I Present to You: Saint Libby

by emptywheel

Warning: Do not read this on a queasy or otherwise weak stomach.

Did I say we had reached the PR phase of this defense? Sure looks like it, from the job Comstock Team Libby did on the sentencing memorandum. Here's how it starts.

Distinguished public servant. Generous mentor. Selfless friend. Devoted father. This is the rich portrait of Mr. Libby that emerges from the descriptions of him in the more than 160 heartfelt letters submitted to the Court on his behalf. The letter writers, who range from administrative assistants to admirals, neighborhood friends to former colleagues, Democrats to Republicans, bear witness to Mr. Libby’s character and patriotism. As detailed below, Mr. Libby’s accomplishments in the State Department, the Defense Department, and the Office of the Vice President demonstrate his extraordinary commitment to public service. His dedication to promoting freedom abroad and keeping American citizens safe at home is beyond question. Mr. Libby has also earned a reputation for treating people fairly and kindly and comforting those who are distressed. He has avoided the Washington limelight to focus on nurturing his young children. Even those who disagree vociferously with policies he supported while serving in the government believe his conviction is not characteristic of the life he has led.[my emphasis]

"Beyond question"? Team Libby has taken that little universe of 160 letter-writers (fewer, I might repeat, than supported Abramoff) and used the to claim the man who helped Cheney dismantle our Constitution is a saint.

And meanwhile: any guesses? "Democrats to Republicans"? They do know about last year's primary in CT, don't they? And anyone know the admiralty well enough to guess the identity of that one? John Poindexter, maybe? The architect of Total Information Awareness? No mention, yet, of journalists or WaPo editors.

The mention of journalists doesn't come until later:

The letter writers come from many different periods in Mr. Libby’s life and from across the political spectrum. They are conservatives and liberals; career public servants and people working in journalism, medicine, and law; professional mentors and pro bono clients. They run the gamut from four-star generals and admirals to non-commissioned officers; renowned professors and cabinet officials to secretaries, law firm associates, and junior staffers. Mr. Libby has touched all of these people’s lives, and we rely on their letters to show what he is truly like.

Sooooo. I'm starting a pool to guess the journalist. Just Fred Hiatt? Or Judy too?

The renowned professors are probably Fukuyama and Bernard Lewis. The Four Star Generals? Guesses? And I'm sure there are a number of cabinet officials. Now I wish I had written my letter arguing the press ought to vet these people to expose their conflicts of interest.

And in case you didn't know, Scooter single-handedly brought democracy to Eastern Europe:

While at the Pentagon, Mr. Libby also helped to bring stability and democracy to Eastern Europe at the end of the Cold War. A former civilian military leader remembers, “I grew to admire his intellect and his wisdom during that remarkable period in which the Soviet empire, and ultimately the Soviet Union itself, disintegrated – a period in which both Scooter and I played important roles.”

[snip]

According to a retired colonel, Mr. Libby “worked tirelessly” to assist “the people of
Eastern Europe and the Soviet Union who were at the beginning of their emancipation from tyranny. In meetings with senior officials in the Soviet Union, Hungary, Poland, and elsewhere he was a strong advocate for the rule of law, civilian control of the military, and respect for human rights.”

Do you suppose anyone has told Saint Reagan he has been usurped?

The portrayal of Libby's work on the highly partisan Cox Committee--effectively a post-Iran-Contra attempt to blame Democrats for giving the Chinese nukes when in fact the Iran-Contra conspiracists seem to have, is equally, um, creative. And if you're wondering, Chris Cox does appear to be one of Libby's 160 admirers, celebrating him all the time as a paragon of bipartisan spirit.

Then there is the extended effort to paint Libby as open-minded, willing to listen to ideas contrary to his own. Like those of Joe Wilson, apparently. Or those of the large number of sane people who knew that the Iraq War was a disaster waiting to happen. It sure looks like he listened to them.

Libby's Own Personal Law

The memo is particularly cynical in its attempt to justify Libby be subject to his own private judicial system, different from that of anyone else. There's the attempt to invent reasons why it's okay for Libby to perjure and obstruct justice.

Under § 3553(a)(1), the Court must also analyze the “nature and circumstances” of the convicted offenses. Mr. Libby fully acknowledges that perjury, false statements, and obstruction of justice are serious crimes. We feel compelled to point out, however, that the circumstances that led to Mr. Libby’s conviction are unusual and perhaps unique. [my emphasis]

Notice the false remorse? Mr. Libby acknowledges that perjury, false statements, and obstruction are serious. That is, if other people commit them.

To begin with, Mr. Libby was convicted for lying to the FBI and the grand jury, which were both investigating the possible improper disclosure of Valerie Wilson’s CIA employment to reporters, primarily Robert Novak. Mr. Libby, of course, was not Mr. Novak’s source. As discussed more fully in our Guidelines memo, there is no evidence that Mr. Libby committed any underlying crime. And, no evidence suggests that he learned that Ms. Wilson’s status was covert or classified before her identity was publicly disclosed. Accordingly, there is no basis for concluding (even in the absence of formal charges) that Mr. Libby did anything unlawful when he discussed Ms. Wilson with any reporter prior to July 14, 2003.

More broadly, no one was ever charged with improperly disclosing Ms. Wilson’s identity and to this day it is unclear, if not highly doubtful, that any improper (much less illegal) disclosure was made by any government official. Therefore, this is the rare case where the statements by the defendant that were found to be false did not cover up any underlying crime.

Okay, this is where I stopped laughing and started throwing books. Now I know how Debra Bonamici feels. This is someone who had a security clearance. Someone who, even if he did it accidentally (which defies all the evidence) outed a CIA NOC.

Then there's another false show of not-remorse.

We do not mean to suggest that the absence of an underlying offense excuses obstruction and perjury. Rather, we believe it is appropriate for the Court to consider that Mr. Libby was not covering up any illegal activity when deciding how severely he should be punished. The government’s own motive theory suggests that Mr. Libby made false statements not because he did anything illegal in June or July of 2003, but because he allegedly feared (albeit mistakenly) in October 2003 that his prior statements to reporters might have been wrongful.

Um, no. Simply, no. That is not the theory of motive I heard Team USA present. It is a gross, disgusting distortion.

The Mitigating Factors

And here is where all that schmoozing of the Probation Office comes into play. The PSR lists the following as mitigating factors:

(1) Mr. Libby’s outstanding record of public service and prior good works; (2) collateral employment consequences for Mr. Libby, including the expected loss of his license to practice law; and (3) the improbability of any future criminal conduct by Mr. Libby.

They don't actually argue these cases very compellingly, they just say they apply in spades. Even they, though, must have believed the PSR's suggestion that Libby's legal expenses was over the top, because somehow that didn't make their memo.

How About the Wilson's Punishment?

Then there's the section where Team Libby lays out the punishment Libby has already endured, mostly at the hand of the press (wisely, Team Libby does not this time blame bloggers). I do look forward to hearing what Joe and Valerie have to say about poor Libby's treatment at the hand of the public:

The offenses here are serious ones. Nevertheless, as the Court metes out “just punishment,” we urge the Court not to overlook the punishment Mr. Libby has already received, and stands to receive in the future, as a result of his convictions. Mr. Libby’s felony convictions make it unlikely that he will ever work in government or practice law again, and his notoriety will also hinder his future job prospects. He and his family have endured crushing public humiliation as a result of unceasing press coverage. The media commentary about Mr. Libby has often been particularly unfair. Although he did not “out” Ms. Wilson, Mr. Libby has been continually blamed with leaking or orchestrating the leak of her identity. As the evidence at trial showed, as far back as September 2003, reporters were insinuating that Mr. Libby was the leaker. Indeed, based on such false assumptions, Mr. Libby has been repeatedly and wrongfully accused by some people of serious crimes including treason. The burden of relentless and unfair media coverage has fallen heaviest on Mr. Libby’s young children, and imprisonment would separate him from them at a particularly formative time in their lives.

Better yet, I look forward to hearing what Sidney Blumenthal has to say about it. He's got a much richer vocabulary for this kind of tripe.

Libby's Proposed Sentence

Team Libby asks Judge Walton to throw out the sentencing guidelines so he can sentence this mythical Saint Scooter.

Here, that focus means that we respectfully urge the Court to sentence Mr. Libby on the basis of the portrait of him presented in the Presentence Investigation Report (“PSR”) and in the letters submitted on his behalf, rather than on the basis of some incomplete or distorted picture.

So here's what Team Libby proposes for outing a CIA NOC, lying about it, and serving as a firewall for your boss.

On the unique facts of this case, and the unique contributions of this man, we believe that under 18 U.S.C. § 3553, a non-Guidelines sentence of probation is warranted.

Though later in the document, they reveal the Probation Office recommended 15-21 months.

The Vice President

I think in several ways, Team Libby probably has badly overplayed their hand (and I keep hearing Jane's voice in my head talking about how Libby forces his lawyers to do stupid things because he feels he is righteous). First, it appears that many of the letters are a tribute to Libby as a member of Dick's team, and not just Libby as Libby. There must be at least 10 current and former OVP employees who wrote letters in Libby's support. And at least one of them ties Libby's sainthood to Dick's.

This is a testimony to his devotion to our nation and the Vice President.

And from the descriptions of the letter-writers, the crowd on which Team Libby hangs its appeal appears to be precisely the kind of Neocon orgy we all expected it would be.

It'll be fairly easy for Team USA to get up and point out that all of this hagiography, written at the hand of OVP employees who work directly for the guy who most benefits from leniency for Libby, is unconvincing at best.

And, finally, if you're not already crying, contemplate this:

For the same reason, the public does not need to be protected from him.

Comments

[emptywheel]

Actually, I wonder if the journalist was Tom Friedman.

[watertiger]

They forgot to mention how many boxes of Girl Scout cookies he bought every year.

Yeeeeesh.

[JL]

How about Russert. That would be the icing on the cake.

[emptywheel]

Oh watertiger, this shit would be like putty in your hands--let me know when your post is up!!

JL

Well, Dick Cheney controls Russert, so it is a possibility... Though I suspect Russert and Judy didn't submit any letters out of sense of decorum, havign tried to protect the Administartion for so long on this issue.

[JGabriel]

Team Libby: "The letter writers come from many different periods in Mr. Libby’s life and from across the political spectrum. They are conservatives and liberals; career public servants and people working in journalism, medicine, and law; professional mentors and pro bono clients."

"people working in journalism"?

Why not just say "jounalists"?

I'm assuming this means that there are no letters from reporters. Most likely it means someone (or someones) working as a senior editor or columnist.

So, Fred Hiatt is a good guess. Kate O'Beirne might be another. Or maybe George Will. Really, it could be any of the pro-Libby TV pundits or newspaper columnists.

But Tom Friedman? Did I miss something? I don't remember him commenting on Libby or the Plame case at all. Explainy?

[Jim E.]

"We do not mean to suggest that the absence of an underlying offense excuses obstruction and perjury."

Huh. I thought that was one of the 'wingers main talking points.

[JGabriel]

EW: "Well, Dick Cheney controls Russert, so it is a possibility... Though I suspect Russert and Judy didn't submit any letters out of sense of decorum, having tried to protect the Administartion for so long on this issue."

Right. I suspect we can exclude Woodward from the list of possibilities for the same reason.

Although that too would be poetically ironic.

[pseudonymous in nc]

Journalists? A Kristol, a Kagan, a Podhoretz, a Frum. Oh, and does Daddy Carlson count? (I want to know the distinction between 'people working in journalism' and 'journalists', and would probably be tickled by it, along the lines of 'what do you call a guy who hangs out with musicians?')

It would be extremely funny if Tucker Faye was one of the letter-writers, since he's steadfastly avoided declaring a potential conflict of interest.

[Petrocelli]

... and that he will continue to work to protect the children ... oh wait, someone else is using that line ...

[Petrocelli]

... and that he will continue to work to protect the children ... oh wait, someone else is using that line ...

[Petrocelli]

... and that he will continue to work to protect the children ... oh wait, someone else is using that line ...

[Petrocelli]

ATTN: MODS - please remove 2 of the 3 posts above as well as this one ... sorry, I don't know how this happened ...

[JGabriel]

Hi, children! Can you find the oxymoron?

"A former civilian military leader..."

Hmm, last time I checked, a military leader was someone in the *military* chain of command. The only 'civilian' military leader is the President.

I'm assuming President Clusterfuck didn't send a letter on Libby's behalf.

[desertwind]

Oh, man. Marcy, did you read Jeralyn's read? Based on what she's figuring the PRS came up with:

My prediction at this juncture: The Government loses on its sentencing arguments for heavier guideline calculations, the Court finds at least one departure ground and Libby gets a split sentence of 10 months, with 5 spent in prison and 5 on home detention.

http://www.talkleft.com/story/2007/5/31/21232/8074

[P J Evans]

What, they didn't quote Shrub saying that whoever leaked Valerie's identity would be fired ... well, no longer part of his administration ... um, beaten with a wet noodle and, uhh, sent to bed with no dessert .... (I bet no one even asked Shrub for a letter for Scooter.)

[JGabriel]

Team Libby: "Mr. Libby’s felony convictions make it unlikely that he will ever work in government or practice law again, and his notoriety will also hinder his future job prospects."

Two words: Elliot Abrams.

[Markinsanfran]

"For the same reason, the public does not need to be protected from him."

We desperately need to be protected from him, in that he must be so humiliated and villified by the sentence that he can never serve in a position of pubic trust ever again.

[Albert Fall]

Did Julius and Ethel Rosenberg write in?

Treason, treason, and more treason.

The sooner the words "treason" and "Libby" are made synonymous, the sooner the Dems can start campaigning effectively against this malignant, corrupt, self-righteous and self-justifying broken Republican party that puts its interests ahead of those of the country.

Do I sound like this topic makes me a little cranky?

[JGabriel]

Jeralyn (quoted by desertwind): "My prediction at this juncture: The Government loses on its sentencing arguments for heavier guideline calculations, the Court finds at least one departure ground and Libby gets a split sentence of 10 months, with 5 spent in prison and 5 on home detention."

I like Jeralyn's writing and insights quite a lot, but she does tend to be biased towards the defense in just about every situation.

So we probably shouldn't put too much credence in this prediction. Remember, Jeralyn expected Libby to be convicted on only one or two counts.

My guess is that the best Libby can hope for is a year and a day (shortest sentence eligible for parole) plus remaining free on bond during appeals. More likely he'll get about 32-33 months. I expect Walton will probably look for a way to combine something in the high sentencing range Team USA requeseted, with the earliest possibility of parole in that range.

[emptywheel]

desertwind

Yes, and she's probably right to be conservative.

Though I will say two things. First, it sounds like the PSR is not just pro-Libby, but really badly written. I say that bc they don't cite legal precedent for key diversions from guidelines, and bc they actually appear to have recommended a downward revision bc Libby had such big legal fees. In other words, there's a distinct possibility Reggie will look askance at the report. Further, they seem to have a poor understanding of the case (such as the claims about investigating perjury) which Reggie does not have.

That, and the Defense's entire sentencing memorandum depends on those letters. Reggie has already said he might not consider them at all. That's why I think the many references to OVP are problematic for Libby. BC it could get Team Libby's entire argument thrown out.

[bmaz]

Oh my. I don't even know where to start here; and my head still hurts from contemplating the cross-reference linkage issue. I guess I picked a bad week to quit sniffing glue.

"For the same reason, the public does not need to be protected from him." Well, that is highly debatable, but clearly our top WMD anti-proliferation covert spys do need protection from him.

[emptywheel]

Oh, and one more thing: remember that no one is making a case integrating the sentencing letters written in opposition to Lbby. Not sure how Reggie will use those (he may just ignore all letters), but those are one thumb on the scale that we cannot see any evidence of yet.

[Frank Probst]

"...there is no evidence that Mr. Libby committed any underlying crime."

Are you fucking kidding me? Judy Miller and Matt Cooper both testified that Libby betrayed Valerie Plame's identity to them. Ari Fleischer (who would have presumably been cleared to receive the information) testified that Libby told him that Plame worked at the CIA but did not mention that the information was classified. That's evidence of an IIPA violation or two. I will immediately concede that it does not prove the crime beyond a reasonable doubt, but it's flat-out bullshit to say that there's no evidence of any underlying crime. There's plenty. It just wasn't enough for a conviction.

[Albert Fall]

I echo the frustrated earlier commentary on this site about how the CIA has acknowledged Plame's covert status now, when it might play into sentencing, but not during the investigation when such a revelation might have affected the willingness of the key players to lie and obstruct justice, and might have affected the 2004 election outcome.

From what I am reading, the covert status could give the judge grounds for some enhancements upward under the guidelines. If he used the experience of John Sirica as a guide, he would move the sentence up and see what he could shake loose about the underlying crime.

WH is ineffective in many areas, but they excel at PR campaigns and controlling the news cycle, and with Libby they are bringing their "A" game. They are working Iraq pretty hard right not too (Iraq is Korea?), but the evil flying monkeys at Rove's shop have clearly worked the Libby case pretty hard, and from the letter writing, called in plenty of favors.

It's too late for the thought now, but I wish we had hooked up PayPal to wager an over/under on the Libby sentence as a fundraiser for EW.

Many, many thanks for your work here and FDL.

[morinao]

Without Mr. Libby’s leadership in building alliances with former Eastern Bloc countries, writes one admiral, he “could not have fully succeeded as Commander in Chief of Allied Forces Southern Europe in Bosnia and with the ‘Partnership for Peace Alliance’ under NATO.”

The Partnership for Peace Alliance was set up in 1994-95, so this could be four-star admiral Leighton Smith, who was Commander in Chief of Allied Forces Southern Europe at the time. Smith was rumored to have retired early because of disagreements with how the Clinton administration was running military operations in Bosnia.

While at the Pentagon, Mr. Libby also helped to bring stability and democracy to Eastern Europe at the end of the Cold War. A former civilian military leader remembers, “I grew to admire his intellect and his wisdom during that remarkable period in which the Soviet empire, and ultimately the Soviet Union itself, disintegrated – a period in which both Scooter and I played important roles.”

A "former civilian military leader" at the end of the Cold War would presumably refer to either the President or Secretary of Defense in the Bush I Administration. Poppy Bush is too self-effacing to toot his own horn so blatantly in a letter of reference for someone else, so I'm guessing this is Dick Cheney.

His counsel was respected by senior participants in those meetings, who were grappling with new threats to national defense and great uncertainty. According to a former Chairman of the Joint Chiefs of Staff,...

General Richard Myers.

[dotsright]

Four star generals: Anyone know how many stars Gen. Kagan (inventor of the surge strategy and brother of fellow neocon) has?

Professors: How about John Yoo?

Former civilian military leader: Don Rumsfield?

[Lindy]

And PFitz was limited in the evidence he could produce due to national security concerns.

[nancelot]

EW: "Oh, and one more thing: remember that no one is making a case integrating the sentencing letters written in opposition to Lbby."

I am one of the (possibly) few who wrote in "oppo" to Libby. I'm hoping that Walton will consider those of us who are "regular" people (not politicians, journalists, kings, and queens, etc.) Walton seems to be a pretty grounded guy, and I wanted to alert him to the fact that we midwestern-teacher-mom-taxpayer-gardening-workaday-folks need the courts to honor the truth.

I wonder how many oppo letters they got?

[Jeff]

I'd be willing to bet that one of the people working in journalism is Martin Peretz.

[morinao]

Frederick Kagan is an armchair general. He has zero stars. (However, the other architect of the surge, General Jack Keane, has four stars.)

[Dismayed]

Make no mistake, Walton is having a laugh at this absurd document just as much as we are. This is more mantra for the radio circuit. It's pardon kook-aid (okay, that was and accidental mistype, but I'm leaving it).

My prediction. Walton gives him 30 months, and no bail during appeal.

Why? Walton has had enough of this. They burned him at the beginnning of the trial and he's not a man to have his chain jerked. Second, he knows damn good and well that these people are cueing this up for a pardon, so he's going to Libby out of the room with the Marshals, so he at least sees the inside of a jail cell. If he doesn't do that, Libby will never spend day one in custody.

My second prediction, going out a limb here. Bush pardons him pronto. I wouldn't have thought this a week ago, but Comstock's literature only has one effective purpose.

[Dismayed]

Oh yeah. And Libby gets a statue outside the Heritage Center.

[Dismayed]

OFF TOPIC - Hey DemfromCT - Did you see the last Zogby poll showing Hillary behind the the top two Republican Candidates. Thought you'd have a post on that. It was an interesting poll.

[dotsright]

Thank you Morinao. It was Gen. Keane that I was trying to think of. I must have been suffering from neo-confusion.

[desertwind]

Can someone explain Probation Court and its Pre-Sentencing Review?

[nolo]

. . .Jeralyn (quoted by desertwind): "My prediction at this juncture: The Government loses on its sentencing arguments for heavier guideline calculations, the Court finds at least one departure ground and Libby gets a split sentence of 10 months, with 5 spent in prison and 5 on home detention."

I like Jeralyn's writing and insights quite a lot, but she does tend to be biased towards the defense. . .

My guess is that the best Libby can hope for is a year and a day (shortest sentence eligible for parole) plus remaining free on bond during appeals. More likely he'll get about 32-33 months. I expect Walton will probably look for a way to combine something in the high sentencing range Team USA requeseted, with the earliest possibility of parole in that range.

Posted by: JGabriel | May 31, 2007 at 23:09
[emphasis supplied -- nolo]

i do not do criminal law by trade. . .
but, like you, i am willing to take the "over"
on jeralyn's "over/under" wager, here. . .

that is -- as i wrote at her place, earlier
this evening, i am willing to wager, based
on judge walton's body-language (as opposed
to any of the actual arguments, mind you!)
that he's leaning toward team fitz and their
30 to 37 months, with immediate surrender
upon conclusion of the sentencing on june 5.

why? just read the way he wrote the
order disclosing the letters -- very
pragmatic. very. and he seems to be
saying, with each action, that he is
not going to be any part of any
suggestion that he "went easy" on
scooter, at anyone's behest -- least
of all, ted's (or shooter's). . .

he may even have his suspicions about
the independence of those preparing
scooter's pre-sentence-report. . .

we'll see, but i think it will be
well-north of a year, in actual time
to be served. . . so something like
33 months sentenced; 16 to 17
months actually served. . .

just a w.a.g., here. . .

and lest i be misunderstood, team-libby's
sentencing memo makes.be.throw.up.in.my.
mouth.a.little.more.every.time.i.read.it.

i must admit, though, i do STILL love that
scooter was once a pro bono lawyer for a
white house staffer accused of leaking classified
information to a national newspaper. . .

and, now he is that client. . . sorta.

"the truth will always be far stranger. . ."

[nolo]

oh -- i forgot to type this
in the last one -- were i a person
with substantial assets, and were
i someone easily identified in the
real world with my commentary on any
blog, i would be very careful about
speculating on, or actually "outing",
any specific letter-writer by name,
at least until the actual letters
are made available by order of the
court. why? because a mistaken-
outing, especially as to a private
figure, need not be coupled with
"actual malice" or "recklessness"
in order for a libel claim to lie
against the person mistakenly "out-
ing" a scooter-letter-[non]-writer. . .

this whole problem vanishes, brigadoon-
like, into the mists, if -- but only
if -- judge walton releases the relevant
letter or letters, with the names intact,
on june 5, 2007, or shortly thereafter.

just my personal advice -- for what it
is worth -- it is tempting to play the
"let's identify" game, but risky, i think.

p e a c e,

& g'night. . .

[JGabriel]

Dismayed: "My second prediction, going out a limb here. Bush pardons him pronto. I wouldn't have thought this a week ago, but Comstock's literature only has one effective purpose."

I think that's what Cheney, Comstock, Libby, the Libby Defense Fund contributors, neocon pundits, and the Republican base want -- but if they actually *expect* it, then you wouldn't think they'd need to perform such a full press court in the media on Libby's behalf.

I suspect that Preznit Fuckwit isn't on completely board.

More precisely, Bush has probably recieved ultimatums and warnings of blowback from CIA, the intelligence community, maybe his father, Baker, and Kissinger, if he grants Libby a pardon.

That wouldn't necessarily stop Bush from granting the pardon; he really is an extraordinarily stupid jackass. But don't be surprised if Bush refuses to grant the pardon -- there may be more at stake for him than just proving he has the balls and power to ignore the legal process.

After all, while the Secret Service will be the primary guard detail for Bush after he leaves office, research and identification of threats will be handled, at least in part, by the CIA. Might not be such a good idea to piss them off.

.

[JGabriel]

nolo: "i am willing to wager, based
on judge walton's body-language (as opposed
to any of the actual arguments, mind you!)
that he's leaning toward team fitz and their
30 to 37 months, with immediate surrender
upon conclusion of the sentencing on june 5."

I mostly agree with this, but there's almost no chance of *immediate* surrender. Libby will get a week or two - no more, I hope - to put his affairs in order before surrendering to the authorities to begin his sentence.

[bmaz]

Jgabriel and nolo - JG is right about it not being immediate. But there is no real problem with giving him a week or so to self surrender and it is cheaper and easier for the government that way; don't take up US Marshall's time and resources etc. As long as he is ordered remanded to custody that is all that is important. As to length of sentence; I don't know. I don't see how you can get to over 30 months without the enhancement factor from the cross-reference finding discussed in an earlier thread. As you probably read, this is a complicated and hazy area; and you haven't seen the half of it. Nightmare is an understatement. I think Walton will keep the sentence clean from any appealable error, and using this as an enhancement would be absolutely an appealable issue, even if he is later upheld. Without that factor, I think the likely range is going to be 22-30 months. I am sticking at 26-29 myself.

[Dismayed]

J Gabriel - I see your point. My reasoning is that I think the purpose of the latest out of team libby is to lubricate the talking heads on radio, build the spin for what is about to happen, truth be damned.

Those that don't want to see Libby let go are mostly too in the loop to buy any of it, so, in my mind, there is no effective purpose there. (We all know GW doesn't read the press or pay attention to any political pressure this could possible generate.)

However, there is effective purpose in lubricating the spin machine. Like I said, out on a limb, but I think the pardon will come pretty quick. Would LOVE to be wrong.

[Dismayed]

Come on Bmaz - pick a number, I'm writing all these predictions down. You can't win if you don't pick a number. I've got 30, nolo has 33.

[bmaz]

I am on the record all over the place for a long time at 29, but I have ahd serious thoughts at downward departing to 26 months. For now, I am sticking at 29. But I really need to read the various sentencing docs that came out today closely, and have not done so yet. I reserve the right to amend to 26, but am not going below that.

[Rayne]

The burden of relentless and unfair media coverage has fallen heaviest on Mr. Libby’s young children, and imprisonment would separate him from them at a particularly formative time in their lives.

Oh. My. God. Does this bit piss me off. I saw nothing in the course of the trial or the run-up to the trial that indicated the OVP's office, including Libby, were in any way, shape or form concerned with the outing of an NOC let alone the impact it would have on her young children and spouse. Not one whit of concern that they needed to do any remediation of any kind or any affirmative action to protect the outed officer, whether they were directly responsible or not.

Family values my *ss. He should get 30 months at a minimum.

[Thomas Long]

The phrase "people working in journalism" is a tell: probably doesn't mean real journalists, but columnists and hucksters. (By the way, real reporters and editors don't consider Novak a colleague; he is a columnist, and a shameless partisan hack.) So, it could be any number of blowhards referred to as "working in journalism." Might even be someone in the mailroom.

[hauksdottir]

I'm going to take the high end of the range: 37 months, and it would still be too short for somebody who outed a spy in time of war... not to save his life, not to save his family or friends' lives, or for any sympathetic reason... but because she got in the way of his boss's constant war-mongering and manufacturing the reasons for war.

"Fixing the intelligence" works especially well when you "fix" the analysts by neutering them. Ms Plame and her Brewster-Jennings outfit was a real threat to the planting of false documents and plans. If the conflagration of war spreads to Iran and engulfs the entire Middle East based upon yet more lies, we are going to seriously miss the work of people who tracked WMDs and could ascertain truth from falsehood.

Cheney deserves to molder in the cell next to him for war crimes (the evidence that he ordered the outing isn't quite clear enough, but a good investigation under the ICC will provide plenty of evidence of other crimes). Libby is just a "loyal soldier" both for following orders and for being a firewall, but Nuremburg threw that defense out the window. Libby knew what he was doing, and he did it with thoroughness.

Being a lawyer is no excuse for violating the law. Indeed, it ought to render the accountability even more sharp.

I don't like spies.

However, if you ask people to risk their lives for the sake of the government, the government has a responsibility not to callously expose them and their entire operation. Repeatedly. Thoroughly. Intentionally.

37 months. Minimum.

[melior]

I bet Haldeman and Ehrlichman thought their cases were "totally unique" too.

[emptywheel]

morinao

Thanks for filling in some of the details. If I can do so before the trial I'd love to push back against the neocons here. The way they present the Cox Committee is completely bogus. So I suspect (as you show with the Partnershpi for Peace) more of these are too.

[bluebird]

Maybe the journalist is William Safire, as he received the Presidential Medal of Freedom.

[emptywheel]

bluebird and Jeff

Yes, I think either Safire or/and Marty Peretz (the latter of whom is on the libby fund) are good candidates to be the person in journalism.

Though how pathetic would that be? While I'm interested in the over/under on the sentence (I'm guessing 24 months, outtamyarse, and Judge Reggie will need to expose himself to some mighty shitstorm to get that far), I'm at least as interested in how many letters Libby was able to solicit from anyone outside of the Neocon faithful. 16?

[nolo]

". . .I'm at least as interested in how many letters Libby was able to solicit from anyone outside of the Neocon faithful. 16?"

Posted by: emptywheel | June 01, 2007 at 09:33

i'm in on this, for certain -- but first:

you must define your terms, madamoiselle!

does an anonymous citizen in, say, boise,
idaho -- who doesn't actually know scooter,
but votes with the neo-cons, count as one of
"the faithful", or one of the "outsiders"?

ASSUMING we count the mythical-idahoan,
above, as among "the faithful", i'll take the under
on your bet -- i'll say six -- six people that
we can either easily identify as non-republican
public figures, or private figures who self-
identify as non-republicans. . .

there's my w.a.g. for the day. . .

good one, EW!

[modmom]

Not all the letters will be from those who praise Libby. I sent Judge Walton a letter and cc-ed it to Jeffress as well. It will be interesting to see on June 5, when the letters are released to the media, if mine is included or if they have been filtered to present Libby in a positive light.

[nolo]

modmom -- while i agree with your general
point, i think the bet we are working on
will only count libby-favorable letters. . .

we do know -- for certain -- that several
bloggers sent in letters encouraging
judge walton to treat this case as tant-
amount to an act of treason, and during
"war-time", to boot [i.e. death-eligible]. . .

and i do think judge walton's 160 may include
some anti-libby letters, but there are these
rules about ex-parte communications. . . blah, blah. . .

so -- i think the wager (part II),
is the over/under on EW's guess of
16-favorable-but-non-neocon-letter-writers.

i have the under -- at six.

[emptywheel]

modmom

I think all letters will be released. I think at this point they are technically property of the court, and since Reggie has decided to release the letters, he will release all of them.

And my terms: in the 16, I'm counting just those that are 1) from ordinary citizens that 2) advocate a tough sentence for Libby.

I actually think 16 is pretty conservative. I've probably heard from 16 who said they sent letters.

[Ishmael]

EW -"Saint" Libby - I like that. So Scooter helped win the Cold War, it sure sounds like something "former civilian military leader" Secretary of Deferments Dick Cheney would say. With all the other hitherto unknown good deeds and qualities of Scooter, it reminds of that line from The Producers: "It isn't well known, but the Fuhrer was a wonderful dancer!"

[Swoosh]

Any speculation that Bartlett's hasty departure is related to pique about a W. decision NOT to pardon Libby right away?

[Tom Hilton]

This is a testimony to his devotion to our nation and the Vice President.

Um...isn't it his devotion to the Vice President that got him in trouble in the first place? Or at least, isn't that what Fitzgerald's sentencing memo says?

[Steve T.]

I am thoroughly sick of the "no underlying crime" trope. Of course outing Valerie Plame was a crime. They just haven't been able to pin it on anybody. Team Libby is arguing that if I don't know who burgled my house when I was at work, no burglary was really committed. That I should just calm down, chill out, and maybe listen to some soothing music on the stereo that's no longer in my living room.

[Dismayed]

Okay - In the Libby Lockdown Lotto I have -

Me with 30 months
nolo - 33 months
bmaz - 29 months, reserving the right to amend to 26 (just like a lawyer)
Rayne - 30 months (okay I guess I'll share)
Hauksdottir - 37 months
EW - 24 months

And the prize -- HMMMM. I'm thinking I'll buy a copy of "Anatomy of Deceit and send it to Libby in jail with a request for autograph. If I can actually get him to do it, then there's your prize. No real jail time and I'd say we're all losers, so no prize.

I'll keep an eye on threads for predictions.

[morinao]

A former civilian military leader remembers, “I grew to admire his intellect and his wisdom during that remarkable period in which the Soviet empire, and ultimately the Soviet Union itself, disintegrated – a period in which both Scooter and I played important roles.”

On second thought, this sounds like Paul Wolfowitz, former Undersecretary of Defense for Policy in the Bush Sr. administration (#3 in the Defense Department; #1 was Dick Cheney, #2 was the late Donald J. Atwood).

[bmaz]

morinao - That is decent reasoning. I would think it was Cheney if it were not for the fact that I just can't believe he would have the gall to do it. Rumsfeld possible too, but I like your Wolfowitz better.

[Howard Appel]

Fair warning, this started off as a short comment and just kept getting longer.

As a long-time lurker and fervent and dedicated reader, let me first thank all of you for your often inspired and inspiring analysis and comments. Secondly, as a non-criminal law lawyer, I am betting 26-28 months for Libby (for purposes of the pool, 27 months) and 9 non public neocon pro-Libby letters. As to the 26-28 months, I agree with those who argue that Walton is a solid jurist who knows the law and who is not easily fooled or swayed by puffery and 26-28 months is a sentence that would be pretty much bullet proof on appeal.

I can't see Walton sentencing Libby to much less than that. Keep in mind that Walton has not only been privy to all of the classified evidence that addressed Plame's status as a covert agent and the scope of her activities, but also that Walton seems to really understand what was at stake in this case.

In addition to the classified evidence, Walton has seen a great deal of evidence that was not introduced in court, either because it was not admissible for one reason or another or because a party elected not to introduce it. However, I think we can say with a significant degree of confidence that anything that was marginally admissible was more likely to be admitted if it was supportive of Libby was than if it was negative of Libby (and I don’t disagree that that is the correct result – I believe the scales should be tilted, if at all, in favor of the defendant). However, the result is that evidence that was not introduced is more likely to be negative of Libby and Walton will have seen that. And based on all of the motions in limine and disputes over admissibility of evidence that we know about and the evidence that we know Fitz wanted to introduce and was not allowed to, I think it likely that Walton will have seen substantial amounts of evidence, not introduced into the record, as to Libby’s wrong-doing, all of which I think Walton will take into account.

Additionally, Walton appeared to have believed, based on Team Libby's representations to the court, that Libby would be testifying and Walton allowed certain evidence in on that basis and was not too happy when Team Libby decided not to have him testify.

When you are arguing for a lower sentence, you have to accept responsibility for your actions, admit your guilt and demonstrate remorse for your actions. In the present instance, not only has Libby not admitted his guilt, he is still actively seeking public support and approval for his actions. Remember last week (or week before) when he appeared at a conservative dinner and was given a standing ovation. These are not the actions of a remorseful person who has accepted responsibility for violating the law and clearly demonstrate a lack of remorse and instead seem to me to be the equivalent of poking his finger in Walton's face. Ultimately, I think that there are numerous solid legal arguments for a sentence of between 24-36 months and anything in that range would be justifiable under the law. The only arguments for a lower sentence or for probation are ultimately political arguments and, as I said earlier, I think Walton is a solid jurist, who is going to rule on the law.

As to immediate remand, I think he gives him 7-10 days to turn himself in. However, given that the sentencing hearing has been scheduled for quite a long time, that not only do the sentencing recommendation and the govt's motions provide for prison time, as do the guidelines, which Team Libby's filings reluctantly acknowledge, I can see Walton ruling that Libby has had adequate time to put his affairs in order and orders an immediate remand. I think that is unlikely, but if Team Libby really pisses Walton off before or at the sentencing hearing, Walton may just say enough is enough.

For purposes of the foregoing, "Team Libby" includes not only Libby and his attorneys, but also Tucker and frere Carlson, Comstock, the WSJ, Fred Thompson (a/k/a, the "New Great White Hope" and the "Great Communicator 2.0"), Frum and the rest of the neocon cabal.

Lastly, as to Walton serving on the FISA court, I saw a comment (I am not sure if it was on this board or another one) regretting that Walton would no longer be serving in his present position. As I understand the FISA appointment, the judges on that court sit there in addition to their regular responsibilities, not in lieu thereof, and the appointment is for a period of time. It is not an Article III appointment such as an appointment as a US District Court Judge or US Appellate Court Judge.

Lastly (for real this time), keep up the good work and I have one question on which I would like some suggestions, partially off topic, partially on topic. I have been drafting a series of questions, albeit in the format of an open letter or something similar, to be given to each of the presidential candidates, both D & R, substantially along the following summarized lines (the intent is that they should always be forced to answer yes) and I would appreciate comments, thoughts, suggestions, brickbats, rotten vegetables and fruit, etc. My emails are [email protected] and [email protected]. Thanks.

1. Do you believe that our government should serve the public, not the elected and other government officials (hereinafter, officials)?

2. Do you believe that officials serve the public?

3. Do you believe that persons, including officials, are responsible and should be accountable to the public for the actions taken by such officials and the decisions made by such officials on behalf of the public and in the public’s name.

4. Do you believe that the public has the right to know and should know what their officials and their government are doing on the public’s behalf and in the public’s name (subject to limited national security, ongoing criminal investigation, etc. exclusions) (this would include, e.g., who met with Cheney’s energy task force and who visited his official residence)?

5. If you agree that the public has the right to know what has been done in their name and that officials should be responsible to the public, do you agree to fully support complete disclosure to the public of all actions taken and decisions made by the government during this administration?

6. If there is sufficient evidence to demonstrate probable cause that an official committed a criminal act, regardless of whether acting in the capacity of an official or otherwise, will you pledge to fully support and not impede a criminal prosecution of such official for such act?

7. WILL YOU PLEDGE TO NOT ISSUE ANY PARDONS FOR ANY PERSONS WHO SERVED AS AN OFFICIAL, REGARDLESS OF WHETHER OR NOT THE CRIMINAL ACT FOR WHICH THE OFFICIAL WAS CONVICTED OCCURRED WHILE THE PERSON WAS ACTING AS AN OFFICIAL?

[Tom Hilton]

Team Libby is arguing that if I don't know who burgled my house when I was at work, no burglary was really committed.

Or, to put it another way, that perjury and obstruction should be punished only when they're unsuccessful.

[powkat]

I knew a kid who firebombed a truck because he thouhgt it would help save the earth. He also had no prior criminal record, had (and still has)a stellar record of volunteering and kindness to children and small animals. He got 3 years.

[Linda]

I think Dick Cheney and George W. Bush should be Libby's cellmates. Bush, Cheney and Libby should be locked up for a long time for the damage they have done to our country.

[litigatormom]

Dear Judge Walton,
You know that trial you presided over with all those bloggers hanging out in the back? It was really kind of a waste. There was no underlying crime, and it should never have been brought before you, and once it did, you should have dismissed it. Since it was all so pointless, you should be very lenient with the defendant, since he didn't really do anything wrong except lie to people involved in investigating crimes and deciding whether to bring indictments, which shouldn't mean very much to you as a judge. Just because you didn't have the balls to shut Patrick Fitzgerald down doesn't mean that Scooter Libby should have to suffer for it.

Thank you for your consideration,
Ted and Bill

[freepatriot]

yo, dismayed, put me down for 28 months

and I ain't sharing with nobody

where do I send the money ???

[Dismayed]

28's all yours. No money needed, I think I can swing another copy of AOD

[Libby's Lawyers: Are They Retarded?]

It is reckless for the House not to impeach, regardless the Senate vote. Impeachment -- even if not convicted by the SEnate -- would make a pardon impossible for Libby. This inaction by the House is disgusting. They could vote to impeach down the line and make a showing of Libby, Rove, Gonzalez, and the rest of the crew. Senate doesn't want to remove/convictd, let the SEnate suffere the consequences in 2008. This American legal community is reckless: Even if not impeached, the US legal community refuses to prosecute VP/President outside impeachment. It can be done: Talk to your State AG about Jonathan Turley's comments on prosecuting a sitting president; or google it. You'll see.

Libby's lawyers comments are laughable. "His dedication to promoting freedom abroad and keeping American citizens safe at home is beyond question."

"beyond question" -- ha! Where's the evidence: No WMD, prisoner abuse, CIA op name released, FISA violations, illegal warfare, and endangering AMerican lives.

"Freedom abroad" -- Irquis "love" this "freedom": Destablized situation, occupation like Isrealis in Palestine, poor energy supplies/jobs/water.

"Promoting freedom" using illegal methods, wars of aggression.

"No jail time" -- ha! He needs a second trial for war crimes, rat bast-turd.

[Jeff Probst]

Scooter, the tribe has spoken.

(snuffs torch)

It's time for you to go.

[freepatriot]

yo, Dismayed

so nobody wants to make this "Interesting" ???

come on, bookies gotta make a living too

on the other hand ...

I gotta admit, politics is more fun to watch than football, so maybe it's interesting without "Added Interest"

would that be a "Signed Copy" ???

and if anybody IS interested in some "added interest ...

(wink)

[Dismayed]

Yeah It's plenty interesting as it is. Bragging rights are worth a bunch on this one. I did think about running a pool, but with all the annonomy on the site, it would have been just a huge pain in the ass. I have no doubt we can get a copy signed by EW, though I haven't asked. What about it EW? However, look above. I'm going to send a copy to Libby while I know his address and see if he'll sign it. You never know, he might.

[bmaz]

If Libby signs, I will remove my mask to collect the prize!

[freepatriot]

emptywheel is my muse

I didn't start explorin the innertuber till march of 2003. By july, I was addicted to DKOS. And when the Plame story broke, I just stuck with the postest with the mostest

and here I am, miles from home ...

[John Harvey]

"Mr. Libby’s felony convictions make it unlikely that he will ever work in government or practice law again, and his notoriety will also hinder his future job prospects."

Anyone want to bet how long after St. Libby gets out of jail before he is hired by one of the right wing think tanks. Maybe he could be hired as an expert of prison reform. Of course that assumes he ever spends a day in jail. He was given 30 months. How many months is it until after the 2008 election? King George is going to be busy signing pardons from the day after the election until January 20, 2009. I doubt Bush would pardon Libby before the election. Maybe Bush will put Libby in charge of his library or think tank in Dallas. That should sooth any pain over a few months in Allenwood Prison Camp.