Scooter Libby's Fate Hinges Upon Several Factors
Lewis "Scooter" Libby–the former top aide to Vice President Cheney who was convicted of obstruction of justice, perjury, and lying to the FBI in March–will be a step closer to learning his fate next week, when the presentencing report for his case is due to be completed.
Libby's lawyers and special prosecutor Patrick Fitzgerald will get their hands on the report May 15, but the document will not be publicly released–not before Libby's June 5 sentencing nor after. The report will include a probation officer's calculation of what sentence Libby should receive under federal guidelines and a judgment on whether the case merits a different sentence. Lawyers on both sides can contest parts of the report, and the judge ultimately can depart from its findings, but it will serve as a kind of first draft of the eventual sentence.
"In an ordinary case, you can be pretty sure that the sentence that you get will be within or darn close to [the report's] range," says Frank Bowman, a University of Missouri law professor and former federal prosecutor. "It tends to have this anchoring effect."
Under current federal guidelines, Libby's four felony convictions, which stem from an FBI investigation into the disclosure of a CIA operative's identity, would most likely net him 18 months to three years in prison. But this is not an ordinary case, and Bowman says aggressive lawyering by both sides and the intense media scrutiny add an element of unpredictability. Lawyers for Libby and Fitzgerald's office declined to comment on the forthcoming report.
In addition to sentencing recommendations and a rundown of offenses, the presentencing report typically includes extensive background information on the convicted person's family and personal life. Defense attorney William Jeffress wrote a memo to Libby supporters in March encouraging them to send testimonials about Libby that he would pass along to the court. The memo urged backers to detail qualities like Libby's "personal and professional integrity" but warned against denigrating anyone involved in the case.
Though top administration officials have kept Libby at arm's length since his conviction, his good standing among top Republicans should bring a host of testimonials. Francesca Bowman, who was chief federal probation officer for Massachusetts before becoming a sentencing consultant, says the letters that contain the strongest personal knowledge of Libby are likely to have the most influence.
"If those letters come from people who are very highly placed, then so much the better," she adds.
Libby is at a disadvantage for the presentencing report, however, because he was convicted rather than pleading guilty. The sentencing guidelines provide leniency for those who accept responsibility for their crimes and cooperate, but since Libby continues to contest his conviction, he will very likely struggle to show remorse about crimes he still contends he didn't commit.
"His lawyers necessarily are hamstrung in their ability to contextualize the offense, given that they have asserted innocence from the get-go," says Douglas Berman, an Ohio State University law professor.
Libby's eventual sentence may depend on the probation officer and the judge's degree of sympathy for him. If he comes off as an unlucky fall guy for higher White House officials, as he apparently did for several jurors who convicted him in March, Libby could be free earlier than the guidelines suggest. But that same refusal to shift blame to his bosses could be read as obstinacy, an impression that might not bode well for Libby's future.