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Tuesday, June 05, 2007

With a 30 month sentence for Libby, the urgent question now is: Bail pending appeal?

Just out from the WaPo, among other press sources:

I. Lewis "Scooter" Libby, former chief of staff to Vice President Cheney, was sentenced today to 30 months in prison and fined $250,000 for lying to investigators about his role in leaking the identity of an undercover CIA officer.

The federal judge who presided over the case indicated that he may not be sympathetic to allowing Libby to remain free pending appeal, but scheduled a hearing on the matter for next week.

I tip my hat to the WaPo reporters who composed that two-paragraph lede, because the second paragraph is enormously important. If Judge Walton denies bail pending appeal — and if that decision is not disturbed by the D.C. Circuit, pending the full appeal — then Libby would have to begin serving time. Even were his appeal expedited, it could well consume a substantial portion of the 30-month sentence.

So as a practical matter, the outcome of that hearing next week will determine whether this is a great deal of urgency, or not very much, in the Bush Administration's consideration of a possible pardon. The second paragraph of the lede is thus the dramatic foreshadowing for the political drama that's not yet fully unfolded, but seems now to loom more ominously.

Although I understand the rationale Judge Walton gave for imposing a relatively harsh sentence — which can be summarized as "the Spiderman Web" (with great power comes great responsibility) — I don't see how that necessarily would cut against bail pending appeal. "Walton's remarks were a surprise to several legal experts who had expected that Walton would follow frequent court practice of releasing white collar criminals pending appeal," say the WaPo reporters, and I don't doubt that a bit. Judge Walton may indeed be confident that the conviction will be upheld and that the evidence of guilt was overwhelming; but that has nothing to do with, for example, whether Libby is a flight risk or the other traditional factors that ought to go into that determination. [Edit: That last sentence is not quite right, as explained in the update and comments below: if the judge is convinced that Libby's team can't even raise substantial factual or legal questions on appeal, that is indeed a basis for denying bail pending appeal, and that may well be exactly what Judge Walton will end up concluding.]

In my past posts, I've been skeptical of those who've mocked the prosecution and conviction. I still am. But I certainly see room for good-faith argument on appeal, both as to the conviction itself and as to the sentencing considerations — and I'm hard pressed to imagine any good reason to deny bail pending appeal. That would be harsh, and it might be an abuse of discretion that the appellate court would step in to correct.

UPDATE (Tue Jun 5 @ 6:50pm): The grant or denial of bail pending appeal is governed now by statute, 18 U.S.C. § 3143(b). The presumption, or the default value, is that a convicted, sentenced defendant goes to prison pending appeal. However, if the judge finds by "clear and convincing evidence" (a high standard, higher than "preponderance," but less than "beyond a reasonable doubt") that the defendant "is not likely to flee or pose a danger to the safety of any other person or the community if released," and (my paraphrase) the appeal isn't just for delay, and it raises a substantial question of law or fact that's likely to change the result in an important way, then the prisoner may be released.

Libby's team can likely meet even the higher proof standard to show he's not a flight risk or dangerous. They can probably show that their likely appellate arguments would, if successful, be likely to change the result in a substantial way. They can probably show that the appeal isn't just for delay.

But where the prosecution will likely make its stand is on the subject of whether the Libby team's likely appellate arguments indeed raise a substantial question of law or fact. The prosecution will say, in effect, "Judge, the appellate court is going to sustain all your rulings. We've been over this before, and you know they're wrong, so why pretend that these are close questions where there's much likelihood of you being reversed?" Since they're just asking the judge to confirm what he's already ruled, that's a powerful argument, especially for a judge who seems not much inclined toward second-guessing himself.

But this case is so very, very far from a run-of-the-mill prosecution that I think the Libby team ought to be found to have met this requirement too. They don't have to show that they're probably going to win on appeal — just that they've "raise[d] [at least one] substantial question of law or fact." And one ought to be enough; they'll have a long list, some strong and some less so. On the other hand, there's some circuit court caselaw which says: "The term 'substantial' defines the level of merit required in the question presented, and the phrase 'likely to result in reversal [or] an order for a new trial' defines the type of question that must be presented." U.S. v. Montoya, 908 F.2d 450, 450 (9th Cir. 1990). I'm far from an expert on whether this caselaw loops back around enough to swallow the apparent generosity of the statute.

The best news for the Libby team, though, is that the D.C. Circuit is likely to be more confident second-guessing the trial judge on evaluations of the legal appellate arguments than they would be in second-guessing him on pure matters of fact.  "Is this particular guy likely to be dangerous? Is he likely to flee?" — those are questions that an appellate court isn't comfortable substituting its own judgment for the trial judge's on, because he's seen the defendant during the trial, heard all the testimony, and has the best handle on facts. Appellate judges are famously proud in general, though, of their own intrinsic ability to make determinations of purely legal issues.

Beldar's revised hipshot opinion remains: Libby ought to get bail pending appeal, and the trial judge might well be reversed if he denies it. But that, plus $2.75, will buy you a small mocha latte from a Washington street vendor. And I wouldn't be willing to bet that much on my revised hipshot opinion — not in this case.

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UPDATE (Wed Jun 6 @ wee-small-hours): My blogospheric friend Patterico has always been generous in his support for my blogging, and he was gracious enough yesterday to post a quick link to this post, for which I'm grateful, as always. On the comments on his post, "wls" — who, as I understand it, is a federal prosecutor who has guest-blogged on Patterico's Pontifications from time to time; he's a sharp guy, a good writer, and I have no problem with him blogging under a pseudonym — offered his own views about the likelihood and propriety of Libby getting bail pending appeal.

<whiny rant>I have to admit to being stung by wls' opening sentence there: "Beldar’s lack of experience on this subject is evidenced by the fact that he had to 'Update' it to not[e] that bail pending appeal is governed by statute. It has been since the Bail Reform Act of 1984."

Like most lawyers who blog on legal topics, I'm constantly torn between competing concerns. If I wrote only about those legal topics on which I have deep and current expertise, I'd run out of things to write about pretty quickly. If I blogged about legal topics with the same degree of care that I use in my law practice when writing for judges' eyes at the behest of paying clients, my blogging output would likewise become a trickle. If you want authoritative legal analysis, in other words, you're probably in the wrong place. Neither the Libby team nor Mr. Fitzgerald and his minions, for example, are likely to need my ideas, and they're not likely to be cutting and pasting from my blog into their briefs in the D.C. Circuit.

Moreover, in an effort to offer timely punditry, I sometimes offer hipshot reactions without having made any effort to do legal or other research. That's how this post started: I knew the sentencing was today, saw a mention of the result somewhere, found the WaPo story, and dashed off a few quick paragraphs with my instantaneous reactions, such as they were. Because of the political overtones of this case, and in particular the drum of public opinion for and against a possible presidential pardon — and indeed, that was a question asked of the entire panel in last night's Republican presidential primary debates — I immediately knew that bail pending appeal would become the next key issue driving events both in the case itself and in the political context outside it.

wls is absolutely right: Unlike (I presume) him, I don't routinely write applications for bail pending appeal, nor responses opposing them. I dealt with those when I was a law clerk for a Fifth Circuit judge way back in 1980-1981. I did know, off the top of my head, what sorts of factors trial and appellate courts consider, and I knew that there had been a statute codifying and (somewhat) reforming that, but that was more detail than I thought my readers — especially my non-lawyer readers — would need to know for purposes of an "issue-spotting" post. And I thought, and still think, that I might be doing some small service to a few readers who've seemed interested in my views on the Libby case were I to immediately point out that the next key fight is likely to be: Just how strong are Libby's likely appeal arguments?

Having spotted the issue and written about it very briefly here, I then put in about a half hour on Westlaw. I found the citation to the statute in about 15 seconds and skimmed the circuit court opinions that referenced it, looking for something particularly on point or something from the D.C. Circuit in particular. Nothing popped out at me. So I then went back to add a more specific update to my original post, citing and linking the statute (from a public source, so those without Westlaw could find the statute themselves easily). Using it as a template, I tried to refine my hipshot analysis. My ultimate conclusions, though, were about the same as my hipshot ones: This judge probably won't grant bail pending appeal, but he might should, and he might be reversed by the D.C. Circuit if he doesn't.

wls' comment over on Patterico's is first-rate, and indeed, it reads like a "summary of argument" section from the brief Fitzgerald's team has written and will likely re-write. It's a very close variation on what every prosecutor says in every case in which they're opposing bail pending appeal. And quite often, prosecutors win those fights at both the trial and appellate court level. They write things like, "This is really a simple case" — whether it is or not, because they're advocates, and it's in their side's interest to characterize the case as simple.

I'm not persuaded that wls is necessarily right on that point, but I will immediately grant that his opinion is almost certainly based on more current and deep experience than my own. I've never flown any false flags about my practice experience, and my circumstances are such that, fortunately, I don't need to conceal my identity or my lack of deep or recent personal experience in a great many areas (including most of criminal law), so I don't think my readers are likely to be misled into believing I have more expertise than I really do. Some people, especially non-lawyers, nevertheless seem to find some value in my attempts to translate legal issues and concepts into language that's accessible to intelligent lay readers.

When wls or any other reader thinks it appropriate to specifically point out the limits of my experience, however, they're quite welcome to do so, here or wherever. If you think I'm talking through my hat, or that I don't have a clue, by all means, speak up about that. I hope such folks will do so graciously; but some won't, though, and some will take gratuitous shots in the process because they think it makes their own opinions more credible by contrast (and they may be right about that).

In any event, gentle readers, the ultimate power here is yours: You control that mouse pointer, and you ought not click on the URL that brings you here if you don't think what you read here is worth your time. </whiny rant>

Posted by Beldar at 02:46 PM in Law (2007) | Permalink

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» A prediction: The D.C. Circuit will reverse Judge Walton and order him to grant Libby bail pending appeal from BeldarBlog

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Comments

(1) Dan S made the following comment | Jun 5, 2007 3:53:24 PM | Permalink

Denying bail to Libby pending appeal, at this point, would complete my conviction that this was nothing more than a political prosecution and that the judge is not impartial.

The prosecutor certainly was not. And there's little doubt about the "leanings" of the jury.

Or maybe it's just an overcorrection to the light tap on the wrist a certain other official high in an administration received recently. Unlike purjury, convictions of that sort more often result in decades of incarceation at hard labor.

Yeah, that's probably the explanation.

(2) Uncle Pinky made the following comment | Jun 5, 2007 8:48:48 PM | Permalink

But that, plus $2.75, will buy you a small mocha latte from a Washington street vendor.

So it's worth about $1.57?

Walton does not seem the sort to question himself, but maybe he will mull over the fact that he still has no idea whether or not Plame was covered under the IIPA and grant bail pending. Very maybe.

And the coffee prices here are absolutely ridiculous.

(3) nk made the following comment | Jun 5, 2007 9:21:23 PM | Permalink

When I was a liberal defense attorney, we called it "judicial cynicism". A 364-day jail sentence for hitch-hiking on the highway reversed on appeal well after it had been fully served. The court refused to grant appeal bond.

My last case as an appellate defender: I made law but my client served two years more than he should have. His conviction for felony theft, punished by three years in prison, was upheld by the appellate court with one dissent which agreed with my argument that it was only misdemeanor attempt theft. The state supreme court agreed with me and the dissent but by that time my client had already served the full sentence for felony theft.

(4) anon made the following comment | Jun 6, 2007 12:03:00 AM | Permalink

I am speaking from complete ignorance with respect to the law. Can you please explain how "great power/great responsibility" is relevant in a perjury trial, where the perjury related to an investigation and was not even related to a crime? I can see it being relevant to some other malfeasance, but it seems very strange that it would be material in a case of perjury during an investigation like this.

(5) djangone made the following comment | Jun 6, 2007 12:10:12 AM | Permalink

"But this case is so very, very far from a run-of-the-mill prosecution that I think the Libby team ought to be found to have met this requirement too."

Your argument rests on that sentence, and yet you provide no support for it.

From here, Libby's is a pretty simple case. It's couched in a very complicated larger milieu, but in itself it's a simple case.

(6) Beldar made the following comment | Jun 6, 2007 2:44:26 AM | Permalink

Anon, as I think Judge Walton would explain it, and from his reported remarks basically did, he believes that high public officials should be held to the highest standards of probity and integrity (I agree), and that that should be especially true in investigations that even allegedly touch on national security issues (I agree).

However, Judge Walton is heavily invested in Fitzgerald's argument that Libby's perjury made it impossible for the prosecution or anyone else to ever make a reliable determination as to whether they ought to try to allege and prove (beyond a reasonable doubt) that a crime was committed in connection with the identification of Plame. I agree with critics of the prosecution and the verdict that that is one of Fitzgerald's weakest arguments, but it is an argument with which Judge Walton assuredly does agree, and right or wrong, that is part of the explanation for why he believes there are no grounds for a lenient sentence in this case.

As Byron York said on tonight's PBS Newshour (my paraphrase), even observers who are critical of the prosecution and verdict ought not have been surprised at the steepness of the sentence, because it has long been clear that Judge Walton is not a critic of the prosecution and the verdict. Right or wrong, from this judge in these circumstances and with this history, a steep sentence was to be expected. And it will become one of Libby's major arguments on appeal, I'm sure — in particular, Libby's point (a good one, I believe) that absent Fitzgerald having proven at least those elements of an underlying disclosure crime that Libby can't be alleged to have interfered with, how can such an unproved crime be constitutionally used as a basis of punishment enhancement?

Djangone, you're quite right that I have not attempted to provide detailed support for my one-sentence observation that this case is far from a run-of-the-mill prosecution. I can elaborate a little bit: There are no appellate precedents interpreting the key federal statute prohibiting the disclosure of covert agent identities, for example. By definition, then, to the extent any of Libby's appellate arguments implicate that statute, they cannot be circumscribed by, or trying to overcome or avoid, some monumental wall of unfavorable precedent. Rather, they will be raising issues of first impression. Likewise, that this conviction is shifted from a substantive offense under that statute into a perjury case built onto an investigation of its potential violation makes this case even more unprecedented. There is lots of law on perjury, but not from this particular context. The novelty of all this, in general, ought count in favor of a finding that Libby's appeal raises "substantial issues," thereby justifying bail pending appeal.

I can't be more specific than that, however, without getting into the nuts and bolts of the specific likely appeal points the Libby team is planning, and I don't know those, nor the related existing precedent (to the extent it exists), in the kind of detail that one would need in order to write them — and that's the level of detail one would need to have in order to fairly evaluate them. I'm a lawyer, but not a criminal law specialist by any means; and more importantly, I'm pundit, not one of Libby's paid lawyers, and I can't and don't pretend to do their jobs here.

(7) Dan S made the following comment | Jun 6, 2007 8:57:51 AM | Permalink

If there was (as Fitzgerald keeps claiming obliquely) a violation of IIPA in the case and Richard Armitage afmitted to DOJ very early on that he indeed "outed" Val, how did Libby's perjury obstruct the pursuit of justice?

Why did Fitzgerald not file charges against Armitage? Was it simple prosecutorial incompetence?

I sure am glad politics doesn't interfere with justice.

I'd feel a lot better about this whole thing if Armitage had been tried. Then this fiasco of a perjury trial would sit better as a sideline to the main event.

(8) Whitehall made the following comment | Jun 6, 2007 11:12:36 AM | Permalink

When some professionals in the justice system become willing handmaidens to INjustice, is it little wonder that lawyers are held in public comtempt?

(9) made the following comment | Jun 7, 2007 11:29:23 PM | Permalink

"When some professionals in the justice system become willing handmaidens to INjustice, is it little wonder that lawyers are held in public comtempt?"

I am not worried about lawyers being held in public contempt I am worried about the LAW being held in public contempt... as it seems destined to be as we allow poliical agends to criminalize politics.

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