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No Mercy For Libby

I'm guessing that even I. Lewis "Scooter" Libby himself was not surprised when U.S. District Judge Reggie B. Walton sentenced him to 30 months in prison for perjury and obstruction of justice stemming from the CIA leak investigation.

Libby is an attorney, a smart one, and surely he understood that the forces pushing the judge toward a stiff prison sentence (and $250,000 fine) were stronger and more pronounced than were the forces arrayed on behalf of the defendant, the silky smooth former chief of staff to Vice President Dick Cheney. He has no one but himself to blame for his current and future troubles.

Libby's attorneys last week had asked Judge Walton for mercy and leniency (and, ultimately, probation) because of their client's long, rich history of performing good deeds on behalf of the nation and its people.

No sale, declared the judge.

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There is "overwhelming evidence" that Libby lied under oath, not once but on several occasions, Judge Walton said, and "people who occupy these types of positions, where they have the welfare and security of nation in their hands, have a special obligation to not do anything that might create a problem."

In other words, Judge Walton held Libby's storied resume against him when it came time to punish the defendant for his crimes. He simply did not give the man credit for all of his public service. Special prosecutor Patrick J. Fitzgerald, the man who hounded Libby and the White House for years over the Valerie Plame Wilson case, had asked for a long sentence, Today, even before he got his wish, Fitzgerald talked about the need for the judge to make an example out of Libby — to remind everyone of the importance of telling the truth when asked to do so under oath.

So let the word go forth: It does not pay to be a high-profile convict in just about any justice system in America. Judge Walton used Libby as a symbol to spread the gospel to the masses much in the same way that Paris Hilton's judge used her celebrity to make his point that you can't violate the terms of your probation and figure you are just going to get slapped on the wrist.

No, it's not a great stretch to compare the somber Libby with the flighty Hilton; they both got more prison time than they would have received from their respective judges had they been anonymous schleps.

That's just one lesson to be learned from this sorry affair. Another is that it is a very fine line between the "spin" and the behind-the-back-stabbing intrigue that occurs every day in Washington and the sort of conduct the law considers criminal. Politicians lie all the time — to one another, to the media, to their constituents, even probably to themselves. Maybe Libby got so far deep into that bad habit that he could not pull himself out even after he raised his hand, over and over again, and swore to tell the truth. Maybe more politicians out there ought to realize that their political tricks don't translate well under a rule of law.

Where do we go from here? Even as we turn the page on sentencing, we enter a new realm of post-sentencing speculation. Will Libby be required to begin his prison sentence sooner rather than later? Will he be allowed to remain free on bail pending his appeal? If he goes to prison right away, will President George W. Bush pardon Libby — even if it means another hit to the President's political capital. If Libby doesn't go to prison right away, will his appeal last long enough to take us all through the next presidential election so that a January 2009 pardon becomes inevitable? Your guess on these weighty matters is as good as mine.

There is one thing, though, that I can say with near metaphysical certainty. When the Libby appeal comes, it surely will contain a section on Judge Walton's decision to include in his sentencing rationale the Plame leak, even though no one was ever charged with that crime. The use of such evidence is a hot-button issue now in federal sentencing law, with judges and scholars all scrapping over when it can be used by judges and when it cannot be. The United States Supreme Court has even gotten into the argument over the last few years, ruling on at least two occasions that federal judges are not supposed to base their sentencing decisions upon facts not found to be true beyond a reasonable doubt by jurors.

I'm not guaranteeing that Libby's sentence is going to be reversed on appeal. All I am saying is that the federal appeals court is going to have to chew on that complex issue — a fact that certainly could not have been lost on Judge Walton when he sat down to figure out what he was going to do with this case, this man, this symbol. And that makes his decision to nail Libby to a 2 1/2-year prison sentence all the more striking. You can talk until you are blue in the face about Libby being the victim of a political witch hunt. But he is smart enough to know better — and so was his judge.

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