Libby's Sentence Not That Unusual

President Bush said on July 3, that in reaching the decision to commute the sentence of I. Lewis (Scooter) Libby, "I considered his background, his service to the country, as well as the jury verdict . . . I felt like the 30-month sentencing was severe; made a judgment, a considered judgment that I believe is the right decision to make in this case, and I stand by it."^[1] However records show that President George W. Bush's Justice Department frequently seeks sentences that are as long, or longer, in cases similar to I. Lewis Libby's.^[2]

Three-fourths of the 198 defendants sentenced in federal court last year for obstruction of justice - one of four crimes for which Libby was convicted - got jail time; federal sentencing data shows the average sentence obstruction alone was 70 months.^[3] However in Libby's sentence, Bush said that the former aide had suffered enough and that the prison term ordered up by a federal judge was "excessive."^[4] We have previously discussed this case here.

Yet, last week the Supreme Court upheld a 33-month prison sentence for an Army veteran convicted of lying to a federal agent about a machine gun he had purchased.^[5] The vet had a record of public service - in Vietnam and the first Gulf War - and had no criminal record, but Justice Department lawyers argued his prison term should stand because it fit within the federal sentencing guidelines.^[6]

The President's decision to make an exception for a political ally is irksome to many career Justice Department prosecutors who assert that the decision would make it harder to persuade judges to deliver appropriate sentences.^[7] "It denigrates the significance of perjury prosecutions," John S. Martin Jr., a former U.S. attorney and federal judge in Manhattan, said of the commutation.^[8]

Libby was also convicted of perjury, which is covered under 18 U.S.C. §1621 and states that a person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true;^[9] or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;^[10] is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

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^[1] Richard B. Schmitt & David G. Savage, Libby's sentence not unusually long, Los Angeles Times, July 4, 2007, available at http://www.latimes.com/news/nationworld/world/la-na-libby4jul04,0,6710317.story?coll=la-home-center (last visited July 5, 2007).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] 18 U.S.C. §1621(1)(2007).
^[10] Id. at. §1621(2)