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Another take on the Libby Commutation

The Corner on National Review Online

Andy McCarthy presents another side in the dispute over the Libby commutation.

There was a very debatable issue at the heart of the sentencing, and it affected the calculation of jail time dramatically.  Under the federal sentencing guidelines, if a person is convicted of obstructing (or lying in connection with) an investigation of “a criminal offense,” the judge is directed to calculate the sentence in accordance with the guidelines for that criminal offense.  This, by the way, is the source of the falsehood, which, regrettably, was repeated in NRO’s editorial, that Fitzgerald asked for Libby to be sentenced as if he had committed the offenses being investigated — namely, exposing a covert agent and violating the espionage act.  Of course, if Fitzgerald had really done what the editors claim, he’d have recommended a sentence of about 10 years, not 30 months.

He recommended 30 months because that’s the sentence that the guidelines dictate if you consider the term  criminal offense to mean the potential crime that the prosecutor was probing.  That is, the prosecutor says he is looking into crime X, therefore sentence for an obstruction conviction must be fixed in accordance with crime X regardless of whether crime X really happened.

But there’s another way to look at it.  Suppose crime X didn’t really happen—as in Scooter’s case, where no one was ever charged with exposing a covert agent or violating the espionage act.  In such an instance, it can be forcefully argued (as Libby’s counsel contended) that the obstruction guideline Fitzgerald relied on does not apply because there really was no criminal offense that the defendant obstructed.


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