Patterico's Pontifications


Beldar on the Libby Sentence

Filed under: Crime,Politics — Patterico @ 6:49 pm

Scooter Libby got 30 months today. But Beldar notes the big unresolved issue: will there be bail on appeal? Beldar thinks there will be, and explains why it matters.

UPDATE: Wls disagrees below in the comments.

16 Responses to “Beldar on the Libby Sentence”

  1. Beldar’s lack of experience on this subject is evidenced by the fact that he had to “Update” it to not that bail pending appeal is governed by statute. It has been since the Bail Reform Act of 1984.

    I don’t see Walton giving him bail. The standard post-conviction/sentence is much different than pre-trial. The defendant must show he does not pose a flight risk and is not a danger to the community. Accept that he can meet both those.

    The appeal must not be for purposes of dealy — again, lets say that is a given.

    The last part is the trickiest — he must show that the appeal raises a substantial question of law or fact likely to result in a reversal, new trial, or a sentence of no time or less time than already served.

    We can toss out the sentence issue since post-Booker federal judges have broad sentencing discretion and there is no chance that Libby would get a sentence of probation here.

    So, is there a “substantial question of law or fact” that they can raise on appeal that is “likely to result in a reversal or new trial”?

    This does not require a prediction of the future. The “substantial” issue is simply a requirement that it be non-frivilous.

    “Likely to result in a reversal or new trial” simply requires that either outcome would be the appropriate remedy if the error raised by the defendant is found to be substantiated by the appeal court.

    The key is that Walton would have to acknowledge that the appeal ground is non-frivilous. From his comments today it seems that he views the factual evidence as overwhelming. That means that even if the DC Circuit disagrees with one or more of his rulings with respect to the admissibility of evidence, he might think they would still sustain the conviction on the grounds of overwhelming evidence. The improperly admitted evidence would have to have been so unfairly prejudicial as to have rendered the trial fundamentally unfair. I just don’t recall there being any evidence that could be fairly characterized that way.

    The case was really quite simple. It was not a “complex” white collar case by any means. The sideshow aspect of the case is what made it a spectacle.

    The only question is whether Libby lied to the FBI and the GJ, and whether his conduct obstructed an offical proceeding before a government department.

    There’s no substantial legal defense to such a simple charge, and Walton thinks the facts were overwhelming.

    I think he will order him into custody pending appeal, which is very much the norm in federal court. Bail pending appeal is very much the exception.

    What the President should do is find that the sentence is excessive, and commute his sentence to Probation and the fine. Libby can then pursue his appeals in an effort within the system to get the conviction overturned.

    If he fails to do so, then Bush can consider a pardon application in the normal course.

    wls (c109e2)

  2. Ouch, wls. You’re a bit harsh. I knew the statute existed, and I knew its general terms, but I didn’t have the cite close at hand until I looked it up after my initial post. Your analysis and mine agree on where the fight will be. We don’t disagree on what Judge Walton is likely to do. We apparently disagree on what he ought to do. But thanks for the gratuitous insult anyway; come see me at my place sometime and insult me there too.

    Beldar (977b40)

  3. Didn’t Fitzgerald violate this agreement last week?

    Therefore, the government agrees not to offer a declaration from the CIA or any other direct evidence of the facts that Ms. Wilson’s CIA employment actually was classified or that the public disclosure of that employment actually damaged the national security, the CIA, or Ms. Wilson, or had the potential of doing so.

    Isn’t that alone grounds for appeal? Fitzgerald offered the declaration only when it would not be subject to cross examination.

    Vatar (085be7)

  4. Vatar, looking at your link, it’s pretty clear that agreement referred only to the jury portion. So offering that information in sentencing did not “violate [that] agreement”. (Which is not to say there may not be grounds for appeal.)

    Crust (399898)

  5. I’m not a lawyer, but I would think that the laws regarding discovery are consistent throughout all phases of the trial. Fitzgerald was able to block discovery of the very document he presented last week on the grounds that Plame’s status was irrelevant to whether Libby lied or obstructed justice. If it was irrelevant a year ago, why did it suddenly become relevant again last week, when it was not subject to cross examination? That evidence should have never been considered.

    “Both of the sentencing memoranda the government filed on May 25, 2007 include unfounded assertions that Mr. Libby’s conduct interfered with its ability to determine whether anyone had violated the IIPA or the Espionage Act. See Gov’t Sent. Mem. at 13-15; Gov’t Guidelines Mem. at 15. These assertions represent an attempt to reinject into the case an issue the government could have raised earlier, but chose not to. We are necessarily hampered in our ability to counter the government’s assertions regarding Ms. Wilson’s status under the IIPA because the Court ruled at the government’s behest that the defense was not entitled to discovery of the information necessary to challenge them. But even a review limited only to the publicly available information suggests that the conclusion the government touts as fact is subject to significant doubt.”

    Vatar (bb1678)

  6. “Early in discovery, Mr. Libby sought discovery of documents relating to whether Ms. Wilson’s status as a CIA employee was classified. The government refused to provide the requested discovery on the ground that it was irrelevant. It noted (correctly) that Ms. Wilson’s CIA status was “not an element of any of the three statutory violations charged.” In fact, according to the government, it was “irrelevant whether Mr. Wilson’s wife actually did work at the CIA” at all.”

    Is it irrelevant or not? Only when it is convenient for Fitzgerald?

    Vatar (bb1678)

  7. Beldar — my apologies. My patience was a little exhausted yesterday by the continual projectile vomiting of my 5 year old, and my frayed nerves showed through in the post. Had I looked back on it before hitting the post button, I hope I would have changed it.

    But, on the question of what Walton will do and what Walton should do, I think you’re still missing my point. The statute dictates the outcome, and what Walton should do is follow the statute. If he addresses the question with intellectual honesty, I don’t see how he can do anything but deny bail. I followed the evidence through various bloggers and reports from the courtroom, and I just don’t recall there being any knock-down drag-out fights over significant pieces of testimony. So, even if there was a chance that he might get him reversed on an evidentiary ruling, he still must confront the issue of whether the weight of the remainder of the evidence, viewed in the light most favorable to the verdict, would have been sufficient to sustain the conviction. His comments yesterday suggested that his view is that the government’s case was overwhelming.

    That leaves a legal defense — and the only one I think has any chance at all in a perjury/obstruction case is the question of the “materiality” of the false statement. I don’t remember the defense ever making a big argument on the question of materiality. So, I’m not sure how far they are going to get at this point if they were to claim they are going to raise materiality on appeal, and that the claim is non-frivilous.

    Again, I apologize.

    And, I like your blog.

    wls (c109e2)

  8. Vatar — Fitzgerald’s claim was that Plame’s status was not relevant to the elements of the crimes charged in the indictment — not that it was irrelevant for all purposes. The trial is about only those matters charged in the indictment.

    Sentencing brings a whole other sphere of facts within the boundaries of relevance. The gravity of the offense, issues of the defendant’s character, likelihood or re-offending, etc.

    The trial was about whether Libby lied or he didn’t lie. The context of what he lied about is of little concern, except to the extent that it is needed to show he lied about a fact that was “material” to an official proceeding — as opposed to a fact that was collateral or trivial.

    The context is very important, however, when considering the seriousness of the lie, and how that seriousness should be weighed in determining what is the appropriate sentence.

    wls (c109e2)

  9. Is there a likelihood that Libby will lie to another grand jury if he is released on bail?

    The context is that Fitzgerald was allowed to present something as fact that was not available for discovery, and would not have withstood cross examination.

    Vatar (c70795)

  10. Vatar — my comment about “likelihood of re-offending” is simply illustrative of the types of subjects that are relevant at sentencing but are irrelevant at trial.

    And, again, on the issue of her “covert” status, whether she was or was not covert, and whether a claim to that effect would have survived cross-examination, did not tend to prove/disprove any of the elements of the offenses with which Libby was charged in the indictment.

    Every crime is defined by its elements. Looking at the language of the federal perjury statute (actually, the “false statement” statute, 18 U.S.C. Sec. 1001), the elements are:

    1. The defendant, knowingly and willfully;
    2. Made a false, ficticious, or fraudulent statement;
    3. That was material;
    4. In a matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States

    “Evidence” that is relevant in a trial on such a charge is evidence that tends to prove/disprove one of these elements. If the “evidence” doesn’t tend to prove/disprove one of these elements, its not “relevant” to the trial since the only thing the jury is called upon to decide is whether the defendant committed the alleged crime.

    Plame’s covert status — or lack thereof — didn’t tend to prove/disprove any of these four elements, so evidence of such status was not “relevant” to the charged offenses.

    WLS (077d0d)

  11. Patterico — when you have a moment, please delete the first paragraph in my Post No. 1 above with the snarky comment about Beldar’s post. It was gratuitous and regretful.


    WLS (077d0d)

  12. wls: Thanks for the reflective words, I am indeed grateful for them.

    I don’t know how many separate and distinct appellate arguments Libby’s team will raise. But I expect it to be a long list. Some of them that I can predict, I already would characterize as not being promising enough to reach the “substantial question” threshhold.

    For example, Judge Walton’s decision to exclude Libby’s expert witness on memory is unlikely to get the conviction reversed for all sorts of reasons. It’s reviewable under an abuse of discretion standard; the “expertise” is questionable because the subject matter is within the ken of average lay jurors exercising common sense; and the proferred opinion testimony was itself equivocal, and based on the cross-examination Fitz did of the expert outside the presence of the jury, excluding the expert may have been a blessing for Libby.

    But there are a lot of other likely appellate points that I can’t even begin to assess. For example: I haven’t read the transcript of the charge conference. The last version I’ve been able to find of the charge itself was still a draft. But it would very much surprise me if, with a charge numbering in the many dozens of pages, every single objection that the Libby team made to it was obviously frivolous and insubstantial. It would likewise surprise me if every discovery dispute that went against the Libby team is also a slam dunk.

    And all he needs is one appellate issue that meets the “substantial” threshhold.

    We’re both a bit ahead of ourselves. I’m presuming that before next week’s hearing, Libby’s team will file further papers specifically directed to bail pending appeal, and Fitz & Co will respond. By then, Libby’s team should be able to provide a pretty detailed outline of their appellate issues, ranked from best to worst. So perhaps we should resume our analysis and discussion then.

    Again, thanks for the clarification and kind words.

    Beldar (977b40)

  13. Ain’t DC wonderful?

    Lie to a Grand Jury, and hinder an investigation (throw in subornation of perjury too for the comparison), and one guy gets 30 months (plus monetary penalties), while the other guy pays a fine and loses his law license (for a while), and goes on to get 200K or more in speaking fees – and let’s not forget the book deal.

    Am I the only one who sees something wrong with this picture?

    Another Drew (8018ee)

  14. [Crust: Vatar, looking at your link, it’s pretty clear that agreement referred only to the jury portion]

    [Wls: Vatar — Fitzgerald’s claim was that Plame’s status was not relevant to the elements of the crimes charged in the indictment — not that it was irrelevant for all purposes.]

    See, this is what drives us non-lawyers nuts when we see it. How can “Plame’s status” be relevant here at all beyond its inconsequential relationship to the perjury? 1) Even if an underlying crime exists, we know that Libby did not commit it. 2) The public record tends to indicate that Fitzgerald does not believe an underlying crime exists, given that he indicted Libby for perjury but failed to indict Richard Armitage for the UC despite knowing that RA was the actual and only source of the “Plame status” “leak.” 3) Fitzgerald argued for a beyond-guideline sentence for Libby based at least in part on the nature of an underlying crime which he has not otherwise alleged even occurred, much less indicted Libby for committing. 4) The judge apparently bought the pure crapola of point #3.

    What the frack is wrong with this picture? I sincerely hope I have misunderstood and/or misstated something above. If so, please guide me to the truth. But if Fitzgerald has indeed argued that Libby should be sentenced based on the commission of a crime the existence of which has never been proved and of which he was not convicted, and if the judge has sentenced Libby based on that argument, it strikes this layman as only just that Libby’s sentence (at least) be overturned and that both these “gentlemen” lose in perpetuity their licenses to practice law.

    “Mind you, doctor, that’s just one man’s opinion.” –Theodore Sturgeon, “And Now the News”

    porkopolitan (c9ae6a)

  15. The improperly admitted evidence would have to have been so unfairly prejudicial as to have rendered the trial fundamentally unfair. I just don’t recall there being any evidence that could be fairly characterized that way.

    I think the decision on Andrea Mitchell (cited in the appeal) could go the other way, and Ms. Mitchell might have undercut Russert’s story quite dramatically.

    TO BE FAIR – even if Russert was lying or confused and the jury concluded he had discussed Plame with Libby, Libby could still have been lying in saying that Russert’s info surprised him; the counts were separated.

    OTOH, if the jury became convinced that Russert’s memory was fluff, they might have had a brighter view of the possibility that Libby, too, was honestly confused.

    The defense motion outlining possible grounds for appeal is here.

    Tom Maguire (b338c4)

  16. Lets not forget the mouthy juror who was friends and next door neighbor to the prosecution’s star witness. The judge should have declared a mistrial even though this guy did make it past jury selection.

    Vatar (085be7)

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