Dissecting the key guideline calculation in the Libby sentencing
Though talk is already turning to pardons in the wake of Lewis Libby’s sentencing, I am very pleased to see that Edward Lazarus in this very effective FindLaw column is looking more closely at the key guideline determination that led Judge Walton to give Libby a sentencing of 30 months. Here are snippets from the column:
Amid the[] politically-driven reactions, it is worth pausing to consider the Sentencing Guidelines calculation that led to Libby’s sentence. When the issue is viewed through this admittedly narrow and incomplete prism, I would argue that Libby’s 30-month sentence is justifiable, but that a more lenient outcome would also have been appropriate….
Under the Guidelines, the offense severity for someone convicted of perjury or obstruction is the greater of either the severity rating for generic perjury/obstruction, or the severity rating of the offense being lied about or covered up. In essence, the Guidelines treat someone guilty of perjury or obstruction as an accessory after the fact to the offense underlying the lies and obstruction. Some thoughtful commentators have started complaining about the fairness of this approach. But as a general matter, it makes very good sense. Not all lies are created equal. The reason for the lie ought to matter….
Moving from the general to the specific, Libby’s case presents a close question for whether cross-referencing the underlying offense being investigated, for purposes of Guidelines calculations, makes sense. Here, Libby himself was not charged with violating the IIPA or the Espionage Act and, perhaps even more important, neither was anyone else. A reasonable argument can be made that cross-referencing doesn’t make much sense when it may well be the case that no one actually committed the crimes being investigated.
Is it really fair, after all, to up Libby’s punishment for obstructing an investigation in which there was no underlying crime charged (or perhaps even committed)?
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