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July 14, 2007

Judge Walton's Pettifoggery

By Cecil Turner
Ten days after the President commuted the prison term of I. Lewis Libby, Judge Walton upheld the amended sentence in a new memorandum opinion, and displayed his pique at the executive interference and disputed the criticism of his sentencing process. But a review of the relevant facts suggests the President has the better argument.

President Bush, in his statement accompanying the grant of clemency to Mr Libby, claimed the sentence was "excessive," and cited Libby supporters in explanation:
...critics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury. [....]

Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation. [emphasis added]
Judge Walton disputed that contention in a long petulant footnote in an opinion that seemed more footnote than memorandum. In it, Walton explained the technical details of the sentencing guidelines:
"the judge, for calculation purposes, should take as a base offense level[] a level that is '6 levels below the offense level for the underlying offense[,]' [which is] the offense that the perjury [or obstruction of justice] may have helped someone commit"
He concluded " the Court is somewhat perplexed as to how its sentence could accurately be characterized as 'excessive.'"

But Judge Walton's position is based on an uncritical acceptance of prosecution arguments, in particular the cross-referencing scheme he cited above. The sentencing calculations proffered by the prosecution were significantly harsher than those suggested by the Probation Office, which found the cross-referencing inappropriate in the Libby case. Mr. Fitzgerald explained his reasoning why the enhanced penalties were appropriate in a separate filing:
Mr. Libby's false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent.
This argument is misleading at best, since the prosecution not only had no evidence Mr Libby knew Ms. Wilson was covert, it had convincing evidence he did not know it. As the defense pointed out in their response, the government's own witnesses backed up Libby's claim that he did not know:
As detailed below, the overwhelming evidence from the FBI and grand jury investigations and the trial proceedings shows that neither Mr. Libby nor the numerous other government officials who discussed Ms. Wilson's employment during June and July 2003 believed that she was covert or that her employment status was classified. [.....]

As Mr. Libby told the grand jury, the Vice President told him that Ms. Wilson worked at the CIA in June, but did not indicate that Ms. Wilson was covert or that her job status was classified. This is consistent with Mr. Libby's notes of that conversation, which do not identify Ms. Wilson as covert or classified. See GX 104; GX 104T. At trial, the government produced three witnesses who said they, too, had told Mr. Libby that Ms. Wilson worked at the CIA: Marc Grossman; Robert Grenier; and Cathie Martin. None of them testified that he or she had told Mr. Libby that Ms. Wilson was covert or classified. [emphasis added]
The bottom line is that the government had witness accounts of every conversation Mr Libby had about Ms. Plame - and Libby's own notes from his initial discussion with the Vice President - and none of them even mention the possibility it might have been "classified." This lies in stark contrast to Richard Armitage, who read about Ms. Wilson in a Top Secret memo, but even so managed to convince Mr Fitzgerald he shouldn't have been expected to know that part was classified.

The obvious double standard being applied raises serious questions about the propriety of the prosecution. Mr Fitzgerald compounded that perception by quoting Judge Tatel's opinion in the earlier reporters' privilege case (that upheld jailing Judith Miller for contempt):
"insofar as false testimony may have impaired the special counsel's identification of culprits, perjury in this context is itself a crime with national security implications. What's more, because the charges contemplated here relate to false denials of responsibility for Plame's exposure, prosecuting perjury or false statements would be tantamount to punishing the leak."
At the time, Mr Fitzgerald was still contending Mr Libby was the first government leaker, and "at the beginning of the chain of phone calls" . . . even though he knew Armitage found out about Ms. Wilson two days before Libby got it from the Vice President. As we now know, Mr Armitage leaked more than a week before, on tape, to Bob Woodward. And nothing in Libby's testimony obstructed Mr Fitzgerald from discovering that. In fact, Mr Libby wasn't even aware that Armitage was the leaker. Fitzgerald, however, knew Armitage was the one who'd leaked to Bob Novak . . . he just didn't bother to check if he'd leaked earlier. It's now apparent that punishing Libby doesn't even punish the leaker, let alone "punish[] the leak."

In short, Mr Libby's "obstruction" didn't affect Mr Fitzgerald's "investigation" at all. The prosecutor knew who the actual leaker was, which Libby didn't; he just didn't care to pursue him. Even accepting Libby's months-old recollections of conversations were lies, rather than mere memory errors, the only possible effect was on Libby's own state of mind. And since any criminal charge required proving the defendant knew the information was classified, and he obviously didn't, he couldn't be guilty of leaking. Moreover, since nobody involved knew the information was classified, there simply was no "underlying crime."

There are no statutory provisions for applying a cross-reference to a non-crime, and if there were, it'd be a miscarriage of justice. Fitzgerald made a vindictive attempt to increase the punishment based on assertions, not evidence, and Judge Walton applied the wrong standard when sentencing Libby. Even if the cross-referencing was legally correct, it was a miscarriage of justice. President Bush is justified both in characterizing it as "excessive" and in exercising his Constitutional prerogative of clemency.

Cecil Turner has been following the Libby case at Just One Minute since its beginning.
on "Judge Walton's Pettifoggery"