"On behalf of I. Lewis Libby"

Scooter Libby's defense team asks that Libby be sentenced to probation, and responds to the sentencing memorandum special counsel Patrick Fitzgerald filed last week.

By Alex Koppelman

Published June 1, 2007 12:04AM (EDT)

Last Friday, special counsel Patrick Fitzgerald filed his sentencing memorandum in the trial of Scooter Libby, asking that Libby be sentenced to 30 to 37 months in prison. Thursday, Libby's defense lawyers responded with their own sentencing memorandum.

The Libby defense team argues that Libby, the former chief of staff to Vice President Dick Cheney, should be sentenced to probation, "perhaps combined with community service alternatives." That memo quotes some of the many letters sent to the court on his behalf to bolster the description of Libby that opens the memorandum: "Distinguished public servant. Generous mentor. Selfless friend. Devoted father." It also lists some of his pro bono work, for example, "help[ing] a Vietnam veteran obtain an endorsement deal for prosthetic limbs, and ... represent[ing] a housekeeper who had been held against her will by her employer," and describes his "strong moral character," which includes his "fairness and generosity" and his "caring and unselfish nature."

Libby's attorneys note that the calculation of the sentence Libby should receive under federal guidelines -- a calculation included in a Presentence Investigation Report, or PSR, which has not been publicly released -- calls for Libby to be sentenced to 15 to 21 months in prison. They argue, however, that Judge Reggie Walton, who has presided over the case, should depart from the guidelines because of three mitigating factors: an "outstanding record of public service and good works," "collateral employment consequences for Mr. Libby" and "the improbability of any future criminal conduct by Mr. Libby."

"The Court," Libby's attorneys argue, "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 ... 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." (Libby, it should be noted, has already obtained a fellowship at the conservative Hudson Institute.)

The memo also asks Walton to consider the harm allegedly done to Libby's children as a result of their father's trial, apparently resulting partially from the media attention given to his trial.

Meanwhile, in a separate opposition to the prosecution's sentencing memorandum, Libby's lawyers address an issue that has caused no small amount of controversy recently, the prosecution's assertion that Valerie Plame (also known by her married name, Valerie Wilson) -- the former CIA officer whose outing sparked the investigation that ultimately ensnared Libby -- was indeed a covert operative. Libby's lawyers argue that the assertion Plame was covert, based on an unclassified summary of her classified file, "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."

Libby's lawyers don't specifically refute the prosecution's assertion that Plame qualified as covert under the relevant statute, the Intelligence Identities Protection Act, but they do call it into question. They observe that the IIPA definition includes only those CIA officers "serving outside the United States" or who have "within the last five years served outside the United States," and that the unclassified summary says that within the relevant time frame Plame "engaged in temporary duty travel" while otherwise remaining in the U.S., and say that "it is not clear" that travel meets the IIPA definition. "In fact," they write, "it seems more likely that the CIA employee would have to have been stationed outside the United States ... 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."

Ed. note: Selected pages from the defense's sentencing memorandum, as well as downloads of both that document and the defense response to the prosecution's sentencing memorandum, are available here.

Update: Libby was indeed a senior fellow at the Hudson Institute, but he apparently resigned the day after his conviction. Strangely, as far as we can tell only one other outlet, the National Journal, ever reported his resignation. He's still hanging out with Hudson, though -- two weeks after he resigned, the New York Post reported that Libby sat in the front row for a speech given by his old boss, Cheney, to Hudson Institute members.

Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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