The Scooter Libby affair will be the talk of political pundits for at least a full week, making it a story of huge interest to those who have yet to find a reason to question this administration’s judgment.  But for criminal defense lawyers, it will have a special impact.

I foresee defendant after defendant in federal cases asking, “but why do I have to go to jail if Scooter doesn’t?”  I can see them push their lawyer to argue to the judge the Scooter issue.  “Your Honor, when a high public official has abused his great power and position is allowed to walk amongst law-abiding citizens as if he did nothing wrong, how them can we possibly justify the imprisonment of the poor, who enjoyed none of the advantages and prestige…”

Your client will love the argument.  All the way to the Marshall’s holding cell.  It’s not going to work.

Does this not undermine the rationale for the sentencing guidelines, and their quasi-secret Booker subterfuge where we pretend they are only advisory while knowing full well that the only way a federal judge can insulate himself for swift reversal is to sentence within the guidelines?  Of course it does.  Bu this is not about maintaining judicial, or intellectual, integrity.  This is about recognizing an aberration for what it is.

The President commuted the sentence of one of his own.  He gave a statement that says otherwise, but we are not children.  We know what he did and why he did it.  The rest is empty rhetoric.  We know it.  Judges know it.  Must the judges say out loud, “grow up!”

There is no viable argument to be made that Scooter Libby’s situation has anything to do with our client’s.  There is no judge in this country who did not go to sleep last night sighing, wondering how many lawyers and defendants will pitch the unfairness of their going to jail and Scooter not.  And they knew with certainty, as they drifted off to their personal dreamworld, that they would sentence the defendant within the guidelines anyway.

And so the biggest problem for us, criminal defense lawyers, will be to explain to our clients that life is not fair.  That what happened to Scooter means nothing to them.  They are not Scooter.  They are not a close personal friend of the President and Vice President.  Their sentence will not be commuted, and they will go to jail.

As unacceptable as this may be to the idealist within each of us, who struggle to maintain a semblance of belief that we function daily in a system that has some socially useful purpose and at least tries to maintain an aura of fairness, our functional reality is that Scooter Libby is an irritable aberration.  Nothing more. 

Today, the guidelines will not crumble.  The courts will not shut their doors in recognition of the flagrant unfairness and hypocrisy of the situation.  Cases will be tried.  Pleas will be taken.  Defendants will be sentenced.  Families will be destroyed, and children left without parents.  And lawyers will don their summer suits and try again to argue on behalf of their clients in the hope that someone is listening.  Maybe today someone will.