Very interesting post from former assistant AUSA (and colleague of Fitzgerald) Andy McCarthy at NRO:
http://corner.nationalreview.com/post/?q=NTAzNDA2ZmI5YWFmYTlkMmYxMjI4ZjQ0MWRjYjlhYzc=
Re: Libby–Changed My Mind [Andy McCarthy]
Rich, you are undoubtedly right that the pardon position is a defensible one if you conclude that the investigation should never have happened in the first place. If that’s the premise, it’s also cleaner politically: a pardon ends the case �?? no appeal, no more arguing over what happened, etc. The president takes the political hit �?? which was going to be the same hit regardless of what action Bush took �?? and that’s the end of it. That’s why, frankly, I thought if President Bush did anything in the way of clemency, he’d pardon rather than commute. The politics are better.
But if the issue is doing justice rather than expedience, then the commutation is entirely defensible as an exercise consistent with what the pardon power is for: correcting excess.
You argue: “There’s an incoherence at the heart of the administration’s case. It says that Libby’s sentence was excessive. But technically, it’s not. It’s only excessive if you think it was a politicized prosecution and never should have happened in the first place.” That’s just not so. I think Judge Walton’s sentence, technically, was excessive. That’s as a matter of law �?? I don’t need to agree that the prosecution was politicized or shouldn’t have happened in the first place to come to that conclusion. (FWIW, I don’t think the prosecution was politicized, though I do agree it shouldn’t have happened in the first place �?? but that’s beside the point.) There’s no incoherence. The administration, as is too often the case, has simply failed to explain itself well.
There was a very debatable issue at the heart of the sentencing, and it affected the calculation of jail time dramatically. Under the federal sentencing guidelines, if a person is convicted of obstructing (or lying in connection with) an investigation of “a criminal offense,” the judge is directed to calculate the sentence in accordance with the guidelines for that criminal offense. This, by the way, is the source of the falsehood, which, regrettably, was repeated in NRO’s editorial, that Fitzgerald asked for Libby to be sentenced as if he had committed the offenses being investigated �?? namely, exposing a covert agent and violating the espionage act. Of course, if Fitzgerald had really done what the editors claim, he’d have recommended a sentence of about 10 years, not 30 months.
He recommended 30 months because that’s the sentence that the guidelines dictate if you consider the term criminal offense to mean the potential crime that the prosecutor was probing. That is, the prosecutor says he is looking into crime X, therefore sentence for an obstruction conviction must be fixed in accordance with crime X regardless of whether crime X really happened.
But there’s another way to look at it. Suppose crime X didn’t really happen�??as in Scooter’s case, where no one was ever charged with exposing a covert agent or violating the espionage act. In such an instance, it can be forcefully argued (as Libby’s counsel contended) that the obstruction guideline Fitzgerald relied on does not apply because there really was no criminal offense that the defendant obstructed.
Does it make a difference whether criminal offense means a real criminal offense versus whatever potential offense the prosecutor thought he was investigating? You bet it does. If there’s no criminal offense, the guidelines talk about a sentence at “offense level” 12, which translates to 10-16 months �?? but is also in the range where, if the court makes an easy-to-justify downward adjustment or two, you’re talking about probation.
On the other hand, the offense level for exposing a covert agent is at least 25. If that is considered to be the criminal offense the defendant was convicted of obstructing, the guidelines instruct the judge to start at level 25 and subtract 6, resulting in an offense level of 19. For a first offender like Scooter, that calls for a sentence of between 30-37 months �?? with no realistic possibility of reduction to probation.
The U.S. Probation Department (which always makes a recommendation to the judge based on its own guidelines calculation) agreed with Libby’s counsel that the judge should find there was no criminal offense; thus, it recommended a sentence of no more than 10-16 months, which left a significant chance of probation�??meaning no jail time at all. Judge Walton, to the contrary, agreed with Fitzgerald that when the guidelines say criminal offense, they mean the theoretical offense the prosecutor was looking into. Consequently, Judge Walton imposed a sentence of 30 months.
There is a world of difference between potentially no time and two-and-a-half years.
I think President Bush was right. If, as the judge found, Fitz is correct, that means obstructon sentences become a function of what the prosecutor suspected when he started his investigation, rather than what actually did happen. That’s fine if he’s investigating, say, a murder �?? the murder either did happen or it didn’t; we don’t need to rely on the prosecutor’s imagination to know one way or the other. But when, as often happens, the grand jury is investigating some unsavory conduct that may or may not have been criminal, I think we want to premise obstruction sentences on what objective reality indicates, not on what the prosecutor suspected but couldn’t prove.
For my money, this would have been a very interesting appellate issue �?? Scooter is still appealing the conviction, but the president’s commutation means such sentencing claims are moot.
The President’s thoughtful commutation decision pays deference to the jury’s verdict, which was supported by lots of evidence. I am chagrined to have to point out what used to be a given around here, but high public officials must not obstruct investigations, no matter how much we may like the defendant and no matter how much we think the investigation should never have happened. The president’s decision respects that proposition, yet it corrects an excess �?? which is what the pardon power is there for �?? by fixing the penalty in accordance with the true facts (no underlying crime) rather than as inflated by suspected crimes that never actually happened.