The media have been reporting that I. Lewis (Scooter) Libby faces up to 30 years on the charges that Special Counsel Patrick Fitzgerald brought against him in his 22-page indictment yesterday. Specifically, the statutes prescribing the offenses with which Libby is charged call for maximum sentences as follows: 10 years for obstruction of justice; 5 years each for perjury and false statements to a government official. Since there are two charges each of perjury and false statements, if Libby were sentenced to the maximum on each count, and the sentences were set to run consecutively rather than concurrently, 30 years would indeed be the maximum sentence under the applicable statutes.
But this will not happen. Under the most likely circumstances, Libby faces no more than nine years. Find out why after the break.
As part of the Comprehensive Crime Control Act of 1984, the U.S. Congress created a body known as the U.S. Sentencing Commission. The Commission has promulgated guidelines (the "Sentencing Guidelines"), which are intended to prescribe mandatory sentencing ranges for crimes committed under federal law. The U.S. Supreme Court threw a monkey wrench into the Congressional scheme back in January of this year when it held mandatory application of the Sentencing Guidelines to be unconstitutional in the twin cases of
United States v. Booker and
United States v. Fanfan.
Federal judges are still required to consult the Sentencing Guidelines before imposing sentences on convicted criminal defendants in federal cases. And a quick, back of the envelope calculation based on the most recent data from the U.S. Sentencing Commission reveals that of 41,579 cases sentenced since Booker and Fanfan came down, only 3,190 of the cases departed from the Sentencing Guidelines because of Booker and Fanfan. The Guidelines are thus utilized in well over 90 percent of cases. It is thus likely that if found guilty, Libby would be sentenced within the ranges prescribed in the Sentencing Guidelines. Additionally, Judge Reggie Walton would be under pressure to sentence within the Guideline range, because otherwise, he could be accused of displaying favoritism, partisanship, or otherwise treating Libby "differently" from the way the vast majority of criminal defendants are treated.
So, what conclusion does the application of the U.S. Sentencing Guidelines lead us to in Libby's case?
First, we have to consider the question of multiple charges. This is covered by Section 3D1.1 of the Guidelines, which provides, inter alia:
§3D1.1. Procedure for Determining Offense Level on Multiple Counts
(a) When a defendant has been convicted of more than one count, the court shall:
(1) Group the counts resulting in conviction into distinct Groups of Closely Related Counts ("Groups") by applying the rules specified in §3D1.2.
(2) Determine the offense level applicable to each Group by applying the rules specified in §3D1.3.
(3) Determine the combined offense level applicable to all Groups taken together by applying the rules specified in §3D1.4
We are thus directed to Section 3D1.2, which tells us that, inter alia,
§3D1.2. Groups of Closely Related Counts
All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or transaction.
(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.
The victim of all of the charges against Libby is Valerie Wilson (or, alternately, the CIA or the United States). All involve the "common criminal objective" of outing Valerie Wilson. It is my belief (feel free to disagree) that all of the counts against Libby involve "the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan." They would thus be grouped together.
To find what the effect of all of the charges being grouped together is, we then go to §3D1.3
§3D1.3. Offense Level Applicable to Each Group of Closely Related Counts
Determine the offense level applicable to each of the Groups as follows:
(a) In the case of counts grouped together pursuant to §3D1.2(a)-(c), the offense level applicable to a Group is the offense level, determined in accordance with Chapter Two and Parts A, B, and C of Chapter Three, for the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group.
This leads us to the Sentencing Guidelines for the underlying offenses. Obstruction of justice is §2J1.2
§2J1.2. Obstruction of Justice
(a) Base Offense Level: 14
(b) Specific Offense Characteristics
(1) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.
(2) If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.
(3) If the offense (A) involved the destruction, alteration, or fabrication of a substantial number of records, documents, or tangible objects; (B) involved the selection of any essential or especially probative record, document, or tangible object, to destroy or alter; or (C) was otherwise extensive in scope, planning, or preparation, increase by 2 levels.
(c) Cross Reference
(1) If the offense involved obstructing the investigation or prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
Perjury is §2J1.3
§2J1.3. Perjury or Subornation of Perjury; Bribery of Witness
(a) Base Offense Level: 14
(b) Specific Offense Characteristics
(1) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to suborn perjury, increase by 8 levels.
(2) If the perjury, subornation of perjury, or witness bribery resulted in substantial interference with the administration of justice, increase by 3 levels.
(c) Cross Reference
(1) If the offense involved perjury, subornation of perjury, or witness bribery in respect to a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
The false statements charge is covered by §2B1.1 It's difficult to figure that out, but using the statutory index to the Guidelines, one sees that this is indeed the guideline which applies to18 U.S.C. 1001(a)(2).
We thus see base offense levels of 14 for both the obstruction and perjury charges and 6 for the false statements charge. Using the grouping scheme, the top base offense level is 14. But we can't stop there. As both Jeralyn and Velvet Revolution have noted, there could well be enhancements to the guideline ranges. In earlier analysis, pre-charge, Velvet Revolution noted:
because an official such as Karl Rove or Scooter Libby would obviously be considered "an organizer or leader" of the criminal conduct under section 3B1.1, he would receive another enhancement of 4 levels. Moreover, all the defendants' conduct constitutes "an abuse of the public trust" as set forth in section 3B1.3, which would add another 2 levels.
Furthermore, because of the "willing obstruction and impeding of the administration of justice during the investigation" by Rove and those he controls, including the Republican National Committee, the White House Press Spokesman, and GOP leaders, they will receive another enhancement of 2 levels under section 3C1.1.
Jeralyn noted:
under 3A1.2(b), he could go up six levels because the victim was a government official.
"if the victim was a government employee or member of the immediate family of a government employee and the offense of conviction was motivated by such status...."
He could go up two levels for abuse of public trust:
If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.
Both of them also noted, precharge, that there is an enhancement for obstruction of justice, but since obstruction of justice is one of the underlying charges, and you can't enhance obstruction of justice further for even more obstruction of justice, this enhancement would not apply. However, the three-level enhancement for substantial interference with the obstruction of justice could apply.
So, we look at a base offense level of 14, and then, we add six levels for government official, four levels for leadership role, two levels for abuse of public trust, and three levels for substantial interference, and we end up at a final offense level of 29.
There is another option, though, which wouldn't change the calculus all that much. Remember that both the perjury charge and the obstruction charge contain language similar to this:
If the offense involved obstructing the investigation or prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
That sends us to §2X3.1, which tells us:
§2X3.1. Accessory After the Fact
(a) Base Offense Level:
(1) 6 levels lower than the offense level for the underlying offense[.]
Fitzgerald was rather emphatic in his press conference yesterday that although he was not specifically charging violation of the Intelligence Identities Protection Act, the offense was, indeed, connected with the disclosure of information identifying a covert agent, though he couldn't figure out just who had committed the disclosure of this information. I do not believe this would be a bar to invoking the Sentencing Guideline entitled "Disclosure of Information Identifying a Covert Agent," §2M3.9. This provides, in relevant part:
§2M3.9. Disclosure of Information Identifying a Covert Agent
(a) Base Offense Level:
(1) 30, if the information was disclosed by a person with, or who had authorized access to classified information identifying a covert agent[.]
Subtract six, and you're at an offense level of 24. There could still be enhancements for organizer/leader. I believe, however, that since the very offense of outing a covert agent requires that the victim be a government official, and the guideline requires that the information be disclosed by "a person with, or who had authorized access to classified information identifying a covert agent," there would be no enhancements for abuse of public trust or for the victim being a government official. These are already subsumed into the guideline itself. Under this route, we end up with an offense level of 28, remarkably similar to where we end up using the combination method for the three separate charges.
So, where does this put us regarding sentence?
We then go to the sentencing table. Assuming a criminal history category of I, meaning no prior sentences, we end up with a sentencing range of between 78 to 108 months, i.e., six and a half to nine years.
Six and a half to nine years. This is realistically what Scooter Libby is looking at -- assuming, of course, that Bush doesn't pardon him. Still a substantial chunk of time, maybe enough to get him to cooperate, but not enough to effectively be a life sentence.