How Should Libby Get Sentenced?

Drawn and quartered? To the four winds? Strung up? Tarred and feathered?

None of those punishments are available and they obviously are not going to happen no matter where you reside on the ideological spectrum, so how about looking at what the law dictates under these circumstances. Jeralyn Meritt who has been covering the trial from the outset does a pretty good job laying out the setencing guidelines.

As she correctly notes, the talk about 25 years prison is the maximum authorized by law, but not what he will most likely receive. She thinks that the lowest the guidelines offer is 15 to 21 months while the high end would push out to 24 to 33 months. The sentencing guidelines are further explained by White Collar Crime Blog and the Sentencing Law and Policy Blog, who notes how the guidelines operate.

Based on the guidelines alone, I think those numbers are reasonable. However, this is a case with political ramifications as well, and it would be wise to examine similar and/or contemporaneous acts.

How the courts have dealt with other high profile cases involving perjury or obstruction of justice is a good place to start. Former President Bill Clinton comes to mind. After all, he was impeached for giving false and misleading statements in relation to the Lewinsky matter (itself a sidebar issue arising from the Whitewater investigation). Losing the law license is a definite possibility with no time served.

Then, there's the case of Sandy Berger, who received nothing more than a slap on the wrist. I found that to be a travesty of the law considering that he was involved in the destruction of classified documents and quite likely impeded the federal investigation into the 9/11 attacks by destroying documents that might have shed an uncomfortable light on the acts of the Clinton Administration. Those actions are just as, if not more, dangerous and undermine the legal system and national security, as any claimed against Libby.

Take the sentencing guidelines and combine with the political component, and you begin to get the idea in the complexity of the issue facing the judge. If a harsh sentence comes down, those who argue for a strict adherence to the guidelines - many of whom are Republicans - would complain that one of their own are getting hit in a way that a Democrat never was (see Berger and Clinton), while if he gets a slap on the wrist Democrats will complain that it was a miscarriage of justice. And both sides would be right. This is the hypocrisy of the Beltway political dance. There were miscarriages of justice here on both sides of the aisle, but not in the way that the partisans think.

Clinton and Berger got slaps on the wrist when their acts actually warranted much more serious punishment. Both will be able to practice law again and Berger will even be able to review classified documents in the near future. Libby's career would be seriously harmed by the imposition of an appropriate sentence under the guidelines. There's a reason that the sentencing guidelines are there and why judges should follow them - to prevent abuse and arbitrary sentences handed down.

However, that dichotomy (the political considerations and the guideline recommendations) leads me to think that the Libby sentencing will go the way of a slap on the wrist, though if the judge thinks that a pardon might be in the offing, might push a harsher sentence within the guidelines. This is Beltway politics after all.

Still, before we reach that point, there's the not insignificant point of the appeals process. Libby's defense team is more than likely going to appeal the decision on the facts and the law. They feel that there is more than enough here to merit an appeal and Libby's lawyer was quite clear that he believed that Libby was innocent. Things that work in his favor is the Cooper charge where he was found not guilty, the exclusion of certain evidence that the defense thought would be exculpatory, and various other details and inconsistencies in the witness testimony.

Of course talk will drift to the notion of a presidential pardon, but I think such talk is premature. Things have yet to play out fully on the appeals process, and in any event, Bush would not pardon Libby until after the November 2008 election on his way out of office.

Guess the date of the pardon and win a prize. Heh. If he receives one, it's going to be December 24, 2008.

UPDATE:
This editorial from the Washington Post should not be missed. The biggest loser in the entire kerfuffle? The media. The problem is that many of them don't even recognize it just yet.