"Libby Motion" For Convicted Terrorist Bankroller

President Bush's pardon of Scooter Libby was, at one level, an end-run around controversial federal sentencing guidelines. Defense lawyers, being who they are, didn't take long to recognize an opening -- and it looks like the first time it's tried will bring even more irony to the already irony-clad Libby case:

The New York Sun reports this morning that an alleged Hamas operative is likely to be among the first criminal defendants to try to capitalize on President Bush’s commutation. Mohammed Salah, 57, is scheduled to be sentenced by a federal judge in Chicago next week on one count of obstruction of justice. Prosecutors are seeking 22 years under the federal sentencing guidelines.

Said Salah’s lawyer Michael Deutsch, who’s seeking a sentence of probation: “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.” (WSJ Law Blog)

I fail to see anything in Salah's case about dedicated service to the U.S. government; instead I see a man who gave money to Hamas. I don't think Salah deserves 22 years, but that's more a comment on the problems with the federal sentencing guidelines than it is about Salah's case.

It would be a shame to use Libby to get probation for a funder of a terrorist organization. The courts need to give better direction on the guidelines or overturn them so we can start over -- if they don't, we'll see a slew of very bad "Libby motions."

Fitzgerald Justifies His Existence (Barely): Libby Convicted

Special Prosecutor Patrick Fitzgerald just did what is so common with special prosecutors: He saw his grand investigation get whittled down to a scrawny, questionable case and by applying every dollar given to him by the American taxpayers, eeked out a conviction, thereby justifying the next special prosecutor to come along.

Here's the scoop:

WASHINGTON (AP) Former White House aide I. Lewis "Scooter" Libby was convicted Tuesday of obstruction, perjury and lying to the FBI in an investigation into the leak of a CIA operative's identity.

Libby, the former chief of staff to Vice President Dick Cheney, was accused of lying and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity to reporters.

He was acquitted of one count of lying to the FBI.

Libby had little reaction to the verdict. He stood expressionless as the jury left the room.

The verdict was read on the 10th day of deliberations. Libby faces up to 30 years in prison, though under federal sentencing guidelines likely will receive far less.

U.S. District Judge Reggie B. Walton ordered a pre-sentencing report be completed by May 15. Judges use such reports to help determine sentences.

Libby faced two counts of perjury, two counts of lying to the FBI and one count of obstruction of justice. Prosecutors said he discussed Plame's name with reporters and, fearing prosecution, made up a story to make those discussions seem innocuous.

Libby's defense team said he learned about Plame from Cheney, forgot about it, then learned it again a month later from NBC newsman Tim Russert. Anything he told reporters about Plame, Libby said, was just chatter and rumors, not official government information.

Special prosecutor Patrick Fitzgerald said that was a lie. But Libby's defense team had argued that it would be unfair to convict Libby in a case where so many witnesses changed their stories or had memory problems.

No Cheney, no Bush, no vast right-wing conspiracy; just a needless debate over lying versus memory loss.

Not answered are the more significant questions: The MSM's role in playing up this affair, what really happened on Joe Clark's yellowcake mission and what that tells us about Africa's willingness to provide terrorists with uranium, and why Plame was successful in pushing her husband for the gig inthe first place.

It's not over yet, as a motion for a new trial is forthcoming, and certainly appeals will follow that.

What an absolute waste of money, and what a waste of Scooter Libby's life.

Quote Of The Day: Scooter Scooting? Edition

“We would like clarification of the term ‘reasonable doubt. Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt?”
-- Note to judge from Libby jury

Asking for clarification of "reasonable doubt" is not too far removed from asking for clarification that God created the universe. The courts have struggled with a definition since the inception of the concept, as is evidenced from the NYT's report on Judge Reggie Walton's instructions to the Libby jury:

In his instructions to the Libby jury, Judge Walton said, “A reasonable doubt, as the name implies, is a doubt based on reason.”

He also said that “if after careful, honest and impartial consideration of all the evidence, you cannot say that you are firmly convinced of the defendant’s guilt, then you have a reasonable doubt.”

He also noted, however, that “the government is not required to prove guilt beyond all doubt or to a mathematical certainty or to a scientific certainty.”

It appears, based on these instructions, that Walton will answer the jury on Monday that no, the prosecution is not required to present evidence that it is not humanly possible for someone not to remember something in order to meet the "reasonable doubt" standard.

That would argue for a guilty verdict -- but the fact that many witnesses against Libby also were guilty of faulty memories argues against such a finding.

It's clear the jury is split and it's unlikely that, given the instructions he's already provided, anything Walton says on Monday will unsplit that split.

Prediction: Mistrial.

Next question: Will the special prosecutory then drop the case?

Prediction: Given that this whole trial appears driven by noting more than prosecutorial vanity, no.