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.)

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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.

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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.

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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.

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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.