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Wednesday, June 06, 2007

Ruminations on Libby's bail pending appeal

Yesterday I wrote an over-long post on Libby's sentencing and his apparently grim prospects for being granted bail pending appeal, at least by U.S. District Judge Reggie B. Walton. Summarizing as to the latter: Were I in Judge Walton's shoes, I would grant bail pending appeal, because Libby is no flight risk; he's not dangerous; his appellate arguments would, if successful, dramatically change the results of his trial and sentencing; he's not appealing to delay his incarceration; and his likely challenges to the conviction and sentence raise "substantial" questions in my view. 

That likely puts me in a very small sliver on the Venn diagram of conservative legal pundits' reactions to Libby's current situation:

For reasons I blogged about at the time of the jury's verdict finding him guilty (e.g., here, here, and here), I continue to be unconvinced by, and skeptical of, the arguments raised by Libby's lawyers and his defenders among pundits and public as to why he shouldn't have been found guilty, or why the prosecution against him was illegitimate. I'm decidedly unpersuaded of his innocence. 

But on the other hand: That's not quite the same as saying that I'm certain that he should have been found guilty, nor that I'm certain his appeals will be unsuccessful. For me to hold either of those two stronger opinions, I'd have to know a whole lot more than I do about all of the details of his trial, more than one can learn even from a very diligent search of the public information about the case that's on the internet. And in fact, there is much about the case that troubles me. Only some of what troubles me actually undercuts Libby's conviction: The suggestion that Fitzgerald ought to have prosecuted original leaker Richard Armitage, for example, even if accepted as valid doesn't logically mean that Libby ought not also have been prosecuted and convicted. But still, under any realistic assessment, this case was not a garden-variety perjury prosecution. Libby's legal team has a long list of potential appellate arguments, some of which I think are obviously weak (e.g., the exclusion of the "memory expert"), but others of which may be pretty robust (e.g., his sentence being enhanced by virtue of the unproved identity disclosure crime).

So I find myself thinking that the odds are good, but not overwhelming, that his conviction and sentence will be at least mostly affirmed. And yet: I think he ought remain free unless and until that happens.

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I will confess, however, that my legal judgments may be colored by extraneous, purely political considerations. If bail pending appeal is indeed denied by Judge Walton, and if the D.C. Circuit were to leave that determination standing, then even were his appeal expedited, he'd likely have served a significant portion of his 30-month sentence by the time his appeal could be resolved, even at the circuit court level. In that event, there will be much strong pressure on the Bush Administration to take a hard look now at a possible presidential pardon, even before the appeal process has been barely more than begun.

And yet, I do not think that even in those circumstances, President Bush will let his hand be forced by that pressure. I think Dubya still might ultimately grant Libby a pardon, but only if the appeals have been concluded before the end of Dubya's term. It is virtually inconceivable to me that he would fail to let the appeals play out, given his history both as Governor of Texas and as President. And if he waits for a certiorari application to the Supreme Court to be denied before acting on a pardon application, that probably won't happen until after January 2009 — meaning that Dubya might very well leave the decision to his successor.

A pardon would be far from worthless then even if Libby has already spent a year and a half in prison; presidential pardons are valuable even after one has completed a prison term. But beyond the potential individual injustice — which I do not minimize; this incident aside, Scooter Libby has been a good man and a dedicated public servant — Libby's incarceration during his appeal will further erode conservative support for the Bush Administration, and cause further turmoil within the Republican Party.

With respect to the former: It's a bad thing, in general, for a President to suffer from a near-complete lack of political support during a time of war. I'm still in his group of fierce supporters, in general and on most issues. But that's becoming a lonely group, and that worries me for reasons having nothing to do with my continuing affection and appreciation for George W. Bush.

With respect to the latter: Did you note that when the Republican candidates were asked in last night's debate if they'd pardon Libby now, only one (Tancredo, if I recall correctly) answered with a square, unequivocal "Yes"? Everyone else, including the big three, left himself some wiggle-room, a la "I'd look at it carefully," and most made explicit reference to the appeals process playing out. I think that's entirely appropriate; I think there are huge risks to campaigning on a promise to use the presidential pardon power for particular individuals or in particular ways. So if you assume that this won't be an issue even within the Republican nominating process (i.e., if you're assuming everyone will effectively disavow the Bush Administration if it withholds a pardon decision pending appeals), I think you're being naïve.

I hasten to add: I emphatically do not think that the sorts of political concerns I'm discussing here should play any part in Judge Walton's or the D.C. Circuit's consideration of bail pending appeal. They definitely should not, and those judges must, as always, do their very best to try to make their decisions without regard to politics. I'm just saying that from my standpoint — speaking as a conservative political pundit, now — things would be awfully neater, sweeter, and less divisive if a pardon decision could continue to be deferred without the additional urgent pressure that will be created if Libby is denied bail pending appeal. It's essentially wishful thinking on my part.

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UPDATE (Thu Jun 7 @ 12:30am): I hopped onto the online system for accessing federal court records, PACER, to look at the docket sheet for the Libby case. There are, at present, a whopping 361 separate docket entries. Based on my quick skim, neither the government's nor Libby's sentencing memos discussed bail pending appeal. The "minute entry" from the sentencing hearing on Tuesday, June 5, however, reads as follows:

Minute Entry for proceedings held before Judge Reggie B. Walton: Sentencing held on 6/5/2007 as to I. LEWIS LIBBY (1), Count(s) 1. SENTENCE STAYED until further sentencing hearing on 6/14/07. Defendant sentenced to Thirty Months incarceration to run concurrent with counts 2, 4 and 5; followed by Two years Supervised Release to run concurrent with each other; special assessment of $100.00 imposed. Count(s) 2, SENTENCE STAYED until further sentencing hearing on 6/14/07. Defendant sentenced to Fifteen Months incarceration to run concurrent with counts 1, 4 and 5; followed by Two years Supervised Release to run concurrent with each other; special assessment of $100.00 imposed. Count(s) 3, VERDICT OF NOT GUILTY. Count(s) 4-5, SENTENCE STAYED until further sentencing hearing on 6/14/07. Defendant sentenced to Fifteen Months incarceration to run concurrent with each other; followed by Two years Supervised Release to run concurrent with each other; special assessment of $100.00 imposed. Total amount due for special assessement $400.00 due within 30 days. Fine in the amount of $250,000 imposed. Special conditions: No arrest; seek and maintain full time employment; submit to DNA sample; perform 400 hours of community service; release of report to agencies upon request. Recommendation: Defendant will self surrender. Bond Status of Defendant: defendant continued on PR bond.

From the entry that follows it, I infer that Libby's brief on bail pending appeal is due today (i.e., Thursday, June 7); that the government's response is due next Tuesday (June 12); that any reply from Libby is due on the next day (June 13); and that the hearing on bail pending appeal will be on Thursday afternoon (June 14) of next week.

I would expect that as part of Libby's brief, his team will lay out in at least meaty outline form his likely appellate arguments, probably ranked best to worst, as part of their showing that they can raise a "substantial question" of law or fact in their appeal.

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UPDATE (Thu Jun 7 @ 5:05pm): Jeralyn Merritt at TalkLeft has some discussion along with links to .pdf scans of Libby's motion for release pending appeal and its exhibit. I may start a new post after reading them, or I may wait until we see Team Fitzgerald's response next week.

Full disclosure: I've just noticed that the Washington office of Baker Botts is listed as co-counsel with Ted Wells of Paul Weiss and John Klein of Jones Day. I don't know the specific Baker Botts lawyers involved, but my readers are entitled to know, in assessing my own potential biases, that I was an associate at Baker Botts from 1981-1987, and I still have a great regard and affection for the firm and many of its lawyers.

Posted by Beldar at 10:57 PM in Law (2007) | Permalink

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Comments

(1) Phelps made the following comment | Jun 7, 2007 2:37:33 PM | Permalink

Having recently worked on a trial team in federal court where the judge took advantage of nearly every lunch break to sentence someone, usually to fairly signficant stretches on the farm, I've heard the considerations for sentencing a lot this year. And I have to wonder about one specific part of the sentencing, namely the need for uniform punishment.

This is what I don't get -- Libby gets convicted of perjuring himself on a case that is no-billed, and gets 30 months. Two and a half years, hard time, PLUS $250,000 and two years of probation.

Sandy Berger pleads guilty to knowingly removing classified documents from the National Archives, and he gets 2 years of probation and a $50,000 fine.

As a citizen and a layperson, I cannot reconcile those two sentences, even after taking into account Berger's plea.

(2) Gregory Koster made the following comment | Jun 8, 2007 1:18:00 PM | Permalink

Dear Mr. Dyer: To my mind the biggest, admittedly non-legal factor in this case is that Richard Armitage sleeps soundly every night, snickering as he drifts off at getting away with it. Mr. Fitzgerald is not your standard issue US Attorney. Rather, he's a special counsel, put in business to find out about this leak and prosecute as necessary. Granting the foolishness and illegality of Libby's lies (and he was lying), why isn't Fitzgerald moving against Armitage? Anrew McCarthy of NATIONAL REVIEW can yell that he knows Pat Fitzgerald, he served with Pat Fitzgerald, Pat Fitzgerald is a friend of his. Fitzgerald is no Tom Dewey. If there is any cosmic justice, when Fitzgerald finally closes up shop, and reports back to the three judges who appointed him, they will present him with a certificate of name change, changing his last name to Nifong.

As for Libby: we mustn't let the unfairness of the prosecution blind ups to the dubious position he was in. Why is the Chief of Staff of the Vice President of the United States involved in leaks to journalists, leaks that were inexpertly done? Libby may think he is an officer in a battle of the "information war" but to my eyes, he's playing games, and win or lose, a game sthat won't involve him getting blown up or snipered. You may disagree with me. If so, I think you need to answer this question, a question I've never seen addressed: Every month, American men and women die in Iraq. What did the sum of Libby's efforts contribute to saving their lives?

Sincerely yours,
Gregory Koster

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