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Scooter, meet Victor

Two weeks ago, the US Supreme Court handed down the decision in Rita v. US, which I discussed here.  Victor Rita was convicted of perjury and obstruction of justice.  Rita had no other criminal record, had served 25 years in the armed forces, during which he received 35 commendations and medals of various types.  The guidelines provided for a sentencing range of 33-41 months.  The judge imposed a sentence at the bottom end of that range.  The Supreme Court affirmed that result as a reasonable outcome, Justice Scalia opining that Rita got a "relatively low sentence." 

Last week, President Bush commuted the sentence of Scooter Libby, who had been convicted of perjury and obstruction of justice.  Libby's sentencing range was 30-37 months, and again the judge had imposed a sentence at the bottom end of that range.  In doing so, the president asserted that the prison sentence was "excessive," that commutation was warranted because of Libby's lengthy history of public service, and that Libby's having to remain on probation and pay his fines still represented a "harsh punishment."

In short, while Bush's Justice Department was arguing that Victor Rita's sentence was appropriate and that factors like prior service to the country were an inappropriate basis for a reduction, Bush himself came to the opposite conclusion.

As this New York Times article indicates, the Libby commutation may have been a gift to defense lawyers:  it's led to the creation of the "Libby Motion," in which the defendant argues for a lesser sentence, essentially on the basis that the President of the United States has determined that the consideration of various factors can render a guidelines sentence "excessive." 

what's astonishing is that the factors Bush relied on in commuting Libby's sentence are the same ones that the administration has aggressively sought to preclude judges from considering when imposing sentences on everyone else.

What's particularly fascinating about this is that the first case in which this argument will be used is that Mohammed Salah, who is scheduled to be sentenced next week on one count of obstruction of justice for his role in a scheme to aid the terrorist organization Hamas.  His lawyer argues,

What the president said about Mr. Libby applies in spades to the case of Mohammed Salah.  We'll definitely be bringing it up to the judge. ... It's going to be a real test, a first early test of whether we're a nation of laws or a nation of men.

Well, if the judge doesn't buy it, they can always make their pitch to the Decider.

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