Sentencing for Dummies

The Fate of I. Lewis Libby
By Elizabeth de la Vega

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.

If Libby and his loyal followers -- including former Law and Order District Attorney Fred Thompson who appears to be taking the creative approach of launching his presidential campaign with an attack on prosecutions for perjury (those wacky soft-on-crime Hollywood types!) -- have learned nothing from this case, what about the rest of us? What lessons might we learn from Special Counsel Patrick Fitzgerald's investigation into the outing of Valerie Plame Wilson?...[Open in new window]