For Whom The Bail Tolls: Why Libby Will/Should Get Bail

     On Thursday June 14, Judge Reggie Walton will be asked to decide whether Scooter Libby gets bail on appeal.  Should Judge Walton deny bail, Libby could also ask the Court of Appeal to grant bail. Many liberal voices here, and including the New York Times have urged the Judge to deny bail, and Judge Walton himself commented that he was unlikely to grant bail.  

       Judge Walton was, after all, appointed by Bush in part upon his reputation as a tough law and order judge who would not "coddle" criminals.  Despite these factors, Libby will get bail on appeal, and he should get bail.

More below

    As I previously diaried, under the federal bail statute, someone like Libby who is not a danger or a flight risk is entitled to bail on appeal if he raises a "substantial question" of law and is not appealing solely for delay.  Courts have defined a "substantial question" is one that is "fairly debatable" or "not frivolous."  

       Libby's bail motion raises several issues, and he has the support of an amicus ("friend of the court") brief filed by a group of legal luminaries ranging from Alan Dershowitz to Robert Bork.  The central issue raised by Libby's brief and the amicus brief is the constitutionality of the appointment of special prosecutor Fitzgerald.  Ordinarily, an officer charged with enforcement of laws is either appointed by the President with the consent of Congress and thus considered a "principal officer" or is an inferior officer who reports an appointee.  Fitzgerald was appointed by the President to be United States Attorney for the Illinois district that includes Chicago, but was not appointed by the President to this special prosecutor position.  Nor was he granted his authority by an Act of Congress, as under the now expired Independent Counsel Act.  Nor as in Watergate, is he at least under the guidance of Congress.  Rather, the Attorney General delegated all authority to Fitzgerald to act without supervision.

    Bork, of course, has been at the center of this constitutional debate since he fired Watergate prosecutor Archibald Cox, and, then to Nixon's chagrin insisted on appointing a replacement, Leon Jaworski.  

    No constitutional issue should be tossed aside as a mere "technicality."  But it should be noted that this type of delegation of authority has practical problems similar to those that occurred recently when the Attorney General delegated authority for hiring and firing U.S. Attorneys to his underlings.

    Libby also argues that the Judge erred in excluding key expert testimony that would have supported his defense that his misstatements were due to his faulty memory instead of deliberate lies.  Libby also argues less forcefully about being denied the right to call Andrea Mitchell, and certain CIA agents.  The right to present a defense is a key constitutional right, but the issue that will undoubtedly get Libby bail is the appointment issue.

    Despite his apparent predilection against bail, Judge Walton will likely grant bail because his prior opinion on the appointments issue essentially compels him to do so.  Libby challenged Fitzgerald's power to prosecute him in a pretrial motion.  Judge Walton denied the motion, but wrote a lengthy opinion noting that it was a "difficult question."  

    Given Judge Walton's prior statement, to deny that Libby has raised a "debatable issue," would expose him as a hypocrite in a high profile case–a line that even the most result-oriented Judges will rarely cross.  Even if he were to deny bail, the Court of Appeals would most likely seize upon Walton's concession that the case raised a "difficult question" and grant him bail.

    Many liberals may be upset and bemoan that the rich and powerful are accorded rights that the poor and unpopular are denied, and while those detained in Guantanamo do not even have access to courts.  But the lesson of these cases is that the rights embodied in the constitution should be granted to those people we do not like as well as those we do like.  To paraphrase Donne, "ask not for whom the bail tolls."

•  Tips? Flames?

  by zdefender on Thu Jun 14, 2007 at 09:20:40 AM PDT

•  I agree

  He will get bail.

  He's a non-violent first-offender that poses a 0.0% flight risk.  If this was a first time drug offender we would be arguing FOR bail.

  Just because we hate the man's politics doesn't mean we should distort our own sense of how the Justice Department should operate... I mean, who do we think are: Alberto Gonzales?

  by Wisper on Thu Jun 14, 2007 at 09:23:02 AM PDT

•  sounds good to me

  I'm not a lawyer, but that makes sense.  I'm not thirsting to see Libby behind bars ASAP anyway, because I don't think he's gonna flip.  Let it proceed in due course as correctly, in legal terms, as possible.

  by duha on Thu Jun 14, 2007 at 09:24:44 AM PDT

•  I am not so sure

  Not only does he have to present a substantial issue, he has to establish that his conviction will be reversed or that he will be granted a new trial. None of his issues on appeal seem likely to do that.

  by Pozzo on Thu Jun 14, 2007 at 09:31:46 AM PDT

  •  He doesn't have to convince

    Walton that he will win.  Getting bail on appeal can't depend on convincing the judge that she/he made reversible errors while ruling over the trial.  No judge will say that.  And there would be no point to a bail on appeal statute.

    He just has to convince Walton that it's a close question, debatable, not frivolous.  

    by zdefender on Thu Jun 14, 2007 at 09:34:16 AM PDT

    •  The statute

      plainly and clearly requires a defendant to establish that he is likely to prevail upon appeal.

      by Pozzo on Thu Jun 14, 2007 at 09:37:16 AM PDT

    •  don't you read your own diaries?

      and

      (2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or order for a new trial.

      by seesdifferent on Thu Jun 14, 2007 at 09:56:30 AM PDT

      •  I do read it,

        as made clear in some of the other comments I have made, the courts interpret the statute more broadly.

        by zdefender on Thu Jun 14, 2007 at 08:31:55 PM PDT

•  Missing the point

  To note that the case was a "difficult question" is not the same thing as saying the defendant is likely to win on appeal.  They are different points.

  More to the point, Walton has noted Libby's letters and Amicus briefs from very powerful friends and has noted that respect for the law demands that Libby be punished.  Walton can also note that the political winds favor of presidential pardon in December, 2008, so to leave Libby free on appeal is essentially the same as exhoneration.  

  To let Libby walk would undermine the points Walton has repeatedly made.  He may do it, but there is no reason to think it is a foregone conclusion.

  by weasel on Thu Jun 14, 2007 at 09:32:16 AM PDT

  •  In fact "difficult question"

    arguably makes it less likely that he will prevail. If it is indeed a difficult question, it means that its not so clear that the judge erred on this issue and that Libby cannot prove he is likely to prevail upon appeal.

    by Pozzo on Thu Jun 14, 2007 at 09:34:05 AM PDT

    •  As I said above,

      you don't have to convince the judge you are going to win on appeal.  That is more a standard for getting a temporary restraining order in a civil case.  

      For bail, you just have to convince the judge that reasonable minds may differ, that your issue is not frivolous.

      by zdefender on Thu Jun 14, 2007 at 09:36:01 AM PDT

  •  Not quite the same as exoneration

    From what I have read, a pardon isn't automatic-- Libby has to accept the pardon, and in doing so, he admits guilt.

    by Olds88 on Thu Jun 14, 2007 at 09:44:59 AM PDT

    •  Not necessarily

      You can accept a pardon without admitting guilt.  Pardons can be granted even before trial or indictment.  (See, e.g., Nixon's pardon).

      by Drgrishka1 on Thu Jun 14, 2007 at 09:49:23 AM PDT

      •  I don't think so...

        Burdick v. United States, 236 U.S. 79 (1915)[1], was a case in which the Supreme Court of the United States held that:

        • A pardoned man must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court.
        • To do this, the pardoned man must accept the pardon. If a pardon is rejected, it cannot be forced upon its subject.
        • A pardon carries an 'imputation of guilt', and accepting a pardon is 'an admission of guilt'.
        • A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private though official act of the executive magistrate, delivered to the individual for whose benefit it is intended. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on.

        http://en.wikipedia.org/...

        In other words, Nixon's pardon was not formally accepted because his case never went to court. If he had, he would have had to introduce the pardon into the trial for it to be legally recognized.

        Libby, of course, already had his trial.

        by Olds88 on Thu Jun 14, 2007 at 10:02:27 AM PDT

        •  That's not quite correct

          Nixon could not have been brought to trial at all.  The pardon was "full, free, and absolute" thus immunizing him from indictment, trial, and punsihment.

          Burdick has also been limited.  See, e.g., Biddle v. Perovich, 274 U.S. 480  (1927) (President may commute sentence without convict's consent).

          Also Burdick is somewhat inconsistent with other pronoucements by the Court.

          [P]ardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

          Ex parte Garland, 71 U.S. 333, 380-81 (1867)

          by Drgrishka1 on Thu Jun 14, 2007 at 10:17:38 AM PDT

          •  That part of Garland is effectively

            overturned by Burdick and another case, Carlesi v. People of New York. That case said that an earlier crime, even if pardoned, can be considered in the sentencing of later crimes.

            Clearly, that portion of Garland, which was a case about Congress imposing penalties on Confederates who had been pardoned under a blanket amnesty by the President is overturned.

            By the modern view, the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal, but rather is an executive action that mitigates or sets aside the punishment for a crime. Pardons do not erase the fact that one was once convicted of a crime; instead, pardons eliminate any further effect of having been convicted. . . . A pardon does not substitute a good reputation for one that is bad, does not obliterate the fact of the commission of the crime, does not wash out the moral stain, and does not wipe the slate clean, but rather involves forgiveness, not forgetfulness.

            Generally, a full and unconditional pardon restores to the offender the customary civil rights which ordinarily belong to a citizen, including voting or suffrage rights, and the right to be a witness. . . . A pardon does not restore one to property or interests which have vested in others in consequence of the conviction and judgment.

            The Court in Bjerkan noted, however: “A pardon does not ‘blot out guilt’ nor does it restore the offender to a state of innocence in the eye of the law as was suggested in Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380 18 L. Ed. 366 (1866). See Burdick v. United States, 236 U.S. 79, 91 (1915) (suggesting that, far from blotting out guilt, the acceptance of a pardon may constitute a confession of guilt).” Bjerkan, 529 F.2d at 128, n.2; see also United States v. Noonan, 906 F.2d. at 558-59.

            http://www.pardons.nv.gov/...

            by Olds88 on Thu Jun 14, 2007 at 11:59:35 AM PDT

            •  I don't know why

              opinions of the Nevada courts are relevant as to federal law.

              Second, since both statements in Garland and in Burdick are dicta, I don't think one does or can overrule another.

              (After reading Carlesi, I o not find it to be on point or relevant).

              by Drgrishka1 on Thu Jun 14, 2007 at 12:21:44 PM PDT

              •  The quote is from a federal case

                Bjerkan v. United States.

                Clair George, one of the Iran Contra conspirators who was pardoned by Bush I, sought to have his record expunged and his attorney fees reimbursed based on the strength of the Presidential pardon. He also cited the Garland language. The US Court of Appeals rejected that citing the Burdick decision and again quoting from Bjerkan:

                ...Garland 's rationale is consistent with Wilson; its dictum about blotting out guilt is inconsistent with Wilson.

                Garland 's dictum was implicitly rejected in Burdick v. United States, 236 U.S. 79 (1915), which recognized that the acceptance of a pardon implies a confession of guilt. 236 U.S. at 91, 94. Citing Burdick, the Seventh Circuit observed: "A pardon does not "blot out guilt' nor does it restore the offender to a state of innocence in the eye of the law as was suggested in Ex Parte Garland." Bjerkan v. United States, 529 F.2d 125, 128 n.2 (7th Cir. 1975); accord State v. Skinner, Del. Supr., 632 A.2d 82, 85 (1993) (citing state cases).

                Another recent decision on the effect of a presidential pardon rejects Garland 's dictum. The recipient of a presidential pardon sought expunction of court records relating to his conviction. The district court granted his motion, relying on Garland 's theory that a pardon "blots out of existence the guilt." 71 U.S. at 380. The government appealed, and the court of appeals reversed. In United States v. Noonan, 906 F.2d 952 (3d Cir. 1990), Judge Aldisert canvassed American and English precedent, courts in the British Commonwealth, and scholarly commentary. Judge Aldisert concluded:

                Thus, on the basis of long-held traditional views on the effect of a pardon, covering diverse periods and sources from Bracton and Blackstone to Professor Williston, from seventeenth century English cases to those in contemporary courts of Great Britain and the British Commonwealth, from 1915 teachings of the Supreme Court, and the 1975 analysis of the Court of Appeals of the Seventh Circuit, we conclude that the Presidential pardon of 1977 does not eliminate Noonan's 1968 conviction and does not "create any factual fiction" that Noonan's conviction had not occurred to justify expunction of his criminal court record.

                906 F.2d at 960. United States v. Noonan is pertinent because the recipient of the presidential pardon in that case unsuccessfully requested a court order that he "may, as well as all others must, consider the criminal indictment expunged as if it had never occurred." 906 F.2d at 954. George seeks no less.

                A pardon will not exonerate Libby.

                by Olds88 on Thu Jun 14, 2007 at 04:28:08 PM PDT

                •  I disagree that it is cut and dry

                  Governors and Presidents consistently issue pardons based on "actual innocence."  They also issue pardons to dead people who obeviously cannot "accept" them.  So I disagree that pardons must always be accepted and that they never blot out guilt.  For instance see Bill Clinton's pardon of Lt. Henry Ossian Flipper almost 60 years after his death.  

                  http://en.wikipedia.org/...

                  by Drgrishka1 on Thu Jun 14, 2007 at 05:22:28 PM PDT

                  •  The Flipper case isn't relevant...

                    the controversy in that case is about the appropriateness of granting the pardon, not Flipper using it.

                    Many pardon applications had been rejected in the past - as a matter of policy - because the intended recipients were deceased. However, President Bill Clinton pardoned Lieutenant Henry O. Flipper on 19 February 1999.

                    Clinton had the power to pardon a ham sandwich if he wished. The fact that the deceased Flipper is now in possession of a pardon doesn't mean he could use it anymore than the ham sandwich could. The pardon had only symbolic effect, especially considering his Dishonorable Discharge had already been retroactively changed to a Honorable Discharge.

                    As far as Governors pardoning for "actual innocence," it appears most states require all other avenues be exhausted before applying for such a pardon. Even when correcting such drastic mistakes, the person's record is not automatically expunged or erased.

                    by Olds88 on Thu Jun 14, 2007 at 05:59:22 PM PDT

                    •  this is not the issue of whether Libby's

                      record will be expunged, because honestly, who cares.  This discussion is on rather esoteric point of what a pardon is, and whether it establishes innocence.  I suggest that there is debate on this issue.  

                      by Drgrishka1 on Thu Jun 14, 2007 at 06:06:07 PM PDT

                      •  If the pardon established him actually innocent..

                        He would have grounds to have his record expunged and seek reimbursement for legal fees as Clair George attempted. That court clearly rejected the notion that a pardon meant any such thing.

                        I have read nothing except the flowery language of the Garland case that presents a pardon as actually establishing reborn innocence.

                        Expunging a record appears, as a practical matter, closer to establishing innocence than a pardon. Once a crime is expunged, records are sealed even to government agencies (except law enforcement, apparently) and a person can legally claim to employers and others to have not been convicted of a crime.

                        But, again, the pardon from Bush will in no way exonerate him.

                        by Olds88 on Thu Jun 14, 2007 at 07:16:06 PM PDT

                        •  Actually once pardoned

                          you can claim not to have been convicted.  I have applied for various govt jobs (including those requiring clearence) and they uniformly ask if you have any conviction for which you have not been pardoned.

                          by Drgrishka1 on Thu Jun 14, 2007 at 07:24:04 PM PDT

                          •  Answering no to

                            whether you have any "conviction for which you have not been pardoned" is not the same as answering no to "have you ever been convicted of a crime?"

                            A criminal background check will not reveal an expunged conviction, but would reveal a conviction where a pardon was later granted.

                            by Olds88 on Thu Jun 14, 2007 at 07:43:56 PM PDT

                            •  My point was that it seems to me

                              that everyone views pardoned convictions as non-issues.  I believe (I would have to check more extensively) that you can actually answer "no" to that question.  Just like you could answer "no" if your conviction was reversed on appeal.  

                              Also, if pardoned, all your civil rights (like right to vote, own a gun, etc.) are restored as if you have never been convicted.  As well as your ability to hold law license and such is generally restored (though of course bars need not have a convistion to disbar you).

                              by Drgrishka1 on Thu Jun 14, 2007 at 09:19:47 PM PDT

          •  Also,

            as noted above, Nixon could have had proceedings brought against him, however, he could simply present the pardon to stop the trial before it actually began. The Burdick decision makes it clear the court can't act on outside knowledge that a pardon exists. Like a get out of jail free card, it must be used.

            Ford's pardon couldn't stop someone from building a case, it just made it futile to proceed.

            by Olds88 on Thu Jun 14, 2007 at 12:15:42 PM PDT

            •  That's like saying that one can build a criminal

              case against a dead person.  Sure, you can do whatever you want, but you cannot arrest the putative defendant or demand that he be brought to court, etc.

              by Drgrishka1 on Thu Jun 14, 2007 at 12:22:44 PM PDT

              •  Again no,

                If you bring a case against George Washington, the court could determine that George Washington is, in fact, dead and dismiss the case.

                But comparing a pardon to that is to entirely ignore the Burdick decision:

                • A pardoned man must introduce the pardon into court proceedings, otherwise the pardon must be disregarded by the court.

                • To do this, the pardoned man must accept the pardon. If a pardon is rejected, it cannot be forced upon its subject.

                Even if the court is aware of a Presidential pardon, it can not assume Nixon would want to use it. It is up to Nixon to introduce the pardon and positively accept it, thereby also admitting guilt. The court must ignore the pardon until it is introduced.

                by Olds88 on Thu Jun 14, 2007 at 04:39:28 PM PDT

                •  Again, it is unclear if that is still good law

                  as per previously cited case that held that the President can commute the sentence without subject's agreement.

                  by Drgrishka1 on Thu Jun 14, 2007 at 05:15:44 PM PDT

                  •  If you are referring to the Perovich case

                    The opinion ends:

                    We are of opinion that the reasoning of Burdick v. United States, 236 U.S. 79, 35 S. Ct. 267, is not to be extended to the present case.

                    The opinion does not overturn Burdick. Even though the 1927 court might not have completely agreed with Burdick, it clearly limits its own decision to the power to commute sentences (which is what Taft had done). A man's sentence is out of his own hands, his defense is not.

                    by Olds88 on Thu Jun 14, 2007 at 06:22:46 PM PDT

                    •  Yes, much like Burdick

                      does not overturn the previous case.  SCOTUS opinions in this area are all over the map with no clearcut answer.

                      by Drgrishka1 on Thu Jun 14, 2007 at 07:04:28 PM PDT

                      •  Of course it did

                        Burdick completely rejects Garland (see the Clair case above).

                        Furthermore,  in the Noonan decision above, the district court relied on the Garland language to grant Noonan's motion, and was reversed by the appeals court citing the 1915 Burdick case. The court implicitly denied any historical gray area by a comprehensive survey of the law:

                        Judge Aldisert canvassed American and English precedent, courts in the British Commonwealth, and scholarly commentary. Judge Aldisert concluded:

                        Thus, on the basis of long-held traditional views on the effect of a pardon, covering diverse periods and sources from Bracton and Blackstone to Professor Williston, from seventeenth century English cases to those in contemporary courts of Great Britain and the British Commonwealth, from 1915 teachings of the Supreme Court, and the 1975 analysis of the Court of Appeals of the Seventh Circuit, we conclude that the Presidential pardon of 1977 does not eliminate Noonan's 1968 conviction and does not "create any factual fiction" that Noonan's conviction had not occurred to justify expunction of his criminal court record.

                        The Persovich decision in no way attempts to do the same to Burdick.

                        by Olds88 on Thu Jun 14, 2007 at 07:38:54 PM PDT

•  It seems odd to me that they want process for

  themselves, but hose everybody else.  In any event I agree with your position.

  by Habanero on Thu Jun 14, 2007 at 09:35:18 AM PDT

  •  I agree that it is odd that they

    only want the process for themselves.  

    They say a liberal is a conservative who has been indicted.

    But we have to guard against tit-for-tat, and becoming what we criticize.

    by zdefender on Thu Jun 14, 2007 at 09:37:09 AM PDT

  •  There's nothing odd here at all

    Libby doesn't appear to be entitled to bail under the law. If he does prove this, fine, I will accept the rule of law, but there is no convincing argument for allowing him bail pending appeal. He fails to meet the standard.

    by Pozzo on Thu Jun 14, 2007 at 09:44:19 AM PDT

    •  the courts have defined the standard as

      [A] substantial question is one that is "fairly debatable," "fairly doubtful," or "one of more substance than would be necessary to a finding that it was not frivolous."

      United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir 1987).

      by zdefender on Thu Jun 14, 2007 at 09:51:02 AM PDT

      •  That's only part of it

        That defines what a question is. You also have to establish that you are likely to prevail upon appeal.

        by Pozzo on Thu Jun 14, 2007 at 09:53:10 AM PDT

        •  OK, I agree that the statute could

          be read that way, but courts have since said that if a judge can only grant bail on appeal when the judge believes he/she has committed reversible error during the trial, the bail statute would be meaningless.  U.S. v. Miller, 753 F.2d 19 (3d Cir. 1985).  

          So the courts now agree that the "substantial question" standard "does not require the district court to find that it has committed reversible error,"  US v. Pollard, 778 F.2d 1177 (6th Cir. 1985), or even that the "defendant has shown a likelihood of success on the merits of the appeal."  US v. Quinn 416 F. Supp. 2d 133.

          That is the standard.  That is how the courts have interpreted the statute.

          by zdefender on Thu Jun 14, 2007 at 10:01:16 AM PDT

          •  That's now the courts

            are interepresting whether the issue is substantial. Not only do you have to present a  substantial (i.e. non frivilous) issue, you also have to demonstrate that you will likely prevail upon appeal.

            From Libby's own brief:

            Second, the Court must find by a preponderance of the evidence taht (1)the defendant is appealing for purposes other than delay, (2) the appeal "raises a substantial question of law or fact and (3) a favorable appellate ruling  on that substantial question would likely result in a reversal, an order for a new trail or a reduced sentance." United States v. Quinn, 416 F. Supp. 2d 133, 135 (DDC 200^).

            http://www.talkleft.com/...

            Not only to have to raise a substantial issue, you have to demonstrate that  you are likely to gain favorable treatment on appeal.  Finding issues on appeal isn't enough.

            by Pozzo on Thu Jun 14, 2007 at 10:09:44 AM PDT

•  There's no substantial issue of law

  Simply having a bunch of high-profile lawyers assert there's an issue of law does not make it so.  Libby's conviction is perfectly in line with those of the main Watergate defendants, MItchell, Haldeman, and Ehrlichman, who were all convicted of similar crimes:  Perjury, lying to Congress, Obstruction of Justice.  And guess what the sentences for those three people were?  30 months in Federal prison, each.  Exactly the same as Libby's, so there is nothing excessive about the actual sentence he was given, either.  He doesn't deserve bail, particularly since it only increases the chances he'd never see prison at all due to a pardon.

  by sponson on Thu Jun 14, 2007 at 09:37:09 AM PDT

  •  He will get pardoned,

    I agree, but Fitzgerald's appointment is different from the Watergate appointment in that Fitzgerald had no supervision by Congress or the Attorney General.

    The fact that a lot of legal scholars consider the appointment constitutionally suspect means that judges will have a tough time deciding it, and that it is a close question.

    Under the law, he should get bail.

    by zdefender on Thu Jun 14, 2007 at 09:39:15 AM PDT

    •  "A lot of legal scholars"

      with a political agenda.  

      by MadRuth on Thu Jun 14, 2007 at 09:51:34 AM PDT

      •  Lots of scholars

        Also said that there was no way Paula Jones would be allowed to proceed with her suit against Bill Clinton while he was in office. They lost 9-zip at the USSC.

        by Pozzo on Thu Jun 14, 2007 at 10:00:37 AM PDT

        •  Clinton withdrew the strongest

          argument in his brief, that he was commander in chief and could not be subpoena'd when troops were in the field.  He withdrew it because the wingnuts shamed him into withdrawing it.   (since he had never served in the military).

          by zdefender on Thu Jun 14, 2007 at 10:16:17 AM PDT

          •  I agree with you here

            It was a legitimate argument. I still think it had merit, but talk radio basically forced his hand.

            by Pozzo on Thu Jun 14, 2007 at 10:17:39 AM PDT

            •  We finally agree

              on something ;-)

              by zdefender on Thu Jun 14, 2007 at 12:47:19 PM PDT

  •  IANAL

    but weren't those guys prosecuted under an Independent Counsel as opposed to a Special Counsel (which is what Fitz is). The thing is, if Libby were to prevail on appeal, that would mean there would no longer be a way of prosecuting criminal acts in the Executive Branch, as Congress has done away with the Independent Counsel.

    by never forget 2000 on Thu Jun 14, 2007 at 10:11:47 AM PDT

•  Lynne Stewart,

  convicted of far more serious offenses including conspiracy, prividing material aid to terrorists, and fraud on the U.S. Government.  She faced 30 years, whereas Mr. Libby faced a maximum of 3.5 (or so) years.  It seems to me that if Miss Stewart can be released on bail pending appeal, Mr. Libby is entitled to the same.

  by Drgrishka1 on Thu Jun 14, 2007 at 09:45:29 AM PDT

•  Traitors should not be getting bail, under any...

  circumstances, and I think Libby, Cheney, and Bush et al, have more than proven their treason.

  by Hornito on Thu Jun 14, 2007 at 09:47:22 AM PDT

  •  Unfortunately, your argument is similar to Bush's

    argument that the detainees at Gitmo should not get trials in criminal courts.

    by zdefender on Thu Jun 14, 2007 at 09:53:16 AM PDT

    •  Excuse me

      Libby got a trial, complete with lots of high priced lawyers.  Now he is trying to avoid the consequences.  Next you will be trying to tell us that he is a fallen soldier.

      by MadRuth on Thu Jun 14, 2007 at 10:09:19 AM PDT

      •  He's not a fallen soldier

        I don't like the man, I don't like what he did.  But under the statute, as interpreted by the courts, he is entitled to bail while he challenges the constitutionality of his convictions.

        by zdefender on Thu Jun 14, 2007 at 08:34:41 PM PDT

    •  Never said they shouldn't get a trial first...

      now did I?

      BTW, why does it seem you're sticking up for a neocon, lying, traitorous piece-of-shit like Libby?

      by Hornito on Thu Jun 14, 2007 at 10:12:59 AM PDT

      •  I am sticking up for the constitution,

        whether we are talking about a odious neo con like Libby or the detainees in Gitmo who are likely traitors or terrorists.

        by zdefender on Thu Jun 14, 2007 at 10:18:07 AM PDT

•  Looking at the big picture

  American justice is broken.

  A probable pardon awaits a convicted perjurer about illegal White House crimes committed to cover up an illegal war by a President fraudulently elected with the help of a politicized Supreme Court, as federal district attorneys are replaced to encourage widespread voter suppression.

  Trust in our system of law is quickly eroding.

  by crystal eyes on Thu Jun 14, 2007 at 09:57:58 AM PDT

•  Abuse and misue of executive power

  Ordinarily, an officer charged with enforcement of laws is either appointed by the President with the consent of Congress and thus considered a "principal officer" or is an inferior officer who reports an appointee.

  ...

  Rather, the Attorney General delegated all authority to Fitzgerald to act without supervision.

  One question, I suppose, is whether Gonzales' so-called delegation of authority to Fitzgerald means that Fitz no longer "reports" to Gonzo on the matter. I would think that the boss is always responsible for the actions of his subordinates, no matter how much freedom of action the boss may have granted.

  Also, was not Fitzgerald appointed to his USA position by the President with the consent of Congress?

  It is ironic, is it not, that a criminal defendant from an administration characterized by abuse and misuse of executive power, charged with and convicted of a crime stemming from abuse and misuse of executive power, may go free on bail based on an argument that his prosecutor was appointed through abuse or misuse of executive power.

  by DBunn on Thu Jun 14, 2007 at 09:58:19 AM PDT

  •  I think at this point

    Fitz should point to the Attorneygate testimony by ?Sampson to show that his firing was atleast momentarily considered.

    by never forget 2000 on Thu Jun 14, 2007 at 10:14:37 AM PDT

•  Here's another issue

  They have to establisht that Libby isnt' appealing for the sake of delay. But just about everyoen analysing this case seems to think that the appeal is to buy time so that Bush can issue a pardon in his waning days in office or right before XMas this year.

  by Pozzo on Thu Jun 14, 2007 at 10:16:27 AM PDT

  •  that's true,

    I agree his real hope is to delay the case for a pardon.  But I am not willing to say that he does not also really want the court to overturn the conviction.  A pardon is not a certainty, and a reversal on appeal would probably be better for him.

    by zdefender on Thu Jun 14, 2007 at 10:19:36 AM PDT

•  I never thought I'd see the day...

  ...where the phrases "legal luminaries" and "Alan Dershowitz" would be used in the same sentence.

  by dennisl on Thu Jun 14, 2007 at 10:18:51 AM PDT

•  It all sounds like 'harmless error' to me. The

  evidence against Libby was overwhelming, there were no egregious rulings by the judge, and the question of Fitz's authority to prosecute is not relevant to the question of guilt or innocence. At least that is the way any normal defendant is treated in federal court. The question of bail pending appeal has to do with the likelihood of the defendant's guilt or innocence, as determined by the jury, being overturned on appeal. Nobody in the real world gets bail after a conviction because of a question about the legal authority of the prosecutor.

  by skrymir on Thu Jun 14, 2007 at 10:28:09 AM PDT

•  BREAKING! BAIL DENIED!

  according to MSNBC.

  by costello7 on Thu Jun 14, 2007 at 10:30:55 AM PDT

  •  Yep, Walton denied bail and will allow Libby

    to self-report for incarceration. That'll take, what, maybe 6 weeks?

    In the meantime, his lawyers will head to the Court of Appeals and get started there. Naturally, they'll file a motion for bail pending appeal there.

    That probably won't produce drama like today's hearing. More likely, one day or another, the CoA clerk will report out a very short order, decided by a panel behind closed doors, either granting or denying bail pending appeal. I might be wrong about that--there could be a hearing, but there usually isn't is such cases.

     

    by TerribleTom on Thu Jun 14, 2007 at 11:00:49 AM PDT

  •  I think he will get bail

    from the Court of Appeal.

    by zdefender on Thu Jun 14, 2007 at 12:48:46 PM PDT

•  As a legal matter, maybe

  Scoot should be allowed to post bail while he awaits the appeals process.  And sure, I get that, point taken.  But Scooter Libby was a top architect of the invasion of Iraq, for what he and others must have known were specious reasons (if you disallow oil, of course).  I'm perfectly aware that this is not the crime for which Libby was found guilty, but I'm glad to see him behind bars.  The sooner and longer, the better.  When he gets out, I'd like to see him in stocks, on a trailer, that does a state-wide tour.  If we can manage it, I'd like Libby to be naked from the waist down, so that those of us who will drive any number of miles to see him on the trailer, in stocks, can ridicule the size of his penis.  I hope I've made myself clear on the position of bail?

  by pasadena beggar on Thu Jun 14, 2007 at 11:08:46 AM PDT

•  What substantial issue?

  He's appealing.  He's entitled to.  But the appeal rests on "I should not have been convicted," not on any substantial issue.

  by ogre on Thu Jun 14, 2007 at 12:36:44 PM PDT

  •  His main issue

    calls into question the legitimacy of the prosecution in the first place.

    His other issues have to do with expert testimony and witnesses that were not permitted that could have demonstrated a reasonable doubt as to his guilt.

    by zdefender on Thu Jun 14, 2007 at 12:50:00 PM PDT

    •  Curious...

      Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.

      But that's precisely what this case hung off of.  The administration ignored the constitution and the law, and then had lied about it, and Libby was nailed for lying about the whole thing.  Cover-up.

      Fundamentally, this is an attempt to insist that the people who were in charge--who are, or may very well have been, engaged in the crimes or their cover-up should have pursued the charges or have maintained strict oversight of those pursuing them.  Talk about an absurdist proposition; let those who may be the criminals perform the investigation and prosecution.

      No, a delegation of authority was created that allowed the system to still function.

      Libby's claim is that the rules should be strictly applied, narrowly interpreted, so that the whole prosecution could NOT have occurred.

      Keep up that line of thought and we WILL get to the point where we're lining them up for the guillotine, in order to get some semblance of justice, instead.

      by ogre on Thu Jun 14, 2007 at 01:02:42 PM PDT

      •  if the government

        went against the "charter of its existence" --the constitution--to put in place a prosecutor who was not subject to appointment or review, then the conviction was unconstitutional.

        I am not qualified to state that the appointment was unconstitutional.  But it clearly is a difficult question, as Judge Walton conceded.

        Under those circumstances, a defendant should get bail on appeal.

        by zdefender on Thu Jun 14, 2007 at 01:49:58 PM PDT