Did Cross-Referencing the Underlying Offense Make Sense in Libbys Case, In Particular?
Moving from the general to the specific, Libby’s case presents a close question for whether cross-referencing the underlying offense being investigated, for purposes of Guidelines calculations, makes sense. Here, Libby himself was not charged with violating the IIPA or the Espionage Act and, perhaps even more important, neither was anyone else. A reasonable argument can be made that cross-referencing doesn’t make much sense when it may well be the case that no one actually committed the crimes being investigated. Is it really fair, after all, to up Libby’s punishment for obstructing an investigation in which there was no underlying crime charged (or perhaps even committed)? (Readers may object that a crime must have been committed, since no one can dispute that Valerie Plame’s identity was, in fact, revealed. However, it is possible, for example, that the person who released the information lacked the state of mind necessary for criminal punishment.) In his sentencing memorandum, Speci
