Scooter Libby's Sentence: While It Was Justifiable, a More Lenient Sentence Could Also Have Been Appropriate Under the U.S. Sentencing Guidelines

By EDWARD LAZARUS
Thursday, Jun. 07, 2007

Yesterday, June 6, U.S. District Judge Reggie Walton sentenced Scooter Libby to 30 months in jail. Generally speaking, the reaction to this sentence is breaking down along political lines.

Conservatives are screaming that Libby should have received no jail time at all (just as his lawyers argued). On the surface, a lot of conservative commentary focuses on Libby's remarkable record of public service. Yet the subtext suggests a profound opposition to putting Libby on trial for lying to cover up a crime (unlawfully outing CIA operative Valerie Plame) that neither Libby, nor anyone else, seems actually to have been proven to have committed.

Meanwhile, liberals -- especially those devoted to hating Dick Cheney, Libby's former boss -- seem satisfied with the sentence. While a lot of liberals' commentary focuses on the importance of punishing high public officials for subverting the public trust, it too has a subtext. This time, the subtext is a hatred for the Bush-Cheney-Rove operation and the damage that liberals believe that trio has done to the whole fabric of American life and the rule of law.

Amid these politically-driven reactions, it is worth pausing to consider the Sentencing Guidelines calculation that led to Libby's sentence. When the issue is viewed through this admittedly narrow and incomplete prism, I would argue that Libby's 30-month sentence is justifiable, but that a more lenient outcome would also have been appropriate.

Federal Sentencing: The Two Key Factors

Until recently, federal criminal Sentencing was determined in strict accordance with the Federal Sentencing Guidelines that have been established, and periodically revised, by a congressionally-established Sentencing Commission. Although the Supreme Court has now ruled in United States v. Booker that the Guidelines are advisory rather than mandatory, they still remain the principal touchstone for federal sentencing decisions. (I discussed the Booker decision in detail in a prior column.)

At the risk of gross oversimplification, the Guidelines create a sentencing algorithm for each defendant based on two main factors: First, the severity of the offense the defendant was proven to have committed, and, second, the defendant's individual characteristics, especially his criminal history. The combination of these two factors yields a recommended sentencing range, and the government and the defendant then get an opportunity to argue for either an upward or downward departure from this range, based on a variety of factors.

There was no dispute about the second factor here: Libby is a first-time criminal offender and thus in the most favored category in terms of criminal history. But there was heated dispute over how to calculate the other factor, his "offense severity."

The Probation Office's Recommendation: Not Just the Typical Perjury Sentence

In every criminal case, the Probation Office makes a recommendation to the Court as to its view of the appropriate Guidelines range. In Libby's case, the Probation Office calculated his offense severity at the level typically used for perjury and obstruction of justice, the crimes for which Libby was convicted. When combined with Libby's first-offense status, this level of severity yielded a sentencing range of 15-21 months. So, readers may wonder, why was Libby sentenced to 30?

The answer is that while the prosecution often agrees with the Probation Office calculation, it did not do so here, and Judge Walton sided with the prosecution. The government argued that Libby's offense severity should not be calculated based on the level of severity the offenses of which he was convicted, but rather by cross-reference to the level of severity of the underlying crimes that were being investigated by the grand jury to which Libby told his lies. Libby did not commit these crimes, himself but his perjury may have impeded their investigation, and thus left them unpunished.

What were these underlying crimes? That grand jury was investigating whether someone violated the Intelligence Identities Protection Act (IIPA) or the Espionage Act by revealing that Valerie Plame was a covert CIA agent. Such violations carry an higher offense severity rating that generic perjury/obstruction of justice charges. Using this higher offense severity rating, the government recommended a sentencing range of 30-37 months.

Cross-Referencing: The Guidelines' Approach to Offense Severity When the Crime Is Perjury

Patrick Fitzgerald, the Eliot Ness-like Special Prosecutor, did not invent this cross-referencing for this case. On the contrary, he was following the explicit instructions of the U.S. Sentencing Guidelines themselves.

Under the Guidelines, the offense severity for someone convicted of perjury or obstruction is the greater of either the severity rating for generic perjury/obstruction, or the severity rating of the offense being lied about or covered up. In essence, the Guidelines treat someone guilty of perjury or obstruction as an accessory after the fact to the offense underlying the lies and obstruction.

Some thoughtful commentators have started complaining about the fairness of this approach. But as a general matter, it makes very good sense. Not all lies are created equal. The reason for the lie ought to matter.

Imagine, on one hand, someone who commits perjury to cover up an illicit sexual affair. Then imagine, on the other hand, someone who commits perjury to cover up a $10 billion business fraud that wipes out the pensions of thousands of workers. Surely, these crimes do not deserve the same offense severity. They deserve to be punished in relation to the magnitude of the underlying crime.

To do otherwise, moreover, would create perverse incentives. In the case of the big-time corporate crook, it would encourage cover-ups because the punishment for lying (based on the generic perjury offense rating) would be much less than the punishment for coming clean (which would be punished based on the fraud rating, where the size of the fraud determines the severity).

Did Cross-Referencing the Underlying Offense Make Sense in Libby's Case, In Particular?

Moving from the general to the specific, Libby's case presents a close question for whether cross-referencing the underlying offense being investigated, for purposes of Guidelines calculations, makes sense. Here, Libby himself was not charged with violating the IIPA or the Espionage Act and, perhaps even more important, neither was anyone else. A reasonable argument can be made that cross-referencing doesn't make much sense when it may well be the case that no one actually committed the crimes being investigated.

Is it really fair, after all, to up Libby's punishment for obstructing an investigation in which there was no underlying crime charged (or perhaps even committed)? (Readers may object that a crime must have been committed, since no one can dispute that Valerie Plame's identity was, in fact, revealed. However, it is possible, for example, that the person who released the information lacked the state of mind necessary for criminal punishment.)

In his sentencing memorandum, Special Counsel Fitzgerald asserted that under the Guidelines, it does not matter whether the investigation ripened into an actual criminal charge against the defendant or anyone else. On this point, it looks like Fitzgerald has a pretty good legal argument, based on the text of the Guidelines and the accompanying materials.

And it's not hard to see why. The mere fact that the underlying investigation did not result in criminal charges can't be the difference-maker. If it were, then a really successful cover-up would result in more lenient sentencing for a perjury/obstruction defendant, than would a less successful one - that is, one which led to criminal charges. That makes no sense, as it rewards talented and effective deception, the most dangerous kind.

Against this backdrop, I find it hard to fault Fitzgerald for sticking with the tough-on-crime approach that has earned him so many admirers. He's driven by a genuine outrage at Libby's subversion of a legitimate and serious investigation into an abuse of power and, in prosecuting that subversion, he has gone straight by the book.

Would a Different, and More Lenient, Approach Also Have Been Defensible?

However, I could also imagine a different approach. One of the most troubling aspects of the Federal Sentencing Guidelines - as the Supreme Court noted, in declaring them to be advisory rather than mandatory - is the way they allow the government to increase punishment based on uncharged acts and alleged facts that have never been tested in the crucible of litigation, let alone proven beyond a reasonable doubt to a jury.

Sometimes, there are compelling reasons to allow this approach to sentencing, in order to come up with a scheme where the punishment really does fit the crime. But in borderline cases, it might be a better practice to avoid predicating a sentencing recommendation on iffy facts and circumstances that were not part of the defendant's trial, and that still remain somewhat mysterious.

I do not pretend to know what the precise right answer is in Libby's case, regarding the justice of his sentence. I don't think anyone not fully immersed in the investigation and evidence could know. The most I can say is that the Libby case is a good case study for why the Guidelines should only be advisory, not mandatory. Some cases just don't lend themselves easily to algorithmic answers; they call for the exercise of human beings' reasoned discretion.

As it turned out, Judge Walton -- who had discretion, under Booker, to depart from the guideline range regardless of how it was calculated -- seems not to have seen the Libby case as approaching any borderlines. Indeed, he made a point at sentencing of stressing the overwhelming evidence of Libby's guilt, and made short shrift of Libby's arguments in favor of leniency, including the one relying upon his impressive career in public service.

And this raises the new $64,000 question: Will Judge Walton allow Libby to remain free on bail pending appeal? There is no obvious answer to that question either. The only certainties right now are the personal anguish of the Libby family, and the political passions that attend his fate.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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