How Libby Got 30 Months

Simple. The prosecutor argued, at trial, Plame's status was irrelevant, because introducing the sketchy nature of her putative "covert" status would undermine his case.

Having forbidden Libby himself from arguing that at trial (as being irrelevant to the charges), Fitzgerald then asserted the claimed fact of her covert status as being highly relevant for sentencing.

[W]hile outing a CIA agent can be illegal, neither Libby nor anyone else was actually charged with doing that to Plame. In fact, pre-trial maneuvering found the prosecutor, Patrick Fitzgerald, insisting that this was not a case about a leak and fighting defense requests for documents about whether Plame was ever a covert agent, a status that could have made intentionally leaking her identity a crime.

But when the issue of sentencing came around, Fitzgerald changed his tune, arguing that the underlying (and uncharged) crime was so serious as to warrant a sentence twice as long as what the federal probation office recommended; notably, his brief included the revelation that the CIA did consider Plame's identity classified, at least for 18 months. And Tuesday, Walton apparently bought it, declaring before he announced the sentence that Libby could be considered an accessory to the underlying crime because, at least in part, his obstruction of justice made it all but impossible for the government to make the case for that crime.

So how is it that an offense that may never have happened — and that at one point the prosecutor argued was largely irrelevant to the case — has now increased Libby's criminal sentence?

...

To get a sense of the absurdity of this, think of someone found guilty beyond a reasonable doubt — the highest level of proof — of dealing 20 grams of cocaine, and the judge saying, hey, there's evidence that you dealt 10 times that amount, so you get an extra eight years.

The federal rules dictating these strange penalties were already deemed unconstitutional, and are now regarded as mere discretionary guidelines (otherwise, they'd violate a defendant's right to be sentenced only for what he's actually convicted of in a court of law).

But that doesn't mean a judge is free to sentence a defendant for a crime never proven in court just because he feels like it. The sentence must be "reasonable" -- a vague notion to be sure, but perhaps Scooter Libby has some legal life left in him.

posted by Ace at 02:39 AM

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