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EXCLUSIVE LEGAL MUMBO JUMBO: What Will Happen to Scooter?

When we said Scooter'd get 24 months earlier, how could we be so sure? Because, well, we asked a lawyer. And he responded with a billion words explaining, in great detail, precisely what will happen to Mr. Scooter Libby. Here's the conclusion:


The Judge will likely grant Scooter's request to remain out for self-surrender, which usually means 6-10 weeks of freedom, but it's a hell of a lot better than being taken into custody at sentencing and getting to the prison by way of a half dozen local jails along the way over a few weeks. Expect Scooter to also plea at sentencing that he's got a drug or alchohol abuse history, allowing him to ask that he be ordered into the Residential Drug Abuse Program (often called the 500 Hour Program or RDAP) which will scrap off a few months of his sentence (6 to 12) and ensure that a few months more (usually 6) are spent in a halfway house rather than a prison. He also gets 54 days of good time credit for every 12 months served, he'll be out in a little more than a year.

The full explanation is after the jump. Though it's all moot if Bush makes like his dad and pardons Scooter's drunk ass.

Holy Shit, Batman.

I hadn't looked carefully at this guidelines section before, but the possible exposure is way higher than I'd thought.

For the Obstruction of Justice count, there's a base level of 14 points in the federal system, with a possible 3 point enhancement should the Judge find that the offense resulted in a "substantial interference" in the administration of justice. I don't think that Fitzgerald is going to get the enhancement since he already knew where the leak came from, but it's still possible since Judith Miller sat in jail for a summer and a lot of money was spent on FBI agents and grand jurors. As he went to trial on a plea of 'not guilty' he shouldn't get the 2 or 3 points off for acceptance of responsibility, so he's either at a 14 or 17. Assuming Scooter doesn't have a criminal record, that's either 15-21 or 24-30 months in a minimum security facility or a federal prison camp. Just for starters.

Depending on how the other counts - the false statement to the FBI and the two perjury counts - get grouped in, it should be another point for each offense, for a total of 17 to 20 points. That's a guidelines sentence of 24-30, 27-33, 30-37 or 33-41 months. But because the false statement charge doesn't have a separate guideline and judges are advised to group perjury counts together, it's hairy. The Court could give more points for the false statement because it came at a separate phase of the case, adding another 14 points to Scooter's guidelines rather than just one. I wouldn't bet on it as the judge would be begging for a DC Circuit Court of Appeals review or for Libby to simply be pardoned by W for being far outside what the guidelines seem to say is fair.

So, assuming that Scooter doesn't have more than one previous conviction for something like DUI, he's got a guideline Offense Level of 17 or 20 points, with no other enhancements bringing it up or credits bringing it down. That's 24-30 months or 33-41 months. Keep in mind that the Judge can use his discretion to go outside the guidelines in any one of 3 ways: give Scooter 2 points off for accepting responsibility (which is unlikely, 'cause it'd require that either effectively confess guilt, ending any appeal hopes, or that the Judge find that the guy has accepted responsibility when he clearly hasn't - but hey, Martha Stewart's judge did exactly that); find that his age or health entitles him to some downward departure; or just scrap a bunch of time for shits and giggles. My guess is 24 months - the low end of the range for a 17 point offense level. There's also a possibility that the US Attorney could ask for a reduction under Rule 5K or Rule 35 for some sort of substantial assistance, but I wouldn't hold my breath that Scooter's now going to help, and I wouldn't imagine that Fitzgerald is going to do anything unless Scooter can give up the secret information tying W to Saddaam in a gay sex-for-drugs scheme that took place in Rumsfeld's den.

The Judge will likely grant Scooter's request to remain out for self-surrender, which usually means 6-10 weeks of freedom, but it's a hell of a lot better than being taken into custody at sentencing and getting to the prison by way of a half dozen local jails along the way over a few weeks. Expect Scooter to also plea at sentencing that he's got a drug or alchohol abuse history, allowing him to ask that he be ordered into the Residential Drug Abuse Program (often called the 500 Hour Program or RDAP) which will scrap off a few months of his sentence (6 to 12) and ensure that a few months more (usually 6) are spent in a halfway house rather than a prison. He also gets 54 days of good time credit for every 12 months served, he'll be out in a little more than a year.

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