The first couple of dozen pages of the Libby brief are basically a long list of character references. It then goes on to urge a “downward departure” from sentencing guidelines based on the “mitigating factors” of his lifetime of exemplary character and service and also because the nature of the crime was so, well,… odd (my word, not his), in that there was no UNDERLYING crime, etc. — and also because he already has suffered public opproprium for such a long time, and because he lost his job and probably will lose his law license, and because of “the improbability of any future criminal conduct by Mr. Libby.”
A key passage notes that the sentencing guidelines make someone eligible for a downward departure (a lesser sentence) when what is at issue is “a single criminal transaction that (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation from an otherwise law-abiding life.”
As noted before, the Libby team also filed an extensive, legal-citation-heavy brief explaining why Fitzgerald’s request for an ENHANCED sentence (above the usual guidelines) was legally and factually incorrect. Upon a quick read, it blows Fitz out of the water. Then again, Fitzgerald has become monomaniacal about this case and about Libby, and no fairminded person would ever trust Fitz’ judgment again.
Frankly, I think ANY sentence, even one as comparatively lenient as probation (not that probation is lenient, considering what Libby already has been through), ought to be suspended (postponed) pending Libby’s appeal of the conviction. Libby is not a threat to bolt the country and not a threat to commit any other crime, and waiting to actually impose whatever penalty is to be imposed does no real harm to anyone — but making Libby begin serving his sentence would, clearly, harm him, considering that if his appeal is successful, he will be shown not to have merited any sentence at all, and considering that the time served (or even the probation served) will never be recoverable by him.
But nowhere in the brief (unless I missed it) does Libby ask for the sentence to be suspended (or postponed) pending appeal. The judge ought to take into account the fact that Libby’s brief amounts to a willingness to take his lumps (via probation) for a crime (or alleged crime) that even the jurors who convicted him believed was rather small potatoes.
Via probation or postponement of sentence, there is only one fair and just conclusion to this whole fiasco: Keep Scooter Libby out of jail!