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June 19, 2007

What are the odds Lewis Libby gets bail pending appeal from the DC Circuit?

This AP article details that Lewis Libby today submitted his application for bail pending appeal to the DC Circuit:

In a motion to the U.S. Court of Appeals for the District of Columbia Circuit, Libby argued that the ruling [denying bail] was inappropriate.  He said he has a good chance of having his conviction overturned on appeal and should not have to serve jail time while the court challenge plays out.

"The Bureau of Prisons will shortly designate a prison facility and direct Libby to report within a period of two to three weeks after designation," his attorneys wrote. "Accordingly, we respectfully ask that the court expedite action on this application."

Any predictions, dear readers, about his chances for getting bail from the DC Circuit?

June 19, 2007 at 09:28 PM | Permalink


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About 85%, imho.

Posted by: Peter G | Jun 19, 2007 9:38:08 PM

I would say he has about a 2.5% percent chance. Justices don't want the appearance of interfering in jury decisions, yet they should interfere in every case that has cause for doubt. Libby should be freed and Fitzgerald investigated for instituting this miscarriage of justice.

What ever happened to the eighth amendment? Excessive bail shall not be required, nor excessive fines imposed... Bail should be automatic for low risk individuals like Libby. Does his own former employer, the executive (justice department), believe he is a risk? How harsh can Fitzgerald be to a former colleague?

Posted by: Anonymous | Jun 19, 2007 10:10:36 PM

Has Libby's sentence created a new group of Right-wing civil libertarians?

The answer appears to be, yes, with the same qualifications.

Posted by: George | Jun 20, 2007 5:22:27 AM

Although I believe the sentence imposed was much to harsh and does not fit the crime, there was a crime. And that is essentially what the DC Circuit will weigh - whether Libby has shown a liklihood that he will prevail on an appeal of his CONVICTION, not his sentence. Doesn't look like "Scooter" will scoot.

Paul Kurtz, Executive Director

Posted by: Paul Kurtz | Jun 20, 2007 7:14:14 AM

Has Libby's sentence created a new group of Right-wing civil libertarians?

No, it hasn't. Because the right-wingers' new sympathy for convicted criminals is limited to only one criminal: Scooter Libby. For all other criminals, they still favor the "lock 'em up" strategy.

Oh, by the way, my prediction is that Libby's motion for bail will be denied by the D.C. Circuit.

Posted by: Marc Shepherd | Jun 20, 2007 7:30:13 AM

Bail pending appeal is generally a high burden to overcome, and circuit courts generally do not want to appear to interfere with the nuts and bolts of district court work on this issue. So, no, the circuit court will not grant bail pending appeal. But that's just my opinion.

Also, Bush will pardon him, but not until the end of his term. Thus, Libby will have to do some time.

Posted by: Harlan Protass | Jun 20, 2007 9:50:41 AM

In the state in which I practice, bail pending appeal is extremely rare. It seems rather common in federal court. Any reason for the difference? Any other states have these kind of liberal bail-pending-appeal rules?

Posted by: Anon | Jun 20, 2007 10:11:37 AM

In Stockton, California, a man convicted of voluntary manslaughter for killing his wife was released on bail pending appeal. He moved to Columbus, Ohio and is looking for new love on Yahoo Personals.


Posted by: Kent Scheidegger | Jun 20, 2007 12:24:21 PM

Low, 10% maybe. Also, I could easily see them declining to rule for a couple of months on the matter and quietly (and of course strictly speaking improperly) considering the larger legal and political climate. Certainly, a delay until after Rita is decided would make sense.

Posted by: ohwilleke | Jun 20, 2007 2:42:04 PM

ohwilleke, why would Rita have anything to do with Libby's motion?

I keep going back and forth, but I now think Libby will be denied bail pending appeal.

Anon, bail pending appeal is incredibly rare in federal court.

Posted by: Elson | Jun 20, 2007 3:02:58 PM

As a practitioner who is frequently in the D.C. Circuit -- but who doesn't do criminal cases and so has no idea of the courts' track-record on bail pending appeal -- I should think that on the law, the chances should be very slim. An intellectually honest panel should see that one must ignore Morrison v. Olson in order to side with the defendant on the Appointments Clause issue and that the other issues are flimsy. That said, this court has some particularly partisan judges on it -- who might be inclined to grant bail for extralegal reasons. Thus, much depends on the panel, the composition of which we will not know until the ruling issues.

Posted by: Sebastian Dangerfield | Jun 20, 2007 3:19:17 PM

Sebastian, does the D.C. Circuit note somewhere who is on the motion's panel for the month? In the Ninth Circuit, for example, they post monthly who is on the motion's panel, and so you know which three judges will hear your motion.

Posted by: Elson | Jun 20, 2007 3:24:55 PM

Elson: Alas, no. The D.C. Circuit assigns bail motions to a designated "Special Panel" -- and keeps a lid on its composition -- so there's not way to check that way. The court is on its summer recess, but it has a few judges around for these types of duties. My efforts to try to ferret out who is still sitting have come to nothing.

Posted by: Sebastian Dangerfield | Jun 20, 2007 5:08:22 PM

Yet another example of the Ninth Circuit being vastly superior to every other circuit court ;) . . .

Well, if the D.C. Circuit rotates its "special panel" monthly, who is on the panel now won't matter as the opposition and reply brief likely won't get filed before the end of the month.

Posted by: Elson | Jun 20, 2007 6:09:34 PM

The Washington Post reports that the bail motion appeal will be heard by Sentelle, Henderson, Tatel.


Posted by: | Jun 20, 2007 10:29:29 PM

If the court follows the law, Libby's petition will be denied as it should. BTW: apparently I am one of the few people who believes the judge in Libby's case was too lenient. The statutory maximum for obstruction is ten years. I would have sentenced him to ten years, with perhaps a five year consecutive term for perjury. His conduct, as a lawyer no less, was reprehensible. A nice little 3553 message could have been sent and the judge missed the opportunity to make it clear that it's not just the poor, minority defendants who get launched by federal judges, it's also the well connected criminals. I also believe the judge should have remanded him to the US Marshal once he was sentenced, on the spot.

Posted by: RLS | Jun 20, 2007 10:40:13 PM

I don't know any of those judges. Does anybody have any insight on how they are likely to rule?

Posted by: Elson | Jun 21, 2007 3:21:09 AM

We can thank the officious amici (AKA the Bork 12, the Dirty Dozen, or the Amici Illuminati) for flushing out the panel. Their misbegotten efforts to re-file their pathetic amicus brief, this time in the D.C. Circuit, provoked an almost instant "DENIED," which revealed the composition of the Special Panel early.

As for the likelihood that this panel will deny the request for release (which I think clearly the correct ruling, wholly irrespective of my views on Libby), I can give the following equivocation (adapted, with typos corrected from a comment left at The Next Hurrah):

The best I can say about this panel is that it could be worse. A Silberman and Sentelle combination would be the worst-case scenario, worst that is from the persepctive of one desiring to see a decision made on the law and untainted by partisan loyalties. Henderson is very conservative. Sentelle is very conservative, sometimes partisan-seeming in decisions that raise hot-button issues (see, e.g., the decision striking down D.C.'s gun control law -- which basically casts aside 7 decades of Supreme Court precedent), and was a member of the standing panel that gave us Ken Starr. Neither of them in my view are lock-step partisan judges in the general run of cases, but this is not a run-of-the-mill case. Tatel is an excellent judge, quite liberal but immensely principled.

If these two members of the panel want to give Scooter relief for extralegal reasons, they have a real opportunity here because all they have to do is write the opinion such that they repeatedly say that they're not prejudging the issue but that they find it substantial in the 1343 sense, without watering down the standard so much that it provides an opening for the presumption against release to be reversed. They might be less inclined to do that if it would provoke a Tatel dissent, so he holds some power even if he's outvoted; I wouldn't want this to be a 2-1 decision with a dissent if I were a judge trying to pull a fast one here.) Also mitigating my sense of dread of course is the fact that this same panel (correctly) decided the Judy Miller appeal and that they knew damn well where this case was heading -- possible perjury/obstruction charges against Libby and Rove. That much is exceedingly clear from the unredacted opinion in the Miller appeal. None of the opinions in the case is consistent with the talking point that Fitzgerald was out building mountains out of mine tailings left by moles. So I'm not convinced that a purely partisan ruling will issue, but I wouldn't be shocked if one did. But given its composition, if this panel does do the right thing and deny the application, then the Libby apologists will have to tie themselves into even more exquisite knots when arguing that this was all just a runaway partisan prosecution.

Posted by: Sebastian Dangerfield | Jun 21, 2007 2:24:26 PM

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