"Libby Motion" Updates

July 3: Over at the White Collar Crime Blog, they just don't get it. They are saying it is "likely we will see judges continue to follow the flow of the guidelines and sentence individuals as if the Libby case did not exist."

July 4: Another blogger notes defense attorneys "can't wait" to "take advantage" of the "can of worms" the president has opened. This thing will be all over us before we know it!

July 5: Former White House Counsel John Dean appears on MSNBC and says the consequence of the President's commutation will surely be that U.S. attorneys "throughout the country" will "have to deal" with Libby Motions.

July 12: Is failure to make Libby Motion malpractice? Would such a lame effort at defense constitute grounds for an appeal? Last week, Michael Deutsch told the New York Sun (here) that he would "definitely" bring up Libby's commutation at a sentencing hearing for his own client and dramatically proclaimed that it would be "a first early test of whether we're a nation of laws or a nation of men." But, the Sun has since reported (here) that Deutsch decided, "on further reflection," not to make any "comparison" between his client - a Hamas operative convicted of a terrorist conspiracy - and Scooter Libby. Said Deutsch, "I didn't think it would be helpful. [The judge] doesn't control what the president does." Such unnecessary nuancing.

July 13: The White Collar Crime Prof Blog reports at least one federal judge has, somehow, managed to reject a Libby Motion. This can only mean many, many more.

July 16: Over at Sentencing Law and Policy, Prof. Berman now doubts that "many (or even any) federal judges" will recognize a Libby Motion "on the record." But Berman insists that, even if a judge explicitly states that Libby's commutation is "irrelevant," it is possible that the judge "has concluded (perhaps subconsciously)" that some defendant other than Libby merits "more compassion." Is the Libby Motion now non-falsifiable? Oh boy.

July 16: Bob Egelko of the San Francisco Chronicle reports that "several defense lawyers have already cited Bush's commutation of Libby as a rationale for lenience." You read that right: "several." No report or comment, as of yet, as to whether or not the motions were successful.

July 16: Lawyers for Victor Rita have filed a Libby Motion /petition which makes the case that the use of the pardon power in an individual case is the functional equivalent of sweeping policy change throughout the entire federal judicial system (see commentary here). Actually, the petition does not appear to have been officially crowned as a Libby Motion. We need to wait to see if it succeeds in any way. If it does, one gets the strong sense that it will be heralded as a Libby Motion. If it does not, it was only something like one.