Fitzgerald: O.K., Libby Wasn’t Convicted of Leaking — But Punish Him As If He Had Been
NRO, by Byron York
During the perjury and obstruction trial of Lewis Libby, prosecutor Patrick Fitzgerald never charged, and never presented evidence, that Libby illegally disclosed the name of a covert CIA agent. But now, Fitzgerald wants Libby to be sentenced as if he had been guilty of that crime.
Libby is scheduled to face sentencing on June 5. In court papers filed last week, Fitzgerald argues that Libby should be sentenced to 30 to 37 months in jail — a relatively stiff sentence that is appropriate, Fitzgerald says, because of the seriousness of the investigation which Libby was convicted of obstructing.
During the CIA-leak probe, Fitzgerald looked into possible violations of the Intelligence Identities Protection Act and the Espionage Act. He did not charge anyone with breaking either law. But in his court filing, Fitzgerald writes that the grand jury “obtained substantial evidence indicating that one or both of the…statutes may have been violated.”
Therefore, Fitzgerald is asking Judge Reggie Walton to treat Libby as if it had been proven that such crimes occurred. “Because the investigation defendant was convicted of endeavoring to obstruct focused on violations of the IIPA and the Espionage Act,” Fitzgerald continues, “the court much calculate defendant’s offense level by reference to the guidelines applicable to such violations.”
As a basis for his argument, Fitzgerald is using a common legal distinction: It’s more serious to obstruct a murder investigation than a shoplifting investigation. The problem, for Fitzgerald, is that he never proved that a crime, as defined by either the Intelligence Identities Protection Act or the Espionage Act, actually occurred. Now, he’s arguing not only that he proved a crime occurred but that Libby knowingly took part in it.