Scooter Libby Commutation

As I was entering my previous post, CNN came on with a news flash announcing Bush's commutation of Libby's prison sentence.

In prison, federal inmates, at least those who hang out in the law library, routinely discuss federal sentencing issues and understand terms such as sentencing guidelines, enhancements, departures (upward and downward), conspiracy, rule 35 (adjustment for "cooperation"), 2255 motions (inadequate counsel), etc.

We had many discussions about Libby (complete summary of his case can be found here), including whether we thought he would ever go to prison. Once his motion to remain free pending his appeal was turned down, I really didn't see any way he was going to avoid prison time. I assumed that Bush would wait until the end of his term (another 19 months) before granting a pardon, which would mean that Libby would have already served virtually all of his sentence. (A 30 month federal sentence would actually result in about 23-24 months of actual prison time and 2-2.5 months in a half-way house.) Since Libby was due to report by the end of July, he would have to spend over 16 months before the 2008 elections occurred, 18 months before the end of Bush's term on 1/20/09.

Other inmates insisted he would never see a day in prison, that Bush would pardon him before then. I was skeptical, although with his poll ratings so low, with only his "base" supporting him, he perhaps has nothing to lose politically (although he puts other Republicans in an awkward situation). I guess I was wrong.

First, I have to admit that, notwithstanding the administration's handling of the Valerie Plame affair, Libby got a raw deal in being prosecuted. The bottom line is that he was the victim in a game of "gotcha" that prosecutors are very adept at playing. It happens when a prosecutor is unable to uncover evidence for the crime he was charged to investigate so, in order to justify his investigative efforts, he "creates" a crime by trapping a careless witness into a perjury or obstruction charge.

The essence of my concern about this prosecution is summarized nicely by Susan Estrich (full article can be found here):

There is something troubling about prosecutors using perjury and
obstruction of justice to turn into criminals people who haven't committed any
other crime. Instead of using the grand jury as a tool for investigating other
criminal activity, it becomes the forum for creating criminal conduct. The role
of the FBI and federal prosecutors becomes one of creating criminals instead of
catching them. Technically, I know, it's not entrapment, but it's still
different than the usual business of tracking down those who have violated the
law and punishing them for their bad acts. The investigation doesn't solve the
crime; it creates it.

Why Libby, a bright guy I assume, allowed himself to get trapped by such a ploy is beyond me.

As for his sentence, Libby's lawyers recommended probation, the probation department recommended 15-21 months based on the facts they considered relevant to the offense. The government recommended a sentencing range of 30-37 months based on their application of certain sentencing enhancements. First of all, it is very rare for the probation department to issue a presentence invesigative (PSI) report recommending a sentence lower than the prosecution. Normally they are in lockstep. Libby had a very strong case for a 15-month or less sentence. Unfortunately, he had a very tough judge, Reggie Walton, who agreed with the government's position and imposed a very harsh sentence. 30 months in prison for an immaterial lie to a grand jury when the prosecutor already knew that an underlying crime did not exist is very tough. The average person doesn't understand how long that is and what the long-term collateral consequences are.

There is no doubt that Libby received a huge break that no one else ever gets. I understand why that upsets a lot of people. I also understand why people reflexively trust the federal judicial process without really understanding how unfair the system really is. I am happy for Libby; I just wish more people could receive the same kind of break. I bet if you surveyed ordinary Americans with the facts of particular federal cases and asked them to guess what sentence was imposed, 95% of the time the actual sentence the defendant received would be greater than what the average American would have guessed. The disconnect between "the people" and "the system" is troubling.

I understand that most of you do not follow the technical details of federal sentencing (and neither did I before I got tangled up in the system) but there is an interesting parallel with one of the Supreme Court cases decided last month (that many of us were waiting for): Rita vs United States . Victor Rita received a 33 month sentence for what most people would consider a less serious perjury offense than Libby's. He appealed, arguing he should have received a sentence below the guideline sentence he received. The Supreme Court disagreed two week ago, in an 8-1 opinion, surprising many. They concluded that guideline sentences have a presumption of reasonableness. It's actually a little more complicated than that, but...

For the 1% of you who read this blog that actually care about this kind of stuff, I suggest you check out this link and this link at the Sentencing Law and Policy Blog. There is a nice discussion comparing Libby's and Rita's cases.

In any case, I believe Libby is a good man who has served this country honorably. He did not deserve to go to prison, despite his inexplicable false testimony in the Valerie Plame investigation. That's not a defense of his mistake, only an argument that the prosecution was abusive and the punishment was disproportionate.