Liberate Libby’s PSR

/in /by

Say, did you notice who wrote the talking points for Tony Snow’s press briefing yesterday? The Probation office (only Snow makes the same mistake I did when I first talked about this, calling it the parole office–though I guess if you work for the guy who simply disappears all prison sentence, parole might come more easily to the tongue).

MR. SNOW:  Well, keep in mind that there is still — he doesrespect what the judge said, but he also respects what — I think if youtook a look at the trial record, at what the parole commissionrecommended, that what the parole commission recommended was highlyconsistent with what the President thought was an appropriate punishmenthere.

Q    Well, no, they talked about 16-plus months.

MR. SNOW:  No, that is — there’s a range of — what you’re takinga look — this gets very complicated.  You have obstruction of justice,and then you have mitigating factors that bumps it down.  And the bumpdown gets you, according, again, to the parole commission, to an areawhere it would be appropriate, it would be within acceptable guidelinesto have such things as home detention or probation.  Probation issomething that is going to be required in this case.

[snip]

MR. SNOW:  What I said was with the jury system.  But also, whatthe President did is also consistent with guidelines.  You need tounderstand the guideline argument better.  The question is, what are youusing as your baseline?  And the parole commission, which does this fora living, had recommended guidelines —

Q    But they recommended —

[snip]

Q    Does he think prison for perjury is excessive?

MR. SNOW:  — as did a parole board.

Over and over, Snow claims the "parole board" recommended precisely the same punishment that Bush ultimately decided upon, probation (though, as the surprisingly spiney press corpse point out, Snow has to assume that Libby would have been granted every single downward departure floated in the presentencing report).

I find it unbelievably suspicious that Snow is relying so heavily on the PSR to justify Bush’s action–because it appears to have been a complete hack-job, making arguments that embarrassed even Libby’s lawyers. So I’d like to call for publication of the PSR (with redaction of all the personal information save the financial information used to support some of its arguments, as noted below) so we can see the embarrassing logic behind Bush’s current justification for wiping away Libby’s prison sentence.

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  1. Ishmael says:

    So, a sockpuppet PreSentence Report? I don’t know why that has never occurred to me before. After all, a PSR in my jurisdiction is solely the work of a probation officer assigned by the Correctional Services department to interview the offender and investigate his/her circumstances. And it is a public document up here, once it has been introduced as evidence into court, and anyone can look at it. It would not be difficult to assign someone to write a very favourable report for Scooter, as a kind of talking points in advance.

  2. Anonymous says:

    Ishmael

    I can’t say that–I’ve only seen a reflection of the document.

    All I’m saying is, PSR advocated 15-21 months with enough bogus downward departures to make Probation a possibility. From that, Libby’s team boldly suggested probation. And, surprise! Probation is precisely what Libby ends up getting.

    Perhaps it’s just that Libby’s lawyers really persuaded the Probation officer–pulled off jury nullification where it could do them some good. Or perhaps there’s something more going on…

  3. margaret says:

    According to Walton’s response to Bush, yesterday, [via link from TalkLeft] it seems that a $250,000 fine might be all that Libby has to pay for his crime….probation being applied after one has served time in prison. So, even probation will be moot. Will that affect his license to practice law, in that case?

  4. Neil says:

    So I’d like to call for publication of the PSR (with redaction of all the personal information save the financial information used to support some of its arguments, as noted below) so we can see the embarrassing logic behind Bush’s current justification for wiping away Libby’s prison sentence.

    OF COURSE! The President is relying upon this source as his expert authority to justify the communtation pardon of Libby’s incarceration. Why shouldn’t it be subject to the same scrutiny as Fitz’s pleadings or Wells for that matter?

    If, according to Bush and the Probation office, 30 month is excessive, then isn’t it equally true that 0 months is insufficient?

    Is there any truth to the suggestion that the timing of Bush’s commutation pardon is a direct result of Libby’s threat to blab if he had to spend one night in prison?

    EW, are you and mr. EW gonna take a break later and have a cookout, say maybe at beer thirty? Cheers.

  5. margaret says:

    And, then, I just had the thought that maybe all this was, as you hint, decided in advance, so that Scooter would end up not having to report to any authority, allowing an impression that he just had to pay a fine, much like one would for DWI.

  6. Anonymous says:

    Libby has been convicted of four felonies. That surely gets one debarred, even in DC, doesn’t it??

  7. SaltinWound says:

    It was hilarious to watch Snow confidently brandish the report, vaguely claiming it supports what the President did. I was reminded of Libby lamely waving the NIE around, asserting it supported the Administration’s case.

  8. Neil says:

    If Libby has no incarceration and no probation and just a fine, it won’t change the fact he is a convicted felon… unless he’s pardoned in the future. The bar will revoke his license for perjury and obstruction of justice – it’s immaterial to them that he did it in the service of protecting Cheney and other White House officials.

  9. mamayaga says:

    Beyond looking at the PSR, why can’t Congress call the probation officer who prepared the report and ask if he/she received any instructions from above in preparing it (Abu Gonzales, anyone?)?

  10. Anonymous says:

    Saltin

    Yes. Another lie, based on a document we’re not allowed to see.

    But there was the real sense that everyone at the WH were befuddled trying to figure out why that genius PSR didn’t work its wonders.

    Neil

    Mr EW and I are going to go play an ultimate game together for the first time in two years. My back is already sore, so I’m sure to be a joke. Luckily, we’re playing against a team whose average age is 42 or something, so hopefully I’ll at least be able to out run one or two of them.

  13. Neil says:

    That sounds like great fun. Go fight win! (Fight as in prevail… as opposed to fisticuffs.)

  14. masaccio says:

    Oh my gosh: Fitzgerald has been ordered to state his position on supervised release on Monday. He has the perfect opportunity to move the Court to recognize the changed conditions, ie, the commutation, and seek imposition of the strongest provisions of supervised release, including incarceration for up to a year.

  15. albert fall says:

    Let â€Sealed v. Sealed†be opened.

    Let’s see Fitz weigh in angry and snarky on the President’s demi-Pardon.

    Let’s see Congress subpoena Fitz to present all the evidence on what Rove did and why he wasn’t indicted.

    I want to see Bush jumping in a dozen different directions trying to put the worms back in the can.

  16. albert fall says:

    By the way, does anyone know why Libby used Russert as his alibi?

    Did Scooter and Timmy have a deal, and then Timmy backed off committing perjury?

    Or did Scooter just figure that Russert would never reveal a source?

    Maybe Congress should think about whether Timmy has some ’splainin’ to do.

  17. Sandy says:

    Only indirectly related…..but I am wondering –

    why IS it no one…..it seems to me NO ONE…..ever publicizes….questions….looks at….the White House Iraq Group (WHIG) and its members ….and its PURPOSE/MISSION.

    It seems to me that a whole group of very powerful people…meeting specifically about Iraq….THOSE discussions…..notes….info….and players…..must …..surely must…..hold some important information….FACTS….needed to show what these criminals were up to….right?

  18. Neil says:

    In Iowa to promote the presidential candidacy of his wife, Senator Hillary Rodham Clinton of New York, Mr. Clinton was asked by a radio host, David Yepsen, “You had some controversial pardons during your presidency; what’s your reaction to what President Bush did?â€

    “Yeah, but I think the facts were different,†Mr. Clinton said. “I think there are guidelines for what happens when somebody is convicted. You’ve got to understand, this is consistent with their philosophy; they believe that they should be able to do what they want to do, and that the law is a minor obstacle.â€

    “It’s wrong to out that C.I.A. agent and wrong to try to cover it up,†Mr. Clinton added. “And no one was ever fired from the White House for doing it.â€

    link

  19. Neil says:

    “What distinguishes Scooter Libby from the acts of clemency in the other three episodes,†said P. S. Ruckman Jr., a political science professor who studies pardons at Rock Valley College in Rockford, Ill., referring to Mr. Libby by his nickname, “is that in those episodes they generally served their time and some other president pardoned them.â€

    Mr. Bush repeated yesterday that he had found Mr. Libby’s punishment to be too severe. But experts in federal sentencing law said a sentence of 30 months for lying and obstruction was consistent with the tough sentences routinely meted out by the federal system.

    “On what legal basis could he have reached that result?†asked Frank O. Bowman III, an authority on federal sentencing who teaches law at the University of Missouri-Columbia, said of the commutation. “There is no legal basis.â€

    Nor is there a reason to think that the Justice Department has changed its position about the sentencing system generally. Indeed, Attorney General Alberto R. Gonzales said last month that the department would push for legislation making federal sentences tougher and less flexible.

    Similarly, in a case decided two weeks ago by the United States Supreme Court and widely discussed by legal specialists in light of the Libby case, the Justice Department persuaded the court to affirm the 33-month sentence of a defendant whose case closely resembled that against Mr. Libby. The defendant, Victor A. Rita, was, like Mr. Libby, convicted of perjury, making false statements to federal agents and obstruction of justice.Mr. Rita has performed extensive government service, just as Mr. Libby has. Mr. Rita served in the armed forces for more than 25 years, receiving 35 commendations, awards and medals. Like Mr. Libby, Mr. Rita had no criminal history for purposes of the federal sentencing guidelines.

    The judges who sentenced the two men increased their sentences by taking account of the crimes about which they lied. Mr. Rita’s perjury concerned what the court called “a possible violation of a machine-gun registration lawâ€; Mr. Libby’s of a possible violation of a federal law making it a crime to disclose the identities of undercover intelligence agents in some circumstances.

    When Mr. Rita argued that his 33-month sentence had failed to consider his history and circumstances adequately, the Justice Department strenuously disagreed.

    link

  20. Mimikatz says:

    Addington wrote the PSR too? And the clememcy statement? Does he have to do all the work?

  21. darclay says:

    I have a question, If SCOTUS has issued a ruling that states that the penalty for purjury yada,yada,yada,then can’t SCOTUS step in and say that the use of comutation on those ground does not hold?

  22. Basharov says:

    Check the White House telephone logs to see if Cheney or Addington made a call to the Probation Office before the PSR was issued. Oh, wait, those logs would be covered by Executive Privilege.

    Never mind.

  23. Anonymous says:

    sweet mother of pearl, Masaccio is right, Jeralyn’s post over at TalkLeft offers up a tantalizing move for Judge Walton. And now that Bush has made his move he’s stuck with that train on that track. Can’t wait for Monday.

  24. Anonymous says:

    Often the PSRs are billed as from the probation officer who is a so-called specialist assigned to write them, but in fact there is close consultation and often dictation of the PSR by the AUSA If the AUSA wants something or some tone or some facts in that PSR, they make sure they get there.

    I suspect the reason this one was atypically below the guidelines for perjury and obstruction went like this.

    Rove calls Administrative Office of Courts Director Leonidas R. Meacham and tells him he wants a PSR that is in the low guidelines range–promise a promotion or whatever–it’s their boy Scootie Libby. The Chief Probation Officer in the D.C. District Court calls in whomever and makes damn sure this happens.

    Some of you will remember Meacham as the guy who was keystroke following the judges’ chambers a couple or three years ago (producing the interesting stat that 6% of their web downloads were porn) and the 9th Circuit and its district courts shut down their computer in protest. Judge Kozinski threatened prosecution of Meacham, and in a showdown during 911 at the Judicial Copnference Meacham backed his humongous azzz up as Little Junior would say, and blinked and backed down.

    This little dustup made the pristine pages of the WSJ who has had nothing but editorials and op eds on Libby by the base until yesterday (the Bancrofts were preening and fretting about a Murdoch ownership taking over news content, when they already heavy handedly impact news coverage and have for years) in their â€Cuts both ways†story.

    What is interesting for me besides Melanie Sloan’s civil suit, and the implications of a still pending appeal that might hold up Scootie’s depositions, is the possibility that Congress (either House Judy or Senate Judy) can invoke Kastigar v. United States, 406 U.S. 441 (1972) and 18USC § 6002 and confer a type of immunity on Scooter that would force him to answer questions or be held in contempt and jailed.

    Mimikatz– the S. Ct. in Rita did not explicitly specify that an exact guideline had to be applied, they just said the ballpark was correct for Rita. It was a nebulous ruling in my opinion,but certainly Rita is relevant and if you’re wondering how Bush could have said the sentencing (guideline applied) was too severe and if it wasn’t totally disingenuous and ridiculous reasoning on the part of Bush’s advisors who fed these words to them, you have an awful lot of company.

    I think the lone dissent by Souter in Rita is very apt–saying it was nebulous and would only serve to push trial judges to ignore potential departures from the guidelines because they will be looking over their shoulder at the appellate courts remanding their departures from the guidelines back to them.

    The Bush and other DOJs have always pushed for tougher guidelines with less flexibility for departure as has the Sentencing Commission, and Bushy the Shrub’s action makes DOJ and many Republicans who are not the giddy base very unhappy.

  25. Frank Probst says:

    It seems pretty clear to me that the PSR was fixed so that Walton could have justified letting Libby off without jail time. Team Fitz immediately called bullshit with a brief saying that the correct sentencing range was 30 to 30-something months. I think Team Libby (or at least Team Bush) expected Walton to play ball. Walton wouldn’t play along (Who knew a Republican nominee would have integrity?), he and gave Libby the LOWEST sentence in the correct sentencing range. Bush granted clemency, saying the low prison sentence was â€excessiveâ€. Fitz again called bullshit. Then, in a move that was somewhat surprising to me, the judge himself stepped in.

    Here’s how I think it’s going to play out from here:

    1. Walton wants Fitz to call bullshit on Bush. That was my take his order and the wonderful footnote. I don’t think anyone really believes that there’s a problem with â€supervised release†for Libby, even though he hasn’t served any time. It would be fairly simple to have Libby just do all of the things that the other convicted felons have to do once their released. My take is that Walton was SUPREMELY pissed at the commutation and needed a good excuse to haul everyone back into court. His point about â€supervised release†was a reasonable enough reason for this.

    2. Fitz’s next move is clear: He will invite the President to explain, in writing, why he felt the judge’s sentence was â€excessiveâ€, despite the fact that it fell within the federal guidelines. And why did he leave supervised release intact? Perhaps he made an error in giving no jail time at all, and he only meant to commute Libby’s sentence to less time than the federal guidelines. Say, 29 months. Bush has absolutely no good answers to this.

    3. How it goes after that is up in the air. If Bush cites the PSR, then Fitz will likely be able to interview the people who wrote the report to see if there was any undue pressure on them. I think it’s also possible that someone tried to lean on Walton (and didn’t get very far). But Fitz’s statement and Walton’s order both make clear that neither one of them is happy. I don’t think this is over yet, and that’s before any Congressional hearings have started. And frankly, neither Fitz nor Walton is someone I’d want to have pissed off at me.

  27. Boo Radley says:

    â€[…] then Fitz will likely be able to interview the people who wrote the report to see if there was any undue pressure on them.â€

    Bullsye.

  29. shutupmarcy says:

    Emptywheel, marcy, whatever
    PLEASE stop speaking as if you were a lawyer! You have no friggin idea what you are talking about. Everything you have said in the past few days has been so stupid and has no legal basis whatsoever. You are acting like a know it all. Try vetting your info first uou dumbass

  30. shutupmarcy says:

    Emptywheel, marcy, whatever
    PLEASE stop speaking as if you were a lawyer! You have no friggin idea what you are talking about. Everything you have said in the past few days has been so stupid and has no legal basis whatsoever. You are acting like a know it all. Try vetting your info first you dumbass. You don’t know the first thing about the law and you are no expert so on behalf of the legal community shut the fuck up

  31. shutupmarcy says:

    Emptywheel, marcy, whatever
    PLEASE stop speaking as if you were a lawyer! You have no friggin idea what you are talking about. Everything you have said in the past few days has been so stupid and has no legal basis whatsoever. You are acting like a know it all. Try vetting your info first you dumbass. You don’t know the first thing about the law and you are no expert so on behalf of the legal community shut the fuck up

  32. shutupmarcy says:

    Emptywheel, marcy, whatever
    PLEASE stop speaking as if you were a lawyer! You have no friggin idea what you are talking about. Everything you have said in the past few days has been so stupid and has no legal basis whatsoever. You are acting like a know it all. Try vetting your info first you dumbass. You don’t know the first thing about the law and you are no expert so on behalf of the legal community shut the fuck up

  33. Liam says:

    shutuptroll whould you ever just fuck off and take shitstain with you.
    Marcy you are a star,keep up your brilliant work. TNH Abu

  35. mighty mouse says:

    FWIW (not much, in my opinion), I am a lawyer–an outraged, grief-stricken lawyer. I am too angry to read the court docs in Libby–I’d just start howling–and I am SOOOO grateful to Marcy for her intelligence and her taking the time and patience to slog through all this s**t. I have a J.D. I could do it. But I’m also a human being with fears and flaws–emotionally,I could not do what Marcy has done and is doing. IMHO, being a lawyer is not what it’s cracked up to be. Rant done. Apologies for the rant. Huge gratitude to Marcy.

  36. JohnJ says:

    Great going Marcy! Thanks as always; you are obviously scaring the s#$t out of someone who is not a lawyer themselves. I would take insults like that as a good indication that you are starting to scare the WH mafia and their supporters. In fact, I’ll bet Rover is reading this blog obsessively!

    My only complaint is that all of you have ruined what little respect I had left for the MSM. I used to enjoy reading the front section of the St.PeteTimes cover to cover every morning on the way to work. Now I look at it the same way I do PEOPLE magazine.

    For all you constitutional scholars out there; we need to find a way for a non-attorney can be the next USAG! Can you imagine what Marcy could do if she had some legal clout behind her?

  37. bmaz says:

    HEY NIMROD TROLL – Like mighty mouse, I am a lawyer, read this site religiously, and can guarantee that just about all of the legal opinions and reasoning that Ms. Wheel are dead on correct. If they are not, which is remarkably rare, one of the very bright (and no that doesn’t necessarily apply to me) lawyers here will correct her and she is happy to accept that. The beauty of this site is that people care only about truth and justice. If you are a lawyer and really feel up to the task of pointing out legal errors here, I will be happy to take you on, but it won’t be a pretty result for you. Otherwise, leave and don’t come back. I am done with your pathetic ass for now, because long ago I learned not to engage in a battle of wits with a completely unarmed person. Be gone.

  38. shutupmarcy says:

    3 words for bmaz: bring it on. Actually four words: bring it on bitch.

    There is no way any of you are lawyers or practice law. You are lawyers of the monica goodling kind if anything.

    Emptymarcy is a fraud who leads people to believe she knows a thing or two about the law when in reality she knows not of what she speaks. Ergo, empty is an idiot.

    Those of you who claoim to be lawyers should get some courtroom experience. You pseudo intellectual half wits

  39. shutupmarcy says:

    3 words for bmaz: bring it on. Actually four words: bring it on bitch.

    There is no way any of you are lawyers or practice law. You are lawyers of the monica goodling kind if anything.

    Emptymarcy is a fraud who leads people to believe she knows a thing or two about the law when in reality she knows not of what she speaks. Ergo, empty is an idiot.

    Those of you who claoim to be lawyers should get some courtroom experience. You pseudo intellectual half wits

  40. Jodi says:

    shutupmarcy,

    shutup!

    As a non lawyer myself, I have noticed with glee that the people who are lawyers are constantly arguing about the law.

  41. Boo Radley says:

    I think shutupmarcy Jason Leopold is just jealous, because because David Shuster didn’t interview him.

  42. Bugboy says:

    Mistake?!? That was NO mistake, Snow is painting the Probation office out to be an end of the line, as you say â€make prison sentences disappear†type of office. It was intentional Rovian talking points through and through, I can feel it in my bones.

  43. bmaz says:

    Ignorance is a safe harbor for some; and if even our resident lovable troll Jodi wants you to shutup and thinks you are boorish; you are hurtin for certain. I would hazard a guess that even Jodi will back up the statement that people are passionate and active here, and a good fight is enjoyed, but intelligent and respectful opposing views are welcome and interacted with. But your arrogant and abusive ethos is not welcome. Be gone. if you had any legal knowledge or valid point to make, you would have; instead you feed childish drivel. Furthermore, you have neither the education nor intelligence to know a lawyer if one hit you upside the head. If you did, you could quickly pick out those here that are indeed attorneys. You, on the other hand, don’t appear to know you ass from a hole in the ground.

  44. shutupmarcy says:

    Like I said all you would-be monica goodlings, bring it on bitches. You’re legal analysis is no different and even worse than bush’s interpretatiom of the law. You’re all ignorant and I would mop up the courtroom with you any day of the week. Marcy wheeler is not a lawyer and she should cease making legal claims that have no basis. Behind the scenes she is a laughingstock.

  45. Ishmael says:

    Bmaz & Boo Radley – I’ve noticed an increase in the shrillness and vulgarity of the trolls we are attracting around here lately. Could it perhaps be that is a sense of desperation, even panic, among the LGFers and Redstaters these days? I’ve always found the incoherence of the trolls is directly proportional to the indefensibility of whatever Bushco has done that day, but I for one take this latest infestation as a sign that things are going our way, if the RW Noise Machine feels they have to dispatch the type of amateur trolls and vandals to TNH like â€Jason Leopoldâ€. â€Bring it on bitchesâ€????? I feel confident in saying that EW and the rest of us will keep doing just that.

  46. P J Evans says:

    Froomkin asked readers for questions to be asked of the WH. He got lots. litigatormom had one published! (All the ones that appeared in his column looked good to me.)

  47. bmaz says:

    Ishmael – They got nothing and they know it. Look at this chump, bleats about law but has nothing to say. Shrillness and ignorant whining is the stock of trade for these folks.

  48. KLynn says:

    Marcy,

    You’re great. Keep speaking the truth to power. Especially when an intimidation tactic is used. I appreciate your dedication to research and your ability to track all the many issues our Constitution is being challenged with today. Your ability to look at evidence and ask questions based on the evidence is simply â€the point†many of us happen to be looking for each day. Especially, when it is so difficult to find… I also appreciate TPM, Glenn Greenwald… We need you.

  49. phred says:

    I have always wondered about the origin of the term â€troll†on the blogs. And now, I understand. Just as in the Lord of the Rings, they are profoundly stupid, crash about, and make lots of useless noise. No offense Jodi, one always has a soft spot for one’s own pet troll of course. Even for a troll though, this new one is surprisingly inarticulate. Pity, freepatriot’s skills would be utterly wasted…

  50. Anonymous says:

    Again, Probation Officers who are designated by the AOC as sentencing specialists have the PSR dictated by the US Attorney’s AUSA in a secret memo almost every time, and if an AUSA says jump, they ask how high.

    This came about from a call from Meacham or one of his court jesters in the AOC because Rove called them and told them if they wanted to keep their jobs they’d better move their ass and give the administration the table dance they were dictating.

  52. Anonymous says:

    Jodi – I read your cite. McCarthy makes an inherently flawed interpretation of the cross reference enhancement process. I’ll be honest, it doesn’t appear on the surface that he did this knowingly, so I am happy to give him the benefit of doubt on that. It is a complex and difficult area that, quite frankly most lawyers don’t understand, often even ones practicing criminal law in Federal courts. From everything I know and have previously seen in court, however, Walton was meticulous and got it right. You might also note that Libby’s appellate lawyers (nor the Amici Illuminati) sure didn’t emphasize this in their arguments.

  53. Anonymous says:

    What they coveredup that makes this an outrage is that
    they outed a spy and all her contacts in the network by association that was built over many years of effort to protect us from WMD. That operation had to be closed down for their safety. All those peoples risks, hard work and financial investment was lost. And the enemy aided by all this. High treason by the highest and most trusted office of our democracy. We the people deserve accounting. Poor Scooter?

  54. Bugboy says:

    The Achilles Heel of the Right Winger is they believe their own hype. The trolls that plague rational discussion of any of these topics can only firebomb the place without adding anything to the discussion. They don’t want discourse, they want to shut it down.

    It’s funny, though, they now are blasting Bush, rather than beating their chests about him. I wonder how many would admit to voting for him if asked on the street.