By
NBC News producer
updated 7/8/2007 10:50:10 PM ET 2007-07-09T02:50:10
ANALYSIS

President Bush, in granting clemency to I. Lewis "Scooter" Libby, said that the former chief of staff to Vice President Dick Cheney and his family "suffered immensely." The president wanted to end the suffering and said that the 30-month prison term handed down by a federal judge was "excessive."

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But was it?

A recent case decided by the U.S. Supreme Court, and an analysis of Justice Department data on similar sentencings, suggest that Libby's prison term was well within the average range of sentencings.

Of the 16 defendants sentenced in 2006 only for the specific charge of obstruction of justice, which was one of the four felony charges Libby was found guilty of by a jury in March, the average sentence that the defendants received on that charge alone was 31 months in prison.

In a statement Monday, the president said, "I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison."

On Thursday White House spokesman Scott Stanzel offered an interpretation of the president's terminology: "He felt that the sentence was excessive, in terms of jail time. But this is a unique case, and there's no doubt about that."

The Probation Office's recommended sentence to the presiding judge, which is confidential and has not been publicly revealed, has been cited in court documents to be no more than 15 to 21 months of incarceration.

Special Counsel Patrick Fitzgerald, however, recommend an "enhancement" to the sentencing guidelines, and requested a sentence of 30 to 37 months in prison.

Libby's lawyers strongly argued against Fitzgerald's recommendation. "On the unique facts of this case, and the unique contributions of this man, we believe...a non-Guidelines sentence of probation is warranted," said his attorneys.

On June 5, U.S. District Judge Reggie Walton settled on a sentence of 2 1/2 years in prison for lying during a CIA leak investigation that became part of a heated debate over the war in Iraq.

No one was ever charged with violating the Intelligence Identities Protection Act or the Espionage Act, which were the original subjects of the Fitzgerald investigation of who leaked the name of covert CIA officer Valerie Plame's name to reporters in 2003.

The judge said, "People who occupy these types of positions, where they have the welfare and security of the nation in their hands, have a special obligation to not do anything that might create a problem." He added, "In my view, based upon the evidence that I observed objectively as the judge in this case, the evidence of guilt was overwhelming."

Fitzgerald defended the sentence, and said Monday in a statement, "The sentence in this case was imposed pursuant to the laws governing sentencings which occur every day throughout this country." The Special Counsel said, "In this case, an experienced federal judge considered extensive argument from the parties and then imposed a sentence consistent with the applicable laws." And he added, "It is fundamental to the rule of law that all citizens stand before the bar of justice as equals. That principle guided the judge during both the trial and the sentencing."

The president said the he respects the jury verdict convicting Libby of four felony charges of perjury and obstruction of the CIA-leak investigation.

Douglas Berman, a law professor at Ohio State University, told NBC that even though the Bush administration has repeatedly supported the federal sentencing system, he can understand that 30 months in prison "can be viewed as greater than necessary" for Libby. But he said that a better argument for the White House would have been to reduce the term of Libby's incarceration.

The White House still wanted Libby to pay a fine of $250,000. Libby paid the fine, including a $400 special court assessment, Thursday with a cashier’s check, and with his own funds, according to sources close to the former top aide.

Last month the Supreme Court upheld an even harsher sentence in a case nearly identical to Libby's.

Rita v. United States had the same charges, perjury and obstruction. And Victor Rita was also a first-time offender and a defendant with a long history of public service, 25 years in the military.

The Supreme Court upheld a 33-month prison sentence for Rita, a decorated Army veteran who was convicted of lying to a federal agent about buying a machine gun. The veteran also fought in Vietnam and the Gulf War. Rita, like Libby, was convicted of perjury, making false statements to federal agents and obstruction of justice.

After serving in the armed forces, Rita receiving 35 commendations, awards and medals. And Rita had no criminal history.

Lawyers for the Justice Department argued his prison term should stand because it fit within the federal sentencing guidelines.

The Supreme Court upheld the sentence by an 8-1 vote because it was within the range set by the federal sentencing guidelines.

Justice Stephen Breyer wrote the majority opinion and said it "simply recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view . . . it is probable that the sentence is reasonable."

Chief Justice John Roberts and Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Samuel Alito agreed with Breyer, all or in part.

Justice David Souter, in his dissent, said that a presumption of reasonableness for sentences within guidelines creates "gravitational pull" on judges. Souter said that "pull" would move judges to relying on the sentencing guidelines. And that reliance on guidelines would make it unclear what was accomplished by declaring the guidelines advisory in the first place.

Berman said in his blog "Sentencing Law and Policy" that the president's statement of reasons for commuting Libby's sentence, "provides great material for federal defendants seeking reduced sentences from federal judges."

But there is still a lingering legal question whether Libby will have to serve two years of supervised probation.

Judge Walton said by commuting his prison sentence, the probation period may be called into question.

Walton, who was appointed by President Bush, said Tuesday that federal law "does not appear to contemplate a situation in which a defendant may be placed under supervised release without first completing a term of incarceration."

The judge asked Fitzgerald and Libby's attorneys to tell the court by Monday how they think probation should be "interpreted in unusual circumstances such as these."

He said he was informed that the Probation Office of the District Court will be in contact with Libby, "imminently to require him to begin his term of supervised release."

The president said he still believes that Libby deserves punishment, "My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby."

Some legal scholars opine that one recommendation Walton may entertain is expanding Libby's supervised probation period from two years to a possible 54 months.

NBC's Morgan Whitaker contributed research on Department of Justice sentencing data.

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