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When President George W. Bush commuted the 30-month prison sentence of former administration aide I. Lewis “Scooter” Libby, many in the public and media questioned whether the act was pure political favoritism, a furtherance of a cover-up, or a historically unprecedented downward departure to a sentence. Legal bloggers looked not only at the questionable motivation behind the president’s decision, but also whether the Libby commutation would spawn subsequent challenges to the otherwise mandatory federal sentencing guidelines for similarly situated criminal defendants, or even warrant a revision to the guidelines in order to cater to first-time white collar offenders. Professors Peter J. Henning and Ellen S. Podger have examined the Libby commutation in great detail on their blog White Collar Crime Prof Blog (http://lawprofessors.typepad.com/whitecollarcrime_blog/). Among Podger’s initial queries was the timing of the president’s commutation, noting that it occurred only a mere few hours after a three-judge panel had ruled that Libby would not receive bond while the appeal of his conviction was pending and before Libby had served even one day of time. To Podger, the president’s “immediate dismissal of the entire jail sentence is suspect when he could have adjusted the sentence by waiting until Libby served some time before issuing a free �get out of jail card.’” (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/commentary-on-b.html.) In the Libby case, however, it was clear that President Bush believed that any jail time was “excessive” despite the fact that the 30-month sentence imposed by Judge Reggie Walton was well within the applicable guideline range. Thus, “factors outside the normal considerations of the appropriate punishment” were driving President Bush’s decision, namely the identity of the individual being sentenced. (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/whould-libby-ha.html.) Nevertheless, if President Bush’s characterization of Libby’s sentence as “excessive” is accepted, Podger noted that the commutation may “represent the need to revise the guidelines to offer first time white collar offenders softer and more reasonable sentences.” (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/whould-libby-ha.html.) The issue of “reasonableness” of a sentence which departs from the guidelines is currently on certiorari to the U.S. Supreme Court in Gall v. United States, causing Henning to ask whether the defense or even the court itself will “raise the Libby commutation as evidence that the guidelines may be askew in certain instances” including those involving a government official who is a first-time offender. (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/could-libby-ha.html.) Moreover, the commutation itself may have created a novel departure from the federal sentencing guidelines, whereby “future defendants who are convicted with similar conduct can argue that they should receive a sentence of no time so that like defendants receive like punishments.” (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/commentary-on-b.html.) Podger explained what she called “The Libby Motion, ” as one in which as the defendant seeks a departure from the Guidelines by comparing their circumstance to those of Libby.(http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/the-libby-motio.html). While, at first blush, Podger’s “ Libby Motion” may seem to be a sardonic response to President Bush’s commutation, she notes that the guidelines permit departures for factors that were not considered by the U.S. Sentencing Commission and that such motions may be predicated on the fundamental policy of the Guidelines of obtaining “reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal conduct.” (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/the-libby-motio.html.) Within days of Podger’s blog entry, a “Libby Motion” was made by Troy Ellerman, the attorney who pleaded guilty to leaking the grand jury testimony of baseball star Barry Bonds and others in connection with the BALCO steroids investigation. Ellerman’s attorney painted Ellerman as having “been punished in a fashion similar to that of Lewis Libby” and, thus, entitled to a departure from the guidelines. Notably, Ellerman did not seek the same “complete pass on a prison term” that President Bush gave to Libby, instead seeking only to have his term of incarceration rest at the bottom of the applicable guideline range. (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/everybodys-doin.html.) Ellerman’s “Libby Motion” was rejected by U.S. District Judge Jeffrey White, who stated that the Libby situation “was not relevant to this proceeding.” (See http://www.fogcityjournal.com/news_in_brief/bcn_balco_ellerman_sentenced_070712.shtml.) In rejecting Ellerman’s argument for a downward departure, White, who was himself appointed by President Bush in 2002, noted pointedly that “[u]nder President Bush’s reasoning, any white collar criminal should receive little or no time.” (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/judge-rejects-l.html.) Although White’s rejection of a “Libby Motion” supports the notion that the Libby commutation was a one-time aberration grounded in political favoritism or self-interest, white-collar criminal defendants may continue to seek downward departures by cloaking themselves as similarly situated to the man known as “Scooter.” However, as Podger noted, unless those individuals “have access to the president,” then the courts will likely continue to follow the guidelines and sentence “as if the Libby case did not exist.” (See http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/07/the-libby-motio.html.) Law professors and legal analysts will in the meantime be left to try to somehow explain the entire situation in a rational, legally sound manner. DARIN MCMULLEN and LUKE DEBEVEC are attorneys at Anderson Kill & Olick in Philadelphia, where their practices are concentrated on insurance recovery, exclusively on behalf of policyholders. Debevec’s personal blog may be found at http://blogbrief.blogspot.com.

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