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Judge Denies Libby Request to Delay Prison Term

June 14, 2007 at 6:10 PM EDT

JUDY WOODRUFF: I. Lewis “Scooter” Libby, Vice President Cheney’s former chief of staff, must serve his prison sentence, even while he appeals his conviction for obstruction of justice and perjury in connection with the CIA leak trial. U.S. District Court Judge Reggie Walton made that ruling this afternoon in Washington.

Carol Leonnig of the Washington Post was in the courtroom, as she was throughout the trial, and she joins us now.

Carol, tell us the scene in the courtroom.

CAROL LEONNIG, The Washington Post: You know, it was an interesting scene, because, as you’re aware, a week ago, Judge Walton issued a pretty stiff penalty at the sentencing hearing for Scooter Libby and said he’d go to prison for 30 months. But based on the pleading of his defense counsel, he said he’d wait another week to make a decision about whether or not to send him to prison, even though he’s appealing his conviction.

And, of course, Libby’s friends, and lawyers, and he himself have pleaded with the judge today to let him be free while he appeals that conviction. The judge couldn’t have been more firm in saying that we can’t have two sets of justice for criminals, for white-collar defendants with good connections and the blue-collar criminals without money. It’s got to be one set of criminal justice standards, and he said that the law was clear and Mr. Libby had to go to prison.

JUDY WOODRUFF: And the reaction of Scooter Libby, and his wife, and others in the courtroom?

CAROL LEONNIG: Well, based on some of the judge’s hints last week, I think that there was a sense of resignation, dejectedness, even before the judge’s decision was announced, because there was sort of a preparing for the worst.

Still, Libby remains stoic, as he has throughout these proceedings. It’s really quite stunning. His wife wiped away tears from the corners of her eyes. And his defense lawyers, two lead defense lawyers, shook their heads as if to say, “Well, we thought it was coming, and here it is.”

JUDY WOODRUFF: You said the judge, Judge Walton, you said he was firm. Tell us more about his demeanor, his — what was he emphasizing as he spoke?

CAROL LEONNIG: I would say that one of the underlying themes of the judge’s comments today were about the public’s perception of a fair court, an even-handed court. And he stressed that in every response he gave.

He remarked upon how the special counsel’s investigation had to be separate and unsupervised by the White House in order for the public to feel that it was fair, that there couldn’t — again, as I said before — there couldn’t be two sets of standards for whether you let white-collar criminals go free or blue-collar criminals go free pending sentencing — I’m sorry, pending their appeals.

He also talked about the fact that, even though this is a high-profile case, he was not going to be persuaded by public sentiment and pressure. And he made two remarks about public pressure. One was that he had gotten a series of threatening and harassing letters from members of the public since he sentenced Scooter Libby. One of them or more, he said, mentioned harm to his family and he himself. He has a young daughter. He said that he wanted the lawyers to know about those letters, but he said it would have no impact upon him and his decision either to be lenient to Libby or not.

He also mentioned another form of public pressure, and to this kind he was, I think you could fairly say, offended. He mentioned a series of constitutional scholars who had filed a brief late last week, saying that they were pleading, as well, on behalf of Scooter Libby for leniency and for his release pending the appeal. The judge said that this was no better than a brief he might get from someone less schooled than a first-year law student, and he said that it was absolutely unpersuasive, and he felt as though the lawyers appeared to be tossing out their very prominent names almost as a form of pressure on the judge. He said he was going to stick with the law.

JUDY WOODRUFF: Interesting. And we’ll be talking to one of the law professors who signed that in just a moment.

Carol, what happens now to Scooter Libby?

CAROL LEONNIG: What happens now is that, within the next probably two to five days, Scooter Libby’s defense lawyers and his very well-respected appellate lawyer, this new lawyer, Larry Robbins, will file an emergency appeal with the court of appeals about simply the release issue.

What they’ll be asking for is for that court of appeals to go out of the normal practice and to overturn the trial judge in this case. The chances are slim that that will happen, but they are not non-existent. And, again, the argument is that there are these close legal questions that are important that the appellate court needs to take into consideration. Again, that’s the view of the Libby defense team.

JUDY WOODRUFF: And quickly, barring that appeal being productive, he could go to prison how soon?

CAROL LEONNIG: Well, by the time that appeal is heard and briefed, his appeals will be exhausted on that issue. But it could be as soon as five weeks from now.

JUDY WOODRUFF: And do we know where he would serve time?

CAROL LEONNIG: There are a lot of minimum security camps, prisons and ranches — farms, I guess is what they’re called — all over the nation. But the ones that are within driving distance of Washington are probably the most likely. Cumberland has been mentioned several times as a candidate, and it appears that that would be a facility that the family would prefer because it is close.

JUDY WOODRUFF: Carol Leonnig of the Washington Post, she’s been watching this case throughout. Carol, thanks very much.


Impact on white-collar cases

JUDY WOODRUFF: And now two views on Judge Walton's decision and how it might compare to other white-collar criminal cases. First, Doug Kmiec, he is assistant attorney general -- was -- during the Reagan and first Bush administrations. He's now a professor at Pepperdine Law School and was one of those 12 legal scholars who filed a brief in this case, urging that Libby be allowed to remain free pending his appeal.

And John Hueston was the lead prosecutor for the Enron task force, which resulted in the convictions of Jeffrey Skilling and Kenneth Lay. He's now a partner in a Los Angeles law firm specializing in white-collar criminal defenses.

Doug Kmiec, what do you make of the judge's decision?

DOUGLAS KMIEC, Former Assistant Attorney General: Well, I think it's a mistaken decision, with all due respect. I am very much admiring of the principle that Carol Leonnig described, that the judge was seeking to adhere to, namely equal justice under law.

And the reason a number of my friends in the law school fraternity filed a brief on Mr. Libby's behalf was not to address the merits of the underlying case, it was not to assail the principle of equal justice under law, it was not to question the fine capability and integrity of Patrick Fitzgerald, but to point out that there are, indeed, substantial legal questions about the constitutionality of Mr. Fitzgerald's appointment, about the manner in which he exercised his authority during the course of the trial, and, indeed, some disproportion, as well, about the sentence in this particular case.

So I think Mr. Libby should have been permitted to remain free on bond during the course of an appeal that will address these very serious questions.

JUDY WOODRUFF: Patrick Fitzgerald, of course, having been the prosecutor in all this. And I want to ask you in a minute about what the judge said, but before I do, to you, John Hueston, the sentence, the right one or the wrong one in these circumstances?

JOHN HUESTON, Former Lead Enron Prosecutor: Well, it's important to keep in mind that the sentence, 30 months, does -- I would say -- would be on the longer side for somebody convicted of obstruction of justice. And normally we have criminals accused and convicted of at sentencing what we call an underlying substantive crime and then an obstruction count related to that crime. So the crime and the sentencing itself is unusual, because it concerns just obstruction, certainly not unprecedented, but more unusual.

So we turn now to the sentence of 30 months and whether that truly is unusual or extraordinary. And, again, under the guidelines, the judge actually sentenced at the low end of the guidelines once he made his calculation. And he was moved by the fact that the lies that were found by the jury, the misleading of the grand jury, concerned a potentially very serious offense.

Scooter Libby was not lying and misleading in the grand jury to cover up an extramarital affair; he was lying and misleading the grand jury about potentially the exposure of a CIA covert agent. That's a very serious offense.

The government argued that Mr. Libby's efforts made it impossible for them to have a serious investigation into what could have been just an extraordinary series of prosecutions. I think the judge agreed with that and felt that the sentence should be on the longer side, 30 months, after the application of an enhancement rather than a sentence in the range of, say, 15 months.

Sentence on low end of guidelines

JUDY WOODRUFF: Let me just get this straight. You're saying the lower end of the guidelines, but longer...

JOHN HUESTON: Right. The guideline range that was presented to the judge and that he accepted was 30 to 37 months. And the guidelines are merely advisory. He could ignore the guidelines, but he instead took the guidelines under consideration and sentenced within the low end of that range, 30 months.

So he certainly could have sentenced even at 37 months and would have been within the guideline discretion which judges had been bound to follow as recently as two years ago.

JUDY WOODRUFF: Doug Kmiec, I mean, just purely on this question of how long the sentence is, it sounds like the judge is in the realm of what the guidelines were.

DOUGLAS KMIEC: Well, he is in the realm of what the guidelines were, but he's at the very high end of it, as Mr. Hueston has pointed out. And, indeed, the sentence that the judge imposed was twice as long as the sentence recommended by the Federal Probation Office. In every federal case, the Federal Probation Office recommends a sentence and, in this case, they recommended a far more lenient sentence.

And Mr. Hueston makes an important point. He indicates, quite correctly, that in a case dealing with perjury and obstruction like this one, the sentence is, under the sentencing guidelines, calculated in relation to the severity of the underlying crime. In this case, the alleged underlying crime was the improper and intentional disclosure of a covert officer.

But here's the irony, Judy: No one was prosecuted for that underlying crime. Certainly Mr. Libby was not prosecuted for that underlying crime. And, indeed, while it might be said that his statements made it impossible for that investigation, in fact, it's relatively well-known in Washington and elsewhere who, in fact, did disclose the name of Valerie Plame, and yet these people haven't been prosecuted.

So there's some distinct unfairness in that. And there's a constitutional link to that unfairness, and that is, the reason the sentencing guidelines are advisory now rather than mandatory is because the Supreme Court has held that, when you sentence someone with an enhancement like has happened here, the facts you rely upon have to be proven to a jury beyond a reasonable doubt.

Well, in this case, not only were there facts not proven to a jury beyond a reasonable doubt, there was no crime prosecuted.

No prosecution for underlying crime

JUDY WOODRUFF: All right, just quickly, because we only have a few minutes left, I want to come quickly back to you, Mr. Hueston. What about the fact that no one was prosecuted for the underlying crime? Should that be a factor in a decision like this?

JOHN HUESTON: Well, in some ways, that's a bootstrap analysis. As the government argued -- and I think the court found -- Libby could be described as a self-made fall guy. There weren't crimes prosecuted, according to Patrick Fitzgerald -- and I'll take his word right now over Washington beltway gossip -- that his efforts to lie and mislead in the grand jury put a stop to what was a serious and forceful investigation.

And should Mr. Libby enjoy the fruits of his efforts to obstruct, saying, "Voila, I have lied, therefore there are no crimes, I successfully derailed it, and therefore I should get some leniency because there, at the end of the day, was no provable underlying substantive offense"?

I don't know, and I can't sit here and tell you whether, in fact, there is a provable offense, and was there another crime beneath the surface? But taking what the prosecutor has presented, I think the judge fairly considered that and viewed that as a factor in aggravation, and properly considered that in setting the sentence to the more severe side.

Pressure on the judge

JUDY WOODRUFF: Doug Kmiec, to the point, the brief that you and other law professors filed, the judge emphatic -- we heard from Carol Leonnig -- he said he thought that this document was no better than what a first-year law student would have written. And he went on to say that this was a form of -- in my word, but it sounded like he was saying this was an unseemly effort, in Carol's words, to toss out prominent names to put pressure on him.

DOUGLAS KMIEC: Well, I always take the charity of good correction, and I take the judge's admonition that I should study harder. But in truth, I think this is far more than just names on a brief.

This brief raises some very serious questions about the constitutionality of Mr. Fitzgerald's appointment. The Supreme Court has indicated that there's a fundamental difference between a principal and an inferior officer. A principal officer must be appointed by the president with the advice and consent of the Senate, must be given that level of accountability.

Mr. Fitzgerald was not, and yet he was given very sweeping authority, sweeping authority that was far greater than the authority than the independent counsels used to have under the independent counsel statute, which was so severely criticized that the Congress of the United States allowed it to lapse.

And there's a very serious question not just under the Constitution, but also under the classified information protection act. Section 14 of that act says that, if classified information is going to be introduced into a criminal trial, it needs the express certification of a high-level member of the Department of Justice, specifically the attorney general, deputy associate, or assistant. And the statute says that authority can't be delegated.

But here it was delegated. And Mr. Fitzgerald was making these submissions without proper certification from the Department of Justice. That's an issue that goes to the heart of the conviction. And should Mr. Libby serve time while this issue is being debated? I don't think so.

JUDY WOODRUFF: All right, we are going to have to leave it there. Doug Kmiec and John Hueston, of course, what everybody's wanting to know now is, will the president offer a pardon? We know the White House said today, not at the time being, but that's something we're going to be looking at, as well.

Gentlemen, we thank you both.

JOHN HUESTON: Thank you for having me.

DOUGLAS KMIEC: Good to be with you.