Kondracke asserted that Libby's 30-month sentence was "over the maximum for perjury"

On the "All-Star Panel" segment of the July 2 edition of Fox News' Special Report with Brit Hume, Roll Call executive editor Morton M. Kondracke argued that while he "thought that [former vice presidential chief of staff] Scooter Libby should serve some jail time," the 30-month sentence Libby received "was excessive" and "over the maximum for committing perjury." In fact, each of the two counts of perjury (18 U.S.C. 1623) for which Libby was convicted carries a five-year (or 60-month) maximum. Libby was also convicted of one count of obstruction of justice (18 U.S.C. 1503) and one count of making false statements (18 U.S.C. 1001), for which the statutory maximums are 10 years and five years, respectively.

Even if Kondracke was referring to the maximum sentence under the federal sentencing guidelines, rather than the statutory maximum, he was ignoring the prosecution's argument that the sentencing guidelines provided for a sentence of 30-37 months. Judge Reggie Walton sentenced Libby to 30 months in prison, at the low end of the prosecution's recommendation. As The Washington Post reported, according to Libby's attorneys, the federal probation office, which also issues sentencing recommendations to the judge, "proposed a prison term of 15 to 21 months" based on its view of what the federal guidelines called for, while also "citing potential grounds for a shorter sentence." Special prosecutor Patrick Fitzgerald did not challenge the attorneys' claims about the probation office's recommendation. As the Post also reported, the federal probation office's "suggestion is officially secret."

The panel was discussing President Bush's July 2 decision to commute Libby's prison sentence.

From the July 2 edition of Fox News' Special Report with Brit Hume, with Fox News Washington managing editor Brit Hume:

HUME: How will this play more broadly politically, Mort, in your eyes?

KONDRACKE: Well, I think the country is so polarized that everybody is going to flip the way they do.

Now, what independents are going to say -- I suspect that they're going to -- some of them are going to say that this was a good thing to do, and some of them are going to say that it was a bad thing to do.

Personally, I thought that Scooter Libby should serve some jail time. I mean, he was -- I think the sentence was excessive, 30 months, it was over the maximum for committing perjury. But it is perjury. It is a national security case, at least. And the even the White House, as you pointed out, had lawyers look at the full transcript of the case, and the president concluded, and his aides concluded on basis of that, that Scooter Libby did lie.

So a perjury was committed here, and it seems to me that he should have served some time for it --

HUME: So, you're an --

KONDRACKE: -- but not as much as he was sentenced to.

—R.S.K.