Bonamici's Books

by emptywheel

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.

Bonamici's Books

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.

Comments

[Jodi]

Is the time for the Defense submitting arguments on Libby's sentence up?

[emptywheel]

Jodi

AFAIK, the deadline was Friday.

[Jodi]

Ok. I confess that it seems to me that the Libby Defense Team at times seem to wander around in the outfield near the hotdog man.

[Markinsanfran]

Marcy, now you have *me* wanting to throw books at him! Lots of books. Big heavy books.

Btw, I assume it is the Probation Office, not Parole?

[Dismayed]

Just loved reading this. Nice to see skilled people doing an ernest job. The probation people are intersting. Who pulls their stings? Clearly, not anyone with a desire for fainess or justice.

Hope Walton gives him the max. I doubt he will, but expect it to be toward the heavy end. I'd bet he's still pissed about the little "Dick will testify stunt they used to jerri rig his trial."

[bmaz]

I thought I heard that Libby filed his senencing statement today, but I cannot recall where, nor do I know if that is really true. I ran a basic sentencing guideline matrix right after the verdict came in, and have seen a lot of guideline calculations in my time and cannot remember ever seeing one from the PO as slanted to the defendant as this one appears to be. we don't really know how it looks though. My barebones calculation had Libby at approximately 24 to 32 months. I believe my last bet was on 29 months, but it looks like that may be a little high now.

[Frank Probst]

It's difficult to judge the PSR without actually reading it, but it looks like they took it easy on Libby. In the few quotes I've seen, they say "could" rather than "should", so it's entirely possible that it could be an exhaustly comprehensive document that outlines all of the possible reasons why Libby could get less--or more--time in jail than the sentencing guidelines recommend. (I suspect that the argument that Libby's crimes "did not entail a substantially higher cost for the investigation" will make Walton himself laugh out loud.) But it's hard not to feel that the PSR was highly favorable to Libby. Which leads to the obvious question: Just how independent is the Probation Office? I would assume that they're part of the Department of Justice, which is a wee bit tainted these days.

[obsessed]

Hey Jodi - Turns out Plame was covert - do we hear any apologies?

[Frank Probst]

Wait a minute. The defense didn't file a sentencing memo at all? Sounds to me like they think the fix is already in. Which would explain why they never went with the "It was all Karl's fault!" defense. Here's what I think happened: Someone told Team Libby that they'd fix the PSR for him if he got convicted, so he should just take the hit for the team and get used to checking in with his parole officer from time to time. And it looks like they really did go easy on him in the PSR. Of course, they don't seem to have planned for the "covert" card, and this memo makes Plame's status crystal clear to all but the most intentionally ignorant (Hi, Byron!). The big X-factor now is Judge Walton. If he stays true to his reputation, Libby is looking at three years in jail. If, on the other hand, he's already been corrupted by Darth Cheney, then Libby gets parole or is released on bail pending appeals. I have to say that I'm torn here: As a general rule, I have almost no faith left that a Bush-appointee will do the right thing. However, my instincts on Walton are that he's a no-nonsense, rule-of-law, conservative judge who would throw the book at his own grandmother if he thought she'd been rightfully convicted of a crime. Should be interesting to see how it goes.

[Neil]

After all, once the Parole 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? - Emptywheel

EW, you slipped this in there at the end: Libby doesn't plan on paying his legal bills, which is news to me. In addition to being a lying, unrepentant, justice obstructor, Scooter is also a deadhead! That'll be one massive right-off. I can't imagine defense counsels' partners being too happy about it. Will Libby not need them to handle the appeal?

I love the metaphor of Bonamici throwing the book at Libby. You come back to it again and again, playing with it like a cat with a mouse. Thanks for your excellent post.

The weather in Happy Valley was so nice last Saturday, if not just a wee bit humid. Fitz held his talk outside on the quad rather than in Johnson Chapel. C-SPAN was there to record it. The MP3 is here. He spoke about how his attitude toward public service changed from when he graduated until he started his career as a prosecutor. The talk was oriented to Amherst's new batch of graduates. I'm sure people of all ages found it interesting, honest and instructive, as I did. Fitz identified some of the things he loves most about his job. At the end of the day, he gave Terras Irradient a new perspective. Afterwards, we checked out the beautifully renovated James Hall, our freshman year digs, and then crashed the President's reception.

[Josiah Bartlett]

Oooooh, it was books they're throwing. I kept thinking bricks.

These people are like the mafia. They couldn't work the prosecutor or the jury and we can't tell yet if they worked the judge but it's clear that they they worked the parole office. You can be sure that they've worked the prison system to insure that any time spent will be a cushy berth. So if he gets the stiff sentence he deserves, he will probably check in for appearances and spend a few days before the parole office decides he's been punished enough and lets him go.

I think it's likely he'll appeal and gum this thing to death, stretching things out untill the end of next year when he is one of the thousands to recieve a pResidential get out of jail free letters from his buddy the brush farmer.

[kim]

I'm looking forward to a revealing EW investigation of the Probation Office.

[Jodi]

obessed,

now this is just me, but what I hear over here and at FDL is that Plame was covert to the 9's. But then elsewhere, I hear that "covert" is the standard CIA designation, and Plame must be covered by another criteria before she is say, "super covert." (That is able to send strong men to jail.)

I will go back to state something I have stated before several times perhaps in different detail.

Valerie Plame should still be happily working at the CIA. The twins should be at their regular school and play groups.

I fault Joe Wilson for going political in the New York Times, thus setting in motion those irrepressible type forces in Washington. Now Valerie may have decided the risk was worth the gain. If so then fine. If not, then Joe owes her an apology.

As for the rest, it is even more conjecture.

Granted Libby lied. Granted he should do time, and lose his license. In BB, there are only a few things you can really do when you have the ball. Dribble, pass, shoot, feint, fall on your head. Libby got caught dribbling when he should have been passing off, and subsequently fell on his head.

?????? To ignore his own notes!! ????

I think he made a mistake tactically with the FBI when they first came to question him, and then he never, never, never backed down.

[Jodi]

Oh, one other thing obsessed,

I believe like maybe 80%+ sure that if Libby gets 1) jail time, or 2) might lose his license, then Bush will pardon him. The only question is when Bush does it.

You know the arguments, both here, and elsewhere. I don't think like folks here at TNH that what he did is so extremely damning, but I don't believe that he should go scot free like others do either.

If I were a judge with absolute power and wore the appropriate three hats, I would upon consideration of what he has lost with this trial, sentence him to 1 year in jail, and 5 years or more law license revocation, and never to work for the Government again. Our lawyers shouldn't be lying in courtrooms.

[clickclack]

It's too bad our quaint adherence to the rule of law won't allow us to include Libby's primary moral offense--prosecution of a war under false pretenses--in calculating his sentence.

Some people may be satisfied to know that he's going to Hell, but I would like to see him pay, again and again, while he persists in living among us here on Earth.

[John Casper]

..."I fault Joe Wilson for going political in the New York Times...."

Tokyo Jodi you have in prior threads asserted that you not only bought ANATOMY OF DECEIT, but you had read it "at Grandma's."

You have now provided even more evidence that those comments, like just about everything else you comment here, I suspect, is inaccurate, incomplete or false.

From page 50: "Wilson made three attempts to get the administration to correct the record on the Niger allegations. On January 28, 2003, when Wilson heard Bush mention uranium from Africa in his State of the Union speech, he called a friend at the State Department to find out whether the line was referring to the Niger claim Wilson believed he had debunked; the friend assumed the reference related to another African nation. Then, after Wilson saw Rice on national television to another African nation. Then, after Wilson saw Rice on national television on June 8, claiming "nobody in my circles" knw the Niger intelligence was bad, Wilson was mystified. He called a close Rice associate to try to get her to correct the record. Finally, he had another conversation with a senior official at the State Department, again trying to correct the record. That official replied that Wilson would probably have to correct the record himself."

Bold is mine.

Tokyo Jodi, please apologize directly to obsessed and everyone else on this thread for commenting such obvious falsehoods.

[Jodi]

Tokyo John Casper,,

please apologize to me for saying that my comment quoting you about Comey and the Bill of Rights in a previous thread was wrong..

As for what I said above in this thread to obsessed, I stand firm.

Listen carefully Dear John. (I like the sound of that. It has the ring of finality.)

I have bought, borrowed, gotten from the library, and downloaded on the internet many books. I have read them. I don't necessarily believe everything in them.

I also stand firm on saying that ..."I fault Joe Wilson for going political in the New York Times...."

Anything else I can stand firm on, for you today?

[mainsailset]

Probation office - are we seeing more graduates of the prestigious Regent Univ. Law School at work?

[p.lukasiak]

I fault Joe Wilson for going political in the New York Times, thus setting in motion those irrepressible type forces in Washington.

And I assume that you blame rape victims if they wear make-up?

The idea that its appropriate to use someone's spouse to seek revenge on an administration critic is so moronic words are inadequate. This was a deliberate attempt at a smear -- a smear that scum like you have been supporting since day one. You make me sick.

[Woodhall Hollow]

The idea that its appropriate to use someone's spouse to seek revenge on an administration critic is so moronic words are inadequate.

Add to that that the idea that it is appropriate to destroy a national security asset to whack the knees of an administration critic is not only moronic but treasonous and criminal that words are inadequate.

[John Casper]

"please apologize to me for saying that my comment quoting you about Comey and the Bill of Rights in a previous thread was wrong.."

ROFLMAO.

[looseheadprop]

It is clear that the defense has spent considerable time and effort nibbling away at the probation Department's draft pre-sentence report and turned it into their own piece of PR.

It is the rare (but clever) defense lawyer who really knows how to "work" the pre-sentance report phase. Libby's lawyers did a good job for him here.

[freepatriot]

hey shit stain jodi, just can't say you were wrong, can you ???

what a surprise

a shit stain with no moral compass

that's why we call you shit stain

now you know

[freepatriot]

hey shit stain jodi, just can't say you were wrong, can you ???

what a surprise

a shit stain with no moral compass

that's why we call you shit stain

now you know

[P J Evans]

The snark level in Bonamici's work is, um, extremely high. And the probation office deserves it, if that's the kind of report they're putting out. (It sounds like they're trying to throw themselves on the mercy of the court as orphans, after being found guilty of killing their parents.)

[Neil]

LHP,
How would Libby's lawyers "work" the pre-sentance report phase?

[bmaz]

Neil - I can partially field that. You can actually make a full court press on the pre-sentence writers. Usually start off by doing some research with other lawyers that have had experience with the particular person assigned to your case, if you do not already have experience with them yourself. Then you continue by giving them a call and chatting them up to establish a working friendship. You then forward your argument to them in a written fashion with exhibits, evidence etc.; whatever will support the points you are trying to make. Then follow with more calls to chat up your points and try to co-opt them as kind of part of your team. In an important case, you probably do more than one, perhaps several, rounds of this. Lastly, I always liked to hire a private impeccably credentialed specialist in doing formal pre-sentence reports and guideline calculations to create our own independent complete pre-sentence report and guideline analysis and then give it to the assigned government person as a template to follow. They often do, and I will hazard a guess that occurred here.

[emptywheel]

bmaz

THanks for that insight. It sure does look like Libby's lawyers are beginning to earn their salaries. THough, to be honest, the post-trial phase is likely to be when they do that--they've been playing for an appeal for 8 months now.

[Sebastian Dangerfield]

bmaz: Yeah, that's what I've seen, too. Pricey lawyers representing well-heeled defendants know how to capitalize on the laziness and/or overworked nature of the Probation Office by giving them a canned PSR that they can just adopt as thier own.
Jodi: Technical point: The question of Libby's law licence is not up to the judge but rather to the D.C. Bar. Libby's receiving some professional discipline (I think a license revocation at least for a substantial period of time is both appropriate and likely) should be an almost ministerial act at this point, as the finding, beyond a reasonable doubt, that Libby lied to investigators and perjured himself before a grand jury will carry over to the disciplinary proceeding (which operates by a lower standard of proof) without the need for any hearing on the facts. Libby's pricey lawyers will attempt to earn their exorbitant fees by trying to get the most lenient sanction possible.

[Neil]

What's interesting about the Jodi posts (in response to emptywheel's) is not just her rejection of theoretical suppositions premised on facts in evidence but her rejection of corroborated facts in evidence.

Rare are posts informed by such a nuanced reading, insight, and firm grasp of relevent facts. No, I'm not referring to Jodi. My second point is that Jodi is blind to the extrordinary nature of EW's posts.

The "I choose to believe" conclusions Jodi makes are just that, beliefs notwithstanding facts in evidence to the contrary. Jodi posts to express an opinion. It simply doesn't make sense to spend any time trying to convince Jodi otherwise.

[dberry]

Marci, I suggested to Bob Wright at Bloggingheads.tv that he pair you with Byron York for a session. Please, please, please try to make it happen. You owe it to us plameaholics. Byron's frail reasoning would crumble under the weight of your encyclopedic mastery of the FACTS on all things Plame. It would make for riveting viewing. It would serve BTV's ratings. It would showcase your incredible talents. And it would also advance that minor thing called the interests of justice.

[Jodi]

"a smear that scum like you have been supporting since day one. You make me sick."
Posted by: p.lukasiak

"is not only moronic but treasonous and criminal that words are inadequate."
Posted by: Woodhall Hollow

Well, I only can hope that by letting that out, you two can drive safely home without letting out a lot of road rage and putting yourselves and others at risk.

Hey why are you shooting at the messenger? I am saying that that is the way it is in NY and DC no matter which party you are in.
If you don't recognize that the wolves are out, and hungry, then you and yours gets eaten.

Wow, pottymouthed twice in a row by pottymouth freepatriot!

Oh, the ignominy!!

[emptywheel]

dberry

I've been on both Washington Journal and Talk of the Nation with Byron. Didn't go well for Byron, I've been told, mostly because I pointed out that he has no fucking clue whether Armitage really is Novak's "main" source, not unless he wants to pit his credibility on Novak's truthfulness.

I don't think Byron would do it again.

[timeout]

"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."

What does the case law say on this? Anything directly on point?

How many times has a public offical, convicted of a crime in office, recieved a downward departure due to his current or future legal expenses in connection with his conviction? What were the circumstances when such departure was granted?

I don't see how expenses incurrred in a criminal conviction are mitigating factors unless the defendant is ordered to pay retrobution to the victim of his crime. Here the crime is perjury and the victim is the government, not plame. Plame won't recieve any damages from the criminal trial, but may from her civil action.

What are Libby's current expenses? Generally, a criminal lawyer asks for money up front because he knows if he loses, his chances of recovering his legal fees is difficult when the defendant goes to jail.

Libby's lawyer was likely paid a part of his fees up front by Libby or his fund and will most certainly seek the rest before Libby is sentenced - which extinguishes Libby's debt in connection with his criminal trial.

But Libby is also involved in Plame's civil action - so what debt is incurred or will be incurred there? Not known.

Wonder if Plame filed her case to toll the statute of limitations for her claim - which allows Libby to argue he'll incure future expenses in connection with his criminal trial?

Was that another reason for stalling the investigation and criminal trial? To force Plame to file in order to escape jail time by providing a means to argue a downward departure is needed due to expenses incured in Plame's action?

It's smart planning if so. But I doubt it.

[Neil]

Marci, I suggested to Bob Wright at Bloggingheads.tv that he pair you with Byron York for a session. Please, please, please try to make it happen. You owe it to us plameaholics. Posted by: dberry

dberry, Did you see round one on C-SPAN? Everytime York began to lose ground to Marcy, York got annoyed and filibustered. He is not interested in debating the facts. He is interested in debating his POV. Said another way, his debating style does not accomodate a frank discussion on the merits. While most people are not, Byron York is entitled to his own facts. I also watched Byron York debate David Corn on bloggerhead.tv. York's style is not conducive to productive debate.

[Neil]

Neil - I can partially field that.

Thanks bmaz, Sebastian.

[dberry]

Neil - I did see that c-span encounter with Byron. That's why I think it would be so delicious to have him one on one with Marci and no moderator to filibuster against. I know Marci says he probably wouldn't do it again, and she's right. But he has been on BTV before. Any self respecting columnist should be willing to test his wares against a fair opponent. Marci is skilled enough to penetrate his feeble arguments with the facts, and it would be a refreshing wake up call to the lazy thinkers of Byron's ilk.

[aquart]

Jodi dear,

Please don't include New York in your peculiar descriptions of the legal system. We prosecute and convict criminals here. We even held public trials of terrorists.

[thevineyard]

I have been reading TNH for over a year and consider it a great education. I have the utmost respect and admiration for the opinions of EW and the people who post comments. And then there's Jodi. You have to admit, this is Shakespearian, like the Fools in King Lear and Twelfth Night (and other characters who appealed to the groundlings), except the Fools are smarter. But where would geniuses like EW, bmaz and the rest of you be without a fool like Jodi? You'd just be geniuses and great citizen journalists going about your business. But Jodi has made this site a goofy Shakespearian romp.

[Neil]

dberry, You've got a good point.

I wonder about Byron York. It's hard to imagine that a man with his intellect buys into all the erroneous meme's about the CIA leak investigation. Does bias affect everyone's judgment so thoroughly?

[big brother]

Libby gets a soft landing he will go to a country club on a long leash is my bet. I am not a barrister but read Molly Ivins books on Bush, Bushes Brain, The Baker crowd know the legal circuit well enough to steal a Presidential election at the Supremes.
We the people are getting the shaft from the arrogant corporatocracy. Bush/Cheney lied thousands died and the American people now have a target painted on our back. It ain't over til it's over. Don't get to hung up on the low lying fruit. Like freedom justice is a word I rarely use when I'm thinking. But all your efforts are much appreciated!