I'm not certain that Debra Bonamici wrote the entire sentencing guideline--though it is the kind of detail-laden and legalese-heavy stuff that seems to be her forte. Whether or not she did, it makes a nice title: Bonamici's Books.
As in, if this book doesn't work, throw this one at Libby. And if you don't like this book, throw three more at him. If these are Bonamici's books she's throwing at Libby, she's sure got a lot of them.
The Legal Defense Fund Theory of Scot Free
Mind you, she needs to, because it appears the Probation Office has suggested some of the most absurd reasons to reduce Libby's sentence. For example:
- The Probation Office argued that Libby's Obstruction did not entail a substantially higher cost for the investigation because he signed a waiver to encourage journalists to testify, and the journalists' delays were done to protect themselves. Bonamici doesn't respond in the way I would: to say simply Judy Judy Judy. But she does bring up the Aspen letter.
Defendant included in a letter authorizing her to testify comments that suggested that he expected or hoped she would testify that he did not disclose information regarding Mrs. Wilson's employment to her prior to the publication of Bob Novak's column.
- The Probation Office suggested leniency because of Libby's big legal bills!!! (And it appears that the Probation Office even suggested leniency because of Libby's potential civil bills!!) Bonamici's response:
A downward departure based in whole or in part on the substantial legal expenses the defendant may incur would be completely unjustified. ... In order for the Court to assess whether the defendant has incurred, or may incur in the future, substantial legal expenses in connection with this case, the Court would have to know the amount of money that is, or may become, available from the legal defense fund to pay defendants legal expenses.
- The Probation Office suggested leniency because Libby might lose his legal license. Bonamici's response:
If anything, however, the fact that defendant is a highly-trained and experienced lawyer, sworn to uphold the Constitution and laws of the United States as a condition to holding a license to practice law, would support an upward, rather than a downward departure. Who, if not a licensed lawyer, may be expected to fully appreciate and respect the need for truth in our system of justice?
- The Probation Office suggested leniency because of Libby's record of government service. To which Bonamici retorted:
Unless we are prepared to provide sentencing discounts to all those who are privileged to serve their country but nevertheless break its laws, a downward departure is unwarranted. (1)
(1) Any suggestion the defendant is entitled to leniency based on the loss of income he suffered as a result of his decision to work in government rather than in the private sector should be rejected out of hand, particularly in light of the fact that, in spite of his sacrifice, defendant remains a man of considerable means.
- The Probation Office suggested leniency because Libby committed a single criminal act of short duration--it was aberrant behavior for an otherwise law-abiding citizen. Bonamici responds:
First, the offenses of conviction represent a series of four separate offenses ... over a period of five months, a period that cannot by any stretch be considered a "limited duration." ... Indeed, the evidence showed that defendant's offenses were committed following significant deliberation.
And then she goes on to show that Libby warned Cheney of what his story was going to be before he told it, showing clear planning.
See why Bonamici is throwing all of these books? The Probation Office seems to have been reading nothing but the WaPo editorial page for the last 2 years.
Which is why Bonamici shows that, no matter how you calculate it, the Court should throw the book at Libby.
Is Our Byron Learning?
This is all stuff dear Byron doesn't seem to understand, or read. For example, Byron doesn't seem to understand the meaning of mandatory.
USSG 2J1.2 requires the Court to calculate the base offense under both provisions and then "apply the greater of the two sentences." ... If the sentence is greater under 2X3.1 then application of that guideline is mandatory.
And Byron doesn't seem to understand the concept of legal precedent, as when he presents these as equally defensible positions.
Their report is not public, but Fitzgerald’s brief quotes from it. “The criminal offense would have to be established by a preponderance of the evidence,” the portion of the presentencing report quoted by Fitzgerald says, but “the defendant was neither charged nor convicted of any crime involving the leaking of Ms. Plame’s ‘covert’ status.” Therefore, probation officials argue, the more serious sentencing standards should not be applied.
Fitzgerald disagrees and at times in his argument appears irritated that Libby did not confess to a crime which Libby maintains he did not commit.
Aside from the fact that an assertion of innocence doesn't guarantee Libby less jail time, what Byron doesn't include from the quote cited above is the important point. From Bonamici:
The PSR states, without reference to legal authority, that in order to apply the cross-reference provision of USSG 2J1.2 (c)(1), “The criminal offense would have to be established by a preponderance of the evidence,” [my emphasis]
You see, Bonamici has just rattled off about 1200 cases that serve as precedent for throwing the book at Libby. She goes on to rip the PSR's interpretation to shreds both on legal grounds, and plain language grounds. But apparently Byron still can't read, so he presents these as equivalent positions.
So no. Our Byron still isn't learning or reading.
Which brings us back to the logic of Bonamici's books. The main logic of this filing is that you have to take into account what crime the defendant obstructed. It's makes sense, if you think about it. It would be foolish (that is, if you weren't Byron) to suggest that the punishment, if Libby obstructed the investigation of the theft of a candy bar, should be the same for obstructing the investigation of outing a CIA NOC. Otherwise, you'd have an incentive to obstruct as the stakes got higher. You'd basically be rewarding people for obstructing justice.
Bonamici does a lot of math to show that Libby's Obstruction should be cross-referenced with the IIPA statute (noting that even the Defense admitted the investigation pertained to IIPA), and lays out the sentence that way.
But then she throws another book, just in case the first one doesn't hit Scooter.
...the government's view is that the application of the cross references ... are mandatory given the circumstances of this case. In the event that this Court determines, contrary to the government's view, that the default level ... should be used, the government sets forth its position here that the defendant's offense level should be increased by three levels ... because his offenses resulted in substantial interference with the administration of justice.
Which gets her back to where I started with this post, with the
Parole Probation [Not so fast, Mr. Libby] Office's assertion that sending Aspen letters doesn't show a sustained attempt to obstruct justice and a significant increase and time and money spent on the investigation.
Shorter Bonamici: I don't care how you add it up, Libby deserves real time.
No wonder the Defense didn't file a sentencing memo. They've got to feel like the
Parole Probation Office has aleady done their work for them. After all, once the Parole Probation Office lowers Libby's sentence because of the expensive legal bills he has--which he doesn't plan on paying in any case--then why bother showing up to work? It's that kind of logic that seems to be at work.
Update: Did I get all discussion of parole out of here?
Oh, and this Isikoff article (which, as per Isikoff, has me chucking for a number of reasons) says the Defense is still working on their sentencing memorandum. Well, that's a relief, I'm almost through all of Friday's filings.