Category: Plame Investigation

Bush to Commute Libby’s Sentence

July 2nd, 2007

The Wall Street Jrl headline is: "Bush Spares Libby From Prison Term." (see also CNN) Just hours ago a three judge panel ruled against Libby’s request for an appeal bond (see here). We are now seeing President Bush’s response to this ruling. Commuting the sentence will mean that I. Lewis "Scooter" Libby will continue to have a federal conviction. He will have to pay his fine and will remain on probation. It will mean, however, that the 30 month sentence will not have to be served. Obvious questions:

Is Libby receiving treatment that other offenders are not given – e.g. – Siegelman, Scrushy, Olis, Ebbers, and the long list of other individuals convicted of white collar crimes. And how about all the other offenders serving time in prison? And how will Martha Stewart feel about this – she served a sentence for similar alleged conduct?

Does Libby deserve this special treatment? Many claim he does and many say the opposite? Does this presidential decision negate the U.S. Sentencing Guidelines – a move to keep sentences equal for like defendants?

It will be interesting to hear the President’s comments on why this decision was made. Obviously more Commentary will follow.

(esp)

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UPDATE: The President’s statement is available here. He explains:

I respect the jury’s verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend thirty months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.

The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby’s case is an appropriate exercise of this power.

(ph)
D.C. Circuit Denies Libby Bail Pending Appeal

July 2nd, 2007

The District of Columbia Circuit Court of Appeals denied the expedited motion of I. Lewis Libby for bail pending appeal of his convictions on perjury, obstruction of justice, and false statement charges (see earlier post here). Libby’s name is already listed on the Bureau of Prisons website under its "Inmate Locator" under Register Number 28301-016, which likely means they are preparing for his placement in the federal correctional system. Possible locations near Washington, D.C., where his family lives, include the Morgantown, West Virginia, FCI, which currently houses former Representative Bob Ney of Ohio. Other possibilities are the FCI in Cumberland, Maryland, where former lobbyist Jack Abramoff is serving his term, or Petersburg, Virginia, which has a minimum security camp. Of course, there is also pressure being put on President Bush to issue a pardon for Libby, which would eliminate his going to prison and negate his appeal. An AP story (here) discusses the D.C. Circuit’s decision. (ph)
Libby Bail Hearing Gets “Conservative” Judges

June 24th, 2007

According to a post on the Libby Legal Defense Trust website (referencing an AP story on Boston.com), the issue of an appellate bond for convicted I. "Scooter" Libby will be decided by appellate "Judges David B. Sentelle, Karen Lecraft Henderson and David Tatel." Two were appointed by Republican Presidents and one by Clinton. Hon. David B. Sentelle was crucial in the appointment of Kenneth Starr. Hon. Sentelle was also one of two judges (along w/ Hon. D.H. Ginsburg) that voted to reverse the conviction in the case of United States v. Poindexter, 951 F.2d 369 (D.C. 1991), a case dissented to by Judge Mikva. But as noted by Boston.com, Hon Reggie Walton, who was appointed by President Bush, refused to grant an appellate bond. Key to this decision will be whether Libby can show that his appellate issues raise a "substantial question of law or fact" that might result in an eventual reversal of the conviction.

(esp)
Libby Denied Bail Pending Appeal — On to the D.C. Circuit

June 15th, 2007

Not to anyone’s great surprise, U.S. District Judge Reggie Walton rejected the request by I. Lewis Libby for bail pending appeal of his conviction on perjury, false statement, and obstruction of justice charges. The Judge sentenced Libby to a thirty-month term of imprisonment on June 5, and invited both sides to submit briefs on the issue of whether to grant him bail while he appeals to the D.C. Circuit Court of Appeals. In addition, a brief submitted by a group of law professors argued that the issue of Special Counsel Patrick Fitzgerald’s constitutional authority was sufficiently close to warrant a grant of bail under 18 U.S.C. Sec. 3143(b)(1)(B). While the general presumption is that the defendant begin serving the sentence while appealing, bail can be granted if, inter alia, the court finds that an issue "raises a substantial question of law or fact" that would result in reversal of the conviction. In denying the defense request, Judge Walton determined that there were no "substantial" questions likely to result in reversal, and he was not overly impressed with the contribution of the law professors.

Under Federal Rule of Appellate Procedure 9, however, the district court is just a way station on this issue, not the final word. Rule 9(b) (available here) allows a defendant to obtain a fairly quick review of a district court order denying release pending appeal by filing a notice of appeal or filing a motion with the circuit court, at which point the procedures of Rule 9(a) kick in. That provision provides: "After reasonable notice to the appellee, the court of appeals must promptly determine the appeal on the basis of the papers, affidavits, and parts of the record that the parties present or the court requires. Unless the court so orders, briefs need not be filed." The bail request is rarely the subject of oral argument, and the court of appeals or even a single judge on the court can order the defendant’s release pending the disposition of the substantive appeal (see Rule 9(a)(3)). This procedure means that a decision on whether to grant Libby bail could come quickly, before he is due to report to the Bureau of Prisons and well in advance of the filing of full briefs challenging the conviction. Even if he is denied bail at this point and begins serving his sentence, the D.C. Circuit could order his release after the oral argument if it determines that there’s a likelihood of reversal, which happened to defendants in the Enron Nigerian Barge prosecution.

The process is more of a summary one in which the court of appeals makes a preliminary assessment of the issues in deciding whether to allow a defendant to remain free until the conclusion of the appeal. Rule 9 gives Libby at least one more bite at securing his freedom while the appeal is pending, and if granted by the D.C. Circuit he is likely to remain free for upwards of another year or so while his appeal wends its way through the appellate process. Given the close proximity of the District and Circuit Courts in the District of Columbia, it’s really just a short hop to seeking another hearing on the issue. (ph)
Libby Facing Strong Prosecutorial Arguments Against Bond

June 12th, 2007

The Wall Street Jrl reports on the position of Prosecutor J. Patrick Fitzgerald on whether Libby should be allowed to remain free pending appeal. The article is titled, "Prosecutor Pushes Libby Sentence." No surprises here.

(esp)
Did the Prosecutor Have Jurisdiction in the Libby Case

June 8th, 2007

With a 2 1/2 year sentence issued to I. "Scooter" Libby, it is not surprising to see people examining every aspect of this case. According to the New York Sun here, a group of "scholars," that includes Professors Alan Dershowitz (Harvard), Randy Barnett (Georgetown) and others, have filed an amicus brief challenging the prosecutor’s jurisdiction to hear this case. Although it seems that their brief is not directed to the bail issue, it could significantly affect this decision. If the defense can demonstrate a significant issue for appeal, a court is more likely to grant bail pending the appellate process. Even if Judge Walton should deny bail, this issue and the expertise of this group of "scholars" could significantly influence an appellate tribunal in providing an order to release the defendant pending the appeal.

(esp)

Howard Bashman at How Appealing has a copy of the order here allowing them to file the brief. Check out the footnote.
Libby Seeks Bail Pending Appeal

June 8th, 2007

I. Lewis Libby’s defense team filed its brief with the District Court seeking bail while he appeals his conviction to the D.C. Circuit and, if he fails there, most likely to the Supreme Court — assuming there’s no pardon, which is a different issue altogether. The brief (here, courtesy of TalkLeft), argues that there are questions about the conviction that are sufficiently close to permit U.S. District Judge Reggie Walton to find that the case meets the standard in 18 U.S.C. Sec. 3143. The first step is a determination that the defendant poses no danger to the community and is not a flight risk, both of which are not disputed. The more difficult issue is whether the legal issues Libby plans to raise on appeal meet the requirement of Sec. 3143(b)(1) that "the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial." While judges are unlikely to second-guess themselves, many will permit bail if there are questions at least sufficiently close that reversal by an appellate court is a reasonable possibility, even if not likely. White collar crime cases tend to have such issues, but while it may be more likely these days that defendants in such cases are allowed to remain free, it is certainly not universal, as former Enron CEO Jeffrey Skilling can attest from an FCI in Minnesota.

Libby’s brief identifies issues regarding the constitutional authority of Special Counsel Patrick Fitzgerald, the exclusion of an expert on memory to testify about Libby’s inability to recall conversations about former CIA operative Valerie Plame, Classified Information Procedures Act (CIPA) decisions, and the exclusion of certain classified evidence because Libby chose not to testify. The constitutional issue is anyone’s guess because Fitzgerald’s appointment was unique in the post-Independent Counsel world. The CIPA and evidentiary issues could result in a reversal, although these are the types of decisions appellate courts usually do not disturb on legal grounds or because the error is harmless. That said, the issues look to be of sufficient weight that the D.C. Circuit could reverse the conviction, so bail pending appeal is at least a possibility. As co-blogger Ellen Podgor discussed in an earlier post (here), even if Judge Walton turns down the defense request it can be renewed with the court of appeals, which may take a different view of the case. (ph)
Commentary on Libby Sentencing

June 6th, 2007

Receiving a straight guidelines sentence — and one on the stiff side — lets the administration feel the full effect of the guidelines sentences they created. Some thoughts:

1. Convicted defendants who maintain their innocence are placed in a no-win situation when appearing for sentencing. If they say anything, like for example express remorse, they can significantly hurt their chances on appeal. Judges are liable to shave months off a sentence for acceptance of responsibility. But the individual who is convicted and still maintains his or her innocence is left in a situation of selecting whether to try and reduce his or her sentence, or risk the chance of success on appeal. And when the sentence is relatively low, taking a chance on the appeal may be better. Libby was respectful to the court, but he certainly did not express remorse, thus maintaining a stronger case for his appeal or possibly for a retrial.

2. Whether the judge will allow Libby to remain free on bail pending appeal is not as definitive as many people believe. It is true that many white collar offenders do remain free pending appeal, but not all are this fortunate (e.g.,Atlanta Mayor Bill Campbell, Jeffrey Skilling, Jamie Olis). If Judge Walton decides to incarcerate Libby immediately, Libby may appeal to a higher court and ask for a stay pending the appeal.

3. If Libby is ordered to jail, the question may be whether he is taken on the spot or allowed to report directly to an assigned facility. There is a benefit to being allowed to report to a facility in that the individual will not be subjected to various prison facilities as they are transferred to their final destination.

4. The administration may be placed in a situation of making a quick decision on whether to pardon Libby or allow him first to serve his sentence. The pardon would be in sharp contrast to other pardons issued by President Bush. His past pardons have not been for individuals who were recently sentenced.

5. And then of course there is always the possibility – in criminal cases – of the newly sentenced individual deciding to cooperate with the government. Even if Libby did have something to offer the government, it may not prove useful as a conviction for perjury and false statements would not make him a particularly credible witness in court.

Checkout – Doug Berman’s Sentencing Blog here, discussing upcoming Supreme Court case that could prove helpful to Libby.

(esp)
Libby Gets 30 Months

June 5th, 2007

Online press is reporting that I "Scooter" Libby was sentenced today to 2 1/2 years in prison. (e.g., Boston.com; WSJ, CNN, NYTimes) He was convicted of perjury, false statements, and obstruction of justice. The government asked for 30-37 months, with the defense asking for no jail time. This sends a strong message of deterrence that crimes with national security implications will not be tolerated. J. Patrick Fitzgerald wins yet another round of this trial in obtaining a sentence in the range that he requested. This is particularly significant in that according to the Washington Post, the probation department asked for approximately one half of the sentence issued by the court. (see here)

The WSJ notes that the court did not rule on whether Libby would remain free pending appeal. Many assume that this will be automatic, as it tends to be in many white collar cases. But this is not always the case. Former Mayor Bill Campbell of Atlanta was ordered directly to prison and not allowed to remain free pending his appeal.(see here)

But it is also important to remember that this case is not over yet. There are several appellate issues that Libby is likely to raise in the next round. The inadmissibility of evidence that he wished to present will most likely be at the core of these arguments. (see WSJ here).

(esp)
The Forthcoming Libby Sentencing

June 2nd, 2007

I "Scooter" Libby is set to be sentenced Tuesday for the crimes of obstruction of justice, false statements, and perjury. The predictions are certainly the focus of much commentary (e.g., here, here, and here). But with many looking at the numbers, it is important to recognize that this sentencing presents an opportunity for a judge to look beyond numbers and sentence the individual. The defense sentencing memorandum spends the first 23 pages of the 33 page document focusing on the individual. Only after this part of the memo do we see discussion of the guidelines and the applicable law. Now there is a separate motion in opposition to the government’s memo, but it is clear that the defense will be calling for the judge to sentence the individual, not individual "x" who has been convicted of committing certain crimes. The government will, as usual, likely be asking for the court to follow the strict numerical calculations of the guidelines.

In 116 Yale L.J. Pocket Part 279 (2007), I wrote, "The bottom line is that we need to return to individualizing the sentencing process because we do not sentence numbers – we sentence people. If we really believe that the time should fit the crime, then we need to start realizing that not all crimes and not all criminals are alike."

Whether this approach gives Libby a longer or shorter sentence is subject to debate. But the interesting question will be whether the judge wants to be a part of this debate, or merely plug in numbers and sentence the next defendant in the courtroom.

(esp)

P.S. – Check out Professor Doug Berman’s analysis on the Sentencing Law and Policy Blog here.