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June 12, 2007

Fitzgerald not letting up on bail pending appeal

The headline from this AP article says it all: "Prosecutor Wants Libby Imprisoned Now"  Here are some basic details:

Special Prosecutor Patrick Fitzgerald urged a federal judge Tuesday not to delay former White House aide I. Lewis "Scooter" Libby's 2 1/2-year prison sentence in the CIA leak case.  Libby, the former chief of staff to Vice President Dick Cheney, has argued that he has a good chance of winning an appeal and should be allowed to remain free until that challenge has run its course.

U.S. District Judge Reggie B. Walton, who sentenced Libby to prison for lying to authorities and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity, has said he sees no reason to grant Libby's request. He did not set a date for Libby to report to prison, however, and scheduled a hearing on the issue for Thursday.

A delay in Libby's sentence would give President Bush more time to consider pardon requests from Libby's supporters, who say the loyal aide was caught up in a political investigation and does not deserve prison time.  Fitzgerald, in court documents filed Tuesday, said an appeals court is unlikely to overturn Libby's conviction because the evidence against him was so overwhelming.

June 12, 2007 at 01:24 PM | Permalink

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Comments

Does anybody have a link to Fitzgerald's opposition? Why can't the press link to things like that. (At least as of now, the AP story has no such link.)

Posted by: Elson | Jun 12, 2007 1:40:32 PM

Fitzgerald, in court documents filed Tuesday, said an appeals court is unlikely to overturn Libby's conviction because the evidence against him was so overwhelming.

This is strange, if true, unless Libby's lawyers asked for him to be set free pending appeal because of the quality of the evidence.

The reason I say this is that the amici's argument had nothing to do with the quality of the evidence.

Posted by: anonymous | Jun 12, 2007 2:07:38 PM

2:07 - just because the amici were going to argue an issue apart from overall guilt or innocence doesn't mean that Libby himself isn't going to press the sufficiency of the evidence. I imagine he'll make a variety of arguments.

Posted by: Steve | Jun 12, 2007 2:28:28 PM

anonymous, several of Libby's arguments went to evidentiary issues. Fitzgerald likely argued that the judge's rulings on those issues, even if incorrect, were harmless error. That's likely where he argued that the evidence of guilt was overwhelming and thus any evidentiary errors the judge made were irrelevant.

Posted by: Elson | Jun 12, 2007 3:30:13 PM

Assume that the Court of Appeals -- or the U.S. Supreme Court -- agrees with the position of the amici. Assume further that Libby has already served significant time prior to that decision.

Would he have any remedy?

As I understand the amici argument, this is not a situation where Libby would be entitled to a new trial; he would be entitled to an absolute dismissla because the entire prosecution against him would have been defective.

The argument is not absurd, and, by the way, is anyone aware of any other case that has been prosecuted under similar circumstances? This is a consummate question of first impression, and one on which there is no way to predict how SCOTUS will rule.

Libby is not a threat to society, nor does he pose a flight risk.

On another note, why should Fitzgerald be permitted to weigh in on the issue of bail pending appeal, when Fitzgerald's own legitimacy is so much in issue (and we don't even get to the point that Fitzgerald is the putative "victim" of Libby's offense)?

Posted by: Tom Dickinson | Jun 12, 2007 4:25:40 PM

Fitzgerald isn't the victim. The administration of justice, and the people of the United States, are the victims.

Posted by: Anon | Jun 12, 2007 9:35:20 PM

RE: Fitzgerald as "victim."

I understand that he's not really the victim, but can you think of any other context in which we permit a person to prosecute a case when that person is intimately involved in the facts of the case? Even worse, where that person is independent of any supervision and is free to make all policy decisions without oversight? I can't.

Posted by: Tom Dickinson | Jun 13, 2007 8:32:19 AM

Fitzgerald knew the source of the leak long before the Libby indictment, yet he choose Nifong as his role model and indicted and convicted another person in the Country with the highest rate of incarceration in the World. What did Fitzgerald accomplish by convicting this man? Perhaps Libby should have tried to urge Bush to change his stingy pardon policy.

Posted by: Anonymous | Jun 13, 2007 12:55:41 PM

Libby is not a threat to society, nor does he pose a flight risk.

Unfortunately, under the prevailing standard, those factors alone do not entitle the defendant to bail pending appeal. Basically, Libby needs to show that he has "substantial" issues on appeal, and Judge Walton has already signaled that he doesn't think such issues exist. I don't agree with that standard myself, but we're not the ones who get to decide.

On another note, why should Fitzgerald be permitted to weigh in on the issue of bail pending appeal, when Fitzgerald's own legitimacy is so much in issue....

I'm afraid I don't see your point. The prosecutor is always the one who gets to weigh in, and I don't see why this case would be different.

I understand that he's not really the victim, but can you think of any other context in which we permit a person to prosecute a case when that person is intimately involved in the facts of the case? Even worse, where that person is independent of any supervision and is free to make all policy decisions without oversight? I can't.

Actually, I think it's probably quite normal for the prosecutor who was lied to during a grand jury investigation, is the same prosecutor who then brings charges for perjury/obstruction.

For Fitzgerald's lack of accountability, you need to blame the Justice Department policy that led to his appointment in the first place. Having said that, what exactly would you do when there are allegations of wrongdoing in the president's inner circle? Even if you happen to think Libby is pure as the driven snow, you can't say categorically that there will never be a corrupt executive branch official. How exactly do you go about investigating such cases, while keeping the investigation independent of the very officials whose careers and lives are at stake?

What did Fitzgerald accomplish by convicting this man?

He sent a very stern message that lying in front of a grand jury has terrible consequences.

Posted by: Marc Shepherd | Jun 13, 2007 6:30:43 PM

By attempting to "weigh in" on whether Libby will be allowed to remain free pending his appeal, Fitzgerald is showing himself to be more of a political hack than he was when he decided to go forward with this prosecution.

In response to Marc Shepherd's answer to the question "What did Fitzgerald accomplish by convicting this man?" I would also add that he dealt a severe blow to the ability of Congress to get information from people under any circumstance without handing out immunity grants left and right.

Mr. Smith: Well Congressman, I can’t really remember who I was speaking to as the event took place seventeen years ago.
Congressman: So, what you’re saying is you want to be charged with obstruction?
Mr. Smith: No sir! Let me think... I believe Congressman Jefferson was present... yes I remember he was handing special prosecutors money encased in ice from his freezer.
Congressman: Well our records indicate that Mr. Jones was there as well. As you neglected to tell us that, we’re going to see you charged with perjury now.
Mr. Smith: You know what? Maybe I’ll just plead the 5th to everything you say from here on out.

Posted by: CJT | Jun 18, 2007 11:01:03 AM

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