G
Gandalf Grey
Guest
Scooter Libby's Appeal: The Focus Shifts To the Highly Political U.S. Court
of Appeals for the D.C. Circuit
By John W. Dean
Created Jun 15 2007 - 9:36am
- from FindLaw (posted with permission) [1]
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 [2]. 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 [3], 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, [4] 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 [5] -- 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
[6] 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 [7].
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 [8], 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 [8] 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 [9], 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 [10], 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 [11] 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.
_______
About author John W. Dean is a columnist for FindLaw and a former counsel to
the President.
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson
of Appeals for the D.C. Circuit
By John W. Dean
Created Jun 15 2007 - 9:36am
- from FindLaw (posted with permission) [1]
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 [2]. 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 [3], 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, [4] 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 [5] -- 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
[6] 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 [7].
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 [8], 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 [8] 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 [9], 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 [10], 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 [11] 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.
_______
About author John W. Dean is a columnist for FindLaw and a former counsel to
the President.
--
NOTICE: This post contains copyrighted material the use of which has not
always been authorized by the copyright owner. I am making such material
available to advance understanding of
political, human rights, democracy, scientific, and social justice issues. I
believe this constitutes a 'fair use' of such copyrighted material as
provided for in section 107 of the US Copyright
Law. In accordance with Title 17 U.S.C. Section 107
"A little patience and we shall see the reign of witches pass over, their
spells dissolve, and the people recovering their true sight, restore their
government to its true principles. It is true that in the meantime we are
suffering deeply in spirit,
and incurring the horrors of a war and long oppressions of enormous public
debt. But if the game runs sometimes against us at home we must have
patience till luck turns, and then we shall have an opportunity of winning
back the principles we have lost, for this is a game where principles are at
stake."
-Thomas Jefferson