Doc 358 - NOT an OCR Job
See also Libby Opposition to Government Memorandum of Law [Doc 357]
This filing is not at all what I expected, and at first glance, it comes off as a form of contrition. As for Doc 357, Libby has the better argument (by far) - Fitzgerald's naked assertions are overreaching and come off as vindictive. All in all, a good strategy by Libby defense at the sentencing stage, to face an overreaching prosecution (overreaching in multiple regards - IIPA violation, my butt; costs to the government for pressing the issue of press privilege) while not denying the seriousness of his conviction, and not challenging the propriety of the perjury investigation as being politically motivated.
Judge Walton still has this tiger by the tail.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA ) ) v. ) CR. NO. 05-394 (RBW) ) I. LEWIS LIBBY, ) also known as "Scooter Libby," ) Defendant. ) SENTENCING MEMORANDUM ON BEHALF OF I. LEWIS LIBBY Defendant I. Lewis Libby, through his counsel, respectfully submits this memorandum in aid of sentencing. The sentencing hearing is scheduled for Tuesday, June 5, 2007 at 9:30 a.m. Introduction Distinguished public servant. Generous mentor. Selfless friend. Devoted father. This is the rich portrait of Mr. Libby that emerges from the descriptions of him in the more than 160 heartfelt letters submitted to the Court on his behalf. The letter writers, who range from administrative assistants to admirals, neighborhood friends to former colleagues, Democrats to Republicans, bear witness to Mr. Libby's character and patriotism. As detailed below, Mr. Libby's accomplishments in the State Department, the Defense Department, and the Office of the Vice President demonstrate his extraordinary commitment to public service. His dedication to promoting freedom abroad and keeping American citizens safe at home is beyond question. Mr. Libby has also earned a reputation for treating people fairly and kindly and comforting those who are distressed. He has avoided the Washington limelight to focus on nurturing his young children. Even those who disagree vociferously with policies he supported while serving in the government believe his conviction is not characteristic of the life he has led. On the unique facts of this case, and the unique contributions of this man, we believe that under 18 U.S.C. § 3553, a non-Guidelines sentence of probation is warranted. I. The Applicable Sentencing Standard Following United States v. Booker, 125 S. Ct. 738 (2005), the Court must impose a sentence in accordance with 18 U.S.C. § 3553(a), and should no longer presume that a sentence calculated pursuant to the United States Sentencing Guidelines is appropriate. United States v. Pickett, 475 F.3d 1347, 1353 (D.C. Cir. 2007). Indeed, the correctly calculated Guidelines range is but one factor for the Court to consider in imposing sentence. Most significantly, the Court must impose a sentence "sufficient, but not greater than necessary" to comply with the purposes of punishment set forth in 18 U.S.C. § 3553(a)(2). See also United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir. 2006) ("district court's job is not to impose a `reasonable' sentence [but] to impose `a sentence sufficient, but not greater than necessary, to comply with the purposes' of section 3553(a)(2)"); United States v. Tucker, 473 F.3d 556, 561 (4th Cir. 2007) (same); United States v. Willis, 479 F.Supp.2d 927, 929 (E.D. Wis. 2007) (explaining that "the so-called parsimony provision . . . directs the court to impose the minimum term necessary to comply with the statutory goals of sentencing"). Those purposes include the need "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense"; "to afford adequate deterrence to criminal conduct"; and "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a)(2)(A), (B) and (C). 2 Pursuant to § 3553(a), courts must also consider a number of other factors, including "the nature and circumstances of the offense and the history and characteristics of the defendant"; "the kinds of sentences available"; and the Guidelines. Id. at § 3553(a)(1), (3), and (4); see also United States v. Simpson, 430 F.3d 1177, 1186 (D.C. Cir. 2005). Under this new sentencing regime, a court should consider all of the relevant sentencing factors, giving no more weight to one factor than to any other factor. The focus of the new regime is thus a sentence based on the whole person before the sentencing court, rather than simply the version of the person reflected in the numbers and grids of the Guidelines. Here, that focus means that we respectfully urge the Court to sentence Mr. Libby on the basis of the portrait of him presented in the Presentence Investigation Report ("PSR") and in the letters submitted on his behalf, rather than on the basis of some incomplete or distorted picture. The Probation Office calculated the applicable Guidelines range at 15-21 months and identified several grounds for downward departure from that range. As discussed more fully below (and in a separate memorandum of law addressing Guidelines issues filed today)1, we believe that the Probation Office's calculations are correct and the grounds for downward departure well supported. Full consideration of the other factors outlined in § 3553(a), including the fundamental command that the sentence be sufficient, but not greater than necessary to serve the purposes of punishment, makes clear that a sentence of probation is warranted here. 1 In that Memorandum, we address the government's requests for certain sentencing enhancements. Where relevant to those Guidelines arguments, we have addressed the government's allegations about the record in this case. Because they have no relevance to this proceeding, we have not in either brief responded to the government's arguments defending their charging decisions and conduct of the investigation. 3 II. Mr. Libby's Personal and Professional History Support A Sentence of Probation Under § 3553(a)(1), in sentencing Mr. Libby the Court must consider his "history and characteristics." We have submitted over 160 letters from a comprehensive cross-section of people who know Mr. Libby, all attesting to Mr. Libby's decency, work ethic, and "quiet patriotism." The letter writers come from many different periods in Mr. Libby's life and from across the political spectrum. They are conservatives and liberals; career public servants and people working in journalism, medicine, and law; professional mentors and pro bono clients. They run the gamut from four-star generals and admirals to non-commissioned officers; renowned professors and cabinet officials to secretaries, law firm associates, and junior staffers. Mr. Libby has touched all of these people's lives, and we rely on their letters to show what he is truly like. We urge the Court to consider the letters for what they are: powerful evidence of mitigation supporting a sentence of probation.2 A. Mr. Libby Has Made Great Contributions to the Public Interest After graduating from law school in 1975, Mr. Libby worked in private practice until 1981, when he first entered government service with the State Department. He initially served as a speechwriter on the Policy Planning Staff, and then moved into positions in the Bureau of East Asian and Pacific Affairs. His work included, for example, contributing to the policies that helped bring an end to the Marcos dictatorship in the Philippines and fostered the creation of a democratic government in that country. 2 The letters have been provided to the Court by the Probation Office in connection with the Presentence Investigation Report ("PSR"). Out of respect for the writers' privacy, we do not identify individual letter writers by name here. 4 One of Mr. Libby's former State Department colleagues remembers him from that time period: Scooter was deeply committed to public service and very much of a team player. It was not just that he worked well with me; he worked well with everyone. His sense of humor, often self-deprecating, won him many friends.. He was never dogmatic, even if he had strong viewpoints. He kept confidences and he always offered good advice. If I was inclined toward an impetuous action, he would gently talk me into thinking about what I had in mind and how best to act on it. He is someone I came to trust and who I felt could always be counted on. In 1985, at the end of his tenure at the State Department, Mr. Libby won the Department's Foreign Affairs Award for Public Service. When he returned to private practice, he dedicated substantial time to public interest matters, including pro bono assistance on a study regarding the reorganization of Pentagon bureaucracy. Mr. Libby was called to government service again in 1989, this time for the Defense Department, and he was subsequently confirmed by the Senate as Deputy Under Secretary of Defense for Policy. According to one of his former Pentagon colleagues, Mr. Libby "stood out as a true and dedicated professional who placed the nation's interests first, above those of party politics or self-advancement. His concern was for the good of the country." Another former colleague and career civil servant writes: Scooter greatly impressed me by his determination to fully understand for himself, and convey to his superiors, the complexity and details of the issues. He did not stand on rank or ceremony. His focus was relentlessly substantive, and he pored over analytical reports in a way that I do not believe is common in busy, high level political appointees. He educated himself about technical, military issues previously unfamiliar to him. He was forthright about what he knew, and eager to learn from the knowledge of others. I believe his performance exemplified the very highest standards of government service. 5 A retired vice admiral who worked with Mr. Libby recalls that during these years, Scooter was at the center of the storm a trusted advisor as we worked through the liberation of Panama, a crisis in the Philippines, the fall of the Berlin wall and . . . Operations Desert Shield/Storm (Gulf War I). When we worked late nights or even all night Scooter was likely to be there. . . . Scooter's counsel was routinely sought, respected and taken. Another retired admiral recalls that Mr. Libby's efforts "were central to our success in the [Gulf] war. Prime examples were his role in helping plan the `left hook' into Southern Iraq from Kuwait, the truly effective bio-defense posture of the United States military and his untiring efforts to gain funding from allies. . . ." As described below, Mr. Libby would continue to develop his expertise in bio-defense, and this knowledge became particularly critical after the 9/11 terrorist attacks. While at the Pentagon, Mr. Libby also helped to bring stability and democracy to Eastern Europe at the end of the Cold War. A former civilian military leader remembers, "I grew to admire his intellect and his wisdom during that remarkable period in which the Soviet empire, and ultimately the Soviet Union itself, disintegrated a period in which both Scooter and I played important roles." For example, in the words of another former Pentagon colleague, "[n]ot only did he oversee important reductions in the nuclear arsenals of Russia and the United States, but his patience, persistence, and ability to listen to all sides were critical qualities in brokering a key agreement with Ukraine one in which that country agreed to get rid of its arsenal of nuclear weapons." According to a retired colonel, Mr. Libby "worked tirelessly" to assist "the people of Eastern Europe and the Soviet Union who were at the beginning of their emancipation 6 from tyranny. In meetings with senior officials in the Soviet Union, Hungary, Poland, and elsewhere he was a strong advocate for the rule of law, civilian control of the military, and respect for human rights." Without Mr. Libby's leadership in building alliances with former Eastern Bloc countries, writes one admiral, he "could not have fully succeeded as Commander in Chief of Allied Forces Southern Europe in Bosnia and with the `Partnership for Peace Alliance' under NATO." A former top official in the State Department and the State Department recalls that Mr. Libby "made decisive contributions to the development of our first post-Cold War defense strategy a shift that made possible a nearly 40% reduction in spending and force levels and played a leadership role in developing entirely new relationships with . . . the former Warsaw Pact countries." In 1993, at the end of his service at the Pentagon, Mr. Libby won the Department of Defense Distinguished Service Award and the Department of the Navy Distinguished Public Service Award. From 1993 through 2001, Mr. Libby again worked in private legal practice. During this time, he was asked to serve as the managing partner of the Washington, D.C., offices of two separate law firms (first, Mudge, Rose, Guthrie, Alexander & Ferdon; then, Dechert, Price & Rhodes). Although he became a busy and successful attorney in Washington, Mr. Libby's commitment to the public interest never waned. He devoted considerable time to pro bono projects, many of which concerned national security. For example, after he left the Pentagon, Mr. Libby volunteered repeatedly to help train young policy analysts in the Defense Department's annual Summer Study program at the Naval War College in Newport, Rhode Island. In 1998, 7 Mr. Libby served, practically on a full time basis for over half the year, as the Legal Advisor to the House Select Committee on National Security, known as the Cox Committee, which uncovered the theft of U.S. military secrets (including nuclear weapons technology) by the People's Republic of China. According to the Chairman of the Committee, Scooter's service . . . was twofold. First, he shared his considerable talents and expertise largely pro bono. Second, having been hired with the approval of both the Democratic and Republican leaders of the committee, he worked very hard to ensure that the committee's work was conducted entirely on a bipartisan basis. The committee's unanimous report to the Congress was in part a reflection of the bipartisan spirit of dedication to the nation's interests that he brought to his work as Legal Advisor. From 1999 to 2000, Mr. Libby led a pro bono project for the Center for Strategic and International Studies, a bipartisan research organization, which focused on the laws that would apply in the aftermath of a domestic biological weapon attack. In the wake of the 9/11 attacks, Congress found this scholarship particularly useful when crafting new legislation to help cities, hospitals and EMR personnel respond to chemical or biological attacks. In the late 1990s, Mr. Libby also served on the Board of Advisers of the Center on Russian and Eurasian Studies of the RAND Corporation, and on the ABA Standing Committee on Law and National Security. In addition, he informally advised professors and think tanks on a variety of national security issues, ranging from the rise of China to the conflict in the Balkans to U.S. defense budgets. Mr. Libby did not focus his commitment to pro bono activities entirely on issues of public policy. Throughout his career in private practice, Mr. Libby frequently 8 represented individuals for little or no compensation, including active or former government officials who found themselves embroiled in ethical or regulatory inquiries. Such individuals often had limited financial means (because they were career civil servants) and found themselves overwhelmed by the situations they faced. A former staffer in the Office of the Vice President ("OVP"), who also worked in private practice with Mr. Libby, recalls that he built a reputation among government employees "as someone to go to in times of need. Whether it was straightening out a regulatory matter related to travel receipts or advising someone's transition to the private sector, Scooter took special care to treat these clients as well as the largest corporations." A former colleague and national security professional reports that "[in] several instances that I am aware of, Mr. Libby devoted many hours over many months to these cases and his counsel was instrumental in sparing innocent people from what might otherwise have been completely undeserved but very onerous consequences." One such former pro bono client writes: Scooter acted as my counsel when I worked in the White House and was being investigated for a possible leak of classified information to a national newspaper. The unfounded charge would have ruined me professionally and fighting it would have potentially ruined me financially. With no hesitation, and like the good friend he is, Scooter provided pro bono advice and assistance that ultimately led to my regaining a security clearance and saving my career in national security. Mr. Libby also donated his time to individuals and organizations outside the U.S. government. These pro bono projects included representing the Corporation for Public Broadcasting, helping to establish an overseas school for handicapped children, and assisting the Holocaust Museum. And Mr. Libby has represented individuals who 9 worked outside the government. In one case, he helped a Vietnam veteran obtain an endorsement deal for prosthetic limbs, and in another he represented a housekeeper who had been held against her will by her employer. In addition, Mr. Libby served on the board of advisors for Freedom House, a non-partisan organization established by Eleanor Roosevelt and Wendell Wilkie that promotes democracy and human rights. Keenly aware of the importance of public service, Mr. Libby also encouraged his colleagues to take on pro bono matters and accept positions in the government, as several letter writers have noted. In 2001, Mr. Libby was called to serve his country for a third time, and he became the Chief of Staff and the National Security Advisor to the Vice President. As numerous letters indicate, Mr. Libby did not seek high office for partisan purposes or for personal aggrandizement, and he was most comfortable toiling behind the scenes, out of the public eye. One high school friend and former journalist describes Mr. Libby as a "policy wonk." A former diplomat reports: "Scooter was not a political partisan, or actually `political' in any sense commonly used." Similarly, according to a former Pentagon colleague, Mr. Libby never acted out of "partisan animus, much less the sort of vengefulness attributed to him in the press." Another friend recalls his conversations with Mr. Libby about public service as "captur[ing] Scooter's utter lack of interest in hard-edged partisanship." When called upon in 2001, Mr. Libby returned to government service to work for the Vice President for the same reasons that he encouraged this friend to take a high-ranking position in the State Department during the Clinton administration: because "the matter had nothing to do with Washington partisanship and everything to do with duty." According to this friend, Mr. Libby believes that "when you're offered a 10 position [in government] of . . . significance and you believe you can do the job well the presumption ought to be that you'll take it." This description of Mr. Libby's sense of duty is echoed throughout the letters submitted on his behalf. For example, one writer explains that Mr. Libby sacrificed time with his family because "of a belief in public service not out of some great ambition for visibility." And an economic analyst who has known Mr. Libby for over thirty years describes Mr. Libby as "an understated, undemonstrative man, but his love for and devotion to America is palpable to anyone who has worked with him. It is his quiet patriotism, rather than careerism in even the slightest degree, that has motivated his public service and the serious, principled, and selfless manner in which he has conducted himself." In the OVP, Mr. Libby combined his talent for managing a large group of professionals (he supervised over 80 staffers) and his expertise in military and foreign policy analysis and policy-making. John Hannah, who succeeded Mr. Libby as the Vice President's National Security Advisor, testified at trial that Mr. Libby essentially held two full-time jobs, and that he (Hannah) found holding just one of them to be "very challenging," even "overwhelming." Feb. 13, 2007 Trial Tr. at 36-37.3 A former OVP deputy recalls: During my time in Washington I never met anyone who worked longer hours, had a broader range of responsibilities, or was more serious about fulfilling them than Mr. Libby. . . . [I]n all of my dealings with him, I always found Mr. Libby to be exceptionally thoughtful and open-minded. Far from being an ideologue, . . . Mr. Libby 3 Mr. Libby also held the position of Assistant to the President, which required him to perform additional domestic and national security duties. 11 was genuinely interested in ideas and in hearing a variety of arguments and points of view. Not surprisingly, Mr. Libby's job became even more taxing after the 9/11 terrorist attacks. Mr. Libby's former colleagues in the OVP believe that after those attacks, he drove himself "relentlessly," even "mercilessly." The Vice President's White House physician comments that during this time period, "[t]he stress was continuous and intense. . . . I can tell you for certain that Mr. Libby worked himself to exhaustion day after day. This is a testimony to his devotion to our nation and the Vice President." Despite his fatigue, Mr. Libby led by example. According to a former OVP staffer: "It was Scooter's work ethic, steadiness and commitment in the days, months and years following 9-11 that most inspired me and has taught me the definition of true leadership in the face of adversity." As the Court is well aware, while he served in the OVP, Mr. Libby began most mornings by participating in a CIA briefing with the Vice President, and spent much of the rest of the day in meetings on national security issues, including meetings of the National Security Council. His counsel was respected by senior participants in those meetings, who were grappling with new threats to national defense and great uncertainty. According to a former Chairman of the Joint Chiefs of Staff, [Scooter] brought clarity and innovation to our discussions, qualities that are refreshing and so needed in a large bureaucracy. On many occasions he would seek me out before or after a meeting to get my advice on military matters or ask me further questions. Scooter's dedication to the nation's security and his thoughtfulness were evident . . . . I always came away from our encounters thinking how lucky the country was to have someone of his caliber helping think through the great security challenges we all faced. A former professor and high-ranking government official writes: 12 During these years at the White House, I encountered no one more driven by analytical temperament, firmness of mind and sound policy reasoning than Scooter Libby. ... He was always at the center of the policy debates, quietly courteous, powerfully analytical, attentive to the views of others, including those who disagreed with him and striving to protect the United States and its democratic institutions from terrible and abiding external threats. In sum, Mr. Libby in my judgment has been over the decades an exemplary public policy practitioner of the kind I sought to develop among students during my 14 years as a Dean and Professor at Harvard's Kennedy School of Government. Mr. Libby devoted long hours to, among other things, addressing threats from terrorist groups such as Al Qaeda, trying to stabilize the situation in Iraq, and monitoring developments in Iran and North Korea. We will not rehash Mr. Libby's national security duties here. Nevertheless, we emphasize that preventing another terrorist strike on American soil was Mr. Libby's number one objective. According to a former OVP deputy, "I saw first-hand his deep commitment to do everything humanly possible to prevent another terrorist attack." Applying the experience he had been developing for more than a decade, Mr. Libby focused in particular on protecting the nation against mass casualty attacks using weapons of mass destruction. For example, he rang the alarm concerning the nation's failure to develop and stockpile adequate countermeasures against bioterror threats such as anthrax, smallpox, botulism, and the Ebola virus. A former OVP deputy reports that Mr. Libby was motivated by an extraordinary commitment to protecting the nation from terrorist attacks, and particularly those that might involve mass casualties from nuclear, chemical or biological weapons. His knowledge and expertise in these matters predisposed him to raise concerns and possible scenarios that others had simply overlooked, 13 particularly in the areas of transportation security and bio- defense. Mr. Libby successfully advocated legislation for Project Biowatch (which provides for early detection of biological aerosol attacks) and Project Bioshield (which lends Federal support to the development of medical countermeasures against biological attacks). A senior official at the National Institutes of Health and renowned expert in the field writes, "I do not believe that we would have had the Bioshield legislation or several of the countermeasures that we now have in the Strategic National Stockpile were it not for the tireless efforts of Mr. Libby." And an OVP staffer reports that due in large part to Mr. Libby's urging, "the nation's ability to detect and respond to the covert introduction of fissile material" was strengthened "through the creation of the Domestic Nuclear Detection Office in the Department of Homeland Security." By stiffening our defenses, these efforts serve to discourage attacks on America, and may yet save the lives of tens of thousands of Americans. B. Mr. Libby Has Demonstrated Strong Moral Character Several additional themes leap out from the many letters submitted on Mr. Libby's behalf. Mr. Libby is known for being fair and generous, particularly by the people who have worked with him. For example, he has mentored countless young professionals in Washington. Letter after letter portrays Mr. Libby as uncommonly kind and unselfish, as someone who constantly looks to help others. And Mr. Libby is regularly described as a modest, genuine man who treats everyone with respect. As numerous letters show, Mr. Libby's friends and former colleagues were stunned by his indictment and saddened and perplexed by his conviction. Indeed, even people who are not particularly close to Mr. Libby are bewildered by this sad turn of 14 events. This is evidence that the crimes for which he was convicted represent an aberration in an otherwise upstanding life. 1. Mr. Libby Is Known For His Fairness and Generosity Mr. Libby was known as a great boss, both in private practice and the public sector. Commenting on Mr. Libby's appointment as managing partner of two different law offices, a former colleague noted that such organizations "are notorious for being difficult to manage. In my mind, Scooter gain[ed] the respect of this prickly group of people partly due to his terrific skills and talents, but in no small measure also due to the sense of fairness that imbues all of his actions." Indeed, one of Mr. Libby's former law partners reports that he was appointed to lead Dechert's Washington office "because we saw in him a man of character who would give his time and attention to creating an environment that would allow others to succeed." In a similar vein, a lawyer who worked for Mr. Libby as an associate remembers: Scooter consistently helped other lawyers without their even knowing that they benefited from his generosity (Scooter was too modest to tell anyone what he did for them, and he was not the type of person who sought praise for his good deeds). For example, I recall several instances in which Scooter brought in a new client or matter to the law firm and gave the "credit" in registering the client or matter to another lawyer in order to build the other lawyer's practice. He did this to his own financial detriment. Numerous letters refer to Mr. Libby's support for young professionals in Washington. He took a personal interest in their careers, supporting their work and enabling them to excel. A former State Department colleague writes: I have had many occasions to observe and admire Mr. Libby's interest in identifying talented and independent-minded young professionals and helping to launch them on promising scholarly, legal, or governmental careers. To my personal knowledge, he has unselfishly 15 mentored dozens of individuals who have become stars in their respective fields and has done so with total disregard for their race, gender, or political or ideological persuasion. A former Defense Department and OVP colleague recalls that although "we were at different levels and in different parts of the Undersecretary for Policy's operation, Scooter went out of his way to help a junior colleague survive and succeed in what was then a challenging and sometimes hostile environment for a 30 year old single woman." Similarly, a former OVP staffer reports: It is with . . . compassion that Scooter took me under his wing and mentored me. As a mentor, Scooter tested me, showed me how to work in the complex governmental system and taught me how to think about problems and ask the right questions to ensure that I obtained the most accurate and complete information. . . . [He] has inspired me to pursue a career as a public servant. Mr. Libby's interest in the careers of his mentees continues long after they have stopped working with him. Another former OVP staffer writes that her relationship with Scooter and his family lives on today. "He has a genuine interest in my success personally and professionally. Whether it's over dinner at his family's home, or in a phone call or email to check in, Scooter is the kind of person everyone wants to have as a friend or a boss." Finally, Mr. Libby is committed to equal opportunity. According to one of his former OVP deputies, when Mr. Libby assembled the OVP staff, "he was focused on not only hiring the most highly qualified people, but also providing opportunities for women and minorities as well. . . . At one point, I recall that seven out of twelve senior staffers were women." A former OVP senior staffer recalls that Mr. Libby urged the administration to engage 16 leaders from urban areas or constituencies with high African-American and Hispanic-American populations and other communities of color. Actions speak louder than words, and I was struck by the manner in which Mr. Libby quietly but forcefully demonstrated his strong leadership and commitment to ensure the President and Vice President received input from voices of people who felt they might not have had a credible voice within this Administration. 2. Mr. Libby Is Known for His Caring and Unselfish Nature Mr. Libby has a reputation for helping people through difficult times, even if he does not know them well, and regardless of any stress he is experiencing in his own life. For example, according to the Vice President's residence manager and social secretary: Scooter is selfless and even when a heavy workload preoccupied his mind, Scooter never forgot others. When my brother was deployed to Iraq, Scooter sought me out to tell me stories of all the good things my brother, Bryan, and his unit were doing in northern Iraq. After Scooter was indicted and he lost his job working in the White House, he remained interested in my brother's well-being. In a similar vein, one of Mr. Libby's neighbors reports: "On several occasions Scooter has quietly provided guidance to [my son] that has helped us keep him on the right path. Scooter Libby is someone I unfailing trust my children with. That is the highest compliment I can pay any man." A former OVP colleague and family friend puts it this way: "My lifelong view, which has only been validated in adulthood, is that kids are the most honest and true evaluators of people. Watching my children with Scooter, and all children with him, you'd think he hung the moon. He is gentle and caring. He is genuinely interested in others' well being and still inspires me to this day." 17 Many of the letter writers describe occasions when Mr. Libby comforted them in times of great personal distress. One friend recalls: "He always showed great kindness to my son, my daughter and me, particularly when my husband was a reporter in Iraq during the spring of 2003. Several times, he took time from his incredibly busy schedule to call me to check on the kids and to make sure we were managing. He never seemed rushed or perfunctory; his concern was authentic." A military aide to the Vice President describes finding out while traveling on Air Force Two that his father had suddenly passed away. "One thing that I will remember about the first few hours after I had received the news and began sorting out what do next, is Mr. Libby's genuine concern for me and my family. He personally informed the Vice President of the situation and offered his assistance in helping me make arrangements to return home." A colleague from the Hudson Institute, Mr. Libby's most recent employer, describes a two- month period "when, two-and-a-half weeks after my mother succumbed to a long illness, my father suffered a massive cerebral hemorrhage. This was a very dark period, but Scooter, who certainly was facing immense personal challenges himself preparing for the trial, was regularly in touch and constantly of good cheer. His support was a source of real strength to me during that awful period." Mr. Libby's considerate nature is summed up well by a friend who has known him for 25 years: "From the time I met him, I've been struck by Scooter's low- keyed but loyal interest in contributing to the endeavors of others, a rarity for ambitious and incredibly busy Washingtonians. He is the opposite of a hard-driving calculator of his own advantage or an ideologue." 18 Mr. Libby's concern for the well-being of others extends beyond the boundaries of his community and even the borders of his country. Throughout his government service, Mr. Libby has developed policies designed to improve the lives of oppressed people throughout the world, and has advocated a view of the national interest that embraces international human rights. This humanistic approach to American foreign policy has made a lasting impression on government officials who have served alongside him. For instance, one former colleague who helped Mr. Libby promote democracy in the Eastern Bloc and later sought Mr. Libby's assistance at Freedom House describes how Mr. Libby has shown himself . . . to be a dedicated and intelligent advocate for freedom, democracy and civil liberties in the world. . . . [He has] always expressed interest in the human beings [affected by U.S. policies] and the opportunities and dangers they faced. Another career civil servant who worked with Mr. Libby during his Pentagon years notes that his "efforts [in crafting U.S. policy] reflected his belief in the dignity of all individuals." Mr. Libby has advocated his convictions even when doing so was unpopular within a particular administration. For example, a former defense official recalls that in the early 1990s Mr. Libby "knew a moral principle was at stake [in the conflict in Bosnia] and tried in every way to convince his superiors that the United States should help the persecuted Muslims in Bosnia, or should at least give them weapons for their self-defense . . . ." Mr. Libby championed this view, even though it ran counter to official administration policy, in an effort to convince other policy makers that a change was necessary for humanitarian reasons. Mr. Libby's attention to the human impact of foreign and military policy decisions did not flag when he served in the OVP. An individual aware of Mr. Libby's 19 role in diplomatic discussions on Middle East peace "vividly recalls" Mr. Libby's concern for the suffering that both Israelis and Palestinians endured as a result of the second intifada. This individual describes Mr. Libby's "meticulous efforts with regard to issues concerning the prevention of loss of innocent lives and human suffering on both sides," and remembers being "surprised . . . at the length of time Scooter was devoting to the human issues, and the in-depth questions he had on matters regarding the human tragedy aspect of the conflict." One of Mr. Libby's former OVP deputies puts it best: Standing up for the dignity of the individual and expanding the realm of human freedom were particularly consistent features of Scooter' approach to international affairs. No s matter how frenzied his schedule, no matter how overwhelming his responsibilities, Scooter never failed to make time to see the countless number of human rights activists and political dissidents who streamed through Washington desperately seeking a few minutes with any U.S. official, much less the national security advisor to the Vice President of the United States . . . . One person who closely observed Scooter's quiet nurturing of those struggling against great odds to uphold the cause of human decency in the Middle East was my friend, Natan Sharansky, the great Israeli human rights activists and former Soviet dissident. Referring to Scooter, Sharansky once remarked to me that he could not easily recall an American official who had done so much to instill hope in the region's beleaguered democrats and yet whose work remained so unsung. 3. Mr. Libby Treats Everyone with Respect Whether working as a partner in a law firm or serving in a senior position in government, Mr. Libby remained unpretentious and unassuming. A legal secretary for one of his attorneys reports: "He treated everyone with consideration and respect, whether you were an attorney, secretary or messenger. I believe Scooter's ability to 20 connect with people on every level is due to his high moral character, honesty and concern for his fellow citizens." Mr. Libby's former special assistant in the OVP recalls that "[d]espite his demanding work load, Scooter was always available to staff, [including] drivers, stewards, Secret Service agents, military aides and interns." Similarly, another former OVP assistant remembers that he acknowledged the little things that most bosses take for granted; he rarely walked out the door in the evening without saying thank you to his staff; he never raised his voice in anger, no matter how well deserved; he always insisted on carrying his own bags; and, in a city where one's level of importance is dictated by the order in which parties arrive on the telephone, Scooter always wanted to be the first on the line, regardless of the stature of the person he was calling. . . . He exuded a humility uncharacteristic of Washington officials . . . . A fitting example of Mr. Libby's approachable, down-to-earth demeanor is the way that he interacted with the staff in the E. Barrett Prettyman Courthouse. Beginning in December 2005, Mr. Libby began to spend a significant amount of time in the Courthouse, because it provided the only facility where he could review classified discovery materials. The staff grew to have great affection for him. "`You got to know him,' said James Huff, a sixth-floor court security officer who has seen his share of high- profile defendants walk through these hallways in the past 20 years. `You got to talk to him. You got to like him.'" Matt Apuzzo, Behind the Scenes Scooter has left the building, Associated Press, March 8, 2007. C. Mr. Libby Is Devoted to His Family Mr. Libby's dedication to serving his country is surpassed only by his commitment to his family. He met Harriet Grant in the late 1980s, and they have been 21 married for over 15 years. They have a son who is 13 years old and a daughter who is 10. Like Mr. Libby, Ms. Grant was drawn to public service. She worked as counsel for Senator Joseph Biden from 1989 to 1993, but left her legal career to raise their children. The demands of the OVP required Mr. Libby to sacrifice time with his family. He usually left his home by 6:15 in the morning, before his children were awake, and did not return until late at night, after his children were asleep. Particularly after the 9/11 attacks, writes a former OVP deputy, "he suffered frequent separations from his family as he accompanied the Vice President to undisclosed locations to preserve the continuity of government in the event of a second wave of terrorist attacks." But in the limited time when he could escape from his duties to the country, Mr. Libby lavished attention on his young children. He faithfully attended their school plays, their sporting events, and even their play dates with other children. According to a friend of the family, Scooter and Harriet have always chosen their family over the high end Washington political lifestyle that comes with the Vice President's Chief of Staff job. Some political insiders thrive on the perks of the job, but they could not have cared less. They routinely chose the soccer field with their children over elbow rubbing with Washington's political elite. Another friend says the same thing: "In the course of his recent White House years he may have turned down more invitations to downtown institutional receptions, dinner parties, and other social events than any other senior official" to spend time with his family. By all accounts, Mr. Libby is a terrific father. A neighbor notes that she expects to see him in his yard every weekend, "running, playing, engaging his children in the direct, physical way that I believe all children wish for from their fathers, and few, I 22 think enjoy." Another family friend notes: "As a pediatrician I've encountered and observed many parenting styles. I wish I could package Scooter's patience and unflappable temperament so that other families could learn from his style. Whether explaining current events or answering the constant `why?' of childhood, he speaks in a simple direct manner exactly to the child's level." Mr. Libby's indictment and conviction have led to great distress for his children. The media's obsessive, intrusive coverage which is far beyond any ordinary case has magnified their anguish. Indeed, just turning on the television or glancing at the front page of the newspaper can be a painful experience for them. The PSR indicates that Mr. Libby's children "have experienced a very difficult time in school." In fact, they have been subjected to cruel teasing about their father's very public legal woes, and this is likely to continue even if Mr. Libby is not sent to prison. In addition, as the PSR notes, they have had to face television reporters and cameras staking out their home waiting for their father to enter and exit. Mr. Libby's children have suffered tremendously already, and will continue to suffer greatly if he is separated from them, which is one of the reasons we seek a non-incarcerative sentence. Admittedly, all children who face the loss of a parent to jail suffer, but as a result of the high profile of this case and the resulting press coverage, the Libby children's suffering has been particularly acute. Most children of convicted defendants do not endure what Mr. Libby's children have had to endure for over three and a half years. III. The Nature and Circumstance of the Offense Under § 3553(a)(1), the Court must also analyze the "nature and circumstances" of the convicted offenses. Mr. Libby fully acknowledges that perjury, 23 false statements, and obstruction of justice are serious crimes. We feel compelled to point out, however, that the circumstances that led to Mr. Libby's conviction are unusual and perhaps unique. To begin with, Mr. Libby was convicted for lying to the FBI and the grand jury, which were both investigating the possible improper disclosure of Valerie Wilson's CIA employment to reporters, primarily Robert Novak. Mr. Libby, of course, was not Mr. Novak's source. As discussed more fully in our Guidelines memo, there is no evidence that Mr. Libby committed any underlying crime. And, no evidence suggests that he learned that Ms. Wilson's status was covert or classified before her identity was publicly disclosed. 4 Accordingly, there is no basis for concluding (even in the absence of formal charges) that Mr. Libby did anything unlawful when he discussed Ms. Wilson with any reporter prior to July 14, 2003. More broadly, no one was ever charged with improperly disclosing Ms. Wilson's identity and to this day it is unclear, if not highly doubtful, that any improper (much less illegal) disclosure was made by any government official. Therefore, this is the rare case where the statements by the defendant that were found to be false did not cover up any underlying crime. We do not mean to suggest that the absence of an underlying offense excuses obstruction and perjury. Rather, we believe it is appropriate for the Court to consider that Mr. Libby was not covering up any illegal activity when deciding how 4 In 2004, the Special Counsel represented to Chief Judge Thomas F. Hogan that there is "no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work." Aug. 27, 2004 Aff. of Patrick J. Fitzgerald at 28 n.15. Last week, the government admitted that "the information to which defendant was given access did not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines Mem. at 8 n.7. 24 severely he should be punished. The government's own motive theory suggests that Mr. Libby made false statements not because he did anything illegal in June or July of 2003, but because he allegedly feared (albeit mistakenly) in October 2003 that his prior statements to reporters might have been wrongful. This motive should bear on the issue of the appropriate punishment, especially in light of Booker. See United States v. Brown, 439 F.Supp.2d 134, 135-36 (D.D.C. 2006) ("Booker's remedy . . . ensured that a sentencing court may consider whatever facts it deems relevant subject to limitations imposed by Congress in determining the appropriate penalty within the statutorily prescribed spectrum for an offense."); United States v. Milne, 384 F.Supp.2d 1309, 1313 n.4 (E.D. Wis. 2005) ("[A]fter Booker, courts are required to consider any § 3553(a) factor put forward by the defense that might make the guideline sentence inappropriate. . . . In many cases, this requirement will necessitate consideration of the defendant's motive for committing the offense . . .") (emphasis in original; citations omitted). IV. The Relevant Guidelines Calculations Although the Supreme Court declared the Guidelines advisory, we recognize that the Court is obligated to compute the relevant sentencing range under the Guidelines when completing its sentencing analysis. United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005) ("a sentencing court is required to consider Guidelines ranges applicable to the defendant, but is permitted to tailor the sentence in light of other statutory concerns as well") (internal citations and quotations omitted). To begin with, the defense and the government both agree with the Probation Office that the base offense level here is 14. For the reasons set forth in a separate memorandum filed today, the Guidelines calculation in the PSR is correct; the offense level is 14, which corresponds to a sentence of 15-21 months. The Court should begin its consideration of 25 the Guidelines factor in its analysis under § 3553(a) from that point. The Probation Office also identified grounds for downward departure from that offense level under U.S.S.G. §§ 5K2.0 and 5K2.20. The Probation Office is also correct in that regard, and we urge the Court to apply either of those grounds for a downward departure. In accordance with U.S.S.G. § 5K2.0 and the Supreme Court's opinion in United States v. Koon, a court may depart from the Guidelines if it finds that mitigating factors, not otherwise prohibited by the Guidelines, are "present to an exceptional degree or in some other way make the case different from the ordinary case where the factor[s are] present." 518 U.S. 81, 96 (1996). In this case, the PSR identifies at least three mitigating factors that are present to such a significant degree to warrant downward departure: (1) Mr. Libby's outstanding record of public service and prior good works; (2) collateral employment consequences for Mr. Libby, including the expected loss of his license to practice law; and (3) the improbability of any future criminal conduct by Mr. Libby. These factors may form the grounds for a departure when they are present to an exceptional degree, as they are in this case. See Koon, 518 U.S. at 96; U.S.S.G. § 5K2.0(a)(4). And, even if the factors are not truly exceptional in their own right, in combination they may nonetheless remove the case from the "heartland" of typical guidelines cases. See § 5K2.0(c). In this case, Mr. Libby's outstanding record of public service is sufficiently extraordinary to justify a downward departure on that basis alone; but certainly, when considered in conjunction with the other factors, this case is outside the "heartland" of typical guidelines cases. Koon, 518 U.S. at 96. 26 As discussed more fully in section II above, Mr. Libby has devoted much of his professional career to serving the public interest. And although the government attempts to minimize it in its sentencing memorandum, no objective observer can deny that Mr. Libby's record of achievement in public service is extraordinary. To take just a few examples, while working in the Executive Branch, Mr. Libby helped the United States win the Gulf War, assisted with the transition to democracy in Eastern Europe, helped craft a strategy for reduced defense spending, and played a significant role in the largest nuclear arms reduction in history. He worked vigorously to counter the most pressing threat to national security in the post-9/11 era the use of weapons of mass destruction by terrorists on American soil. He helped to ensure that Americans today are safer from the threat of nuclear attack by improving domestic detection capabilities and recommending measures to prevent nuclear proliferation by A.Q. Khan's sinister network. And if America were attacked with biological or chemical weapons, hundreds of thousands possibly millions of Americans may be saved due in large part to Mr. Libby's singular focus on ensuring that the United States is adequately prepared for such a crisis. In private practice, Mr. Libby was extraordinarily devoted to pro bono matters. For instance, he served as legal advisor to the Cox Committee and rescued numerous government officials facing ethics inquiries from career and financial disaster. The countless hours Mr. Libby spent training and mentoring young professionals in the public and private sectors to succeed (regardless of their race, gender, or political affiliation) are also above and beyond the call of duty. He has had a remarkable effect on young people in Washington, inspiring many of them to likewise 27 devote themselves to public service. A former Pentagon and NSC colleague sums it up well: [f]or those privileged to work for him, he always showed a keen interest in helping to develop their skills and talents for not only their personal advancement, but to improve the value of their public service for the citizens of our nation. Legions of seasoned professionals are the beneficiaries of that sense of personal responsibility and dedication to their development. Mr. Libby also inspired his peers to serve the country. One of his former law partners reports, "Scooter inspired me as a lawyer and encouraged me as a citizen aspiring to receive an appointment to a position in the federal government." The point is not, as the government suggests, that any diligent federal employee convicted of a crime should receive a "discount" at sentencing. Rather, such significant contributions to the nation over a 30-year career constitute a mitigating factor that is truly "present to an exceptional degree" in Mr. Libby's case, thus justifying a downward departure. See, e.g., United States v. Canova, 412 F.3d 331, 358-359 (2d Cir. 2005) (district court did not abuse its discretion in granting a downward departure for extraordinary public service and good works); United States v. Kuhn, 351 F. Supp. 2d 696, 705-706 (E.D. Mich. 2005) (downward departure granted based on defendant's community involvement and continuous employment history in the public sector); United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) (downward departure based in part on defendant's charitable and civic good deeds not an abuse of discretion). The government's memorandum suggests in effect that Mr. Libby's public service should work against him at the time of sentencing. It urges that Mr. Libby should be punished more harshly because he was a public servant; but it cannot be that a person 28 who performed a thousand good acts merits a harsher sentence than someone who has lived for himself alone. Mr. Libby deserves a credit, not a debit, for his service to the nation. Indeed, Judge Urbina recently sentenced developer Douglas Jemal to a period of probation for his felony fraud conviction based largely on his extensive contributions to the well-being of the community. See Carol D. Leonnig, Jemal's Good Works Pay Rich Dividend, WASH. POST, Apr. 22, 2007 at C01 (Judge Urbina stated that "supporters' letters and testimony showcased a lifetime of good deeds and that such a genuine outpouring led to his decision"). We ask this Court to do the same here. The Court should also consider the extent to which conviction alone is devastating to Mr. Libby. It is unlikely that he will be able to return to the private practice of law because, as the PSR notes, he has been suspended from the practice of law and will likely lose his law license if the conviction is affirmed on appeal. In addition, his conviction will almost certainly prevent him from ever holding public office again. Further, because Mr. Libby has been the object of so much negative media attention, it will be extremely controversial for any employer to hire him. Accordingly, whatever employment he obtains is not likely to be commensurate with his unique skills and abilities. Because Mr. Libby's future employment opportunities are now so sharply circumscribed, a downward departure is appropriate. See United States v. Jones, 158 F.3d 492, 499 (10th Cir. 1998) (affirming downward departure based in part on the "collateral employment consequences [the defendant] would suffer" ¡ It is also appropriate for the Court to consider that Mr. Libby is highly unlikely to commit a criminal offense in the future. Mr. Libby has never violated the law previously, and the letters submitted on his behalf suggest that he has no propensity 29 toward criminal behavior. The government's unsupported argument to the contrary is specious. The Probation Office also noted in the PSR that the Guidelines provision pertaining to aberrant behavior (U.S.S.G. § 5K2.20) is applicable here. A defendant is eligible for such a downward departure when the crimes for which he was convicted represent a single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation from an otherwise law-abiding life. In making its determination whether to depart under § 5K2.20, the Court may consider Mr. Libby's employment record and prior good works, which have previously been described. See § 5K2.20 cmt. n. 3.5 V. A Sentence of Probation Would Satisfy The Requirements of Section 3553(a)(2) Turning to § 3553(a)(2), the Court must also consider the need for Mr. Libby's sentence to (i) reflect the seriousness of his offense, promote respect for the law, and provide just punishment for the offense; (ii) adequately deter criminal conduct; and (iii) protect the public from further crimes of the defendant. A. The Seriousness of the Offense The offenses here are serious ones. Nevertheless, as the Court metes out "just punishment," we urge the Court not to overlook the punishment Mr. Libby has already received, and stands to receive in the future, as a result of his convictions. Mr. Libby's felony convictions make it unlikely that he will ever work in government or 5 Several of the cases the government cites in its Guidelines Memorandum were decided prior to the adoption in 2000 of § 5K2.20 and are therefore inapposite to the issue of what constitutes aberrant behavior under the current version of the Guidelines. 30 practice law again, and his notoriety will also hinder his future job prospects. He and his family have endured crushing public humiliation as a result of unceasing press coverage. The media commentary about Mr. Libby has often been particularly unfair. Although he did not "out" Ms. Wilson, Mr. Libby has been continually blamed with leaking or orchestrating the leak of her identity. As the evidence at trial showed, as far back as September 2003, reporters were insinuating that Mr. Libby was the leaker. Indeed, based on such false assumptions, Mr. Libby has been repeatedly and wrongfully accused by some people of serious crimes including treason. The burden of relentless and unfair media coverage has fallen heaviest on Mr. Libby's young children, and imprisonment would separate him from them at a particularly formative time in their lives. The Court should consider these collateral consequences to make sure that Mr. Libby's punishment is not "greater than necessary." B. A Sentence of Probation Will Adequately Deter Future Criminal Conduct and Promote Respect for the Law With respect to deterrence, Mr. Libby endured a very public fall from grace, beginning with his resignation from the White House on the day he was indicted and culminating in his four felony convictions. These dire consequences are likely enough to warn the public and high ranking government officials in particular that it is important to take FBI and grand jury investigations very seriously. In this light, it is not necessary to incarcerate Mr. Libby to promote respect for the law or to serve the interests of general deterrence. C. Mr. Libby Does Not Pose A Threat To Society Mr. Libby has no prior criminal history and has led an otherwise upstanding, exemplary life. There is therefore no basis to conclude that he is likely to 31 commit any crimes in the future. For the same reason, the public does not need to be protected from him. VI. Sentencing Recommendation The public nature of Mr. Libby's indictment, trial, and conviction will ensure that he and his family carry the stigma of those convictions forever. The impact of Mr. Libby's convictions, on himself and his family, is profound and devastating. It will continue to be so, regardless of the sentence this Court chooses to impose. There is no denying the seriousness of the crimes of which Mr. Libby was convicted. At the same time, there is no denying the kind of person Mr. Libby is and the contributions he has made to his country. In light of these factors and the goals of § 3553(a), a prison sentence for Mr. Libby would be "greater than necessary" punishment in this case. A sentence of probation, perhaps combined with community service alternatives, would allow Mr. Libby to continue serving the public interest, and would still promote respect for the law. 32 Conclusion For the reasons set forth in this Memorandum and in the PSR, we respectfully request that the Court sentence Mr. Libby to a term of probation. Dated: May 31, 2007 Respectfully submitted, /s/ /s/ Theodore V. Wells, Jr. William H. Jeffress, Jr. (DC Bar No. 468934) (DC Bar No. 041152) James L. Brochin Alex J. Bourelly (DC Bar No. 455456) (DC Bar No. 441422) Paul, Weiss, Rifkind, Wharton Baker Botts LLP & Garrison LLP 1299 Pennsylvania Avenue, NW 1285 Avenue of the Americas Washington, DC 20004 New York, NY 10019-6064 Tel: (202) 639-7751 Tel: (212) 373-3089 Fax: (202) 585-1087 Fax: (212) 373-2217 /s/ John D. Cline (D.C. Bar No. 403824) Jones Day 555 California Street, 26th Floor San Francisco, CA 94104 Tel: (415) 626-3939 Fax: (415) 875-5700 33
Doc 357 - NOT an OCR job
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA ) ) v. ) CR. NO. 05-394 (RBW) ) I. LEWIS LIBBY, ) also known as "Scooter Libby," ) Defendant. ) DEFENDANT I. LEWIS LIBBY'S OPPOSITION TO THE GOVERNMENT'S MEMORANDUM OF LAW IN SUPPORT OF ITS PROPOSED SENTENCING GUIDELINES CALCULATIONS Defendant I. Lewis Libby, through his counsel, respectfully submits this memorandum in opposition to the Government's Memorandum of Law in Support of Its Proposed Sentencing Guidelines Calculations ("Gov't Guidelines Mem."), filed May 25, 2007. In addition, we respond here to certain arguments raised in the Government's Sentencing Memorandum ("Gov't Sent. Mem."), also filed May 25, 2007. Mr. Libby's sentencing hearing is scheduled for Tuesday, June 5, 2007 at 9:30 a.m. Introduction The government contends that the Probation Office incorrectly determined the offense level for the crimes of which Mr. Libby was convicted, and that the Court should apply either of two enhancements under the Sentencing Guidelines. For the reasons set forth below, the government's arguments are wrong as a matter of both fact and law. First, and most significantly, the government relies on numerous "facts" that are not supported by the record, and on evidence that was withheld from Mr. Libby during discovery. Even worse, many of the government's assertions about Mr. Libby's 2 conduct are inconsistent with the record or otherwise misleading. The government urges the Court to violate due process when it suggests that sentencing enhancements should be based on secret or unproven facts. Second, the language of and the commentary to the Guidelines, in conjunction with the relevant case law, contradict the government's positions. Third, the government fails to acknowledge the unique circumstances of this case. Mr. Libby did not commit an underlying offense relating to unauthorized disclosure of national defense information. Just as significantly for purposes of the Guidelines, neither did anyone else. These facts were unmistakably clear from early in the government's investigation, and certainly cannot be disputed now, in light of the evidence adduced at trial. The government has used the sentencing process to reinject into the case, unconstrained by the rules of evidence, issues long since ruled irrelevant. It seeks to have Mr. Libby sentenced on the basis of the case it could have sought to try but chose not to. In sum, the sentencing enhancements the government asks the Court to impose would result in a punishment that is grossly disproportionate to the conduct on which Mr. Libby's conviction was based. I. Factual Background The Court is familiar with the evidence at trial, and we do not wish to rehash the evidence any more than necessary in this memorandum. Nevertheless, because the government has distorted so many relevant facts, we are compelled to set the record straight here. A. The Nature of the Government's Investigation Valerie Wilson's employment at the CIA was disclosed publicly in a column by Robert Novak published on July 14, 2003. There is no doubt that 3 Mr. Novak's column triggered the government's investigation. After the CIA referred the matter to the Justice Department, an FBI investigation began in late September 2003. It is undisputed that, as the investigation swiftly uncovered, Mr. Novak's two primary sources were Richard Armitage and Karl Rove, and that CIA spokesperson Bill Harlow also confirmed information about Ms. Wilson's CIA employment to Mr. Novak. Mr. Libby had nothing to do with this leak. He was not a source for Mr. Novak, and he was not acting in concert with any of Mr. Novak's sources. The government has never suggested otherwise. During the investigation, Mr. Libby consistently told the FBI and the grand jury that he had first learned that Ms. Wilson worked at the CIA from the Vice President in early June 2003. The government's suggestion to the contrary (see Gov't Sent. Mem. at 5) is belied by the trial record. According to Mr. Libby, months later he thought he had forgotten that Ms. Wilson worked at the CIA and relearned this information, to his surprise, from Tim Russert in a telephone conversation on July 10 or 11. Mr. Libby told the FBI and the grand jury that he also discussed Ms. Wilson's identity with two reporters on July 12: Matthew Cooper and Judith Miller.1 Mr. Libby 1 The government repeatedly claims that Mr. Libby has stated that his "disclosures of information regarding Ms. Wilson's employment may have been sanctioned by the Vice President." Gov't Guidelines Mem. at 6-7; see also Gov't Sent. Mem. at 12, 14. This is a misleading characterization of Mr. Libby's statements to the FBI and his grand jury testimony. Mr. Libby repeatedly told both the FBI and the grand jury that the Vice President had not instructed him to disclose any information regarding Ms. Wilson to the press, and his notes of discussions with the Vice President corroborate such statements and testimony. Only after repeated questioning by an FBI agent and the Special Counsel about whether it was possible that the Vice President had recommended such a disclosure did Mr. Libby allow that it was possible, although he had no such recollection. See, e.g., Mar. 24, 2004 G.J. Tr. at 69-70 (GX 2). 4 said that when he communicated this information to Mr. Cooper and Ms. Miller, he attributed it to reporters, and said he did not know if it was true. B. The Charges Against Mr. Libby On October 28, 2005, Mr. Libby was indicted for obstruction of justice, perjury, and making false statements, based on his account of his conversations with Mr. Russert, Mr. Cooper and Ms. Miller. Although the government had investigated potential offenses under the Intelligence Identities Protection Act ("IIPA"), 50 U.S.C. § 421 and the Espionage Act, 18 U.S.C. § 793, neither Mr. Libby nor anyone else was charged with violating either of those two statutes or with any other offense involving misuse of classified information. It is entirely unremarkable that no such charges were ever brought. As detailed below, the overwhelming evidence from the FBI and grand jury investigations and the trial proceedings shows that neither Mr. Libby nor the numerous other government officials who discussed Ms. Wilson's employment during June and July 2003 believed that she was covert or that her employment status was classified. At the close of the government's case, the defense moved to dismiss from the indictment the allegation that Mr. Libby had lied about his July 12 conversation with Ms. Miller, because the evidence did not support this allegation. The government did not oppose this motion, and the Court granted it. On March 6, 2007, Mr. Libby was convicted on Count 1 (obstruction), Count 2 (false statements), and Counts 4 and 5 (perjury). Mr. Libby was acquitted on Count 3, which charged that he had made false statements about his conversation with Mr. Cooper. Thus, it appears that Mr. Libby's conviction rests principally on the jury's determination that he lied to the FBI and the grand jury in saying Mr. Russert told him 5 that Ms. Wilson worked at the CIA, and in saying that he thought, when he talked to other reporters about Ms. Wilson, that he was only passing on information from reporters and did not know if it was true.2 The government now makes sweeping accusations that Mr. Libby "lied about nearly everything that mattered." Gov't Sent. Mem. at 5. Of course, the record simply does not support the government's claims. The Court should disregard such unsubstantiated, last-ditch attempts to accuse Mr. Libby of additional misconduct. The government chose to charge a narrow case, and the jury's verdict was on even narrower grounds (e.g., the Court dismissed the allegation that Mr. Libby lied about his conversation with Ms. Miller, and the jury acquitted Mr. Libby of lying about his conversation with Mr. Cooper). Neither the record nor the jury's verdict supports the government's belated allegations of uncharged improper conduct. C. The Government's Unsupported Claims About Ms. Wilson's Status Both of the sentencing memoranda the government filed on May 25, 2007 include unfounded assertions that Mr. Libby's conduct interfered with its ability to determine whether anyone had violated the IIPA or the Espionage Act. See Gov't Sent. Mem. at 13-15; Gov't Guidelines Mem. at 15. These assertions represent an attempt to reinject into the case an issue the government could have raised earlier, but chose not to. 2 Although the jury convicted Mr. Libby on Count 5, which also alleges false testimony about his conversation with Mr. Cooper, the instructions permitted the jury to convict on that count based solely upon Mr. Libby's testimony that "the only thing I had, I thought at the time, was what reporters are telling us." Accordingly, the conviction on Count 5 appears to be based on Mr. Libby's characterization of his state of mind subsequent to his conversation with Mr. Russert, rather than on Mr. Libby's account of what he actually said to Mr. Cooper. This is consistent with the jury's decision to acquit Mr. Libby on Count 3, which only alleged that Mr. Libby lied about his conversation with Mr. Cooper. 6 We are necessarily hampered in our ability to counter the government's assertions regarding Ms. Wilson's status under the IIPA because the Court ruled at the government's behest that the defense was not entitled to discovery of the information necessary to challenge them. But even a review limited only to the publicly available information suggests that the conclusion the government touts as "fact" is subject to significant doubt. 1. It Is Not Clear That Ms. Wilson Was a Covert Agent Under the IIPA The government has refused for years to take a position regarding whether Ms. Wilson was a covert agent as defined under the IIPA. For example, in his October 28, 2005 press conference, in response to a reporter's question, the Special Counsel stated: "I am not speaking to whether or not Valerie Wilson was covert." Special Counsel Patrick J. Fitzgerald's Press Conference, Oct. 28, 2005 Tr. at 8. Early in discovery, Mr. Libby sought discovery of documents relating to whether Ms. Wilson's status as a CIA employee was classified. See Mot. of I. Lewis Libby To Compel Disc. of Rule 16 and Brady Material in the Possession of Other Agencies at 2 (Jan. 31, 2006) (Dkt. 32). The government refused to provide the requested discovery on the ground that it was irrelevant. It noted (correctly) that Ms. Wilson's CIA status was "not an element of any of the three statutory violations charged." Gov't Consol. Resp. to Def. Mots. to Compel Disc. at 28 n.11 (Feb. 16, 2006) (Dkt. 36). In fact, according to the government, it was "irrelevant whether Mr. Wilson's wife actually did work at the CIA" at all. Gov't Resp. to Def. Third Mot. to Compel Disc. at 11 (April 5, 2006) (Dkt. 80). 7 On June 2, 2006, the Court issued a discovery order "set[ting] forth what this case is and is not about." Order at 1 (June 2, 2006) (Dkt. 112). After noting that Mr. Libby had not been charged with illegally disclosing Ms. Wilson's affiliation with the CIA, the Court explained that "the only question the jury will be asked to resolve in this matter will be whether the defendant intentionally lied" to the grand jury and the FBI about his conversations with three news reporters. Id. at 2. The Court made clear that the actual status of Ms. Wilson's CIA employment had nothing to do with answering that question. See id. at 3. Denying Mr. Libby's discovery requests, the Court held that "Ms. Wilson's documented status as an employee of the CIA, unless viewed by the defendant or the content of the documentation was made known to him or a potential government witness, is simply immaterial to the preparation of the defense and thus not discoverable." Id. at 6 n.3. The Court's comments during the trial also made clear that Ms. Wilson's status with the CIA was irrelevant to the case. In preliminary instructions to the jury, the Court stated that what Valerie Wilson's actual status was or whether any damage would result from the disclosure of her status are totally irrelevant to your assessment of the defendant's guilt or innocence on the offenses the defendant has been charged with in this case. Jan. 23, 2007 A.M. Tr. at 19:25 to 20:12. The Court repeated this and similar statements several times during the trial. The government has now adopted a new position on Ms. Wilson's status in a brazen attempt to convince the Court that Mr. Libby should be punished as if he outed a covert CIA official or mishandled classified information a position it carefully avoided taking before or at trial. The government baldly asserts: "At the time of the 8 leaks, Ms. Wilson in fact qualified as a `covert agent' within the meaning of the IIPA." Gov't Guidelines Mem. at 5; see also Gov't Sent. Mem. at 12. The prosecution offers two supposed grounds for this belated conclusion. Both are unconvincing. First, the government claims that its "investigators were given access to Ms. Wilson's classified file." Gov't Guidelines Mem. at 5 n.2. This is tantamount to asking the Court and Mr. Libby to take the government's word on Ms. Wilson's status, based on secret evidence, without affording Mr. Libby an opportunity to rebut it. Such a request offends traditional notions of fairness and due process. United States v. Blackwell, 49 F.3d 1232, 1235 (7th Cir. 1995) ("It is well established that a convicted defendant has a right to be sentenced on the basis of accurate and reliable information, and that implicit in this right is the opportunity to rebut the government's evidence."); United States v. Edelin, 180 F. Supp. 2d 73, 75 (D.D.C. 2001) (it is necessary "to protect the defendant's Fifth Amendment due process right by ensuring that defendant has the ability to rebut any aggravating factors asserted by the Government"). Second, the government relies on a terse two-and-a-half page summary of Valerie Wilson's employment history that was generated by the CIA, which purports to establish that "Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States."3 We have never been granted an opportunity to challenge this conclusory assertions or any of the other unsubstantiated claims in this document, nor permitted to investigate how it was created. If nothing else, the fact that the CIA's spokesperson confirmed Ms. Wilson's 3 Gov't Guidelines Mem. at 5, and Ex. A thereto. 9 CIA employment to Mr. Novak calls into question whether the government was taking affirmative measures to conceal her identity. The summary described above was provided to the defense along with a companion summary that defined a "covert" CIA employee as a "CIA employee whose employment is not publicly acknowledged by the CIA or the employee."4 It is important to bear in mind that the IIPA defines "covert agent" differently. It states: "The term `covert agent' means-- (A) a present or retired officer or employee of an intelligence agency . . . (i) whose identity as such an officer, employee, or member is classified information, and (ii) who is serving outside the United States or has within the last five years served outside the United States." 50 U.S.C. § 426. The CIA summary of Ms. Wilson's employment history claims that she "engaged in temporary duty (TDY) travel overseas on official business," though it does not say whether such travel in fact occurred within the last five years. Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase "served outside the United States" in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record. 4 Remedial Measures Following the Disclosure of Valerie Wilson's Employment Relationship With The CIA, produced to the defense on June 9, 2006. 10 2. Neither Mr. Libby Nor Anyone Else Understood Ms. Wilson To Be Covert or Classified The Court's focus during trial on what Mr. Libby actually knew about Ms. Wilson's status was correct, in light of the discovery provided to the defense. And to the extent that the Court needs to consider Ms. Wilson's status during this phase of the proceedings, it remains correct. There is simply no evidence that Mr. Libby received information indicating that Ms. Wilson's position at the CIA was covert or classified. Mr. Libby consistently testified that he did not understand Ms. Wilson to be covert or classified. As detailed below, all of the relevant evidence including the grand jury and trial testimony of the government's own witnesses corroborates Mr. Libby's testimony that he was unaware of Ms. Wilson's status. In light of the record, then, it is misleading for the government to suggest that Mr. Libby's grand jury testimony on this point should not be believed. As Mr. Libby told the grand jury, the Vice President told him that Ms. Wilson worked at the CIA in June, but did not indicate that Ms. Wilson was covert or that her job status was classified. This is consistent with Mr. Libby's notes of that conversation, which do not identify Ms. Wilson as covert or classified. See GX 104; GX 104T. At trial, the government produced three witnesses who said they, too, had told Mr. Libby that Ms. Wilson worked at the CIA: Marc Grossman; Robert Grenier; and Cathie Martin. None of them testified that he or she had told Mr. Libby that Ms. Wilson was covert or classified. The government also called five witnesses who said that Mr. Libby had mentioned or referred to Ms. Wilson in conversations during June and July 2003: Craig Schmall; Ari Fleischer; David Addington; Judith Miller; and Matthew Cooper. None of 11 these witnesses (nor any other trial witnesses) testified that Mr. Libby said Ms. Wilson was covert. None of them testified that they believed Mr. Libby had been communicating classified information to them. In sum, none of the witnesses who testified at trial said that prior to July 14, 2003, they believed that Ms. Wilson's affiliation with the CIA was protected information. Indeed, as far back as August 2004, the government effectively admitted what this record makes plain: that Mr. Libby was unaware of Ms. Wilson's alleged covert status. At that time, the Special Counsel submitted an affidavit to the District Court in opposition to Ms. Miller's motion to quash grand jury subpoenas. That affidavit indicates the government was not considering prosecuting Mr. Libby under the IIPA because it had "no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work." Aug. 27, 2004 Aff. of Patrick J. Fitzgerald at 28 n.15. We are aware of no evidence to the contrary adduced since that time.5 Indeed, the government admits in its Guidelines Memorandum that "the information to which defendant was given access did not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines Mem. at 8 n.7. The government does not explicitly concede a related point: that the information provided to Mr. Libby did not identify Ms. Wilson as classified either. But there can be no escaping this fact. We reiterate: no witness claims to have told Mr. Libby that Ms. Wilson's affiliation with the CIA was classified. (In fact, putting aside what these witnesses actually told Mr. Libby, none of them testified that they 5 By August 27, 2004, the government had obtained grand jury testimony from all of the eight witnesses who testified at trial about discussing Ms. Wilson with Mr. Libby, except for Ms. Miller. 12 personally believed that Ms. Wilson's status was classified at the time). Logically, then, there is no basis to conclude that Mr. Libby received information about Ms. Wilson that he knew was classified. For this reason alone, Mr. Libby could not have knowingly violated the IIPA or the Espionage Act. II. The Probation Office Applied the Guidelines Correctly It bears reiterating that under current law, the Guidelines are advisory. Under the sentencing regime set forth in 18 U.S.C. § 3553(a), the relevant sentencing range under the Guidelines is merely one of many factors that the Court must consider. See United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005). (The departure issues are addressed in our Sentencing Memo, which is being filed separately today). The Probation Office, the defense, and the government all concur that the base offense level in this case is 14. The Probation Office and the defense agree that no enhancements should be added to this offense level, and that there are grounds for a departure downward from that level. In contrast, the government maintains that two sentencing enhancements are applicable here, and disagrees with the bases for departure identified by the Probation Office. A. The Government's Proposed Guidelines Calculations Are Incorrect The government has asserted that with respect to the obstruction of justice and perjury counts, the Court is obligated to apply the cross reference to the guideline provision applicable to those convicted of being accessories after the fact, U.S.S.G. § 2X3.1. Employing this cross reference would lead, in the government's view, to an offense level of 19. As detailed below, the government's arguments lack merit. 13 1. The Cross Reference Provision in the Obstruction of Justice Guideline Is Not Applicable To Count 1 U.S.S.G. § 2J1.2(c)(1), the obstruction of justice guideline, indicates that the cross reference to § 2X3.1 is triggered when the defendant's obstruction is "in respect to" a criminal offense. This requires, as a predicate, the commission of an underlying criminal offense by the defendant or someone else. This interpretation, which is based on the language of the obstruction guideline, is reinforced by the Commentary to the guideline, 6 which states: Because the conduct covered by this guideline is frequently part of an effort to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment for an offense, a cross reference to § 2X3.1 (Accessory After the Fact) is provided. Use of this cross reference will provide an enhanced offense level when the obstruction is in respect to a particularly serious offense, whether such offense was committed by the defendant or another person. (Emphasis added.) The government argues that the fact that this commentary was amended "to make clear that the cross reference should be applied in cases in which the defendant committed obstruction to escape punishment for his own criminal conduct, as well as to assist another person to escape punishment" supports its reading of § 2J1.2(c)(i). Gov't Guidelines Mem. at 11. In fact, the opposite is true; it supports our reading of this provision. The commentary initially suggested that the cross reference was applicable only when the defendant obstructed justice with respect to an underlying offense committed by another person. The Sentencing Commission then amended the 6 This Commentary is entitled to substantial weight. "[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993) 14 commentary to clarify that the cross reference should also be applied where the defendant obstructed justice with respect to an underlying offense committed by the defendant himself. From this amendment, the government draws the illogical conclusion that the cross reference should also be applied where no one committed an underlying offense. Nothing suggests that the Sentencing Commission intended such an illogical result. See U.S.S.G., Amend. 401. Before it could apply the cross reference, the Court would have to make a finding, supported by at least a preponderance of the evidence, that a specific underlying offense was committed by someone. Here, no underlying offense was committed by Mr. Libby or anyone else. The government's investigation did not result in any charges under the IIPA, the Espionage Act, or any other federal statutes relating to national defense information. Indeed, regardless of whether any charges were brought, the government has not even asserted that it believes any underlying, uncharged violation actually took place. The government has not come close to showing, even by a preponderance of the evidence, the existence of an actual violation that would trigger the cross reference. This is not surprising, because, as discussed above, the evidence shows that neither Mr. Libby nor anyone else believed that Ms. Wilson was covert or classified. Accordingly, the record is devoid of any evidence on which it is possible to conclude that an underlying offense occurred. Presumably because it cannot credibly assert than an underlying crime was in fact committed by Mr. Libby or anyone else in this case, the government argues, without support, that the defendant's mere intent to obstruct justice is enough to trigger the cross reference in the obstruction of justice guideline, even if no underlying crime 15 occurred. See Gov't Guidelines Mem. at 12 ("The cross reference in 2J1.2 is designed to match the offense level to the conduct and result intended by the defendant . . . .") (emphasis in original). The government's theory conflicts with the purpose of the cross reference, creates unsurmountable practical problems when it is applied to the facts of this case, and is at odds with the relevant case law. a. The Purpose of the Cross Reference The Commentary to the obstruction guideline indicates that the purpose of the cross reference is to punish more severely a defendant who causes (or intends or attempts to cause) the obstruction of "a particularly serious offense." That purpose cannot fairly be assessed without a finding that an underlying offense was actually committed by someone. Because it appears that no underlying crime in fact occurred, and the Court's rulings prevented inquiry on this critical issue, it would be inappropriate for the Court to rely on the cross reference. We do not dispute the government's assertion that in certain situations, a court can apply the cross reference regardless of whether "the defendant was charged or convicted of the criminal offense under investigation." Gov't Guidelines Mem. at 10. But the government goes too far in suggesting that the cross reference can be triggered without "any requirement of proof that the underlying offense was committed," and in arguing that "what crime actually occurred" is irrelevant to the Court's analysis. Id. at 10, 12. Its proposed rule has never been applied by any court and for good reason. Even in a Guidelines world in which prosecutors have extraordinarily broad power to manipulate sentences, this is one step beyond. 16 b. The Government's Application of the Cross Reference Is Misguided The flaws in the government's reading of the cross reference in the obstruction guideline become most apparent when it attempts to apply the cross reference to the IIPA and the Espionage Act, the statutes at issue here. Because the government's reliance on what the grand jury was investigating for the basis of the obstruction cross reference is not grounded on proof of any actual violation, it is essentially standardless. Its approach affords the government an extraordinary amount of discretion, usurps the fact-finding role of the Court, and undermines the purpose of the cross reference, as expressed in the commentary. Both the Espionage Act and the IIPA include several possible violations, each of which requires the government to prove a different state of mind. The corresponding Guidelines sections reflect these distinctions (as well as distinctions for what type of information was disclosed). Thus, for example, the base offense levels under U.S.S.G. § 2M3.3, which governs a violation of 18 U.S.C. § 793(d), are 11 points higher than the base offense levels under section § 2M3.4, which governs a violation of § 793(f). This difference reflects the fact that § 793(d) proscribes willful disclosures of classified information, while § 793(f) applies to grossly negligent disclosures. The government asserts without explanation that the Court should apply the guideline for a willful disclosure. Yet, the fact that one guideline results in a higher offense level than another is not reason to apply it. The government provides no evidentiary basis for its assertion that Mr. Libby should be sentenced as an accessory after the fact to a willful, instead of a grossly negligent, disclosure of classified information. The government claims that "§ 793(f) 17 could have been applicable to disclosures that could be characterized as `grossly negligent,'" without providing any facts about the nature and circumstances of the alleged disclosures. Gov't Guidelines Mem. at 9 n. 8 (emphasis added). At another point, the government urges the Court to apply U.S.S.G. § 2M3.3 rather than § 2M3.2 "given the circumstances of this case," without giving any explanation of what those circumstances are, even though they have enormous ramifications for the calculation of the appropriate sentence. Id. at 9. Phrases like "could have been" and vague references to the "circumstances of this case" make clear that there is no factual basis on which the Court could make findings on this issue. The government's explanation for how the Court should apply the guideline pertaining to violations of the IIPA (U.S.S.G. § 2M3.9) faces similar problems. The government admits, as it must, that "the information to which defendant was given access did not expressly identify Ms. Wilson as a covert agent." Gov't Guidelines Mem. at 8 n.7. This concession would seem to eliminate the possibility that Mr. Libby could have violated the IIPA, because that statute includes very strict knowledge and intent requirements that are clearly not met here. The relevant provision of the IIPA states: Whoever, as a result of having authorized access to classified information, learns the identify of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than five years, or both. 50 U.S.C. § 421(b) (emphasis added). Because Mr. Libby was not given information that identified Ms. Wilson as a covert agent, he thus could not have known that the United 18 States was "taking affirmative measures" to conceal her identity. The IIPA is therefore inapplicable to his conduct. Nevertheless, "in the government's view," Mr. Libby should be treated as if he obstructed the "particularly serious offense" of disclosing a covert agent's identity. The government provides no facts, however, to support any finding by the Court that a violation of the IIPA should be deemed the applicable underlying offense here. Moreover, the government's Guidelines calculation with respect to the IIPA turns on a choice between two Guidelines provisions, each of which provide different base offense levels depending on what kind of access to classified information the defendant had. See U.S.S.G. § 2M3.9. The government offers in support of its choice between those provisions only its "view" that the focus of the investigation was closer to one of the provisions than the other. The government's "view" of the appropriate cross reference (even if it works in the defendant's favor) is simply not an adequate basis for a court to apply the cross reference. The fact that the government's approach to the cross reference affords it so much leeway in determining which guideline to apply is evidence that its reading of this provision is wrong. The Court's analysis of the Guidelines should be transparent. The only way to achieve this result is for the government to prove a specific underlying offense that was actually charged or committed by the defendant or someone else, so the Court can make the necessary findings. Due process requires that the Court, not the government, determine which underlying offense actually occurred before the cross reference in the obstruction of justice guideline is triggered. 19 c. The Cases the Government Cites Are Not Applicable In all but one of the cases the government cites in support of its contention that the Court should apply the cross reference, either the defendant or another person was charged with an underlying crime.7 The one case the government cites in which underlying charges apparently were not brought, United States v. Quam, 367 F.3d 1006 (8th Cir. 2004), presents an inapposite fact pattern. In that case, the court applied the cross reference in conjunction with the obstruction of justice guideline to punish a defendant who had testified falsely in a grand jury investigation regarding the drug- trafficking activities of her live-in boyfriend. The court followed the cross reference to a drug-trafficking statute and made drug-quantity findings, "notwithstanding the fact no one ha[d] been indicted or convicted of an underlying drug offense." Id. at 1009. In that case, a confidential informant had observed the defendant participating in drug transactions at her residence, and during a "subsequent search, law enforcement discovered 111.5 grams of marijuana [and] 2.3 grams of methamphetamine." Id. at 1007. Thus, the prosecution presented evidence that an underlying crime had, in fact, occurred. That evidence provided a factual basis for making the findings necessary to apply the cross reference. There can be little doubt that an underlying drug crime was in fact committed by someone in the Quam case, even in the absence of any drug charges. No such factual basis exists here. 7 See United States v. LeMoure, 474 F.3d 37 (1st Cir. 2007) (underlying civil rights charge); United States v. Gay, 44 F.3d 93 (2d Cir. 1994) (underlying conspiracy to commit armed robbery charge); United States v. Kimble, 305 F.3d 480 (6th Cir. 2002) (underlying murder charge); United States v. Russell, 234 F.3d 404 (8th Cir. 2000) (underlying drug charges); United States v. Arias, 253 F.3d 453 (9th Cir. 2001) (underlying drug and weapons charges); United States v. Brenson, 104 F.3d 1267 (11th Cir. 1997) (underlying drug charges); United States v. McQueen, 86 F.3d 180 (11th Cir. 1996) (underlying money laundering charges). 20 To be sure, the case law suggests that an acquittal is not necessarily a bar to the application of the cross reference, as the government points out. See, e.g., Gay, 44 F.3d at 95; Arias, 253 F.3d at 459; McQueen, 86 F.3d at 182-83.8 Acquitted conduct is not at issue here, however. The Gay, Arias, and McQueen cases should not be interpreted to mean that the government does not have to articulate an actual underlying offense by the defendant or someone else. Moreover, Gay suggests that before the sentencing court can apply the cross reference to acquitted conduct, it must make a finding about the underlying crime supported by evidence. 44 F.3d at 95 ("the district court found that the [underlying crime] had unquestionably been committed") (emphasis added). Here, the government cannot meet its burden (even under a preponderance of the evidence standard) to support a finding that any underlying crime was in fact committed, which should end the inquiry. The government has not cited a single case where a court applied the accessory after the fact cross reference even though no underlying charges were brought against the defendant or someone else, or where it was not unmistakably evident that a crime had actually been committed. Nor has our research uncovered such a case. The government's reading of this Guidelines provision is unsupported.9 8 To the extent that the government suggests that these three decisions stand for the idea that the cross reference should be followed without regard to "whether an offense could be shown to have been committed at all," Arias, 253 F.3d at 459, such statements are dicta. In all three cases, the government did in fact charge an underlying offense. 9 The unreasonable nature of the government's approach is illustrated by its insistence that even in the hypothetical case where a defendant is convicted of obstructing an investigation into a potential murder that turns out to be a suicide, the cross reference to the guideline for homicide must nevertheless be applied. Such an absurd result 21 Finally, even if the government's argument that the cross reference must be applied mechanically whenever a defendant intends to obstruct an investigation had any merit which it does not the circumstances of this case are so unique as to justify a departure from the offense level that would result. This case does not fit within the heartland of cases in which the cross reference is properly applied because it presents the unprecedented situation where the government has requested the application of the cross reference without charging or even identifying an actual underlying violation. We also note that courts should tread lightly where the government sets forth sentencing enhancement factors that are so severe that they become a tail wagging the dog of a substantive offense. See United States v. Townley, 929 F.2d 365, 369 (8th Cir. 1991). 2. The Cross Reference Provision in the Perjury Guideline Is Not Applicable To Counts 4 or 5 U.S.S.G. § 2J1.3(c)(1) states: "If the offense involved perjury . . . in respect to a criminal offense, apply § 2X3.1 in respect to that criminal offense . . . ." For the reasons set forth above concerning the obstruction guideline, the perjury guideline also requires an underlying criminal offense to have actually been committed by the defendant or someone else. It is appropriate to use similar analysis for the two guidelines because, as the Commentary to U.S.S.G. § 2J1.3 explains, "perjury should be treated similarly to obstruction of justice. Therefore, . . . an alternative reference to the guideline for accessory after the fact is made." The case law is clear that in considering whether perjury is "in respect to a criminal offense," a sentencing court should determine whether "the defendant knew or demonstrates the need for a sentencing court to determine that an actual underlying offense was committed before applying the cross reference. 22 had reason to know, at the time of his perjury, that his testimony concerned such a criminal offense." United States v. Leon-Reyes, 177 F.3d 816, 824 (9th Cir. 1999) (quoting United States v. Rude, 88 F.3d 1538, 1543 (9th Cir. 1996)). In Leon-Reyes, the Ninth Circuit affirmed the district court's determination that the defendant's perjury in a trial involving money laundering and drug trafficking charges brought against two other individuals "was only in respect to" the former charges. Id. The court found that because Leon-Reyes's "entire testimony" concerned certain "business and financial affairs," and would have had a "very insignificant effect . . . on the drug trafficking charges, . . . the district court properly exercised its discretion in determining that Leon-Reyes's perjury was only in respect to the money laundering charges." Id. This case makes clear that the Court should make findings concerning the nexus between the defendant's perjury and the underlying criminal offense. As we have repeatedly emphasized, there is no evidence in the record here to support a finding that any underlying offense was actually committed by Mr. Libby or anyone else. In addition, as we have discussed above, because the government focuses on what the grand jury was investigating rather than proof of an actual violation, it engages in standardless Guidelines calculations. The government's approach should be rejected because it provides no facts for the Court to make findings regarding which provisions of the Guidelines governing violations of the IIPA and the Espionage Act are applicable. The mens rea requirements, and the corresponding offense levels, vary significantly among these provisions, making it improper for the government to exercise discretion in this area. 23 The government contends that the testimony by Mr. Libby the jury found to be false "bore directly on the elements of the IIPA and the Espionage Act." Gov't Guidelines Mem. at 14. This is an unfair characterization of Mr. Libby's testimony. Even a quick review of the testimony at issue in Counts 4 and 5 indicates that it has nothing to do with whether Ms. Wilson's status was covert or classified, which are the focus of the IIPA and the Espionage Act. Instead, Count 4 relates to Mr. Libby's description of his conversation with Mr. Russert (essentially, Mr. Libby testified that Mr. Russert mentioned Ms. Wilson's CIA employment to him and that he was struck by what Mr. Russert said). And Count 5 relates to what Mr. Libby told reporters, and his state of mind at the time (e.g., "I told a couple reporters what other reporters had told us"). The government also argues that Mr. Libby tailored his testimony to suggest that he did not know that Ms. Wilson was a covert agent or that information about her employment was classified. See id. This conclusion is undermined by the record evidence, which shows that Mr. Libby did not know prior to July 14, 2003 that Ms. Wilson was covert or classified. The government attempts to prop up its faulty theory by pointing to events that occurred after Mr. Libby discussed Ms. Wilson with reporters. For example, the government notes that news articles in Mr. Libby's files alleged that Ms. Wilson was covert, and that David Addington testified that he gave Mr. Libby a copy of the IIPA. Such evidence is entirely beside the point. Either Mr. Libby was told prior to his discussions with reporters that Ms. Wilson was covert or classified, or he was not. The evidence clearly establishes that he was not. And contrary to the government's claims, 24 nothing in the record suggests that Mr. Libby "well knew" that any violations of the IIPA or the Espionage Act had in fact been committed; indeed, Mr. Libby believed the opposite. Accordingly, his testimony was not "in respect to" any actual violations of the IIPA or the Espionage Act, making the cross reference inapplicable. Finally, with respect to the perjury counts, the government relies heavily on United States v. Suleiman, 208 F.3d 32 (2d Cir. 2000), to support the proposition that a defendant's intent to commit perjury is enough to trigger the cross reference provided by § 2J1.3(c). Suleiman, however, like the cases cited by the government with respect to the obstruction of justice cross reference, involves a situation where an underlying crime (conspiracy) had actually been charged, and is thus inapposite. 3. The Cross Reference Provision Is Not Applicable To Count 2 U.S.S.G. § 2B1.1 governs the offense of making false statements (Count 2). According to the government's analysis, if the conduct charged in Count 2 established a violation of 18 U.S.C. § 1505 (obstruction of proceedings before federal agencies), then § 2B1.1(c)(3) would require the court to apply the guideline for that violation. The government concludes that "the propriety of applying the cross reference to Count 2 is debatable," because that count did "not specifically allege that defendant made the charged false statements `corruptly,' with intent to obstruct the FBI's investigation." Gov't Guidelines Mem. at 17-18. We agree that the cross reference should not be applied to Count 2 because it is not clear that Count 2 constitutes a violation of 18 U.S.C. § 1505. Nevertheless, even if the Court looked to the guideline applicable to violations of 18 U.S.C. § 1505, there would be no basis for the court to apply a cross reference to the guidelines for violations of the IIPA or the Espionage Act, for the same reasons already set forth above. 25 4. The "Substantial Interference" Enhancement Is Not Warranted The government has also argued that a three-level increase in the offense levels for perjury and obstruction of justice is warranted here because Mr. Libby's crimes purportedly "resulted in substantial interference with the administration of justice," by causing "the unnecessary expenditure of substantial governmental or court resources." See Gov't Guidelines Mem. at 18. The government's arguments are misplaced because Mr. Libby neither "caused" the government's expenditures nor were those expenditures "unnecessary" or "substantial" as required by U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2). a. Mr. Libby's Conduct Did Not Cause the Government's Expenditures The government cannot show as it must to justify a three-level enhancement under U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2) that Mr. Libby's conduct caused many of the expenditures described in its submission. Specifically, the government has pointed to expenditures associated with: (1) obtaining testimony from Mr. Russert and other reporters, including negotiations and litigation concerning grand jury subpoenas; (2) conducting interviews and obtaining testimony from government officials, including the Vice President, Cathie Martin, Robert Grenier, and others; and (3) obtaining and reviewing documents. See Gov't Guidelines Mem. at 20. The government's arguments ignore several key facts that make clear that it was not Mr. Libby who caused these activities and expenditures. Therefore, he should not be penalized for them. See, e.g., United States v. Jackson, 67 F.3d 1359, 1370 (8th Cir. 1995) (finding error in the district court's application of U.S.S.G. § 2J1.2(b)(2) where the defendant's actions and the ensuing investigation were not sufficiently connected). 26 As the PSR correctly states, Mr. Libby was not responsible for the First Amendment litigation between the government and reporters. Early in the government's investigation, Mr. Libby signed a waiver giving reporters permission to speak with the government about their conversations with him. The waiver stated, in part, I request any member of the media with whom I may have communicated regarding the subject matters under investigation to fully disclose all such communications to federal law enforcement authorities. In particular, I request that no member of the media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit in connection with the subject matters under investigation. GX 11, Statement & Waiver of I. Lewis Libby, signed Jan. 5, 2004. Throughout the government's investigation, whenever requested, Mr. Libby and his counsel provided reassurances to reporters that his waiver was voluntary. Those reporters who fought the subpoenas did so because they believed the so-called "journalist's privilege" protected their conversations with sources and feared the subpoenas were "fishing expeditions" designed to obtain evidence about sources other than Mr. Libby. For example, as Tim Russert stated at trial, he "fought that subpoena because we were very concerned at NBC News about a reporter being called into a proceeding which could be open-ended, a so- called fishing expedition. That could have a chilling effect on my ability to talk to people." Feb. 7, 2007 P.M. Tr. at 72:24 to 73:3; see also Matthew Cooper, What Scooter Libby and I Talked About, TIME, Oct. 30, 2005 at 1 (explaining that he fought the subpoena "to protect the principle of source confidentiality"). The government contends that Mr. Libby's waiver does not "preclude the application of the enhancement" with respect to the expenditures related to obtaining testimony from journalists for two main reasons. First, according to the government, 27 Mr. Libby was "well aware" when he was interviewed by the FBI that reporters tried to protect their sources, and "thus anticipated the possibility of litigation over any subpoenas the government might issue." Gov't Guidelines Mem. at 21. This argument fails because it was far from clear in January 2004 that certain reporters would refuse to testify notwithstanding the existence of the waiver. For example, several reporters not mentioned in the government's submission accepted Mr. Libby's waiver when coupled with his personal assurances, and testified without mounting any legal challenges to the subpoenas. See, e.g., Feb. 12, 2007 A.M. Tr. at 43:2-7 (testimony of reporter Walter Pincus); Feb. 12, 2007 P.M. Tr. at 57:23-58:23 (testimony of reporter Glenn Kessler). Moreover, Mr. Libby signed the waiver before any litigation between the government and reporters occurred. Even if that litigation could have been anticipated notwithstanding the waiver, it hardly stands to reason that Mr. Libby caused it. Second, the government resurrects the old canards that Mr. Libby was responsible for Ms. Miller's incarceration and that he sought to influence her testimony in a letter sent to her in jail. Ms. Miller's testimony is to the contrary. At trial, she admitted that she had not contacted Mr. Libby regarding the validity of his waiver until after she was already incarcerated: Q: Why did you . . . not contact Mr. Libby earlier regarding his personal waiver? A: Because I did not have the agreement from Mr. Fitzgerald to limit any questioning of me about sources to either one source and the subject at hand. I was afraid of a fishing expedition. . . . I was very nervous about that, that this was the beginning of a long set of questions about who my sources were . . . . 28 Jan. 31, 2007 A.M. Tr. at 99:10-20. Further, in her grand jury testimony, Ms. Miller stated that she did not understand Mr. Libby's letter to her in jail as an attempt to influence her testimony. Miller Oct. 12, 2005 G.J. Tr. at 42. Moreover, given the exacting manner in which the government proceeded with its investigation of the disclosure of Valerie Wilson's CIA employment to reporters, it seems likely the government would have issued subpoenas to reporters and litigated their motions to quash even if Mr. Libby's grand jury testimony had been consistent with that of Mr. Russert, Ms. Miller and Mr. Cooper. This conclusion is supported by the trial testimony of the FBI Case Agent in charge of the investigation, who testified at trial about its broad scope: We were trying to determine how it happened that [Valerie Wilson's] name and her employment at the CIA got to the media. . . . We were trying to find out the names of the people who knew about her employment at the CIA and her identity, as well as where they learned the information, [and] who they told. . . . See Feb. 1, 2007 P.M. Tr. at 37:24-25; 39:5-13 (testimony of Special Agent Deborah S. Bond). It therefore seems likely the government would have interviewed the government officials it claims were interviewed only because of Mr. Libby (such as the Vice President), and continued to gather documents, even if it had not doubted the veracity of Mr. Libby's testimony. The mere fact that the interviews occurred after Mr. Libby's grand jury testimony is insufficient to justify a three-level enhancement if that testimony did not cause the FBI to conduct those interviews. For these reasons, the government's conclusory allegations regarding its purported additional expenditures are unconvincing. 29 b. The Government's Expenditures Were Not "Unnecessary" or "Substantial" The government's argument that the Court should apply a 3-level enhancement under U.S.S.G. §§ 2J1.2(b)(2) or 2J1.3(b)(2) fails for another reason as well. The government cannot show that any expenditures resulting from Mr. Libby's grand jury testimony were "unnecessary" or "substantial," as it must under U.S.S.G. §§ 2J1.2, cmt. n.1 and 2J1.3, cmt. n.1, because any such expenditures were made primarily if not exclusively to build a case against Mr. Libby for lying to the grand jury. It is well settled that the government may not rely on its expenditures in prosecuting the defendant for perjury to demonstrate "substantial interference with the administration of justice." Courts have held that imposing a three-level enhancement based on such circumstances would in effect raise the base offense level for perjury, because every perjury conviction would result in a three-level enhancement. See United States v. Norris, 217 F.3d 262, 273 (5th Cir. 2000) (following the Second, Tenth and Ninth Circuits in holding that "the expenses associated with the underlying perjury offense should not form the sole basis for an enhanced sentence under section 2J1.3(b)(2). . . . Otherwise, every perjury conviction would carry the enhancement"); United States v. Duran, 41 F.3d 540, 546 (9th Cir. 1994) (rejecting the district court's imposition of a three level adjustment "[b]ecause the government could not identify any expenses in addition to the costs of bringing [the defendants] to trial"). This reasoning is equally applicable to the obstruction of justice guideline, U.S.S.G. § 2J1.2(b)(2), which contains the identical requirement that the offense result in "substantial interference with the administration of justice." Indeed, this logic is particularly appropriate here, where 30 the obstruction charge was based on the same conduct that resulted in Mr. Libby's conviction for perjury. See Feb. 21, 2007 A.M. Tr. at 23:18-21 (jury instructions). If the government expended any resources as a result of Mr. Libby's statements to the grand jury, it was to gather evidence used to prosecute Mr. Libby for lying about his conversations with reporters. The government has conceded that this was an objective of its investigation. In February 2004, at the Special Counsel's request, the Justice Department clarified that the Special Counsel had authority to investigate and prosecute crimes of perjury and obstruction of justice. Feb. 6, 2004 Ltr. from James B. Comey, Acting Attorney General, to Patrick J. Fitzgerald. The government maintains that the expenditures it has identified "were necessary in order to determine both whether defendant had violated the IIPA or Espionage Act, as well as whether he had perjured himself or obstructed justice." Gov't Guidelines Mem. at 19. This argument is unpersuasive. The government realized early in its investigation that Mr. Libby had not received any information indicating that Ms. Wilson was a covert agent within the ambit of the IIPA, as the Special Counsel's August 27, 2004 affidavit reflects. And given that the government never adduced any evidence that Mr. Libby was told that Ms. Wilson's CIA employment was classified information, its claim that it was focused on whether Mr. Libby could have violated the Espionage Act rings hollow. The cases cited by the government at pages 20 to 21 of its Guidelines Memorandum do not support a sentencing enhancement under § 2J1.2(b)(2). In all of these cases, courts applied the enhancement because expenditures had been incurred in the prosecution of either different defendants or different underlying charges. See United 31 States v. Tackett, 193 F.3d 880, 885 (6th Cir. 1999) (expenditures related to "different charges [and] entirely different defendants"); United States v. Sinclair, 109 F.3d 1527, 1540 (10th Cir. 1997) (expenditures related to the trial of a different defendant); United States v. Harrington, 82 F.3d 83, 87 (5th Cir. 1996) (expenditures related to "successful prosecution of [the underlying offense]"). By contrast, the expenditures incurred in this case were related to the perjury charges against Mr. Libby. No charges were brought against other defendants, and Mr. Libby was not prosecuted for an underlying offense. Leaving aside expenditures by the government that had nothing to do with Mr. Libby's conduct, and others that were made in order to prosecute Mr. Libby for perjury and obstruction of justice, the government is left with little, if any, evidence that Mr. Libby's testimony before the grand jury caused it unnecessarily to expend substantial government resources. Accordingly, the government's request for a three-level enhancement under U.S.S.G. §§ 2J1.2(b)(2) and 2J1.3(b)(2) should be rejected. 32 Conclusion For the reasons above, the two sentencing enhancements identified by the government should not be applied when the Court calculates the applicable Guidelines offense level as part of its sentencing analysis under 18 U.S.C. § 3553(a). Dated: May 31, 2007 Respectfully submitted, /s/ /s/ Theodore V. Wells, Jr. William H. Jeffress, Jr. (DC Bar No. 468934) (DC Bar No. 041152) James L. Brochin Alex J. Bourelly (DC Bar No. 455456) (DC Bar No. 441422) Paul, Weiss, Rifkind, Wharton Baker Botts LLP & Garrison LLP 1299 Pennsylvania Avenue, NW 1285 Avenue of the Americas Washington, DC 20004 New York, NY 10019-6064 Tel: (202) 639-7751 Tel: (212) 373-3089 Fax: (202) 585-1087 Fax: (212) 373-2217 /s/ John D. Cline (D.C. Bar No. 403824) Jones Day 555 California Street, 26th Floor San Francisco, CA 94104 Tel: (415) 626-3939 Fax: (415) 875-5700
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