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Sentencing Law and Policy
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Could Libby’s decision not to testify now result in an obstruction-of-justice enhancement?

By Douglas Berman

After seeing this AP article about today’s developments in the trial of Lewis Libby, I can’t help spotting an interesting potential sentencing issue.  Here is the background:

Defense attorneys misled the court into thinking that former White House aide I. Lewis “Scooter” Libby would testify in his CIA leak trial, a federal judge said Wednesday, as he blocked Libby from using some classified evidence in the case….

When defense attorneys abruptly announced Wednesday that Libby no longer planned to testify, … Fitzgerald said that jurors hearing the case therefore should not be given a prewritten statement about Libby’s briefings.  US District Judge Reggie Walton agreed, and reversed an earlier ruling that the evidence could be admitted. “My absolute understanding was that Mr. Libby was going to testify,” the judge said. “My ruling was based on the fact that he was going to testify.”

Walton appeared upset and seemed to stake his reputation on the decision.  Libby’s attorneys indicated they would appeal the decision if Libby is convicted.  “If that’s what the Supreme Court is going to say (in any ruling on an appeal), they might as well say the government’s not entitled to a fair trial and the defendant is,” Walton said. “I think both sides are entitled to a fair trial. If I get reversed on that, maybe I need to hang up my spurs.”

Beyond the general worry about upseting the judge who’ll sentence after any conviction, the Libby defense team perhaps also should ponder whether the sentencing enhancement of USSG § 3C1.1 (“Obstructing or Impeding the Administration of Justice”) might now be applicable if Judge Walton now believes he was willfully misled.  The great irony here, of course, is that the guidelines’ obstruction enhancement is often applied when a federal defendant decided to testify, asserts innocence, but still gets convicted.  Here, it seems, Libby maybe could be stung with an obstruction enhancement for the way he decided not to testify.