Scooter Libby Denied Appeal Bond, Ordered to Report to Prison Within Weeks

By Jeralyn, Section Lewis Libby Trial Coverage
Posted on Thu Jun 14, 2007 at 02:00:00 PM EST
Tags: Libby Trial (all tags)

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Bump and Update: As expected, Judge Walton denied Scooter Libby's request for an appeal bond and ordered him to report to prison within weeks. Team Libby will immediately appeal. Marcy Wheeler provides analysis of the ruling.

As for the time it will take the D.C. Circuit to decide Libby's appeal of Walton's decision, I can only go by how long my last one took in a different Circuit. The Notice of Appeal was filed on Jan. 18 and the 10th Circuit issued its order upholding the trial court on March 8, about 7 weeks later. I would think the D.C. Circuit might take longer.

This means Libby almost certainly will be designated and ordered to report before the Appeal is decided. So, unless the Circuit Court stays Walton's order pending the outcome of the appeal, which is not likely, or Bush commutes Libby's sentence to probation before his surrender date, Libby will do at least some time in prison.

****

Pach at Firedoglake will be live-blogging the Scooter Libby appeal bond hearing. Here's the latest:

More...

The hearing will begin at 11:30 AM EST. Each side will have 30 minutes. The judge will then break for lunch and come back with his ruling at 1:30.

Pach says the hearing is starting late because the Judge has some odds and ends to attend to. I suspect he's putting the finishing touches on his 1:30 ruling. Meaning, he's already made up his mind.

I won't be online at 1:30 pm, so check Pach and feel free to update in the comments.

First Update: Via Pach, the Judge isn't buying the celebrity defense issue -- that others in high-profile cases like Martha Stewart got bond --

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?
....just because these people cited are high profile people, this does not mean judge should override the law.

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Scooter Libby Denied Appeal Bond, Ordered to Report to Prison Within Weeks | 31 comments (31 topical)

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Walton is not a happy camper. (5.00 / 1) (#1)
by Deconstructionist on Thu Jun 14, 2007 at 11:39:19 AM EST

From FDL

robbins started to refer the the amicus brief filed by the law professors and Walton retorted:

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.

Libby will look good in orange (5.00 / 1) (#12)
by annefrank on Thu Jun 14, 2007 at 04:04:43 PM EST

: I don't think prison camp inmates (none / 0) (#15)
by Jeralyn on Thu Jun 14, 2007 at 05:22:30 PM EST

wear orange.

What a ripoff, Libby is still free (4.00 / 1) (#5)
by Aaron on Thu Jun 14, 2007 at 01:24:45 PM EST

He's been denied bail, but instead of taking him away and cuffs and throwing them behind bars, he's being given time to surrender.

I suppose he'll have a chance to take a vacation in Bermuda and relax under the sun for a few weeks while the president has a chance to intervene in his case.

For a moment there I naïvely thought he would actually get locked up like the rest of us who've been convicted of a crime and denied an appeal bond.

Once again the justice system stands impotent in the face of privilege and the criminals in the White House.

He has 10 days to appeal, 10 working days :-)

Appeals upon appeals.

Bureau of prisons will decide when and where he should report.

Liddy's defense Arguing that Fitzgerald was given way to much authority to prosecute this case. Fitzgerald didn't have the right to bring this case according to Libby's lawyers.

White House statement, White House will not intervene while the appeals process is still underway

Actually (none / 0) (#7)
by Deconstructionist on Thu Jun 14, 2007 at 02:34:11 PM EST

it is typical for convicted defendants who pose neither a flight risk nor a danger to the community to be allowed to self-report. No one here has even attempted to argue Libby poses such risks so it is simply false to cite this as an example of a privileged person being given special treatment by the judge.

Frankly, i think people writing such things owe Walton an apology as it is obviously unfair to accuse him of such conduct in this case.


and no (none / 0) (#8)
by Deconstructionist on Thu Jun 14, 2007 at 02:37:48 PM EST

He won't be vacationing offshore. He is ON BOND and subject to supervision by USPO until he reports and is not free to travel out of the jurisdictin without permission let alone leave the country.

Now, like everyone else he has the right to appeal, and that includes appealing the convictions, the sentences and the denial of appeal bond. It's one of those horrible things that we foolishly allow in this country even when people are screaming for blood.

In context, that's the key, no apology forthcoming (5.00 / 3) (#11)
by Aaron on Thu Jun 14, 2007 at 03:58:31 PM EST

As I predicted, though I was hoping I would be wrong, Scooter will never served a day in jail or prison. Of course the appeals judge can't consider the context of Libby 's conviction but I sure can.

And the rest of us don't have the president waiting to grant us an immediate pardon the moment we're actually headed for incarceration.

It's always convenient for lawyers to look at such situations out of the larger and more important practical context, and tell themselves that this is just. It's not justice, it's a farce, a farce that lawyers get to argue over while the the Constitution and the Republic circle the drain.

And I should apologize to some appeals judge in a court system which has been rendered all but ineffectual in the face of the treasonous activities of the White House, I should apologize for being cynical in the face of a situation that is a total mockery of the rule of law. I don't think so, let the judge sue me for slander, if he dare.

I'll never apologize for screaming treason and murder at the top of my lungs as my country sinks into a swamp of corruption and lies, and lawyers argue over trivialities.

Why don't you eminent legal minds put your heads together and find a way to indict George W. Bush, instead of wasting your time arguing over the pathetic sentence received by a convenient scapegoat, that won't amount to anything in the end, except of course to those legal historians who will point to these moments in our history and say; here was the beginning of the end, this is the moment that the great experiment in democracy took a turn towards its terminal demise.

Now it's six to eight weeks before Libby will have to report for incarceration, I feel ridiculous even writing "report for incarceration", like he's a schoolboy being sent to the office for detention. And this is at the discretion of the Bureau of prisons, which could give him up to a year to report, someone correct me if I'm mistaken. And of course the Bureau of prisons can't be influenced by politics. But it doesn't even matter what happens because George W. Bush can pardon him at any moment, and I'm absolutely certain that he will, at some point.

The whole thing is a joke, but I'm not laughing, and I'm ashamed of myself for even bothering to engage in a debate over this comedy of distractions, while the criminals are still in control of my country, and supposed good men and women do nothing but bray like asses in the wind of this hurricane as it sweeps everything my country once stood for away.

Oh and should've use the US Virgin Islands in my vacation suggestion, because that is US territory and requires no international extradition. Perhaps Scooter will ask for and receive a special dispensation from the judge, since he and his family have suffered so much emotional distress. I'm sure that the judge will agree they deserve a vacation for all we've put them through.

Can I get to another Pina Colada Mr. Libby?


Well, (none / 0) (#13)
by Deconstructionist on Thu Jun 14, 2007 at 04:12:53 PM EST

some lawyers have silly notions about basing criminal convictins and penal sanctions on established statutes, due process and fair trials and think those are more important in the long run than punishing transient political enemies.

What you allow to be done to youe enemies becomes easier to do do to every one else.

(BTW, Libby is not allowed to travel anywhere outside the District and other limited areas specifically authorized by the court without permission and it seems pretty obvious authorization for pleasure travel is not forthcoming.

At a certain point, you need to stop foaming at the mouth and ranting. you can be angry without asking to trample roughshod over fairness and due process just because you don't like people.


: Time to set some new precedents before... (5.00 / 1) (#14)
by Aaron on Thu Jun 14, 2007 at 05:21:30 PM EST

...all precedents fall by the wayside.
I have nothing personal against Mr. Libby, I'm sure that he was thought he was doing the right thing whenever he did whatever Paul Wolfowitz and Dick Cheney told him to do. And if you think this is about some "transient political enemies" and that the larger underlying problems with our government and the court systems are going to disappear the moment George W. Bush leaves and the White House, then I think you missed the point and are deluding yourself.
If the people of this country are no longer in control of this country, how long do you think it will be good for due process and fair trials go out the window completely? Not long I imagine since that's exactly the direction we've been moving ever since the Bush administration took office. That's the kind of thing that can't be reversed simply with a change in political leadership.
I'm not saying that anyone's rights should be violated, I'm just saying that those who would destroy democracy deserve a little extra special consideration when they come before a judge. Time to set some new precedents in these cases otherwise how do we prevent such criminals from undermining the integrity of Republic whenever it pleases them to do so.
If Libby, a man who has been convicted of repeatedly lying in a federal investigation, a federal investigation on which the very future of this country possibly hinges, and Libby will never served a day in prison for committing that crime, well I suppose that's a victory for defendants rights, but if it helps bring down the country in which that defendant lives, is that a just or wise trade-off? Perhaps for Libby, but how about the rest of us, how about about our rights?
Like everything in the justice system, there's give-and-take and trade-offs, and in Libby's case I'm no longer willing to give him the benefit of the doubt, his guilt no longer lies within the realm of considerations of reasonable doubt, barring his conviction being overturned on appeal. So let him sit in prison for a while and think about his decision to abandon the truth, the American people and his own family by sacrificing himself for the Bush administration.
If you think that's trampling roughshod over fairness due process, well then I submit that you'd better get ready to have those who care nothing for these things start trampling and ride roughshod over your rights. And when you mention fairness to them, don't be surprised when they just laugh in your face, and tell you to tell it to the judge, a judge which will have picked especially for you, and who has already decided your guilt before ever having heard your defense.

: In that case (none / 0) (#19)
by Repack Rider on Thu Jun 14, 2007 at 06:02:58 PM EST

some lawyers have silly notions about basing criminal convictions and penal sanctions on established statutes, due process and fair trials and think those are more important in the long run than punishing transient political enemies.
Agreed, and Scooter might have been better served had he hired one of those lawyers.
But I'm glad he hired the clowns he did instead of the kind you have described, even if he spent other people's money to do it.

There never was going to be a remand today (none / 0) (#9)
by Jeralyn on Thu Jun 14, 2007 at 02:38:41 PM EST

I've written several posts explaining this. Fitz didn't ask for him to go in today and Walton said beforehand he wouldn't have to. Libby didn't get anything special on that score. Most defendants on bond for non-violent offenses are allowed to self-surrender.


I think there is a decent chance (4.00 / 1) (#24)
by Deconstructionist on Fri Jun 15, 2007 at 08:30:33 AM EST

The DCCCA will grant Libby bond. I expect that he will directly appeal the denial of bond (rather than filing a motion for bond with Court of appeals under his appeal of his conviction/sentence.) and ask for expediting that appeal. If he gets 2 out of 3 on his panel he wins. If he draws an unfavorable panel he could then request en banc reconsideration (that takes a while, though and he might have to report).

It's not a slam dunk though and I think Robbins' performance yesterday (relying on the FDL live blogging which is limited) may have hurt Libby. Robbins seemed to be playing to public opinion (and a limited segment of the public at that) and his repeated assertions that he knew what the DCCCA would do on the appointment issue seemed presumptuous and highly arrogant. Basically, he lectured Walton that the DC court would decide the case differently than other circuits based on Robbins' dubious distinguishing of precedents . Obviously, he really pissed off Walton and I assume he had already written of any chance of persuading Walton but I could see his performance as predisposing at least some Appeals Court judges to be hesitant to grant Libby bond because he kind of put them in a bind that they will look as if they are favoring Libby if they do reverse Walton now.

Of course, the issue as to bond remains not how the court of appeals will ultimately rule but whether it is a close question.

I'd also think this is not helping Libby's shot of getting an early pardon because it would be adding to the political repercussions for Bush if he does.

: Yes (none / 0) (#26)
by Jeralyn on Fri Jun 15, 2007 at 08:38:12 AM EST

that's what I was talking about, the appeal of the bond ruling, not the conviction. There are expedited rules regarding them.

Libby is going to jail (none / 0) (#2)
by Aaron on Thu Jun 14, 2007 at 12:54:16 PM EST

I don't believe it, what will George W. do about this?

How many days will Libby spend in prison... (none / 0) (#3)
by Aaron on Thu Jun 14, 2007 at 12:56:35 PM EST

... before his partner in crime, the president, springs him, and they make a run for the border?


: Shawshank Redemption (none / 0) (#4)
by oculus on Thu Jun 14, 2007 at 12:59:00 PM EST

Another Appeal (none / 0) (#6)
by squeaky on Thu Jun 14, 2007 at 01:24:52 PM EST

To an appeals judge and then off to the slammer.

He is not a flight risk or danger to the community, He is not a flight risk or danger to the community, but I don't see the issues raised as close, so I deny his request to be released pending appeal. I will allow him to self report, but unless I am overruled, he will have to report.
I will rule on the obstruction charge sentence to 30 months, to perjury 24 months, to false statements 6 months, all to run concurrently.
Robbins: Ask for a stay the surrender pending filing motion.
Walton: Denied. Mr. Libby, you have right to appeal [boilerplate notification of right to appeal].

I guess GDub.... (none / 0) (#10)
by kdog on Thu Jun 14, 2007 at 03:08:53 PM EST

should get his pen ready...can we at least get him to do a 2for1 and pardon Genarow Wilson as well, or can he only pardon federal criminals?

Pardon? (none / 0) (#16)
by naschkatze on Thu Jun 14, 2007 at 05:43:38 PM EST

Jeralyn, would you weigh in and inform us if there are any legal constraints on Bush pardoning Libby before he goes to jail? You may have addressed this before, but I might have missed it. Politically speaking, I don't think Bush has anything to lose. He's rock bottom in the polls, and the 25% or so who still support him are probably all for pardoning Libby anyway and would continue to approve of Bush no matter what he did.

He (none / 0) (#17)
by squeaky on Thu Jun 14, 2007 at 05:52:11 PM EST

Could have pardoned him even before the trial. The only liabitliy is political. That is why presidents usually pardon in their last months in office.


: From Wikipedia (none / 0) (#18)
by squeaky on Thu Jun 14, 2007 at 05:54:55 PM EST

A presidential pardon may be granted at any time after commission of the offense; the pardoned person need not have been convicted or even formally charged ...

There is a precedent (none / 0) (#20)
by Repack Rider on Thu Jun 14, 2007 at 06:08:57 PM EST

Bush 41 pardoned Caspar Weinberger to keep his diary out of the public record, because the diary showed that Bush was a liar and deeply involved in Iran-Contra despite his claim of being "out of the loop."

That diary went up in smoke before the ink on the pardon was dry.

Weinberger had been charged by Lawrence Walsh with obstruction of justice for attempting to conceal the diary. What a coincidence.

Not.


Bush Could Pardon At Any Time (none / 0) (#25)
by Jeralyn on Fri Jun 15, 2007 at 08:36:01 AM EST

Even before conviction. He can also commute the jail sentence now to probation, and wait to see if Libby wins or loses the appeal before pardoning him.


DC Circuit Will Go Faster (none / 0) (#21)
by Tim From VA on Thu Jun 14, 2007 at 09:17:33 PM EST

Than 7 weeks. I have not litigated release motions there but have litigated emergency criminal matters in front of them, and they are much faster than most courts of appeals. Their criminal caseload is smaller than most circuits and they move their docket. If the Libby team files their pleadings quickly, I'd be surprised if the release litigation takes more than a few (2-4) weeks.

the pardon (none / 0) (#22)
by diogenes on Thu Jun 14, 2007 at 10:32:26 PM EST

Bush will make a grand speech saying that this charge is bogus and political but of course he would never pardon anyone who was actually convicted of revealing the identity of a covert agent. He'll get political cover that way. Maybe then Fitz will indict the real crook and get a conviction.

: Oh, sure. (none / 0) (#23)
by Edger on Thu Jun 14, 2007 at 10:37:25 PM EST

And that will "un-obstruct" the investigation, of course.
Batteries, diogenes.

what do you think (none / 0) (#27)
by Deconstructionist on Fri Jun 15, 2007 at 08:51:02 AM EST

about Robbins' performance yesterday?

Bail pending appeal (none / 0) (#28)
by Peter G on Fri Jun 15, 2007 at 05:20:44 PM EST

#1 - Larry Robbins is a superb appellate lawyer, his entire firm (Robbins, Russell, Englert & Untereiner) are appellate specialists with a sterling national reputation. Certainly not "clowns" of any sort.
#2 - If sentencing has formally been imposed (rather than just determined and announced - Jeralyn, did you determine that for sure?), then I would expect Robbins to file a notice of appeal for Libby asap and then a motion for bail in the D.C. Circuit. If the Circuit cannot decide the bail motion before the surrender date set by Judge Walton, then I would expect the Circuit to extend the stay pending surrender until they can decide. But I don't see why a bail motion, response and decision would take more than ten days altogether. In the Third Circuit it doesn't. I haven't done one in D.C., but we did have a request for an emergency stay pending appeal in a military Conscientious Objector habeas corpus case there in the fall of 2006, and that was filed, answered and decided within ten days. I would view that as comparable to a motion for bail pending appeal.

Yes (none / 0) (#29)
by Jeralyn on Fri Jun 15, 2007 at 05:51:49 PM EST

sentencing was formally imposed at the sentencing hearing last week. No question, per the transcript.


: Next steps for Libby (none / 0) (#30)
by Peter G on Fri Jun 15, 2007 at 09:06:39 PM EST

Once the sentence is formally imposed, there is nothing stopping defense counsel from filing the notice of appeal (even if the written judgment for some reason hasn't been finalized and filed/entered). I can't think of a reason for them not to file the notice, assuming it didn't already happen today (Friday). No reason to "appeal" the bail decision separately. Just file an ordinary appeal from the conviction and sentence, and then promptly file a motion in the court of appeals for bail pending appeal. I don't see him having to go in before the motion for bail is ruled upon by the appeals court.

I would love to see it (none / 0) (#31)
by HypeJersey on Fri Jun 15, 2007 at 10:43:57 PM EST

I'd love to see Scooter in an orange jumpsuit, but I just don't think it will happen. The best the left can hope for is that Bush will be forced to pardon Libby at a time that is not so convenient for him politically in order to prevent Libby from serving a single day in prison.

For what it's worth, having Libby behind bars doesn't touch the real criminals. Plame's career was destroyed and her life was jeopardized. 3500+ lives have been lost in Iraq. Bush and Cheney and the neocon cabal who lied us into war are free men. These are the real tragedies and no one will pay for these crimes.