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Serious Crime, Serious Punishment

This column was written by David Corn.

I. Lewis "Scooter" Libby stood before federal district court Judge Reggie Walton. It was finally the moment for Vice President Dick Cheney's chief of staff to speak. The sentencing hearing was coming to an end; Walton was about to pronounce the punishment Libby would face for having obstructed justice in the CIA leak case. Libby, who did not testify during the trial, thanked the court for showing him and his defense team consideration during the proceedings. He told the judge, "It is ... my hope the court will consider ... my whole life."

That was it. No apology. No expression of remorse.

Then Walton sentenced Libby to 30 months in jail and a $250,000 fine. Libby didn't flinch. His wife, Harriet Grant, cried. Notable conservatives in the front row of the crowded courtroom — Mary Matalin, Barbara Comstock, and Victoria Toensing — appeared shocked.

Special prosecutor Patrick Fitzgerald had asked Walton to incarcerate Libby for 30 to 37 months. At the hearing, prior to Walton's ruling, Libby's defense attorneys — Ted Wells and William Jeffress Jr. — contended that Libby should get off with probation. They threw several arguments at the judge. First, they claimed that the toughest sentencing guides should not be applied to Libby, echoing an argument put forward by Libby's champions in right-wing circles: Nobody was ever charged with leaking the identity of Valerie Plame Wilson, so the whole case was not such a big deal. Walton did not bite. Citing appeals court decisions, he noted that in an obstruction of justice case, it's the investigation that counts, not the ultimate outcome of the investigation. "Your position," Walton told Jeffress, "would seem to promote someone aggressively engaging in obstruction behavior."

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Next, Jeffress asserted that no one really knew if Valerie Wilson had been a covert CIA officer covered by the Intelligence Identities Protection Act and suggested this ought to be a mitigating factor. (In a recent court filing, Fitzgerald declared, "It was clear from very early in the investigation that Ms. Wilson qualified under the relevant statute [the Intelligence Identities Protection Act] as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press.") Walton, with his voice rising, outlined the case: "The CIA believes one of its agents was improperly outed. ... They had a legitimate concern. So they contact the Justice Department and they say 'this needs to be investigated.' ... And the Justice Department ... goes to investigate and they make inquiries. ... And that person lies." Walton went on: "When law enforcement officials ... initiate an investigation ... it is the obligation of the American citizenry to be honest and forthright." And Fitzgerald, wearing a gray rumpled suit, added that Libby's lie to those investigating the Plame leak created "a house of mirrors" and made it more difficult for the investigators to "sort out the truth."

Walton indicated that as a matter of law he was sticking with the tougher sentencing guidelines. Next, the issue was whether he ought to use judicial discretion and cut Libby any slack. Fitzgerald argued that Walton's sentence should "make a clear statement that truth matters." He noted that Libby had lied persistently during the leak investigation and had subsequently displayed no contrition. The sentence, the prosecutor continued, should also send the message "that one's status in life does not matter" when it comes to justice. Realizing what Wells and Jeffress were about to argue, Fitzgerald declared that a public servant ought not to receive special treatment. Libby, he said, deserved no more consideration than a social worker, a teacher, a cop. Fitzgerald recognized that Libby had worked long and hard in a variety of government jobs, but he said, "We need the truth from government officials."

Wells had one last shot. The dynamic and dramatic African-American defense attorney said he had "no quarrel with Mr. Fitzgerald's statement that truth matters." But, he added, "it is entirely appropriate for a sentencing judge to take into consideration the good works and the good deeds a person has done." He contended that Libby for decades had engaged in "exceptional public service." He reminded the judge that more than 150 people had submitted to the court letters hailing Libby. This band includes prominent conservative and neoconservative hawks, including Donald Rumsfeld, Richard Perle, Henry Kissinger, John Bolton, Doug Feith.

But Wells did not read the letters from these notables. He chose six others. In this group were retired Admiral Joseph Lopez, who praised Libby as a "linchpin" during the first Persian Gulf War; Seth Carus, a biowarfare expert who asserted "Libby has done more to enable the United States to address the challenge of bioterrorism than any other single person"; Robert Blackwill, a former Bush National Security Council official, who said that at the White House no one was "more driven by ... sound policy reasoning than Libby"; and Paul Wolfowitz, the former deputy defense secretary, who extolled Libby's "decisive contribution" to forging the post-Cold War world. (Wells' use of Wolfowitz, the scandal-struck and outgoing World Bank president, as a character reference prompted smirks among reporters in the courtroom.)

None of the testimonials Wells read referred to the Iraq war. And Wells told the court that though the Libby case was not about the war, it did "seem that Libby was the poster child for all that has gone wrong with this terrible war." Wells essentially argued that was punishment enough. He noted that Libby has "been exposed ... to overwhelming negative press coverage" and has "endured public scorn and ridicule." He pointed out that Libby has received hate mail. And that whether Libby goes to jail or not, he will no longer be able to serve his two great loves: working in the government and practicing law. "He has fallen from public grace," Wells exclaimed. "It's a tragic fall. ... There's no need to incarcerate Mr. Libby."

Walton accepted none of this. He acknowledged Libby had been a public servant for years, foregoing income he could have obtained in private practice. But, the judge noted, "we expect a lot" of senior government officials. Libby's high position, Walton remarked, came with high obligations. Walton derided the attacks launched by Libby partisans and commentators against the CIA leak investigation, the trial, and the verdict. "The evidence overwhelmingly indicates Mr. Libby's culpability," he declared. He blasted Libby for discussing Valerie Wilson with reporters without considering that she might have been an undercover officer. "Government officials must realize," he said, "if they're going to step over the line...there are consequences."

In the end, Walton explained, Libby's government service and his violation of the obligations of his office balanced each other out. There would be no mitigation in the sentencing. He announced his decision: two-and-a-half years in jail and a quarter of a million dollars.

Libby was not hauled off to jail. His lawyers asked Walton to permit Libby to remain free on bond while they appeal the conviction. Walton indicated he was not sympathetic to this position. But he noted that it would take the Bureau of Prisons 45 to 60 days to find a spot for Libby. Consequently, he said, the defense could file a motion on this point by Thursday, and he scheduled a hearing on this question for next week. Presuming Walton does not change his mind at that hearing, Libby will have to surrender himself and begin his jail term sometime in the next two months.

After the sentencing hearing was concluded, Libby exchanged hugs with his wife and friends. His lawyers said they would make no statements. They quickly left the courthouse. Fitzgerald and his team exited the courtroom without answering questions. A few minutes later, I spotted Fitzgerald alone in a courthouse hallway. He was checking messages on his cell phone. Anything to say? I and another reporter asked. He shrugged sheepishly and stuttered, "I ... I ..." He closed his cell phone. "Just can't." He had an apologetic look on his face. Then he left the building.

Minutes later, as television camera crews in front of the courthouse were breaking down their equipment, a motorcade sped past. In a dark limousine was Cheney, on his way to a meeting on Capitol Hill. His former aide — who had helped Cheney guide the country into the Iraq war — was heading to jail, having been convicted of obstructing an investigation that had targeted Cheney among others. Cheney was still in power. His office had, as of that moment, issued no comment on Libby's sentence.

Fitzgerald got from Walton the message he wanted: Libby lied; this lying was consequential; it demanded serious punishment. One of the Bush officials responsible for a war that many Americans believe was sold with lies will be imprisoned for lying. Still, Libby's conviction and sentencing will have little impact on popular opinion, for most of the public has already reached a verdict on Bush, Cheney and their administration. The Libby case is merely an affirmation of the (widely-held) view that the Bush crowd is not an honest one.

Now the Libby saga enters the real endgame: pardon or no pardon. Bush has a week until the question is truly forced upon him. If next Thursday's hearing changes nothing, Libby will be awaiting a vacancy in a federal penitentiary. This will drive the Libby Lobby to pump up the volume on its call for a pardon. Conservative pundits will go wild. Republican presidential candidates will demand freedom for Libby. (Former Senator Fred Thompson is a member of the Libby Legal Defense Trust and has hosted a fundraiser for Libby.) What will Cheney say? What will Bush do? It appears Bush will not be able to opt for on-the-sly, last-minute sort of pardon that his father awarded Iran-contra figures shortly before leaving office and that President Bill Clinton handed to fugitive financier Marc Rich as the Clinton presidency was ending. If Bush wants to pardon Libby, he will have to do it in full public glare. He will have to explain why a convicted liar — who shares blame for the mess in Iraq — ought to go free.

When Bush first ran for president in 2000, he vowed to bring accountability and ethics back to the White House. A pardon of Libby would be a telling moment in his long departure from that promise.

By David Corn
Reprinted with permission from the The Nation

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