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Tuesday, July 03, 2007

On Libby's sentence enhancement based on unproved crimes

It's now a moot issue, and I'm far from an expert on sentencing. Given the commutation of Libby's sentence, I now no longer intend to do the sort of research and preparation that I had planned for this post. But I do want to write briefly (by my warped standards) about the problem I have with Libby's 30-month prison sentence that President Bush just commuted. So consider what follows to be an admittedly half-baked opinion.

The subtitle of this post could be: "No sentence enhancement was appropriate unless Fitz at least had a legitimate 'Drat that Libby!' shout."

(Note: The premise for this whole post, necessarily for purposes of argument, is that Libby is guilty. You can't talk about sentencing meaningfully otherwise. It's just a premise, though, and just an assumption arguendo; don't read it into me saying I'm 100% persuaded of Libby's guilt, because I'm neither 100% persuaded of his guilt or of his innocence.)


Post-Booker, we're still not quite certain if the U.S. Supreme Court has finished shaking up the constitutional outlines of sentencing law. Scooter Libby's sentence is now guaranteed not to make any new precedents on that. Except for the commutation of his prison sentence, though, it might have. The sentencing guidelines under which Libby's 30-month sentence was determined permitted Judge Walton to take into account, in connection specifically with the obstruction of justice count, unproved and possibly unprovable crimes under the Espionage Act and the Intelligence Identities Protection Act. As best I understand the current state of sentencing law, that's probably okay, so long as it's not mandatory but discretionary on the part of the sentencing judge.

I understand, and agree with, the particular rationale behind permitting an unproved crime to be used as enhancement for obstruction of justice. Otherwise, you would have the effect of effectively rewarding those who've successfully obstructed an investigation into, for instance, an IIPA violation.


To illustrate the general point, look with me at a couple of hypotheticals.

Suppose Scooter Libby's obstruction of justice had been, for example, destroying unique and irreplaceable documents from the National Archive, of which there are no completely identical copies, and without which we are unable to inquire into the identities, actions, and motivations of co-conspirators at whose behest he was acting. Suppose he'd filched a copy of a memorandum on the margins of which his co-conspirator had made an incredible handwritten admission: "Good thing the press never looked into this, because this happened during was the week I accepted a bribe from those Saudi princes." Sure, there are other copies of that memorandum in the Archives — but none of them had that one hand-written tidbit, and Libby has now stolen and destroyed the version that did have the handwriting. Assume further that without that unique document, we now can't even figure out who the co-conspirator was, much less prove his guilt through such an unqualified admission. So in this hypothetical, we assume that we have a genuine case of international espionage, bribery, and treason which is therefore unable to be prosecuted — but all that Libby can be convicted of is obstructing justice when he  stole and destroyed the memo. (Assume with me that without the destroyed memo, there's also not enough corroborating evidence for a conspiracy charge.)

In those circumstances, would it be fair to enhance Libby's obstruction of justice sentence by considering the serious nature of the crimes whose investigation and prosecution he successfully obstructed? Sure, I have no problem with that. Indeed, we definitely ought not let such deviousness go unpunished, especially when, by the success of the devious acts, we may never know the whole scope of what additional crimes were committed or by whom.

Or let's take the same hypothetical, but change one fact: Contrary to Libby's expectation, FBI agents found the remains of the acid-stained document, and FBI forensic scientists have been able to make out the handwritten language. Same obstruction of justice, in other words — and it might very well have worked! But this time it didn't. Assume that Bill Clinton Mr. X was caught and duly punished for bribery, espionage, and treason, despite Scooter's obstruction. Once again, on this hypothetical, I have no problem enhancing Libby's obstruction sentence based on the unproved crimes, based on his clever-but-failed obstruction scheme.


Here, though, the prosecution has not been able, as far as I understand, to articulate a causal chain in which anything that Libby did actually did obstruct Fitzgerald's investigation, or even a plausible chain of events by which it could ever have been expected by Libby or by anyone else to do so. There wasn't anything to his obstruction, in other words, than telling a story that would conflict with someone else's story. Nothing was permanently hidden; no path of inquiry was blocked. For Libby's feeble obstruction to have succeeded in hiding another crime, or preventing its investigation and proof, the FBI and Fitz would have had to be completely vegetative.

In first my hypothetical above, at some point during his investigation, Fitzgerald shouts, 'Drat that Libby! Now that he's poured acid on the only copy of the memo with the handwritten notes, we'll never know who Mr. X was!" Or in the second hypothetical: "Drat that Libby, Mr. X might have gotten off but for the competency of our investigation!"

So what's the "Drat" shout that Fitzgerald could make about anything Libby did here? What even hypothetical evidence did Fitz forever lose based on the sand that he claims Libby tried to throw in his eyes?

All this is to say: When an obstructer of justice has been so painfully inept at it as Libby turned out to be, or ever even boded likely to be (from this kind of conduct) I think it may indeed be an abuse of discretion for the unproved crimes to be considered for purposes of sentence enhancement.

Judge Walton would probably say to this argument that he didn't enhance Libby's sentence nearly as much as the guidelines would have authorized him to do, given the nature of these specific unproved crimes. But unless you can articulate how the prosecution actually was ever at any risk of being prejudiced on these facts, I can't see that any enhancement at all is appropriate.

"Well," Fitz might say, "We had to spin their wheels longer to clear up the confusion that Libby created." Fine, that's true. But that's built into the penalties for garden-variety obstruction, un-enhanced.

"Well," Fitz might say, "Libby didn't know that we had identified Armitage as the first leaker, and he thought he might have been the only leaker, and so he was protecting himself from a potential espionage or IIPA charge by concealing his status as a co-leaker (but not first leaker)." Okay, that's fine too — but if so, that was an awfully stupid, naïve plan, and it certainly didn't prevent you from developing other evidence from the witnesses who Libby did admit to speaking with that Libby was a co-leaker, and it certainly didn't interfere with your ability to charge and try to prove all of the other elements of those crimes if you thought such crimes were indeed committed. So tell me what you could have been expected to actually miss, Mr. Fitzgerald, from the sand that Mr. Libby threw in your eyes?

This just seems to me to have been a spectacularly bad case for enhancement on its facts. It was the weakest part of Fitz' closing argument on obstruction, too, but you don't have to have had a clever, sensible, easily understandable and plausibly successful obstruction plan to be convicted for obstruction.


A few points in closing about Mr. Fitzgerald: Saying that I think there's a hole in Fitz' argument on enhancement that Judge Walton ought to have seen, or a hole in Judge Walton's sentencing explanation on enhancement that an appellate court ought to have seen, is not at all the same thing as saying that "Fitz = Nifong!" or that "Fitz and Reggie are proceeding in bad faith!" or that "This is a partisan witch-hunt!" I expect every prosecutor to argue for the outside limits on sentencing most of the time, especially when the defendant hasn't shown contrition. And when trial judges explain what they've decided, that necessarily reads like they're defending themselves against being reversed on appeal, and that's okay too.

I also disagreed with Team Fitz, Judge Walton, and the D.C. Circuit on whether Team Libby had raised a "genuine question" for purposes of bail pending appeal. But that doesn't mean anyone involved is a Nazi.

I'm not surprised that Fitz continues to defend his now-mooted position on sentencing, either. I do think, however, that he probably spoke unnecessarily and unwisely in issuing a press statement quibbling with Dubya's commutation statement:

We fully recognize that the Constitution provides that commutation decisions are a  matter of presidential prerogative and we do not comment on the exercise of that prerogative. 

We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.”   The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country.  In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws.  It is fundamental to the rule of law that all citizens stand before the bar of justice as equals.  That principle guided the judge during both the trial and the sentencing.

Although the President’s decision eliminates Mr. Libby’s sentence of imprisonment, Mr. Libby remains convicted by a jury of serious felonies, and we will continue to seek to preserve those convictions through the appeals process.

Dubya's description of the sentence as "excessive" certainly wasn't an evaluation of the sentencing guidelines or their use here. He's not looking at it from the standpoint of a sentencing judge or an appellate panel, but from the point of view of a President, and he's entitled to consider additional and different factors.

Fitz is an advocate doing his job — and the way the system works is that someone else has the job of advocating the opposing position just as fiercely. The problem with this particular statement, though, is that arguing with the President in the press isn't really part of Fitz' job. Since all of the imprisonment issues are now permanently mooted, there's no more need for him to be arguing about the prison sentence in court either. Arguing about it anywhere now comes across as being political, instead of just being a vigorous advocate. Doing so isn't bad faith; I think it's just a garden-variety error in judgment, albeit on a brightly lit high stage. As with his mistaken accusation of Libby as being the "first leaker" in the indictment press conference, he's made another misstep outside the courtroom — one that contrasts so vividly with his successful footwork inside them. He should continue to let his court filings do his talking.

Posted by Beldar at 04:18 AM in Law (2007) | Permalink


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(1) boris made the following comment | Jul 3, 2007 7:36:55 AM | Permalink

Drat that Libby!

Yessss! Had Libby's GJ testimony conformed with the "truth" Fitz proposed at trial, no memory loss, no surprise convo, there would have been no evidence of crime revealed.

(2) cboldt made the following comment | Jul 3, 2007 7:40:35 AM | Permalink

Good review and hypotheticals.

I agree with your conclusion that Fitzgerald shouldn't have made a public response to the commutation of sentence. But I don't read his statement in quite the same light you do.

I read his statement as recapitulating the sentencing determination (a defensive response in the nature of, "what we did wasn't improper"), accepting that it was commuted (one can impute bitterness there, but I don't), and as a forward-looking matter, he was going to continue to argue to uphold the conviction.

The problem with making the statement at all is that it comes off as defensive, it is likely to be taken as bitter, and it has no effect on his future conduct in the appellate process.

I'm looking forward to reading the eventual Circuit Court opinion that (I predict) upholds Fitzgerald's appointment. I hope that is appealed to SCOTUS, and if it is, I predict SCOTUS will deny cert.

(3) Patrick R. Sullivan made the following comment | Jul 3, 2007 9:08:00 AM | Permalink

'...arguing with the President in the press isn't really part of Fitz' job.'

But, that's not how Fitz sees himself (eg, 'There's a cloud over the Vice-President'). He's not serving under anyone, he's truly in a class all by himself.

And, he likes it.

(4) Ralph made the following comment | Jul 3, 2007 10:37:56 AM | Permalink


I agree with your rationale regarding the enhancement of sentencing for obstruction, but I'd suggest that there is an even stronger difference in this case than what you use in your example.

In the case where a "perp" had destroyied a classified document, and it was unknown what that document had contained, one could make the legitimate argument that that destruction had made it impossible to determine if a crime had been committed, but that "probably" it had been.

One can then say that it has been established "beyond a reasonable doubt" that the destruction of the document had obstructed the investigation and made it impossible to determine that a crime had been committed. Therefore justice had, indeed, been obstructed; though it is still possible that the destroyed document would not have established that a crime had been committed.

I can accept this rationale, though it does seem to push the limits of our basic "innocent until PROVEN guilty" legal system.

In the Libby casse however, I suggest that the justification was "stretched" significantly further.

The crimes at issue involved the "outing" of an allegedly covert agent. Fitzgerald never established, and indeed avoided having to establish, that Plame was, indeed, "covert" under the terms of IIPA. Whether Libby lied or not, and I can accept that he may indeed have done so --- the jury certainly accepted that he did, his actions did not prevent the prosecutor from proving that a crime had been committed. The only thing preventing that was the PROSECUTION's refusal to bring that proof to court.

There are strong arguments to the effect that Plame was not a "covert" agent under the terms of the IIPA, and those arguments were never given their chance to appear in court and be tested; solely due to the decision of the prosecutor. Libby's statements in no way prevented Fitz from proving that a crime had, indeed, been committed.

Fitz "gamed" the system so as to avoid having to undergo that test. Nothing that Libby did, prevented Fitzgerald from establishing that a crime had, indeed, been committed. In effect, Fitzgerald, by his own decision, created a situation in which he could argue that Libby should be punished more severely because of an unproven crime, and prevented Libby from having the chance to defend himself from the charge of that crime.

This is a case far different from your example, since it is the PROSECUTOR's actions that prevented the existence of the crime from being proven.

Similar arguments can be made relative to the other "intelligence related" statutes.

So, in this case, it appears to me that we have expanded your example of the rationale supporting obstruction even when a crime cannot be proven to something much more open-ended along the lines of "well, since we had some confusion it's possible that there may have been some crime committed that we don't know about, even though we can suggest its identity, and therefore justice has been obstructed."

That is, I think, the danger of the ability to charge "obstruction" without being able to prove a crime.

I think that TOO open-ended a use of the rationale is unjust, and possibly, unconstitutional, and this case appears to be pushing that limit.

It seems to me that to prove "obstruction" a prosecutor should, at least, have to establish that a particular crime might have been committed that could not be properly investigated due to the actions of the perpetrator. If the prosecutor could conclusively establish whether or not a crime had been committed regardless of the perpetrator's statements then I think that his ability to charge obstruction should be more restricted.

Libby's statements, whether lies or truth, did not prevent Fitzgerald from determing if IIPA had been violated.

I'd suggest that there is further support for my argument in the fact the person who did reveal Plame's identity to the press was not charged with any crime.

Had Armitage been charged, I can see that there could be an argument that Libby's statements possibly prevented determining who else might have committed the crime. It would have been established that a crime was, indeed, committed, and there would be a solid argument that Libby's actions might have prevented the determination of the full extent of that crime.

With Armitage uncharged, and indeed with his identity initially protected by the prosecutor, the obstruction argument appears MUCH more stretched to me.

Thanks again for your thought provoking analyses.

(5) anduril made the following comment | Jul 3, 2007 11:45:58 AM | Permalink

Beldar, consider this. You convincingly demonstrate the non-materiality of (arguendo) Libby's lies. In an ordinary case there would be no prosecution over a conflict of recollection of this sort--although we can all agree that this is no ordinary case. However, while Libby may have been indicted for the statements he made regarding his conversations with Cooper and Russert, it seems unlikely that he was indicted because of those statements.

Rather, the moment Libby stated, in an early interview with the FBI, that it was "possible" that Cheney had instructed him to mention Plame's employment to reporters--a statement that he subsequently backed away from--he painted large bullseyes on both his as well as on Dick Cheney's backs: the investigators could now envision a flipped Libby as the star witness in the case of their careers--a case against the VP of the USA. The rest of the investigation was one elaborate effort to pressure Libby into turning on Cheney. For example, the jailing of Judy Miller was explicitly done on the theory that Miller would be able to provide information that would assist in pressuring Libby--it was a fishing expedition that didn't pan out.

So that was Fitz's "drat shout:" Drat that Libby! But for the fact that Libby changed his story and refused to be flipped I might have been able to indict Dick Cheney and convince a jury that the Joe Wilson theory of the case was true--that Libby's conversations with reporters "may have been personally sanctioned by the vice president" to "punish" Plame. Or, perhaps, simply that Cheney misled the investigation to avoid political damage. That was the case Fitz wanted to bring, and it would have been another perjury or obstruction case, featuring Libby's word v. Cheney's word rather than Russert's word v. Libby's--simply because there has never been a possibility of proving the elements of violations of the Espionage Act or the IIPA.

In other words, Fitz was being disingenuous in suggesting that the clearly non-material misstatements themselves obstructed the investigation, as you say. The sand that Libby threw in Fitz's eyes was really his correction of his FBI interview and stubborn refusal to return (under oath) to his original, speculative statement about what Cheney may "possibl[y]" have told him to do. If Libby had not spoken loosely about possibilities he would almost certainly never have found himself in this position, despited his faulty recollection. Libby couldn't be indicted for correcting his initial statements, so Fitz had to go with the weak and non-material statements to reporters. The indictment was the last gasp at flipping Libby, who remained unflippable. But there was no going back from the indictment and Libby forced a trial by his refusal to buckle to the pressure.

(6) JM Hanes made the following comment | Jul 3, 2007 6:03:23 PM | Permalink

"In those circumstances, would it be fair to enhance Libby's obstruction of justice sentence by considering the serious nature of the crimes whose investigation and prosecution he successfully obstructed? Sure, I have no problem with that."

Well I sure do! Aside from the fact that it stands the legal principle of innocent till proven guilty on its head, your hypothetical errs on two crucial points, IMO, both represented in your initial statement, which I abridge and modify here:

Suppose Scooter Libby's obstruction of justice had been destroying [classified] documents from the National Archive without which we are unable to inquire into the identities, actions, and motivations of [other people].

First, stealing and destroying classified documents is, itself, a crime, regardless of the purpose of the destruction. Up until the Libby trial, I labored under the apparently erroneous assumption that perjury and/or obstruction charges required some substantive showing of materiality. Given what I've since learned about sentencing guidelines, it certainly seems absolutely clear that they ought to.

Second, what happens to your scenario if, in an excess of boredom, one of your ostensible co-conspirators was doodling pefectly legal but outrageous nasties in the margins -- which were only remembered after the fact, when they could prove explosively embarasing to a spousal bid for the presidency? Speculative, vaguely plausible underlying scenarios, both legal and illegal, abound. Yet we stipulate an imagined criminal conspiracy, and then, for the purposes of sentencing, we assume that the most serious crime a prosecutor can dream up actually occurred. Not only do we liberate the prosecutor from any burden of proof whatsoever, the presumptive obstructor is precluded from mounting either challenge or defense.

This is just stunning! How could the idea that it's OK to sentence a man for uncharged, unproven crimes, without benefit of any trial at all, have possibly gained such currency? Making him a lesser accessory after the fact doesn't change that fundamental equation. It sure makes life easier for prosecutors, though, doesn't it? In fact, isn't that the very heart of the problem here? Does it not explain why Fitzgerald, from the very outset, chose to build a perjury and obstruction case instead of thoroughly investigating any putative or postulated underlying crime?

Finding actual evidence of crimes is always harder than finding liars, and in almost every serious case, you're going to have to find it in spite of liars. Why even bother to look for it, if, as Fitzgerald argued to Judge Tatel, a perjury conviction is the equivalent of conviction for an underlying, unprovable, crime -- in almost every possible way? Prosecutors may be willing to give each other the benefit of the doubt when it comes to cementing such precedents, and others may approve when Fitzgerald defends his strategic maneuvering with high blown homage to truth, but I do not. Quite aside from the disparity in penalties imposed on Libby and Burger, prosecutorial decisions in both cases ultimately defeated the search for truth. It was bargained away in Burger's case, and simply never attempted in Libby's.

(7) antimedia made the following comment | Jul 4, 2007 12:20:14 AM | Permalink

JM Hanes asks "This is just stunning! How could the idea that it's OK to sentence a man for uncharged, unproven crimes, without benefit of any trial at all, have possibly gained such currency?"

Because nothing offends lawyers more than someone lying to them. And nothing irritates a prosecutor more than having nothing to convict someone of.

It's not about justice. It's about winning and losing. (Sorry if my cynicism offends you, my friend. I have nothing but contempt for the legal system in this country, which is rigged to make money for lawyers not to find the truth of the matter, even though I know some very fine lawyers, such as Beldar.)

(8) anduril made the following comment | Jul 4, 2007 8:52:19 AM | Permalink

antimedia, I for one am not offended by your...realism. What puzzles me in this case is the failure of "conservatives" to place the blame squarely where it belongs: with Dubya for deciding to try to govern without controlling the Justice Department and with John Ashcroft--a more gutless specimen than which you are unlikely to find even in Washington.

(9) boris made the following comment | Jul 18, 2007 8:15:40 PM | Permalink

I'm skeptical of this from TNH

Walton: Let's look at obstruction. I've looked at Defense filing and cases, while none of the cases may be factually directly on point, it does seem that [names a bunch of circuits] have all indicated that you don't look at weight of evidence, you only make assessment whether there was an appropriate investigation and if that determination is made, all circuit courts seem to indicate cross-referencing is mandatory.

Not so much that it happened but that it would be mandatory. Maybe that's better if it gets ruled unconstitutional quicker but I really think Walton has to be out to lunch there.

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