Last week, Judge Reggie Walton denied I. Lewis "Scooter" Libby's motion for release pending appeal of his 30-month sentence for perjury, false statements and obstruction of justice in connection with the grand jury investigation into the unauthorized disclosure of CIA agent Valerie Wilson's identity.
Not surprisingly, this decision has led to the rehashing, as if they were still open questions, of many of the things-we-know-but-don't-know-we-know about the case ( "the unknown knowns" to add a fourth category to Rumsfeld's famous formulation.) These would include whether Valerie Wilson was in fact a covert agent - she was - and whether it matters one whit that Patrick Fitzgerald knew that [Richard] Armitage had been the first person to leak to [Robert D.] Novak - it doesn't: Each and every leak by any of the officials was potentially a separate crime, and Fitzgerald would have been remiss if he had not pursued the investigation. But Walton's sentencing of Libby and his refusal to allow him to remain free on bond pending appeal have also inspired new fictions, ranging from fantasy to fraud, that are informing public opinion about the case. For those proud members of the reality-based community - regardless of whether you have the official T-shirt and mug - who would prefer to reach conclusions based on the facts and the law, permit me to correct the record as to a few of these issues.
One oft-repeated comment, voiced with confidence last week by MSNBC's David Schuster, among others, is that maybe now, facing imminent prison time, Libby will finally decide to save himself by testifying against Vice President Cheney. I am going to go out on a limb and predict that the likelihood of a cooperation-and-plea deal between Scooter Libby and Special Counsel Patrick Fitzgerald is about the same as the likelihood that Louie - my new puppy - will learn how to load the dishwasher. Much as I would be delighted if either of these events occurred, I'm not optimistic.
Apart from the obvious subtle, and not so subtle, pressure not to cooperate that Libby would receive from the Bush administration and the Republican party - and even apart from whatever loyalty he still feels towards Cheney - it is unlikely that Scooter Libby would want to, or even be able to, make such a deal. In order to cooperate satisfactorily, Libby would have to admit wrongdoing. Yet he has, for years now, quite publicly insisted that he has done nothing illegal or wrong. This construct has not simply been a legal defense for Libby; it is quite obviously a comprehensive fabrication into which he has drawn millions of other people. A decision to cooperate would require Libby to abandon this story - one that has most certainly become firmly implanted in his psyche over the years. That would seem to be a near-impossibility.
Equally unlikely is the idea that Fitzgerald would want Scooter Libby to cooperate. Not only is Scooter Libby a convicted felon - a fact that juries are entitled to take into account when assessing a witness's testimony - he is a felon who was convicted of perjury and making false statements. For a prosecutor, trying to make a case based on the testimony of a convicted perjuror is akin to a would-be suitor showing up on a first date wearing a wedding ring: it creates serious credibility hurdles. As if that weren't enough of a problem, Libby would be testifying as a cooperating witness regarding the very matters about which a jury has already found that he lied. As to those, Libby has made extensive prior statements chock-full of inconsistencies, fodder for days of devastating cross-examination. And then, to top it all off, there would be the pesky fact that Libby's entire defense at trial was based on an attempt to prove that the man has a terrible memory. A convicted perjuror with a memory problem may be a great premise for a bad joke, but it is a terrible premise for a criminal case against the vice president of the United States.
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What about this issue of the pardon? Let me say, first, that even though the incessant discussion of a possible pardon tends to suggest to some people, at least, that the legitimacy of a pardon is debatable, it is not. There is no justification whatsoever for a pardon: the evidence that Libby deliberately lied is overwhelming; he has not served his time; and he has shown no remorse.
For Bush, the question, "To pardon or not to pardon?" is purely an issue of political expediency, but it is not, contrary to much of the reporting last week, an issue that has been resolved in the negative. I know that, not based on any inside information, but merely from parsing what the various administration officials have said. Granted, Tony Snow said the president was going to "let the appeals process play out" and Dana Perino noted that Libby "still has the right to appeal" and the president would not intervene.
There are, however, two appeals processes to factor into this equation. One is the appeal of the conviction, which would involve all of the trial and constitutional issues raised by the case. This appeal could take months, if not years, and given that Judge Walton's order, in effect, would result in Libby reporting to prison within 45 to 60 days, he will not be seeing the aspens turn this year if the president waits for that appeal process to be exhausted before addressing the pardon issue.
The second appeals process, however, is an emergency appeal available to any defendant who is denied release pending appeal of his conviction by the district court judge. Libby's lawyers are most certainly scrambling to file such an appeal as soon as humanly possible. And Bush's outgoing press spokesman, Dan Bartlett, perhaps inadvertently, made it abundantly clear that Bush was, as usual, being very unclear about his intentions. Bartlett told CNN's Wolf Blitzer on June 14 that the president would not address the pardon issue "as long as there is an appeals process, as he is still outside of the custody of the criminal justice system, my understanding is that it would be some time before that would actually take place. And in the meantime, there is an appeals process - an emergency appeals process - that is being filed." If history is any indication of Bush's behavior, he is most likely simply hoping that an event will occur - in this case, a reversal of Walton's decision - that will obviate the need for him to make a decision. Given the ambiguous public statements his press people, except Bartlett, are making, Bush would then never have to admit that he considered a pardon at all.
Two other pernicious fictions are ones so often-repeated that they are almost universally accepted as true by our esteemed pundits. The first is that it was in some way improper, or at least unusual, for Special Counsel Patrick Fitzgerald to have charged Libby with perjury, obstruction of justice and false statements without charging him with an underlying crime. If that were true (which it is not, given that these crimes have been on the books as stand-alone violations for years), these free-lance critics might want to have a discussion with the right-wing poster boy, former Assistant Attorney General for the Civil Rights Division Bradley Schlozman.
As it happens, in early January of 2007, at the same time he was indicting ACORN workers on spurious voting-fraud charges, Schlozman, who was then Acting US Attorney for the District of Missouri, also indicted a former Kansas City Democratic legislator named Carl W. Bussey. And what were the charges? Bussey was charged with one count of making a false statement to a federal agent and three counts of false statements to a grand jury for allegedly lying about whether he had made an $1,100 loan to a state judge who had been convicted and sentenced for accepting bribes two years previously. Bussey was not charged with any underlying crime. The case is still pending.
Equally pervasive, if not more so, is the false assumption that the Libby sentence was harsh. Apparently, this opinion, voiced as it is by so many so-called experts who know precisely nothing about federal sentencing, is some type of visceral assessment, perhaps emanating from their second brains, because no one who actually conducted a straightforward analysis of the applicable sentencing guidelines could honestly conclude that Fitzgerald argued for, and that Walton imposed, an unduly severe sentence.
On the contrary, the truth is that both Fitzgerald and Walton simply followed the guidelines. As the government argued in United States vs. Lemoure, 474 F. 3d 37 (1st Cir. 2007), when someone is convicted of obstruction of justice, the guidelines "instruct" that the sentence should be calculated with reference to the sentence for whatever crime was under investigation. This is true, whether or not the underlying crime was charged. Indeed, the government argued for this calculation in Lemoure even though the jury had been unable to reach a verdict on the underlying crime. And the First Circuit Court of Appeals upheld the rule, noting that the cross-reference requirement "looks to what the grand jury was investigating, not what indictment was returned or what crime actually occurred." Whose name appears on the government's brief in that case? Why, it's none other than Wan J. Kim, another darling of conservatives who has replaced Bradley Schlozman as assistant attorney general for the Civil Rights Division.
This is precisely the procedure that both Fitzgerald and Walton followed. Libby was charged with obstruction of justice arising from false statements to a grand jury that was, according to the indictment, investigating violations of the Intelligence Identities Protection Act, among other crimes. Accordingly, just as Assistant Attorney General Wan Kim argued in Lemoure and as the First Circuit found, the guidelines calculation for obstruction of justice required a reference to that underlying crime. The resulting range was 30 to 37 months. Fitzgerald did not recommend a sentence within that range and Walton imposed the lowest sentence he possibly could impose - 30 months. The reality is the sentence was not harsh; it was lenient. But why would Libby's right-wing lobby want to talk about reality when they have such a rich fantasy life?
Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the US Attorney's Office for the Northern District of California. Her pieces have appeared in the Nation magazine, the Los Angeles Times and Salon. She writes regularly for Tomdispatch.com. She is the author of United States v. George W. Bush et al and will be speaking in Washington State next week (see www.sevenstories.com). She may be contacted at ElizabethdelaVega@Verizon.net.
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