The issue is what standard must the court use to determine if the cross-reference applies.

  (One thing to not is that Fitzgerald is now categorically asserting that Plame was a "covert agent" within the meaning of IIPA.)

  Essentially, the government's position is that the cross reference to §2X3.1 (Accessory after the fact-- which then calls for a c-r to the guideline applicable to the  offense that the investigation concerned and an OL 6 below the one that guideline would establish)must be applied whether or not it proves the offense it was investigating was committed so long as it shows that perjury/FS were intended to obstruct an investigation into the possibility the underlying alleged offense was committed. In other words, that the cross-reference applies even if no violation of IIPA was committed by anyone because Libby knew that potential violations of IIPA were being investigated. I think that as Fitzgeralsd asserts the language of the guidelines and case law gives him a lot of support for that postion.

  Is that fair? No. Is it the law? Probably, and it's the type 6th Amendment issue that brought Booker. But, in Booker, the SC did not throw out the guidelines or call for them to be "calculated" in line with 6th Amendment principles. It just said that imposition of a sentence within the applicable  guidelines range  cannot be mandatory under the 6th amendment-- but instructed lower courts to continue "calculating" the guidelines as before (including grounds for departures withing the USSG framework) and then determine if a "variance" sentence is warranted.

  In a theoretical sense, the application of the  § 2X3.1 c-r  in the absence of proof of the underlying offense  is "more fair" in a case involving offenses relating to the obstruction of justice than in other types of cases. Why?  Because in obstruction type cases the very act that is the crime for which one is being sentenced  makes proving the underlying offense more difficult.

  Maybe more compelling than all that, is the possibility we will have a contested sentencing hearing where Fitzgerald feels the need to put on as much as evidence as he can that the IIPA was violated. that would be WAY more interesting than was the trial where that was not the issue.

  If the Court agrees with that it could apply the c-r without requiring evidence concerning the IIPA allegations. Or, if the court disagrees with that, Fitzgerald could decide it is not worth the effort to attempt to introduce evidence about it for a few months difference in the guidelines.

  Or, the Court could rule that some showing regarding IIPA is required to asupport the c-r and fitzgerald could introduce evidence concerning Plame's outing (who, what when, where, why). Plame's status has now been declassified but her status is just part of the case.

   Even if she is covert within the statute that does not make disclosing her identity a crime unless the disclosure was by a person who did it based on knowledge gained due to his access to classified materials and with the intent of disclosing the identity of a  person known to be a covert agent.

   I've always felt that the difficulty of proving those elements is why no one was prosecuted under IIPA.

  Now, Fitzgerald is saying that even if we can't prove a that person with classified access learned Plame's identity and status and intentionally disclosed it, Libby should be sentenced as an accessory after the fact to an IIPA violation because HIS INTENT was to obstruct an investigation he knew concerened a possible IIPA violation.

  With regard to  convictions -- it is the law in federal courts and most states that one can be convicted as an accessory without the conviction of a principal, but the underlying crime must have been committed.

   Sentencing is different than finding guilt. One thing that is interesting is the difference in the language of the guidelines for perjury and obstruction:

§ 2J1.3 (perjury etc.)
 *
(c) Cross Reference

(1) If the offense involved perjury, subornation of perjury, or witness bribery in respect to a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
*

§ 2J1.2 (obstruction of justice)
*

(c) Cross Reference

(1) If the offense involved obstructing the investigation or prosecution of a criminal offense, apply §2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.
**

  That might seem to be splitting hairs, but I think the boldened language in the obstruction guideline allows for a very  strong argument that it is not necessary to prove the underlying criminal offense was in fact committed. the argument might be somewhat less persuasive with reagard to the perjury language but it is still tenable.

 These types of cases are obviously very rare (both because obstruction and perjury prosecutions are not common AND because cases where one is alleged to be an accessory for sentencing purposes to an offense that has not been shown to have been committed are extremely uncommon)  and the law is not entirely clear, but I think Fitzgerald's logic is sound given the way the guidelines have always allowed for very broad attribution of relevant conduct based on  the conduct of other people in joint undertakings which did not result in conviction,   and the language of these guidelines helps his argument.

Surprisingly, to me, over the contrary finding of the Probation Department, they are asking the Court to apply the guideline for the IIPA and Espionage Act, under the theory that cross-referencing guidelines is permitted because the investigation in which Libby lied and obstructed justice pertained to those offenses, even though no one was charged. I totally disagree with that.

with the higher guidelines for violations of the IIPA and Espionage Act.

and
(ii) who is serving outside the United States or has within the last five years served outside the United States; or

The Exhibit you refer to says that she engaged in Temporary Duty (TDY). No mention is made of the actual length of each activity. Exhibit PDF

The law is plain. It uses the word "served."

I find it curious as to why the word "engaged" was used rather than served. After all, the writer of the exhibit must have known the text of the law.

engaged:involved in activity : OCCUPIED

Could it be that when you say "served" it has a very different meaning??

"RePack served in Vietnam."

"RePack engaged in activities in Vietnam while on Temporary Duty."

The first claim re RePack has a permanence to it. It connotes two things. Time and meaning...His "job" was in Vietnam.

The second one does not. In fact, it says "Temporary Duty." In fact:

temporary military service away from one's permanent duty station

And in fact Temporay Duty provides certain benefits to the person involved that would not be available had they been where they were "serving."

Simply put. If you were serving in the USN and located in Norfolk, if the Navy wanted you to engage in certain activities, say attend some training school in Rota Spain, you would be given Temporary Duty orders.

Words have meaning, Squeaky.

I again opine that the issue has not been adjudicated.

    While engaged in CPD, Ms. Wilson engaged in temporary duty (TDY) travel overseas on official business. She traveled at least seven times to more than ten countries. When traveling overseas, Ms. Wilson always traveled under a cover identity-- sometimes in true name or sometimes in alias-- but aleays using cover-- whether official or non-official cover (NOC)-- with no ostensible relationship to the CIA.

    At the time of the initial unauthorized dislosure in the media of Ms. Wilson's employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.

Words do have meaning. Do you also want to make a citizen's arrest on Patrick Fitzgerald for providing false information in a court of law?