Politics & Policy

Fitzgerald: O.K., Libby Wasn’t Convicted of Leaking — But Punish Him As If He Had Been

With sentencing next week, the prosecutor tries to up the ante.

During the perjury and obstruction trial of Lewis Libby, prosecutor Patrick Fitzgerald never charged, and never presented evidence, that Libby illegally disclosed the name of a covert CIA agent. But now, Fitzgerald wants Libby to be sentenced as if he had been guilty of that crime.

Libby is scheduled to face sentencing on June 5. In court papers filed last week, Fitzgerald argues that Libby should be sentenced to 30 to 37 months in jail — a relatively stiff sentence that is appropriate, Fitzgerald says, because of the seriousness of the investigation which Libby was convicted of obstructing.

During the CIA-leak probe, Fitzgerald looked into possible violations of the Intelligence Identities Protection Act and the Espionage Act. He did not charge anyone with breaking either law. But in his court filing, Fitzgerald writes that the grand jury “obtained substantial evidence indicating that one or both of the…statutes may have been violated.” Therefore, Fitzgerald is asking Judge Reggie Walton to treat Libby as if it had been proven that such crimes occurred. “Because the investigation defendant was convicted of endeavoring to obstruct focused on violations of the IIPA and the Espionage Act,” Fitzgerald continues, “the court much calculate defendant’s offense level by reference to the guidelines applicable to such violations.”

As a basis for his argument, Fitzgerald is using a common legal distinction: It’s more serious to obstruct a murder investigation than a shoplifting investigation. The problem, for Fitzgerald, is that he never proved that a crime, as defined by either the Intelligence Identities Protection Act or the Espionage Act, actually occurred. Now, he’s arguing not only that he proved a crime occurred but that Libby knowingly took part in it. The formula for calculating the sentence recommendation, Fitzgerald writes, “is designed to match the offense level to the conduct and result intended by the defendant.” [italics in the original]

Fitzgerald’s conclusion differs with the case presentencing report prepared by probation officials. Their report is not public, but Fitzgerald’s brief quotes from it. “The criminal offense would have to be established by a preponderance of the evidence,” the portion of the presentencing report quoted by Fitzgerald says, but “the defendant was neither charged nor convicted of any crime involving the leaking of Ms. Plame’s ‘covert’ status.” Therefore, probation officials argue, the more serious sentencing standards should not be applied.

Fitzgerald disagrees and at times in his argument appears irritated that Libby did not confess to a crime which Libby maintains he did not commit. “The reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson,” Fitzgerald writes, “included, but were not limited to, the fact that Mr. Libby’s false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent.”

Libby has yet to file his response to Fitzgerald’s argument. We’ll know what the judge thinks next week.

Finally, the Fitzgerald filings shed some new light on Valerie Plame Wilson’s job status at the CIA. In an exhibit attached to the sentencing memo, Fitzgerald reveals that at the time her name was published by columnist Robert Novak — July 14, 2003 — Mrs. Wilson was moving into an administrative position at CIA headquarters. “In August 2003, Ms. Wilson was assigned to a senior personnel position in CPD [Counterproliferation Division], where she supervised staffing, recruiting, and training for CPD,” the document says. “She had been selected for this position prior to the leak.”

Another exhibit included by Fitzgerald is the transcript of Mrs. Wilson’s March appearance before the House Committee on Oversight and Government Reform. The accuracy of parts of her testimony — specifically, her denial that she recommended or suggested her husband for the mission to Niger — has been challenged recently by Senate Intelligence Committee vice chairman Sen. Christopher Bond.

Byron York is a former White House correspondent for National Review.

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