"The idea that a fact should be ruled irrelevant in the trial phase, then all of a sudden become critical in the sentencing phase, is inane."

My criminal law attorney girlfriend burst out laughing when I quoted that to her. It's entirely routine that certain sorts of things that are not allowed at trial are allowed to be considered at sentencing. Simple logic is not what matters; the federal rules of criminal procedure / rules of evidence and federal sentencing guidelines are. You may find that inane but that's the way the system works (and likewise so do the state systems) and nothing at all unusual is going on with Libby.

In general, a much broader set of potentially mitigating or aggrevating circumstances get considered in sentencing than can be brought into a trial. What matters in the trial is plain and simple, is whether the defendent's actions can be proved to have the met the "elements of the crime". Period. Elements of perjury amount basically to knowingly lying under oath. Period. Nothing in the perjury statue says there must be an underlying crime or some level of damaged caused or whatever and so that's irrelevant at trial. In general, arguing "maybe I'm technically guilty but the state never should have brought this case because no one was harmed" is not valid in real courtrooms. But the sentencing guidlines for perjury and obstruction explicitly allow for the consideration of the penalty for the crime that the convicted person is thought to have been hoping to cover up.

However, the 30 month sentence really doesn't fall much if at all above guidlines; that argument by Fitz didn't do much. The Probation Dept's proposed 20 month included some mitigating considerations that the judge didn't buy (e.g., Libby's legal fees, which are *never* supposed to be considered a mitigating factor).

My gf has followed the trial closely, and her take is she's seen plenty of clients go to prison on far flimsier evidence, and as a defense attorney she'd be happy to have had Walton compared to plenty of other judges out there -- he wasn't notably pro-Fitz.