a stroke at her, for example, working at Langley. NOCs don't do that.
6.11.2007 7:38pm
ATRGeek:
Yes, either every witness who reported a conversation with Libby about Plame before July 10th, including multiple officials inside the government, were lying, along with Russert himself, or Libby was. The jury made the obvious choice.

Anyway, as I predicted, I see you are moving on from your claim that "he almost certainly didn't do it" to the other talking points on your list. So, this is where I get off the merry-go-round.
6.11.2007 9:10pm
TDPerkins (mail):
Steve wrote:

The fundamental problem here is that there's a non-trivial number of people, apparently including the defendant, who believe that what Libby did was no big deal.


There are a non-trivial number of people who don't think he did what he was accused of.

Bottom line, if the witnesses were held to the same standard as Libby, they'd be convicted too.

That does and should make for a very shaky conviction.

ATRGeek wrote:

Anyway, as I predicted, I see you are moving on from your claim that "he almost certainly didn't do it" to the other talking points on your list.


That's exactly what he's still saying. Libby almost certainly didn't do it, and doubt is more than reasonable.

Yours, TDP, ml, msl, &pfpp
6.11.2007 10:10pm
Richard Aubrey (mail):
ATR.

The Grossman statement--non-statement regarding Plame--was known long ago. Just for fun, I searched for his name, and, presto, one of the first hits was a report that the conversation did not include Plame. So he was telling the truth--he didn't tell Libby about Plame--or he was lying--he did tell Libby. But since he says he didn't, for purposes of the conviction, Libby's and yours (different definitions) he didn't.
I don't know how many witnesses were lying, but it appears that quoting Grossman as favorable to Libby's conviction doesn't get it.

Just for fun, I have a big thing happening in a couple of weeks. There is a major part of the preparation I have to do during business hours, but I never remember it until I'm home. Took a week of making mental notes, and setting the alarm on my wristwatch, to get it done. And I don't have to help my boss fight a war.
6.12.2007 12:11pm