Monday, June 11, 2007

Special pleading

by Capt Fogg

William Otis writing in Sunday's Washington Post suggests that Scooter Libby's sentence of 30 months and $250,000 is excessive and should be commuted. It's only a "process crime" says he, meaning that Libby did nothing illegal until after the government initiated its investigation. That's the nature of Perjury.

Otis is a former federal prosecutor and member of the Attorney General's Advisory Committee on Sentencing Guidelines and special counsel for the first President Bush, so I have at least give the man some credit for not talking off the top of his head, but how this recommendation will fly in a country obsessed with "zero tolerance" and trying children as adults and giving draconian sentences for minor and consensual crimes, I do not know. I do however recall the protracted, expensive and divisive effort to prosecute Bill Clinton for lying about something irrelevant to anything he was being tried for. The acts concerning which Libby committed perjury had nothing to do with sex and Otis points out that they were non-violent and not "drug related." In addition he thought he was serving his country by putting loyalty to the Bush administration above loyalty to the people and constitution of the United States. The crowning argument for commutation is that Sandy Berger, a Democrat, only got a fine for copying classified documents.

I'm not a lawyer or a Republican, so I'm a bit confused as to why 10 years for having too much marijuana is not excessive or 50, 60 or 70 years for pornography possession is not excessive when 30 months for perjury is too much. Holding government officials to a higher standard wasn't considered so terrible during the 1990's, was it? He's not what most people would think of as a criminal, says Mr. Otis, but I disagree. Our jails are filled with non-violent people who have harmed no-one. I submit that Libby supported people who have harmed the world and when Otis says that

"A partial commutation would send the message that we insist on being truthful, but in the name of a justice that still cares about individual circumstances, we will not insist on being vindictive"

I would believe him if it weren't that our mandatory sentencing policies in the US are designed not to take into account individual circumstances and vindictiveness rules to the point of killing people. About this he says nothing.

And lastly, citing an anecdote about Sandy Berger as evidence for political bias in sentencing serves as well to point out that Otis once again says nothing about the legendary capriciousness of criminal courts in handing down sentences that reflect prejudice and thirst for vengeance. His plea is not for universal and consistent justice, but to diminish Libby's offenses.

Otis may be a lawyer and thus used to pleading a case rather than arguing it logically, but if it were up to me, I would Lock up Libby and sentence Otis to being ignored.

(Cross posted in Human Voices)

Labels: ,

Bookmark and Share


  • Two reactions, sir:
    (1) I don't know from Otis' writing here, specifically about Libby, how he comes down on the issue of harsh sentencing in general. Maybe you do, and if he is generally on the side of "tougher" or draconian (to use your word) then you have a valid point about his being inconsistent. Otherwise, I don't think so.

    (2) The Berger case is very much more relevant as a comparator than are the cases involving pot or sex; Berger lied to investigators, did he not, and he DID, in a planful way, remove classified documents -- so we are dealing with security issues as we were in the Libby instance.

    I think there is a glaring discrepancy between Berger's outcome and Libby's. Libby is being treated like Martha Stewart. Berger wasn't.

    Either Libby should have gotten community service or Berger should have spent some time in the hoosegow. That's how I see it.

    As for Clinton, well .... that's a whole 'nother thing requiring much greater commentary.

    By Anonymous Anonymous, at 11:58 AM  

  • Somehow when I came home from school with a bad report card, my parents never were impressed by hearing that some other kids got worse ones, nor is the traffic cop ever persuaded by the information that other people were driving faster than you. One has also to remember that the results of each man's actions differ not only in context of a larger agenda but in the results of that larger agenda.

    I don't think the sentence was out of line for a public official abusing public trust in a situation that involved promoting a deadly war based on lies and forgeries and slanders. It's a bit more of a "security issue" to conspire to protect an administration violating its oath of office. than to copy documents in my opinion and apparently the court agrees. How many hundreds of thousands have died because of Berger?

    The Sandy Berger case is a distraction, not an argument and by making specific reference to the fact that Libby's crime did not involve drugs I'm allowed to infer that he considers marijuana use to merit the decades of incarceration that often accompany it while collaborating in sabotaging the United States does not.

    Judge Walton seems to have made the same point as I did in response to the Amicus brief filed on behalf of Libby, commenting on the slim odds that these noble counselors will be doing the same for clients lacking the means to obtain leniency.

    By Blogger Capt. Fogg, at 1:10 PM  

  • I will go along with your opinion that perjury should be punished with jail time, though I still think community service would have been more beneficial to all concerned.

    But I cannot see how the Berger matter can be dismissed as inconsequential. I've read a lot about it, and read the actual committee reports and related government documents on line. When you say he "copied" classified material, you seriously understate what he actually did, by his own admission, which includes concealing them off-site, and destroying them Because he was unsupervised for long periods of time over a period of days, and was given boxes of "original material" that had not been copied or even cataloged at the detail level, we'll probably not know what's gone missing for a good long while, if ever.

    I think it is a very big deal that Berger essentially was handed a "get out of jail free" card for doing something that would get virtually anyone else SERIOUS jail time were they to do the same.

    Really, you don't see a discrepancy here?

    By Anonymous Anonymous, at 3:08 PM  

  • I haven't argued for leniency in Berger's case. Perhaps he did get off easy, but I can't believe that that argues for letting Libby off the hook. I see Libby as an accessory to a much greater crime than perjury or obstruction of justice.

    Think of Al Capone. Another man might have got a lighter sentence for tax evasion, but you can't compare Al's effect on the world with some yutz simply not reporting his income correctly.

    By Blogger Capt. Fogg, at 3:45 PM  

  • Well, we're going far afield with comparisons to Al Capone. Scooter Libby was a pawn in a larger game and got outmaneuvered, and sacrificed as it turns out. I'm sure the same thing happened to Capone's henchmen from time to time.

    As I said, I'll just differ with you about the sentence of Libby being a bit harsh, or not harsh. It's debatable and I am not a lawyer or a sentencing expert.

    But I do have logical thinking powers and I CAN put two things on the table in front of me and form a pretty good opinion about whether they are harmonious or "out of synch". The Berger verdict, and the failure to even administer the polygraph exam that was specified in the plea agreement, that's discordant with what happened to Libby.

    Berger was duplicitous, took advantage of his special status, knowingly violated a law that is very clear, and hindered the investigation of an important Congressional Committee. He gave up his law license rather than face any more questioning about his actions and motives. He seems to me to be a reprehensible obstructor of a formal government proceding destroying evidence material to a Congressional inquiry into national security matters.

    Basically, he thumbed his nose at the law and Clinton chuckled about it, passed it off as a funny little quirk of Berger's personality. Considering his role in the Clinton administration, I think Berger's actions indicate serious character flaws and unfitness for high level government service --- or any government service for that matter. One wonders what kind of stuff this "yutz" was pulling in service to the Clinton administration while on the job a few years ago.

    I read commentary on line from low-level military and security personnel who handled top secret information, and to a person they were "blown away" by the Berger outcome. Ten years in Leavenworth was what they were saying, had they done what he did. A small fine? Doesn't cut it with me.

    I can understand how someone might think what Berger did was petty, considering what aspects and pronouncements were reported widely at the time. But, believe me, the bigger story got put into fine print on the back page if it was reported at all. There are some uncovered layers to this onion, methinks.

    By Anonymous Anonymous, at 9:08 PM  

  • There are always layers, but I have to reiterate that a comparison to one other case is statistically meaningless if you're trying to use it to place the Libby case in real perspective. You have to look at all similar cases, not the one that suits your argument. I also don't think you got the point I was trying to make about Capone and Libby. Sometimes a sentence is harsh because it's all you can get the man on and sometimes it should be harsh because of the fact that he's a government official, not an ex employee.

    By Blogger Capt. Fogg, at 2:30 PM  

Post a Comment

<< Home