Liberate Libby's PSR
by emptywheel

Say, did you notice who wrote the talking points for Tony Snow's press briefing yesterday? The Probation office (only Snow makes the same mistake I did when I first talked about this, calling it the parole office--though I guess if you work for the guy who simply disappears all prison sentence, parole might come more easily to the tongue).



Over and over, Snow claims the "parole board" recommended precisely the same punishment that Bush ultimately decided upon, probation (though, as the surprisingly spiney press corpse point out, Snow has to assume that Libby would have been granted every single downward departure floated in the presentencing report).

I find it unbelievably suspicious that Snow is relying so heavily on the PSR to justify Bush's action--because it appears to have been a complete hack-job, making arguments that embarrassed even Libby's lawyers. So I'd like to call for publication of the PSR (with redaction of all the personal information save the financial information used to support some of its arguments, as noted below) so we can see the embarrassing logic behind Bush's current justification for wiping away Libby's prison sentence.



The most absurd claim the PSR appears to have made is that Libby should get a downward adjustment because he had to pay so much for his defense team. From the government's filing:

Libby didn't have to hire the most expensive lawyers in the universe, responded the Team USA lawyers who currently make what an Associate at Ted Wells' firm makes. And as Team USA points out, Libby isn't paying for his defense--Fred Thompson and Mary Matalin and Tucker's Daddy and Mel Sembler and James Woolsey are paying for Libby's defense.



But the PSR would have you take pity on the rich neocons who had to spend so much to defend Libby's stinker of a case, and as a result knock some time off Libby's sentence. (It seems to me, if your case is so shitty that three high-priced lawyers can't get you off, there ought to be an upward enhancement.)

And finally, a snarky footnote suggests the PSR has gone further--and taken into account the costs Libby might have to pay to defend himself against the Wilson's lawsuit (even though it is still doubtful that the suit won't get thrown out of court).
The PSR cites no legal basis, and the government cannot conceive of any, upon which the Court could appropriately consider the costs of a civil lawsuit brought by a private party.

Now, when the defense finally got around to making their case for--you guessed it, precisely the punishment Libby has ended up with after Bush's meddling--they don't even mention the downward departure based on the argument that Libby's friends had to pay for much for his high-priced lawyers. It's that embarrassing, apparently.

But shouldn't that, by itself, justify releasing the PSR? Why did the Probation Officer recommend a downward departure that no case law supports, that the facts of the case don't support, and that simple justice doesn't support? Who suggested it, if not Libby's team?

The PSR also appears to have recommended downward departures because of Libby's likely loss of income from losing his law license, in spite of apparent evidence that he is already very rich (which is the sole justification I'd make for keeping his financial information unredacted in any release). And it appears to have recommended a downward departure because this was aberrant behavior, in spite of the fact that Libby lied on 4 occasions across several months. In other words, it looks like the PSR recommended every downward departure it could imagine offering--going to great lengths to recommend some that just couldn't be supported by the facts.

In addition, the PSR appears to totally disregard mandated upward enhancement via cross-reference on the obstruction of justice charge. In the government's filing, they argue that the upward enhancement is mandatory:


Then they point out that, after ignoring the Sentencing Guidelines, the PSR argues that the upward enhancements cannot be applied without citing any case law:


The PSR apparently goes on to make an argument that is usually found only in the WaPo's or WSJ's op-ed section, that Plame was not covert (in a further argument to discount any cross-reference). It does so on the basis of the court proceedings (in which, of course, any mention of her status was specifically excluded), while ignoring that sentencing can consider information not presented in the trial.

I find it very suspicious that the PSR is so weak on precisely the issue Bush is relying on right now--the problem with the cross-reference. Now perhaps the Probation Officer who wrote the PSR has simply been reading the WaPo editorial page too credulously. By I find it rather suspicious that the PSR ignores existing laws and requirements and invents some new laws in order to recommend precisely the kind of punishment that Bush himself finds appropriate.