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May 31, 2007


wow, it looks like the spelling police got this place surrounded

you sneak out the back ew, and I'll try and hold them off at the door ...

and about that whole "being unfair" thing in your previous post ... ain't we SUPPOSED to mock them ???

it's like, our job, or something (but I still ain't wearin no stinkin pajamas)

if we didn't mock these people, scooter's lawyers would sound like blathering idiots

we all got our own role to play here

or something like that ...


I sure hope someone from Walton's office is reading this.

I should probably go to Sentencing Law and Policy with this, but y'all are more up on and interested in this case.

Prior to Booker, a judge had to find aggravating factors by a preponderance of the evidence. As I understand Booker and its progeny, the sentencing guidelines are no longer determinative because a defendant's right to trial by jury is violated when a judge finds (determines) facts which have a significant impact on his/her sentence.

But the calculations are mandatory, as the guidelines remain advisory.

So, as I understand it, J. Walton must find aggravating factors by at least a preponderance of the evidence in order to apply an enhancement. I didn't recognize any attempt to establish an IIPA violation by that standard. On the other hand, Libby's filing does not attempt to seriously rebut Fitzgerald's contention that the grand jury was investigating IIPA violations.

So, the question seems to be whether (conceded) obstruction of a investigation suffices or if the judge must find a "relation to" an actual crime.

My read of the cases cited by Fitzgerald is that the propositions he quotes are merely dicta. And even if not, the decisions themselves are persuasive, not binding, authority on J. Walton. But many trial judges view dicta from appellate courts with great deference, as the "words" indicate which way the court might decide if presented with appropriate facts.

Of course, he is not required to sentence within either the original or enhanced guidelines. So, here's to a good hearing!

May Judge Walton somehow craft a sentence satisfactory to all who have been following the case!

LHP is right, you ARE good; that aside, you are still walking into a fool's errand on this issue. Remember when I said I hire a professional to do this? This issue is one of the reasons why. And you may think you are going to leave it up to "the lawyers" here to argue further. Good luck. It ain't coming from this corner. I say all this tongue in cheek; but seriously, this issue has been a nightmare for a long time. Here is the only semi-cogent thought I have to relate. You are prohibitively giving the defense credit because the issue of covertness could be in play. And you do so because Libby made it the primary portion of his argument in this regard. If I were Libby, I would not have done that. I would have made it far secondary to the scienter, or knowledge, of any possible status. Libby did indeed make the scienter argument, but almost as an afterthought to arguing the covert issue. I think the court (Walton) long ago probably made the determination that Plame was covert, both on his own and adopting previous findings by a sister division. It became a done deal with Fitzgerald's exhibits filed with his sentencing memo. This is only a matter of which you emphasize, but it is critical in my opinion. I continue to wonder who is running the defense show and what they are thinking.

So if Plame wasn't covert, why did she have to quit her job at CIA? Maybe more important, if she wasn't covert, why did the CIA recommend an investigation? I think this is really their call. Once they refer the case for investigation, it seems necessary for anyone who knew her name and where she worked to divulge how they learned it and why they thought she wasn't covert. Back up. 'I' don't need to do this, but government employees sign away a lot of rights when they gain access to secret information. Libby and anyone else would have been hung out, or strung up big time in any legit administration.

okay -- i admit, like bmaz -- that
trying to predict sentencing calculations
is an endeavour best left to experts. . .

but what IS NEW, and IS AVAILABLE,
already, from team-libby's OTHER
FILING, tonight, is new details,
new tid-bits -- of what those support
letters contain. . .

like scooter's efforts on behalf
of another white house staffer
accused of leaking classified
information to a newspaper. . .

yep -- he's apparently been
here, before -- in the role of
pro-bono lawyer -- not client

the letter from which this was
quoted may well be one deserving
of some redaction, so i will not
speculate about identities -- no,
as to the incident, i'll patiently
wait to match the above-quoted, to
whatever is made available on, or
after june 5, 2007. . .

that said. . . i think it permissable
to speculate about how this incident
might have influenced the arc of scooter's
later trajectory -- and his life -- since then. . .

so, i cannot help wondering whether
scooter "went to school" in some
measure on this case, especially
insofar as it might have helped
him learn where the absolute edge
of "a policy disagreement" becomes,
well. . . "a leak to a newspaper". . .

do take a squint. . .

I agree with bmaz that the scienter requirement is a stronger argument. In defense of the defense, however, Fitzgerald did not attempt to prove that an IIPA violation exists. J. Walton might well believe that Plame was covert and Libby intentionally outed her in a fit of pique at her husband. But if he must find that Fitzgerald established that by a preponderance of the evidence, the defence is obligated to point out any weak spots. And, like it or not, an ex-parte summary of undisclosed documents is a weak spot.

I'm most surprised that this hasn't been litigated already. The guidelines have existed for some time and quite a few people have been convicted of obstruction.

I wonder how this plays out in Fitzgerald's other cases? In Chicago, he won a conviction for obstruction of justice when the defendant refused to answer questions even after being granted immunity. As Fitzgerald was investigating terrorist activity, would the most severe possible terrrorist-related crime be the appropriate cross-reference?

I would like to point out one more problem with Libby's argument. To the extent that the analysis depends on the claim that Fitzgerald did not establish the point by a preponderance of the evidence, nor arguably attempt to, that is due to the fact that he was specifically precluded from doing so by pre-trial evidentiary motions in limine determinations made by the court limiting discussion of those issues. But said preclusion was the direct result of Defendant Libby's having specifically requested it. So Libby precludes the matter from being sufficiently established, and then argues that, since it was not established, he cannot be sentenced under it. This is circular and bullshit. Trial tactics have consequences, sometimes when they don't work out, they bite you in other ways. I am not necessarily saying I think the court should, or will, enhance under cross-reference linkage; but this argument against it is baloney.

One more point, kind of in response to bmaz and Walter.

One thing Team Libby appears to be doing is forcing Reggie to make the determination of how to play the IIPA issue. Not surprising. But also, I think, a real play to Reggie's seeming unwillingness to take really risky positions in this case. Not surprising, totally understandable, but that will make it a lot harder for him to make the decision that the IIPA merits a cross-reference.

Marcy, I'm trying to read about St. Libby, but I get an error.

Lindy, I'm working on it. Typepad isn't loving me right now.

EW - No question. But it is the way they pay the gambit that I question. First off, i didn't think Walton was likely to enhance under this element to start with; and just because he asked for it, doesn't mean Fitzgerald did either. You don't come into this with a flat hand, youcome in high and let the result come back down to where you reasonably think it ought ot be. But there is a vast difference between probing what the law (guidelines) allow, and playing loose with the facts. Fitzgerald came in high through his guideline analysis, but is consistent and reasonable, under the circumstances of the case, as to the facts applied. Libby, on the other hand, continues to be duplicitous, contorted and to cute by a half with the fact application to his legal analysis. In my mind, this makes a difference. Walton has given plenty of indications that he is weary of this from the defense. It is one thing to do before conviction; to keep at it after conviction when trying to mitigate your sentence is counter-productive.

Comment above should read "play the gambit" not pay the gambit.


Wait until you see the sentencing memo. Argh. Puke. Vomit. Going to pour a glass of wine now, and only partly because Typepad hates me.

Wine will fix it.

Again, the wheel turns, and it is all about being IIPA Covert.

Here at TNH, and FDL, it is "obvious" to everyone that she was.

Elsewhere, it is not ovbious. Or that it was not proven. Or that there was no way to prove it, or at least no real effort to prove it, or, maybe, that it couldn't be proven because of known or unknown restraints..

Comstock Frame:
-- The CIA requested an investigation simply for the hell of it.
-- Valerie Plame sent her hubby on a boondoggle to the beautiful tropical holiday hotspot of Niger.
-- Meanwhile, she stayed home alone and put the twin 2-year-olds to bed (after working all day), because every parent can imagine how much fun THAT would be.
-- French-speaking diplomats with experience in Africa are a dime a dozen in the U.S.
-- Niger is reknown as Boondoggle Heaven; maybe Joe was checking out Timeshares?
-- Ms Plame's job was actually limited to emptying garbage cans at the CIA. On weekends.

-- Former Hill staffers who write letters to journalists about how 'the aspens are turning' only want to send a kind little seasonal greeting.

Even according to Judge Tatel, when the government subpoenaed Judy (and the appeals court approved that subpoena), they believed if Libby had leaked Plame's identity and told Judy Plame was covert, it might have been an IIPA violation (relates to predicate 5)

I applaud your dutiful recitation of the gloss Fitzgerald put on his Miller affidavit; in another context, he could have argued that Miller's testimony was vital because he *might* have disclosed to Ms. Miller the location of Jimmy Hoffa's body.

As best we know (neither side called Tenet or Cheney), no one at the CIA told anyone at State or the WH that Ms. Plame had classified status - that was the trial record established by Fitzgerald. And he was aware of this little speed bump long before he finally got Judy's story, since he had interviewed everyone including Cheney and tenet before then.

My guess - Fitzgerald was not so sure a judge would jail Judy in pursuit of a perjury charge, so he pretended he had a big national security thing going. Not big enough to interview Dickerson or Gregory to double-check (or discredit) Fleischer, but big.

Well - in other news, this from the Times story about Ms. Plame's suit against the CIA had a fascinating detail that was news to me:

Valerie Wilson, the former intelligence operative at the heart of an investigation that reached into the White House, sued the Central Intelligence Agency in federal court in New York yesterday over its refusal to allow her to publish a memoir that would discuss how long she had worked for the agency.

Although that information is set out in an unclassified letter to Ms. Wilson that has been published in the Congressional Record, the C.I.A. contends that her dates of service remain classified and may not be mentioned in “Fair Game,” the memoir Ms. Wilson hopes to publish in October.

Ahh, the Congressional Record! I know you'll find it eventually, but let's read on:

The C.I.A. acknowledged that the dates of Ms. Wilson’s employment had mistakenly been disclosed, although a spokesman said that did not mean the information was no longer classified.

“Frankly,” said the spokesman, Mark Mansfield, the release of the information in 2006, in response to a query from Ms. Wilson about retirement benefits, was “an honest-to-goodness administrative error.”

“The letter contained classified information and should not have been mailed to her,” Mr. Mansfield said, referring to Ms. Wilson. “As soon as it was discovered, we took steps to rectify the error, including notifying the clerk of the House of Representatives.”

The letter, from February 2006, was entered into the Congressional Record by Representative Jay Inslee, Democrat of Washington, in January 2007. Mr. Inslee was introducing legislation to allow Ms. Wilson to qualify for a government annuity.

The letter said that Ms. Wilson had worked for the government since Nov. 9, 1985, for a total of “20 years, 7 days,” including “six years, one month and 29 days of overseas service.”

Christine Hanson, a spokeswoman for Mr. Inslee, said the congressman had assured himself that the document was not classified before disclosing it.

Very interesting - as I had noted in several posts going back several months, and as recently as Wednesday (Challenge Round), the CIA pension benefit is based on her service abroad, and Joe and Val ought to have access to this info. How odd to be right.

*If* the letter included specific dates of service, we mihgt get somewhere. Shucks - here is the text (mind the Freeper link):

DEAR MRS. WILSON, This letter is in response to your recent telephone conversation with regarding when you would be eligible to receive your deferred annuity. Per federal statute, employees participating under the Federal Employees Retirement System (FERS) Special Category, who have acquired a minimum of 20 years of service, are eligible to receive their deferred annuity at their Minimum Retirement Age (MRA). Your MRA is age 56, at which time you'll be eligible to receive a deferred annuity.

Your deferred annuity will be based on the regular FERS computation rate, one percent for every year of service vice the FERS Special rate of 1.7% for every year of service. You will receive 1.7% for each year of overseas service, prorated on a monthly basis, after January 1, 1987 in the calculation of your annuity. Our records show that since January 1, 1987, you have acquired 6 years, 1 month and 29 days of overseas service.

Following is a list of your federal service:

Dates of Service: CIA, CIA (LWOP), CIA Ð(P/T 40), from 11/9/1985 to 1/9/2006--total 20 years, 7 days.

Based on the above service and your resignation on January 9, 2006, your estimated deferred annuity is $21,541.00 per year, or $1795 per month, beginning at age 56.

The above figures are estimates for your planning purposes. The Office of Personnel Management, as the final adjudicator of creditable service and annuity computations, determines final annuity amounts. Please let me know if I can be of any further assistance.

I am reasonably certain Joe won't be returning my phone calls, but one of the lefty bloggers ought to make or break some news here, yes? Perhaps Ms. Plame could ask for a double check of the overseas dates and get a more specific accounting? I'll probably ask my Congressman to make the same request, but he'll ignore me too.

Food for thought.

well shit stain jodi, you finally found a way to put most of your ignorance into a single post

well shit stain, there IS a way to tell if Valerie Plame was a Covert Agent

if the CIA asks for a criminal investigation related to the leaking of her identity, the Valerie Plame was a covert agent

if a US Attorney asks a judge to jail a journalist to further the investigation of the leaking of a Covert Agent's identity, AND THE JUDGE SAYS YES, you can logically deduce that Valeri Plame was a covert agent (and when A WHOLE PANEL of Judges agrees, you can bet the original Judge was right)

and when a Federal Judge allows the Prosecutor to cite the IIPA during the sentencing phase of a perjury trial, you can logically deduce that Valerie Plame was a covert agent

if you can not logically conclude that Valerie Plame was a covert agent by all of that evidence, then you ain't a logical person, you're a SHIT STAIN

so given the choice of making a logical conclusion, or being a shit stain, you choose to be a shit stain

from here on out, you will be refered to as SHIT STAIN

when you see the words SHIT STAIN in my posts, you now know THAT MEANS YOU


Now you're attacking conservative judges?

Sorry--given that:

  • Libby's lies pretty transparently served to hide his conversations with Novak (which he lied about) and Judy
  • Before his meeting with Judy, Dick Cheney ordered Libby to leak something very classified to her--and Libby's explanations for what that very classified thing is doesn't hold up
  • Libby exhibited knowledge that Plame's identity was sensitive to Judy, Ari, and Addington

Your continued efforts to claim IIPA wasn't a real possibility when Fitz interviewed Plame just fall apart. And if you read Fitz' statements, he STILL seems to believe Libby told Judy Plame was covert, just that Judy didn't write that down.

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