libby.jpgIt's sentencing day today for I. Lewis Libby. Today, Judge Reggie Walton will sentence Libby based on his conviction on multiple felony counts after a trial and conviction before a jury of his peers. 

Elizabeth de la Vega has a great article on what is truly the heart of this case.

If the memorandum filed by defense attorneys in anticipation of former top White House adviser I. Lewis "Scooter" Libby's June 5th sentencing is any indication, it appears that Libby—one of the highest White House officials ever convicted of a felony—has learned precisely nothing from his trial and conviction on charges of false statements, obstruction of justice and perjury.

Libby's lawyers admit—because they have to—that their client, a man with three decades of executive-level federal government service, disseminated classified information about the status of CIA Agent Valerie Plame Wilson in response to public criticism of the Bush administration by her husband, former ambassador Joseph Wilson. They nevertheless insist that this, at best, reckless (and, far more likely, intentional) act is not only not illegal, but not even wrong.

Unfortunately for Libby, this in-your-face position also has a certain shoot-yourself-in-the-foot quality. Libby is arguing for a probationary sentence, which is considerably more lenient than that called for by the Sentencing Guidelines. (See lesson one below.) An essential factor every judge must consider in deciding whether to depart from the guidelines to impose such a light sentence is whether it would sufficiently deter others from similar misconduct.

Having aggressively argued that there was neither crime, nor misconduct, how do Libby's lawyers then address the issue of deterrence? They argue that Libby has experienced a "very public fall from grace" and that this "dire consequence" alone would be enough to "warn the public—and high ranking government officials in particular—that it is important to take FBI and grand jury investigations very seriously." This is an exquisite expression of the entitlement and arrogance that spawned the administration's smear campaign against Joseph Wilson in the first place. It could only be more pointedly evocative of utter contempt for the rule of law if it were followed by a sneer emoticon.  (emphasis mine)

Judges do not tend to appreciate a hair-splitting attempt to pretend to have remorse while, at the same time, pretend not to have done anything for which to be remorseful. That "having your cake and eating it, too" approach can be important for preserving grounds for appeal, but the failure to own up to your own conduct is never a plus when it comes to sentencing. At least not with any federal judge I've ever known — and, as Matt Appuzo of the AP reported earlier this week, Judge Walton is known as a tough on crime kinda guy.  Most federal judges are, frankly, so to be known as tough with a sentence on the federal bench really means something — let's be honest.

And I keep going back in my mind to something that Patrick Fitzgerald said on the steps of the courthouse after the jury returned their verdict in this case:

Any lie under oath is serious. We cannot tolerate perjury. The truth is what drives our judicial system. If someone tells a lie under oath, it is every prosecutor's duty to pursue that case. It is obviously a serious matter when a high level official does that under a national security investigation — it should never be tolerated.

…No one is above the law, no one gets less protection under the law. And we do not talk about someone who is not in the legal system in the case at bar. All we'll say is that Mr. Libby by lying and obstructing justice harmed the process.

Libby is an attorney, an officer of the court, and he has represented clients in white collar crime cases. In other words, he ought to have known better.

The thing is, though, you can never, ever predict what will happen in a criminal matter. Not with a jury and not with sentencing.  The jury came back with a multiple felony count verdict.  Today we find out what Judge Walton will do with the sentencing considerations.  Some things are fairly standard, though: both sides will argue their points with the judge; Libby's lawyers will be able to present some testimony in an attempt to mitigate Libby's abject failure to show any sign of remorse that he broke the law.  Or that he has fully owned up to all of his conduct in the matter.  And Judge Walton will ask I. Lewis Libby to rise and hear his sentence.

Today we find out the answer to at least one question:  will he or won't he do time?  Emptywheel and Jane will be at the courthouse — there should be liveblogging capability from the media room, and we are planning on using it, as well as having reporting from the courtroom itself as breaks and proceedings permit.  The sentencing hearing is set to begin at 9:30 am ET.  Stay tuned, and we'll all find out together what comes next…

(AP Photo/Gerald Herbert, File)

Related posts:

  1. The Bush Fairy Tale on the Libby Pardon
  2. New White House Counsel Bob Bauer and Scooter Libby Justice
  3. Cheney’s Betrayal Made an IIPA Charge for Libby Possible
  4. Dick Cheney, Scooter Libby, and the “Unremarkable” Meat Grinder
  5. DOJ Still Feels Ripples of CIA Leak; Lanny Breuer Still Has Conflicts