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Scooter Libby's Appeal: The Focus Shifts To the Highly Political U.S. Court of Appeals for the D.C. Circuit


Friday, Jun. 15, 2007

On June 14, U.S. District Court Judge Reggie Walton rejected the motion filed by Scooter Libby, asking to remain out of prison while he files his appeal, seeking to overturn his conviction for false statements, perjury and obstruction of justice relating to the investigation undertaken by Special Counsel Patrick Fitzgerald of the exposure of the identity of covert CIA agent Valerie Plame. A week earlier, Judge Walton had stated that he did not believe there was any legal basis for Libby to remain free on bond under current law. This week, he did not change his mind.

The headline, of course, is that it appears that Libby is headed for jail in just four to six weeks, unless either the U.S. Court of Appeals for the D.C. Circuit stays Judge Walton's order during the appeal process, or President Bush pardons Libby.

Thus, many want to know what will happen next. I'll turn to that question, but first I'd like to cover an interesting change in Libby's legal team and its approach.

Libby's New Hardball Strategy - and His New Attorney

To push Judge Walton to the wall, Libby hired another law firm, whose lead partner is Lawrence Robbins. Robbins specializes in criminal case appeals, taking them all the way to the Supreme Court if necessary. Robbins is well-regarded within the small circle of appellate lawyers in Washington, and he is a friend of Chief Justice John Roberts, with whom he worked in the Solicitor General's Office. Based on the live-blog transcript from Firedoglake, it seems Robbins did his job aggressively, if not especially well.

Libby now has four firms that are among the highest priced in the nation representing him. A Washington attorney who travels in these circles estimated that Libby's legal team is costing no less than $2000 per hour, and those hours add up very quickly, between writing briefs and arguing in court. Proceedings relating to Libby's sentencing alone could have cost $50,000 to $75,000. It is little wonder that Mary Matalin has mass-mailed a new fundraising letter, seeking money for Libby's Defense Fund.

Robbins showed up on Libby's last brief and in Judge Walton's courtroom for a sparring match over Libby's bail. Needless to say, it is a nicely-done brief, but given the erudition of typical appellate specialists, I was surprised by its tone and style. This may be the result of Robbins's addition to the team, or simply a hint of growing desperation. Following the events leading up to Judge Walton's decision, I was delighted to see his no-nonsense responses. I also found it heartening that other observers - such as Marcy Wheeler -- found the efforts to bully Judge Walton as conspicuous as I did.

Libby's Increasingly Aggressive Efforts Have Backfired

Libby's Reply In Further Support Of His Motion for Release Pending Appeal was far more aggressive than any of his earlier motions. In a footnote on the front page, for example, the brief listed nine high-profile defendants whose motions for release pending their appeals had been granted: David Safavian, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynne Stewart, Bernie Ebbers, John and Timothy Rigas and Solomon Kaplan - whose cases were all briefly explained in an MSNBC report.

According to the live-blog transcript, Judge Walton handled this meaningless string of names just as one might have anticipated. The brief supplied absolutely no information whatsoever about the issues involved in each of the cases. The Judge therefore sensibly asked: "Is the argument that I am obligated to offer release on a white collar case just because other judges have done so? Just throwing out these names does not override the law, that's not being suggested here, is it?"

To these questions, Robbins gave a non-answer answer, saying "these cases illustrate that how close the question is on appeal is important." Judge Walton pressed: "But the footnote does not identify the issues, and just because these people cited are high- profile people, this does not mean a judge should override the law." When Robbins again had no real answer, the discussion moved on.

It is remarkably aggressive to add such a laundry list to a brief -- unless every one of those high-profile defendants had raised issues similar to those Libby planned to present on appeal. Clearly, they had not, and thus the ploy backfired.

So too did the filing of an amicus brief by a dozen law professors. Frankly, it was a weak effort, and I was surprised that all who signed on indeed had done so. I have to wonder if they were each given a copy before it was submitted. The brief addressed Libby's claim that he should remain free during his appeal because it was "a close" question of law whether or not Special Counsel Patrick Fitzgerald's appointment was constitutional.

In accepting the brief, Judge Walton had added a footnote that clearly indicated he thought it was an over-the-top effort to intimidate him by invoking the opinion of academic heavies, that included Robert Bork (a former Yale Law professor), Alan Dershowitz (a Harvard Law professor) and Douglas Kmiec (a Pepperdine Law professor).

Given the Judge's caustic footnote, it is surprising that Robbins waved this red-cape before him. No one following these proceedings was surprised by the Judge's response: "With all due respect, these are intelligent people, but I would not accept this brief from a first year law student. I believe this was put out to put pressure on this court in the public sphere to rule as you wish." Robbins apparently kept pushing, suggesting that the fact that twelve scholars "who couldn't agree on the best way to give change for nickel" had come to some consensus should itself be significant. "I guess if I'd gotten smarter submissions, maybe," Walton replied, with his third putdown of the academics' misplaced efforts.

Based on the live-blog transcript, Robbins did not perform up to his heavyweight reputation, Rather, his showing was more like that of a punch-drunk lightweight who did not know with whom he was dealing, and was out of his league. All these aggressive efforts with Judge Walton were very misplaced - as are the steady stream of personal threats the judge has received from the right-wing nuts who have called and written him.

Libby's best chance to get away with his crimes has always been the U.S. Court of Appeals for the D.C. Circuit, which is overwhelmingly Republican and has no shortage of judges who will let their politics influence their decisionmaking. Unsurprisingly, Libby plans to file an emergency appeal with this court.

A Test for the Rule of Law: Will Judge Walton's Well-Reasoned Ruling Stand?

Judge Walton, it bears remembering, was appointed to the U.S. District Court of the District of Columbia by George W. Bush. Clearly, he is a no-nonsense jurist. The law under which he is sending Libby to prison, rather than allowing him to remain free on bond, is a hardnosed statute that the Reagan Republicans pushed through Congress, the Bail Reform Act of 1984. (I have not checked but it seems overwhelmingly likely that Dick Cheney would have helped enact this law, since he served as the House's Chairman of the Republican Policy Committee from 1981 to 1987.) The law was part of efforts by conservatives to make life difficult for all criminals, even white-collar criminals.

The Bail Reform Act of 1984, for which the Federal Judicial Center maintains an online treatise, places the burden on the defendant to show that it is a "close question" whether or not the trial judge might be overturned on appeal. Congress made it clear that the presumption is that once convicted and sentenced, the defendant starts serving time.

On June 14, the Washington Post nicely summed up the issues Libby believes he will win on appeal: "whether Special Counsel Patrick J. Fitzgerald had the constitutional authority to prosecute Libby; whether Walton was correct in prohibiting an expert on human memory from testifying for the defense; whether the defense should have been allowed to introduce more detailed evidence of the classified national security matters weighing on Libby's mind at the time of his conversations about Plame; and whether the defense should have been permitted to call Andrea Mitchell, NBC News's chief foreign affairs correspondent, as a witness in an attempt to discredit testimony from a colleague, Tim Russert, the host of NBC's 'Meet the Press.' Russert was a critical prosecution witness."

Will the D.C. Circuit agree with any of these appellate issues? And more immediately, will the D.C. Circuit stay Libby's sentence pending his appeal, given that trial judges are seldom overruled on such matters? News reports indicate that while the court is closed for a summer recess, there are judges available to form a panel to hear Libby's emergency appeal. How they respond to these issues will be something of a litmus test for the federal judiciary, which is now dominated by conservative Republican judges, from bottom to top. It will tell us all if the rule of law still prevails in a Republican judiciary, or if party loyalty can truly trump all.

There are ten active judges on the U.S. Court of Appeals for the District of Columbia of whom seven are Republicans and three are Democrats. In addition, there are four senior status judges of whom three are Republicans and one is a Democrat. In short, this court is composed of ten Republicans and four Democrats. It does not require a statistician to appreciate that the probability of Libby drawing a three-judge panel composed of at least two Republicans (a majority) is therefore extremely high.

If this court stays Libby's sentence, that will be a grievous mistake. Judge Walton has taken care to scrupulously follow the law, and he has clearly set aside the fact he was appointed by a Republican president. If the panel deciding upon the stay should overrule Judge Walton, that result ought send shudders through the land -- because it will mean the rule of law has become secondary to party loyalty.

So we'll see. I would be stunned if a GOP-majority panel or, indeed, any panel gave Scooter Libby a pass.

John Dean, a FindLaw columnist, is a former counsel to the president.

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