I've been discussing the indictment with fellow defense attorneys and prosecutors and thought I would share a few observations. At the outset, all agree that there is no more staunch defender of civil liberties than an indicted Republican. That said, there are some issues with this Indictment that bear scrutiny. First, sentencing. No matter what the media say about "maximum sentence." The truly relevant sentence is the Sentencing Guidelines. True, the Supreme Court held that they were not "mandatory" any more, but still they are advisory and judges have to justify departure. In this case, a rough guidelines calculation indicates that the base offense level is probably 17.
Since Libby has no criminal history. He's at level I. The sentencing table puts Level 17, Criminal History I at 24-30 months. http://www.ussc.gov/...
More below.
Forgive me if this sounds mechanical, it is. That's why many defense attorneys and judges hate the guidelines. You get 14 points for obstruction of justice, plus 3 points if it seriously impeded a criminal investigation; perjury is similar.
http://www.ussc.gov/...
Defense attorneys will argue for various "downward departures" or the prosecutor will argue for various "upward departures" or "adjustments." In particular, if he pleads guilty he gets 2 points off, http://www.ussc.gov/... for Level 15, or down to 18-24 months. The prosecutor may argue upward such as abuse of a position of trust, add 2 points http://www.ussc.gov/... or less likely that the victim was a government official, add 3 points. http://www.ussc.gov/... (this might not apply since the victim of perjury is not Valerie Plame but the court system). If he went to trial, and both these upward adjustments applied, he would be at Level 22, 41-51 months.
But that's the starting point 18-24 months up to 41-51 months not 20-30 years. The multiple offenses are all part of the same course of conduct, so they will be concurrent, that is served at the same time, not added on.
The guidelines for revealing a covert agent's identity are much higher. The Base Level is 30 instead of 17. http://www.ussc.gov/... You start at 97-121 months. http://www.ussc.gov/...
The best way for a defendant to "depart downward" is to cooperate and get the prosecutor to make a recommendation for "substantial assistance". http://www.ussc.gov/... This may well result in cutting the time in half.
But DC Pol Sci has good arguments in his diary why it may be as high as Level 24 for 78-108 months.
http://www.dailykos.com/story/2005/10/29/132531/73
Second, the Indictment. The Indictment is strange for a number of reasons. The strangeness may suggest that a superceding indictment is imminent, or that it was issued for some reason other than for prosecution. It would make little sense for Fitzgerald to go to trial on this Indictment, for several reasons: (A) The perjury charges are charged in a very unorthodox manner. They list chunks of testimony and fail to make clear exactly what testimony was false and in what way. There may be several false statements in each count. This raises a problem known as "multiplicity" it fails to give sufficient notice to the defendant of the charges; if fails to tell the defendant exactly what he is charged with lying about. If it went to a jury like this, it could raise a problem with his right to a unanimous verdict, because some jurors might conclude that some portions are false, while other jurors might conclude other portions are false. A Motion to dismiss these charges on these grounds should be granted, which would force a superceding indictment.
(B) The false statement charges are based upon oral statements to the FBI. Usually such charges are brought based upon a clear written statement submitted by the defendant. In the case of an oral statement, it gets into a he said, she said problem, with the defendant claiming that the FBI agent got it wrong. For strange policy reasons, the FBI almost never tapes its interviews. Also, Libby's lawyer was with him. This makes Libby's lawyer a witness (and probably would result in a different lawyer trying the case) and also gives Libby a second witness loyal to him who could protest the FBI's version.
(C) This leaves the only solid charge the obstruction of justice charge. Not particularly a darling charge in the prosecutors arsenal.
Perhaps this is indictment is a knuckleball as Gadfly at Booman suggested http://www.boomantribune.com/... . Perhaps Fitz is letting Libby know that he can take a deal on the obstruction charges and cooperate and get a real sweetheart deal, or Fitz will supercede with a charge of revealing a covert agent's identity which would mean substantial time in prison. As for Rove, Fitz may be playing him the same way. There appears to be more to come.