Tuesday, June 5, 2007

The Libby Trap

Lewis Libby was sentenced today to 30 months in prison. Mr. Libby was trapped by a combination of factors, many of them not of his own making.

1) The Federal sentencing guidelines. These guidelines tell judges how much time they should impose for almost every possible Federal crime. The length of time is determined by a combination of the "offense level" (a measure of the seriousness of the crime) and the defendant's criminal history (in Mr. Libby's case, none). Judges are allowed to sentence outside the guidelines, but if they do they have to give a reason, and they risk being overturned on appeal. Frequently judges choose to sentence within the guidelines. This is what the judge did in Mr. Libby's case.

2) Tough-on-crime politics. For the most part, Americans like to treat criminals harshly. Every politician knows that being seen as soft on crime is a sure way to lose the next election. As a result, the guidelines are very harsh, even for nonviolent, white-collar offenders like Mr. Libby.

3) Politics (again). President Bush could not afford to be seen as stonewalling Patrick Fitzgerald's investigation. So he ordered all of his staff to talk to the prosecutor, which is what got Mr. Libby into trouble.

4) Mr. Libby's loyalty. The Bushes value loyalty extremely highly. So the Bush administration tries to choose highly loyal people to work for it. In Mr. Libby's case, they succeeded beyond their wildest dreams. And Mr. Libby's loyalty worked against him at several stages of the whole affair.

A) It seems that when Dick Cheney saw Joseph Wilson's editorial, he went ballistic, and wanted to punish Mr. Wilson in any way he could. This included outing Mr. Wilson's wife. Even though this may have been a Federal crime (more on the "may have been" later), the loyal Mr. Libby agreed.

B) When Patrick Fitzgerald was picked as special prosecutor to investigate the outing of Ms. Plame, it would have been sensible for Mr. Libby to take the Monica Goodling route. Plead the fifth and resign from his job. Talk if given a favorable deal. But perhaps driven by loyalty, he didn't resign, even though President Bush had ordered all of his staff to cooperate. Which meant Mr. Libby had to talk. Mr. Libby must have known, without being told, that the loyal thing to do was to lie in order to cover up Cheney's involvement. So he did.

C) At the end of Mr. Fitzgerald's investigation, Mr. Libby was indicted because of his lies. At this point, Mr. Libby could still have gotten off relatively lightly. It would have required that he plead guilty and cooperate with the investigation from that point onwards. But this would have been a disloyal thing to do, so Mr. Libby instead went to trial, where he lost. Because of the way the guidelines work, this decision had a major impact on his sentence. For first offenders, the guideline sentences, in months, at various offense levels relevant to this case are as follows:

Offense Level ----- Guideline sentence (in months)
12 -------------------------- 10-16 (usually half prison and half home detention)
14 -------------------------- 15-21 (prison)
16 -------------------------- 21-27 (prison)
19 -------------------------- 30-37 (prison)

Now the base offense level for perjury and obstruction of justice is 14. But if that perjury or obstruction of justice occurs during the investigation of a more serious crime, the offense level is instead 6 less than the level for the crime being investigated, if that is more than 14. This is called a "cross reference". Because outing a covert agent has offense level 25 (or 30 in some cases, but not Mr. Libby's), that meant Mr. Libby's offense level under the cross reference was level 19. And the judge gave him a sentence at the bottom of the guideline range, which is a common choice for Federal judges to make.

If Mr. Libby had chosen to plead guilty, he could have gotten a 2-3 level reduction in his offense level for acceptance of responsibility. Basically, the government feels that people who admit their crimes are less culpable than those who are convicted at trial. The reduction is 2 levels if you started out at level 15 or below, and 3 levels if you started out at level 16 or higher. So if he had plead guilty, Mr. Libby at worst would have been at level 19-3=16, with a likely 21-month sentence.

But probably he could have gotten lower than that. One of the dirty little secrets of the Federal system is that if you plead guilty, often the prosecutor will overlook some of your conduct. In this case, it is entirely possible that by pleading guilty, Mr. Libby could have gotten Mr. Fitzgerald to agree for purposes of sentencing to ignore the fact that Mr. Libby's crime was in relation to the outing of an agent. If this had happened, then Mr. Libby would have started at level 14, gotten 2 levels off for acceptance of responsibility, putting him at level 12, with a probable 10-month split sentence (the same sentence Martha Stewart got).

It gets even better. By pleading guilty, and agreeing to cooperate with Mr. Fitzgerald (who would then have gone after Vice President Cheney), Mr. Libby could have gotten a further reduction for "substantial assistance" to the prosecutor. The size of substantial assistance reductions is difficult to predict. But it is perfectly realistic that this could have gotten Mr. Libby's sentence down to a few months of home dentention, possibly with a month in prison tacked on, or even down to straight probation, probably with some community service. But it would have been a very disloyal thing for Mr. Libby to do.

Some people think Mr. Libby's loyalty is admirable. Others think it is wrong, because he may have been protecting someone who committed a crime. But it is something our criminal justice system treats very harshly.

So why do I keep using the word "may" in relation to a criminal offense for outing Miss Plame? This has to do with a little-known fact about our sentencing system. In order to be convicted of a crime, your guilt has to be proven beyond a reasonable doubt. This is a high standard. Because of it, criminal cases that are only "probable" do not go to trial. But once you are convicted of one crime (with proof beyond a reasonable doubt), the judge can impose a sentence for other crimes, if he believes "by a preponderance of the evidence" that you are guilty. Basically, this means he thinks you are probably guilty of the additional crimes. This is what happened to Mr. Libby. Mr. Fitzgerald maintained during the trial that Mr. Libby was being presecuted for perjury and obstruction of justice, not for outing Ms. Plame. But after the trial, he argued that, for purposes of sentencing, Mr. Libby should be treated as an accessory after the fact to the outing of Ms. Plame. But he never proved, beyond a reasonable doubt, that Ms. Plame was ever intentionally outed! This is not an empty question. For one thing, it has not been proven beyond a reasonable doubt that Ms. Plame's status was in fact covert. But because of the way our sentencing system works, Mr. Libby can be sentenced based on this crime, even though it was never proven beyond a reasonable doubt that the crime ever occurred!

5) The last thing that worked against Mr. Libby was his fame. In a less well-known case, the judge might have been persuaded by the arguments for leniency that were advanced in the letters he received. Or the prosecutor might not have argued as strongly for the cross reference which raised Mr. Libby's offense level from 14 to 19. Or the judge might not have agreed to it. But in famous cases, both prosecutors and judges typically feel they need to be harsh. This is because they feel our society will be more law-abiding if people see famous criminals being treated harshly.

The outcome of all this is that Mr. Libby ended up with a harsh 30 month sentence. One can argue whether or not it is reasonable that someone whose only crime is lying should spend that long in jail. But the combination of our sentencing system, our politics, Vice President Cheney's apparent (though unproven) conduct, and Mr. Libby's loyalty drove the system inexorably towards this outcome.

Incidentally, a 33=month sentence for obstruction of justice is currently on appeal to the Supreme Court The case is United States vs. Rita. The Court is expected to rule soon. And their ruling will probably have an impact on Mr. Libby's appeals.

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