The Libby defense team's blunder

I think there was an argument Libby defense team would have resulted in a lower sentence. But they failed to make it in the relevant filing. It is this:

The defense should have argued to the judge that, if he should find (contrary to their contention) that Mr. Libby did commit his obstruction in relation to the outing of Ms. Plame, he should then consider just how serious of an outing was this? The guideline for this offense covers a wide spectrum of offenses with different levels of seriousness. Consider the following two situations:

1) A covert agent in Iran has his identity leaked to someone in Iran. The agent is ethnically Persian and can easily blend into that society. The agent does not know that his identity has been compromised.

2) A covert agent in Washington DC has her identity leaked to someone in the USA. This information then appears on the news. The agent realizes that she has been compromised.

Surely, outing #1 is much more serious than outing #2. Outing #1 would put the agent in great physical danger. Outing #2 does no such thing. Furthermore, in situation #1, even if the agent somehow realizes that he has been outed, and successfully escapes, his secret cover and his relationships with people in Iran have been lost. They will be difficult to reclaim. Furthermore, the CIA will have lost most of the value of someone who speaks Persian and can easily fit into Iranian society. The loss of this rare and valuable skill is devestating.

In situation #2, the agent is not put in any personal danger because she was outed. Furthermore, while the loss of a secret agent always hurts, she did not have any particularly rare skills that will be sorely missed.

Because of this contrast, the defense should have argued to the judge that he should adjust Mr. Libby's offense level downwards, to account for the fact that the outing under investigation was far less serious than other possible outings which may have been envisioned by the Sentencing Commission when it promulgated the relevant guideline.

This relative seriousness portion of this argument has the great advantage of being indisputably correct. If the defense had made it, the judge would have certainly agreed with that portion. Whether he would therefore have further agreed to adjust the offense level downwards is open to question.

Even if he had chosen not to, by making the argument, the defense would have preserved the issue for appeal. Appeals courts don't like it when someone raises an argument on appeal, having failed to make it in the district court. For this reason, raising the issue now probably wouldn't do the defense any good.