Friday, October 28th, 2016

Why not free Libby?


Reading the liberal blogs, one would get the impression that Libby was on trial for war crimes, falsifying evidence for the CIA pre-war assessment of Iraq, “outing” CIA agent Valerie Plame and driving the car that killed President Clinton’s dog Buddy. The incoherence of their rage is seconded only by their belief that Libby’s sentence commutation is only part of a vast conspiracy to shield the President from impeachment. Robbed of their opportunity to put the Bush Administration on trial in a re-enactment of the Dreyfuss Affair, the “netroots” at least hoped for some pound of flesh to be exacted in the sentencing of Vice Presidential aide Scooter Libby.

Libby, of course, was not guilty of any of the above offenses or even tried for them. He was tried for, and convicted of, obstruction of an investigation into who leaked the identity of CIA agent Valerie Plame to the press, and whether any laws were broken. Christopher Hitchens in Slate noted the following points before Libby was sentenced:

Mr. Libby was not charged with breaking the Intelligence Identities Protection Act. Nobody was ever charged with breaking that law, designed to shield the names of covert agents. Indeed, the prosecutor, Patrick Fitzgerald, determined that the law had not been broken in the first place.

The identity of the person who disclosed the name of Valerie Plame to Robert Novak—his name is Richard Armitage, incidentally—was known to those investigating the non-illegal leak before the full-dress inquiry began to grind its way through the system, incidentally imprisoning one reporter and consuming thousands of man hours of government time (and in time of war, at that).

In the other two “counts” in the case, both involving conversations with reporters (Judith Miller of the New York Times and Matthew Cooper of Time), Judge Reggie Walton threw out the Miller count while the jury found for Libby on the Cooper count.

The call to Russert was not about Plame in any case; it was a complaint from the vice president’s office about Chris Matthews, who was felt by some to have been overstressing the Jewish names associated with the removal of Saddam Hussein. Russert was called in his capacity as bureau chief; any chitchat about Wilson and Plame was secondary.

The call was made after Robert Novak had put his fateful column (generated by Richard Armitage) on the wire, and after he had mentioned Plame’s identity to Karl Rove.

That last point I think really challenges the purpose of the Libby trial. If the call to Russert was after the Novak column, why should it have been the subject of inquiry at all?

Hitchens’ third point, that Armitage’s role was known prior to the investigation, also raises the question of why the investigation was even allowed to continue, let alone put any focus on Libby’s conservation with Russert.

There’s also a very real question on the appropriateness of the sentence. Andy McCarthy writing in The Corner for National Review Online comments,

Suppose crime X didn’t really happen—as in Scooter’s case, where no one was ever charged with exposing a covert agent or violating the espionage act. In such an instance, it can be forcefully argued (as Libby’s counsel contended) that the obstruction guideline Fitzgerald relied on does not apply because there really was no criminal offense that the defendant obstructed. Does it make a difference whether criminal offense means a real criminal offense versus whatever potential offense the prosecutor thought he was investigating? You bet it does. If there’s no criminal offense, the guidelines talk about a sentence at “offense level” 12, which translates to 10-16 months — but is also in the range where, if the court makes an easy-to-justify downward adjustment or two, you’re talking about probation.

On the other hand, the offense level for exposing a covert agent is at least 25. If that is considered to be the criminal offense the defendant was convicted of obstructing, the guidelines instruct the judge to start at level 25 and subtract 6, resulting in an offense level of 19. For a first offender like Scooter, that calls for a sentence of between 30-37 months — with no realistic possibility of reduction to probation.

The U.S. Probation Department (which always makes a recommendation to the judge based on its own guidelines calculation) agreed with Libby’s counsel that the judge should find there was no criminal offense; thus, it recommended a sentence of no more than 10-16 months, which left a significant chance of probation—meaning no jail time at all. Judge Walton, to the contrary, agreed with Fitzgerald that when the guidelines say criminal offense, they mean the theoretical offense the prosecutor was looking into. Consequently, Judge Walton imposed a sentence of 30 months.

There is a world of difference between potentially no time and two-and-a-half years.

I think President Bush was right. If, as the judge found, Fitz is correct, that means obstruction sentences become a function of what the prosecutor suspected when he started his investigation, rather than what actually did happen. That’s fine if he’s investigating, say, a murder — the murder either did happen or it didn’t; we don’t need to rely on the prosecutor’s imagination to know one way or the other. But when, as often happens, the grand jury is investigating some unsavory conduct that may or may not have been criminal, I think we want to premise obstruction sentences on what objective reality indicates, not on what the prosecutor suspected but couldn’t prove.

(I recommend reading McCarthy’s whole comment because it’s probably the best explanation of the possible sentences Libby could’ve received.)

So to sum it up: we have a case of obstruction (under appeal) of a needless investigation to determine facts already known in a case where no crime has been found to have been committed where the dispute centers on two different recollections of one phone conversation which took place after the possible crime was committed, a reasonable chance of getting the conviction overturned, and an arguably excessive sentence which was to be imposed immediately while the appeal was pending. Under the circumstances President Bush’s decision, and the timing of it, are completely understandable

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