10/7/05

VR ANALYSIS OF THE FEDERAL SENTENCING GUIDELINES DEMONSTRATES THAT SENIOR WHITE HOUSE OFFICIALS ARE FACING THE PROSPECT OF LIFE IN PRISON FOR THE OUTING OF CIA AGENT VALERIE PLAME UNLESS THEY HURRY UP AND TURN ON EACH OTHER

It looks more and more like Karl Rove and his GOP associates made a huge mistake when they decided to disclose the identity of Valerie Plame in retaliation for statements by Ambassador Joe Wilson about the implausibility of President Bush's statements about Iraq's nuclear capabilities. By going after Wilson and his wife, they committed serious crimes which, apparently, they then compounded by obstructing justice and committing and suborning perjury. As a result, they have virtually ensured that, if convicted, they could receive a sentence up to life in federal prison under the United States Sentencing Guidelines, which are used to compute sentences based on severity offense levels. The higher the level, the greater the sentence, and federal courts routinely follow the Guidelines in the vast majority of cases.

The best case scenario for those involved would be a conviction of only a single count of perjury or obstruction of justice, either of which carries a maximum sentence of five years in federal prison. Under the Guidelines, that would result in the maximum sentence because both charges have a base offense level of 14, and those convicted will most probably receive enhancements of 3 levels for substantial interference with the administration of justice, 6 levels for victimizing a government employee and family member, 2 levels for abuse of the public trust, and 4 levels for being a leader. These total 29 levels, which equals 87-108 months in federal prison under the Guidelines, far above the five-year statutory maximum, so the final sentence will be five years.

However, federal prosecutors rarely issue one-count indictments, but rather charge every possible violation. In the instant case, it is highly likely that Special Prosecutor Fitzgerald will throw the book at them, by charging conspiracy and violation of the Intelligence Identities Protection Act of l982 ("IIPA") (50 U.S.C., section 421), each carrying a maximum sentence of ten years, and multiple counts of perjury and obstruction of justice, each carrying five years. Moreover, because there was an agreement among many people in this case, there will most probably also be an overarching conspiracy charge to violate multiple statutes. It is significant that the IIPA mandates that any sentence under the Act be imposed "consecutively" to any other sentence in the indictment. Id. at section 421(d).

The Federal Sentencing Guidelines reflect the seriousness of a conviction under the IIPA by setting a base offense level of 30 for disclosure "by a person with, or who had access to, classified information identifying a covert agent." In the case of White House officials, the same enhancements mentioned above will be added to that base level, for a total of 42 levels, which requires a LIFE sentence. Of course, since the IIPA only allows for a maximum sentence of ten years, that life sentence could be imposed only by a conviction on multiple counts, such as conspiracy, perjury and obstruction of justice, running consecutively to the IIPA sentence.

Why will these officials receive such a heavy sentence? Well, the Guidelines are very specific about adding enhancements based on conduct of a defendant. In this case, there is a 6 level enhancement under section 3A1.2(b) "if the victim was a government employee or member of the immediate family of a government employee and the offense of conviction was motivated by such status…." Both Valerie Plame and Joe Wilson clearly meet this definition of a victim since their lives have been risked and they have suffered severe emotional harm.

In addition, because an official such as Karl Rove or Scooter Libby would obviously be considered "an organizer or leader" of the criminal conduct under section 3B1.1, he would receive another enhancement of 4 levels. Moreover, all the defendants' conduct constitutes "an abuse of the public trust" as set forth in section 3B1.3, which would add another 2 levels.

Furthermore, because of the "willing obstruction and impeding of the administration of justice during the investigation" by Rove and those he controls, including the Republican National Committee, the White House Press Spokesman, and GOP leaders, they will receive another enhancement of 2 levels under section 3C1.1.

Finally, because of the grievous harm to our country and the "potential disruption of governmental function," the sentencing court, even if the guidelines were not so severe, would most certainly find, under section 5K2.0(a)(1)(A), aggravating circumstances sufficient to warrant an upward departure from the guidelines.

Significantly, Rove and his conspirators will not receive any sentence reductions for acceptance of responsibility since that does not apply to persons who obstruct an investigation. Indeed, the only hope for them under the Guidelines appears to be a quick decision to cooperate with the Special Prosecutor, and that does not mean merely meeting with the FBI and testifying before the grand jury. Instead, it means saving their own skin by implicating fish bigger than he is, and that means George Bush and Dick Cheney. The days of Watergate are over where corrupt officials only receive a few years in prison for their official misconduct. Now, Fitzgerald and the Sentencing Guidelines control the lives of Rove and company, unless one of the potential defendants jumps ship very, very soon. Clearly, the only guarantee for Rove and his conspirators to limit their prison time is complete cooperation before indictment. **NOTE TO ALL SUCH CONSPIRATORS: On September 15th, VR posted a $100,000 reward for new information implicating senior White House Officials in the outing of Valerie Plame, so quick cooperation can not only limit jail time but also result in substantial income** But if their past decisions are any indication, the conspirators will go down with the ship, believing until the end that George Bush will pardon them for their crimes, which he will not do if he too is indicted, and which he may not do if he wants to maintain a legacy better than Richard Nixon.