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March 8, 2007

Will Libby get bail pending appeal from the courts? Can he get it from the President?

Though all the Libby talk today is about a possible pardon, I would be quite surprised if the President granted a pardon now, especially because Libby is still a free man at least until his sentencing by Judge Walton.  The sentencing is scheduled for June 5, though I suspect that date will get pushed back for various reasons.

Based on the guidelines and other factors,  I expect that Judge Walton will impose a prison term whenever sentencing takes place, and that's the moment at which Libby's liberty is brought seriously into question.  Most defendants must start serving their prison term soon after sentencing and are not granted bail pending appeal.  (For example, Jeff Skilling has started serving his sentence though his appeal is still being briefed before the Fifth Circuit.) 

Because pundits are saying that Libby has few strong appeal issues (a key bail issue if the defendant poses no flight risk), Fitzgerald's team likely would oppose bail pending appeal.  I am less certain whether Judge Walton would grant bail pending appeal, nor do I have a sense of the DC Circuit's general approach to these issues.

I am eager to hear from informed folks about either Judge Walton's or the DC Circuit's general approach to bail pending appeal.  And, here's a fun follow-up constitutional brain-teaser for pardon/clemency gurus: if Libby is ultimately denied bail pending appeal by the courts, would the President's "Reprieves and Pardons" power under Article II, Section 2 allow him to order Libby's freedom (as a reprieve) during the pendency of his appeal?   

March 8, 2007 at 01:18 PM | Permalink


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As to the president granting bail, I think the answer is "No." If the president pardons, he has to do it based on a conviction. He can't pardon someone pending an appellate court vacating a conviction, and then rescind his pardon when and if the courts sustain his conviction.

There are two easier courses: Simply tell Libby that he will pardon him, and do it, or order the AG to not oppose bail. There is nothing (besides the same political concerns relevant to a pardon) stopping Bush from dismissing Fitzgerald.

Posted by: S.cotus | Mar 8, 2007 1:43:49 PM

What issues do they plan to raise on appeal? I don't recall any obvious issues that arose during the trial.

I think that Libby has a strong argument for bail pending appeal, unless Walton feels that his issues are totally frivolous. Libby is clearly not a flight risk, nor is he a danger to the community or to himself.

And if Libby is sentenced in the range most pundits are anticipating, he would probably serve a very high percentage of his sentence while awaiting the CoA's decision --- making a favorable outcome somewhat beside-the-point.

Posted by: Marc Shepherd | Mar 8, 2007 5:11:18 PM

Why would the considerations for bail pending appeal be materially different than those for bail pending sentencing?

Libby was permitted to continue bail pending sentencing.

Posted by: ohwilleke | Mar 8, 2007 7:06:42 PM

Essentially the only issue under consideration in determining whether a defendant gets bail pending sentencing is whether he is a flight risk. See 18 U.S.C. § 3143(a). Libby clearly is not a flight risk.

On the other hand, to be granted bail pending appeal -- something that rarely happens -- you need to not only show that you’re not a flight risk, but that you have legitimate appellate issues. See 18 U.S.C. § 3143(b). In the words of the statute, your appeal must raise “substantial” questions, which the D.C. Circuit has defined to mean your appeal must raise a “close” issue. You don’t need to show that it is more likely than not that you’ll win on appeal, but you must show more than you have non-frivolous arguments. Moreover, your legitimate appellate issues, if decided in your favor (with some caveats that aren’t relevant here), must result in the overturning of your convictions that would result either in your release or in a new trial.

Does anyone know what Libby’s appellate issues are going to be?

Posted by: Elson | Mar 8, 2007 9:11:52 PM

As soon as someone is indicted the president can pardon him/her of that offense, or at least that's what I've always thought. I see no authority that says the presidential power is limited to a final conviction. I would think the president could grant a conditional reprieve pending appeal (conditioned on him following standard appeal bond conditions). I'd never be one to argue for limitations on the executive clemencly/pardon/amnesty/reprieve power. I think it would look awefully bad for Bush to pardon his (Cheney's) little evil cronie, but I'm sure he will.

Posted by: Bruce | Mar 8, 2007 11:28:06 PM

To me, the more interestign issue is can the Supreme Court review the decision to grant / deny bail pending appeal.

It would be fascinating to see the district court and appeals court denial bail, but the Supreme Court step in a grant bail on a 5-4 vote. Does anyone know if the Supreme Court can hear bail pending appeal issues?

Posted by: Michael Hadley | Mar 9, 2007 12:06:33 AM

Michael, A decision on bail could be appealed to the Supreme Court. The procedure on direct review is in Supreme Court Rule 22(5). It is considered a collateral order -- or at least pre-conviction bail is, under Stack v. Boyle, 342 U.S. 1 (1951). Off the top of my head, I don't know if any caselaw regarding whether post-conviction (federal) bail is such a collateral order, but the issue is obviously somewhat different.

I don’t think that the president could grant “conditional” clemency, because it would run afoul of Article III, since any action by the courts would therefore be overridden by the president. Seriously, what would be the point of a “conditional” commutation? If the president wants to pardon him, he can do it. What would he want to say, “I pardon him, except if the D.C. Circuit finds that he should do hard time”?

If the president were to do this, there is the strange question of who would have standing to challenge it. Could the federal courts raise the issue of the invalidity of his action sua sponte? I am sure that Fitzgerald could, but why not just fire Fitzgerald.

Posted by: S.cotus | Mar 9, 2007 6:59:16 AM

As soon as someone is indicted the president can pardon him/her of that offense, or at least that's what I've always thought.

No indictment is required. Gerald Ford pardoned Richard Nixon, and Nixon was never indicted.

Yes indeed, denial of bail is appealable, first to the CoA, and then to SCOTUS. I can't recall a modern example where SCOTUS has agreed to hear such a case. By the time it would pass through the certiorari gauntlet, Libby's main appeal would probably be decided, making it moot.

Incidentally, Martha Stewart was granted bail pending appeal, and I'd say her chances on appeal were no better than Libby's. Obviously that was in a different circuit, but it's a useful analogy, as her case is somewhat similar.

Posted by: Marc Shepherd | Mar 9, 2007 8:12:18 AM

Come on people - he'll get bail because of who he is. Nothing more, nothing less.

Posted by: Anon | Mar 9, 2007 10:13:59 AM

Martha got bail pending appeal because she was so important to the health of our economy. We just had to have her out there creating jobs and generating taxable income.

Posted by: steve | Mar 9, 2007 10:16:02 AM

The standard for bail pending appeal is somewhat different, because it incorporates the “likelihood of success” prong. In fact, for some reason, convicted people are presumed innocent.

Anon , And who is he? He is someone that, at best, was not convicted of a violent crime and is a minimal flight risk. Poor people tend to be more violent. Likewise, poor people think they can run.

Mr. Shepherd, I have always wondered whether Ford’s pardon of Nixon was enforceable. I think an argument can be made that a prospective pardon is a nullity. A bail request could be directed to a specific justice, as I understand the procedure, so a specific petition for cert. isn’t necessarily required. (This was the rule I referred to earlier.)

Posted by: S.cotus | Mar 9, 2007 10:33:37 AM

I have always wondered whether Ford’s pardon of Nixon was enforceable. I think an argument can be made that a prospective pardon is a nullity.

It certainly raised eyebrows at the time, but as a practical matter, it had the intended effect of ending the criminal investigation against Nixon. Those who were investigating him obviously interpreted Ford's pardon as a bar against prosecution.

A bail request could be directed to a specific justice....

And when was the last time such a petition was granted?

Posted by: Marc Shepherd | Mar 9, 2007 12:40:07 PM

Marc, Politically, I think Ford’s pardon did its job.

As to a specific question for bail. I don’t know. Sorry. And I don’t have time to look it up today. It may be that it has never been done.

Posted by: S.cotus | Mar 9, 2007 2:10:35 PM

If the President's has the unlimited power to pardon and the receiver has not right to refuse the pardon, why then is a pardon considered an admission of guilt if the receiver can not refuse the pardon?

Posted by: jimmym | Mar 11, 2007 9:21:12 PM

What would happen to this appeal if President Bush or General Gonzalez fires Mr Fitzgerald? According to "Triple Cross" by Peter Lance, Mr Fitzgerald was a major culprit in not preventing the tragedy of 9/11.

Posted by: Mort Ebersman | Mar 26, 2007 11:01:13 AM

Do you know how the Libby jurors were selected? When I served on a Florida jury panel, the entire panel of 30-40 people entered the Court simultaneously. Every potential juror was given the same opportunity to publicly discuss questions posed by the Judge. The entire panel was then sent outside and the final jury was selected in private. In my first appearance, I was rejected in favor of people who expressed more interest in the issues posed by the Judge. In my second appearance, I was chosen after I passed the Judge's test about "reasonable doubt". This resulted in the selection of a completely unbiased jury. When I previously served on a NY Federal jury, only the minimum number of people were interviewed. This resulted in a very biased jury (fortunately the bias went both ways and we had a hung jury on 5 Counts). Did Mr Libby have a similar chance to get a fair jury?

Posted by: Mort Ebersman | Mar 26, 2007 11:13:25 AM

THE ORIGINAL QUESTION: if Libby is ultimately denied bail pending appeal by the courts, would the President's "Reprieves and Pardons" power under Article II, Section 2 allow him to order Libby's freedom (as a reprieve) during the pendency of his appeal?
The answer is, without a doubt, "yes." Many a president has done so in the past. The language that is typically employed, however, is "respite" - for a set number of days, with renewals until the appeal is over.


Posted by: P.S. Ruckman, Jr. | May 25, 2007 11:15:28 PM

the three strike law is administered on an ad hoc, totally arbitrary basis. Which runs afoul of a due process guarantee to be free from capricious, arbitrary punishment, which would constitute cruel and unusual punishment.

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