How Much Time Will Libby Get?

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Jonathan Ernst / Reuters

Lewis "Scooter" Libby arrives for his sentencing hearing at U.S. District Court in Washington, June 5, 2007.

When United States District Judge Reggie Walton sentences I. Lewis "Scooter" Libby Tuesday for perjury and obstruction of justice, watch how he handles one of the most troubling aspects of federal sentencing law: allowing a harsher sentence for a crime that was never proven.

In case you forgot, a jury convicted Libby, Vice President Dick Cheney's former chief of staff, in March of lying to federal investigators about leaking the identity of CIA operative Valerie Plame. The leak was the thing for most Americans, the crux of an apparent White House campaign to discredit Plame's husband, Joseph Wilson, who wrote a 2003 op-ed piece debunking WMD justifications for the Iraq war. But while outing a CIA agent can be illegal, neither Libby nor anyone else was actually charged with doing that to Plame. In fact, pre-trial maneuvering found the prosecutor, Patrick Fitzgerald, insisting that this was not a case about a leak and fighting defense requests for documents about whether Plame was ever a covert agent, a status that could have made intentionally leaking her identity a crime.

Thanks to Fitzgerald's brief advocating a stiff sentence for Libby, we found out last week that the CIA did indeed consider Plame's identity classified, at least for 18 months. The prosecutor has brought this up now in apparent support of a remarkable claim: Libby should serve 30 to 37 months in prison—about twice what the federal probation office recommends and way more than the probation favored by the defense—because the underlying (and uncharged) crime was so serious.

How can a crime that may never have happened — and that at one point the prosecutor argued was largely irrelevant to the case — now increase a criminal sentence?

It's part of the magic of the federal sentencing guidelines, which were mandatory until two years ago. The controversial rules prescribe penalties that can be raised or lowered within a range, depending on various factors. One factor in a perjury case is the severity of the crime originally being investigated. It's part of a general category of enhancements — from particularly depraved conduct to the use of a weapon — that can, depending on the crime, increase a sentence if the judge determines by a preponderance of the evidence (the law's lowest level of proof) that they happened. To get a sense of the absurdity of this, think of someone found guilty beyond a reasonable doubt—the highest level of proof—of dealing 20 grams of cocaine, and the judge saying, hey, there's evidence that you dealt 10 times that amount, so you get an extra eight years.

The U.S. Supreme Court is well aware that enhancing sentences this way can be unfair, and the justices have struggled with it since 2000. That's when the court ruled 5-4 in Apprendi v. New Jersey that a New Jersey man's 10-year sentence (the maximum under state law) for shooting at a black neighbor's house could not be increased by two years just because the judge believed the crime was racially motivated. Unless the facts leading to the sentence are determined by a jury (or admitted to in a guilty plea), the court said, a judge required to impose a sentence longer than "the prescribed statutory maximum" violates the defendant's Sixth Amendment right to a jury trial.

The Supreme Court returned to the issue four years later in Blakely v. Washington. This time, the justices decided, also by a 5-4 vote, that Washington state's sentencing rules violated a kidnapper's Sixth Amendment right. Since the judge determined that the kidnapper had acted with "deliberate cruelty," the rules allowed the judge to add 37 months to the 53-month sentence. Even though 53 months was far below the "statutory maximum" of 10 years, the sentence was still unconstitutional, a conclusion that suggested the federal guidelines, which operated in a similar way, were in jeopardy.

In January 2005, the high court finally gave an answer: enhancements required by the federal guidelines also violate the right to a jury trial, but the constitutional fix is to make the guidelines optional. So a judge can use his traditional discretion to determine sentences, while consulting the guidelines, and so long as the sentences are reasonable, they won't violate the Sixth Amendment.

This is the law that Judge Walton will operate under Tuesday. He must review the guidelines, and if he believes that Libby's lies hid a probable violation of the law against outing covert agents, he can bump up the sentence to 30 months or more. The betting here is that he won't. It would give too much weight to a mere suspicion.

Still, the case is too high-profile for probation, so look for a sentence in the neighborhood of the 15 months suggested by the probation department's report. And don't expect Libby to be free on bond pending appeal. Federal judges usually don't allow that unless the bases for appeal are strong, and they don't seem to be in this case. Libby, it seems, will do time sooner rather than later — even if he doesn't do as much as Patrick Fitzgerald would like, or sentencing guidelines would allow.