Scooter Libby's Sentence

Edward Lazarus writes in FindLaw about Scooter Libby's Sentence While It Was Justifiable, a More Lenient Sentence Could Also Have Been Appropriate Under the U.S. Sentencing Guidelines.

"Imagine, on one hand, someone who commits perjury to cover up an illicit sexual affair. Then imagine, on the other hand, someone who commits perjury to cover up a $10 billion business fraud that wipes out the pensions of thousands of workers. Surely, these crimes do not deserve the same offense severity. They deserve to be punished in relation to the magnitude of the underlying crime. "

"The mere fact that the underlying investigation did not result in criminal charges can't be the difference-maker. If it were, then a really successful cover-up would result in more lenient sentencing for a perjury/obstruction defendant, than would a less successful one - that is, one which led to criminal charges. That makes no sense, as it rewards talented and effective deception, the most dangerous kind."

"However, I could also imagine a different approach. One of the most troubling aspects of the Federal Sentencing Guidelines - as the Supreme Court noted, in declaring them to be advisory rather than mandatory - is the way they allow the government to increase punishment based on uncharged acts and alleged facts that have never been tested in the crucible of litigation, let alone proven beyond a reasonable doubt to a jury."

"As it turned out, Judge Walton -- who had discretion, under Booker, to depart from the guideline range regardless of how it was calculated -- seems not to have seen the Libby case as approaching any borderlines. Indeed, he made a point at sentencing of stressing the overwhelming evidence of Libby's guilt, and made short shrift of Libby's arguments in favor of leniency, including the one relying upon his impressive career in public service."

Andy McCarthy in the National Review calls out the hypocracy of the right wingers crying foul on Libby's sentence merely because he's a conservative. "Lying to the FBI and a grand jury is a very bad thing, even if we all think it was an unworthy investigation."

I only mention that because I like Kevin Drum's follow up. Clinton lied to cover up an affair which isn't illegal and has nothing to do with being President.

"But Libby is a different case entirely. The conservative community wants us to believe that Valerie Plame wasn't really undercover at all. They also want us to believe that outing her was, in fact, part of an entirely legitimate effort to explain that Dick Cheney hadn't been responsible for sending Joe Wilson to Niger. And finally, they want us to believe that none of this was part of a coordinated plan. Plame's name was merely mentioned in an offhand way here and there when reporters brought up questions about Wilson's trip. But if that's the case, then why did Libby lie? Deliberately and repeatedly? Richard Armitage fessed up almost immediately. Ari Fleischer fessed up. Karl Rove had to be pushed, but eventually he fessed up too. Only Libby lied. Why? If nobody actually did anything wrong, what was he hiding?"

Orin Kerr writes "Back during the Clinton impeachment, I read a lot from conservatives about how perjury and obstruction of justice were dangerous crimes that struck at the very heart of our legal system. Given that, it's been interesting to see the recent conservative calls for Scooter Libby to be pardoned for his perjury and obstruction of justice crimes."