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Monday, July 02, 2007

I was wrong: D.C. Circuit panel denies Libby's application for release pending appeal

Special counsel Patrick Fitzgerald continues his unbeaten streak in the Libby case, and I have been proved flatly wrong in my prediction that the D.C. Circuit would grant Libby bail pending appeal:

A federal appeals court ruled today that I. Lewis "Scooter" Libby, Vice President Cheney's former chief of staff, must report to prison shortly to begin serving his 30-month sentence for lying to federal investigators about his role in leaking a CIA officer's identity.

In a one-paragraph order, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit denied Libby's request to remain free while he appeals his conviction for perjury and obstruction of justice.

The judges said that Libby's appeal does not raise "a substantial question" close enough that it is likely his conviction will be overturned.

Libby's lawyers can, and probably will, ask the full D.C. Circuit to rehear that decision en banc, and/or ask the member of the Supreme Court with responsibility for emergency matters out of the D.C. Circuit — that being Chief Justice John Roberts — to overturn the panel's decision. The odds of getting that relief from either are very, very remote.

Posted by Beldar at 12:43 PM in Law (2007) | Permalink

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Comments

(1) cboldt made the following comment | Jul 2, 2007 1:21:48 PM | Permalink

I remain curious as to the technical argument that you had in mind, as giving Libby's defective appointment's issue a reason to be reversed.

Looking at either the policy reasons or effect of deviation from CIPA statute, and considering that Fitzgerald was fully a creation of the executive branch, it was hard for me to find a good footing for a Court to reverse on legal grounds.

As for my still-present desire for the issue to be further litigated, it's because I'd like to see a Court opinion that is less muddled than the Morrison/Edmond soup (with CIPA garnish) that Libby, Fitzgerald and Walton managed to concoct.

(2) DRJ made the following comment | Jul 2, 2007 3:17:57 PM | Permalink

Your prediction may have been wrong (and kudos to you for admitting it so promptly), but I think the jury is still out on whether your view of the law was wrong. In any event, care to predict whether President Bush will pardon or reprieve Libby before he serves any time? I don't think he will. Offhand, it looks to me like Bush's view of loyalty is a one-way street where all the benefits of loyalty flow in his direction.

(3) Carol Herman made the following comment | Jul 2, 2007 3:35:33 PM | Permalink

Oh, I'll go for the record

What's a guess, anyway, but a guess?

I think Libby WILL go to jail. And, the countdown clock will read "85 days," more or less.

Dubya, as yet, has not figured out how to be presidential.

While Rudy Guiliani and Fred Thompson would have made mincemeat out of Fitz long ago.

Meanwhile, no one's gonna as Rove for "halp." And, McCain, if his ship's still running, it's mast has hit the water, none-the-less. As to those on board his Double-Talk Express; you have to wonder WHY those who think of it as a livlihood, are even still there? I guess no other jobs are materializing?

What Dubya does ahead? His popularity ratings are sinking so low, maybe, he should just keep his eyes on putin's luggage; to make sure his mom's linens and silverware aren't being taken for a ride back to Moscow?

By the way, most Americans are not only thoroughly disgusted with judges ... Just ask moms who see their kids put thru ringers. Worse than what Libby faces.

But, yes, true to form, Tatel is a "lock 'em up judge." At least we know he's not using a penis pump while he's up on the bench. That honor went to a different "honor."

Wonder how Guiliani will cope with this stuff. It should be a windfall. Fred's already spoken. And, Dubya? Can't find his tongue.

How did Dubya become president? Well, fer shur, he's better crap than Algore, "halp is on the way" Kerry; and the Hilda-beast.

Imagine not being able to handle a tap dance on a stage like that!

Oh, and I bet, the 3-judge "randomly selected" panel ... thought today is a slow-news days. They're as bright as those terrorist doctors. In other words? Material for Team B. Never getting as much technical knowledge they'd need to carry anything "off." While they seem to know how to "study for credentials."

Well, what would you expect out of England's "health care" service? Someone said that the toasted terrorist, if he wasn't under arrest, would'a been sent home for three-months, first. While the system hustles up the "care."

WTF is wrong with our judicial system? Maybe, ahead, the average Joe's will learn to avoid using the court system to solve problems, the same way they go about thinking up ways to avoid jury duty?

One can always hope. WIthout potential economic losses? None of the justices will figure out there's a better, more common sense approach, to having people respect the black robes.

As far as I'm concerned? They can hang the black cloth from their noses, their brains are dead.

(4) ck made the following comment | Jul 2, 2007 5:15:54 PM | Permalink

Red State just announced that Bush was commuting Libby's sentence. Can he still appeal?

(5) PG made the following comment | Jul 2, 2007 5:33:47 PM | Permalink

ck,

Yes he can -- that's why Bush chose commutation of the jail term rather than a pardon. Libby still has a fine and probation penalizing him -- he just doesn't have to spend a single hour in prison. Because there still are penalties, he still can appeal. It's sort of a win-win, inasmuch as he's presumably unlikely to violate probation, and the Libby Defense Fund has enough money raised to help with the fine. Even if Libby does lose all his appeals, Bush could pardon him at that point.

(6) PatrickR made the following comment | Jul 2, 2007 5:44:53 PM | Permalink

We all better hope Libby soldiers on. 'Cause I don't like living in a country in which Franz Kafka's 'The Trial' is acceptable judicial conduct.

(7) DRJ made the following comment | Jul 2, 2007 6:16:20 PM | Permalink

I was wrong, too. At least I'm in good company!

(8) cboldt made the following comment | Jul 2, 2007 6:28:32 PM | Permalink

-- Cause I don't like living in a country in which Franz Kafka's 'The Trial' is acceptable judicial conduct. --

The conduct you object to in THIS case (Fitzgerald) is executive/prosecutorial conduct. And the top-dog executive has entered a well-reasoned order of a tempering nature.

The judges in this case did a darn good job. You may see the courts as kangaroo due to your predisposition as to the parties or issue involved here, but the courts were defending an important principle that President Bush also sees fit to defend.

(9) Patrick R. Sullivan made the following comment | Jul 2, 2007 6:51:49 PM | Permalink

'You may see the courts as kangaroo due to your predisposition as to the parties or issue involved here...'

Nope, I had exactly the same reaction to what happened to Martha Stewart. Another SD of NY railroading. Prosecutors shouldn't be manufacturing crimes when none has occurred.

Most of the defenders of Fitz are too close to the system to be objective. Self-justification comes easily to almost everyone, and that's exactly what's happened with Fitzgerald; too much self -esteem.

(10) craig mclaughlin made the following comment | Jul 2, 2007 7:09:04 PM | Permalink

I think this is the best outcome for the sake of fairness and because it preserves the appointment issue for appeal-- which I think needs to be addressed for precendent's sake.

It seems to me that the commutation could affect the other issues on appeal. If an appeals court judge thought that, for instance, the memory expert issue was a close one, wouldn't he be at least tempted to just leave it alone? The remedy is a new trial and imprisonment isn't in play.

Also for those that opine that Libby will be pardoned if he loses on appeal, that seems unlikely given the wording of the President's statement.

Any thoughts, Beldar?

(11) boris made the following comment | Jul 2, 2007 8:13:52 PM | Permalink

I had exactly the same reaction to what happened to Martha Stewart.

Me too. Libby and Rove were basically bystanders caught in the crossfire between DoS, CIA and MSM, all of which behaved badly with naked agendas. The idea that a half dozen government officials would tell Libby about Wilson's covert wife is implausibly preposterous yet swallowed whole by the sanctimonious admirers of the machinery. "The machine perfomed perfectly, blame the operators if you don't like the result".

Fitz: We comment only on the statement in which the President termed the sentence imposed by the judge as “excessive.” The sentence in this case was imposed pursuant to the laws governing ... blah blah blah

Clearly the man hs BDS.

Slate has a good article (on autism & vaccines) about what underlies this case.

Another explanation for the refusal to face facts is what cognitive scientists call confirmation bias. Years ago, when writing an article for the Washington Post Magazine about the Tailwind affair, a screwy piece of journalism about a nonexistent attack on American POWs with sarin gas, I concluded that the story's CNN producers had become wedded to the thesis after interviewing a few unreliable sources. After that, they unconsciously discounted any facts that interfered with their juicy story. They weren't lying—except, perhaps, to themselves. They had brain blindness—confirmation bias.

(12) DRJ made the following comment | Jul 2, 2007 9:42:22 PM | Permalink

I'm conservative and while I didn't expect Bush to commute Libby's sentence, I don't like that he did this. Libby was found guilty of perjury and I don't like it when anyone - Democrat (Bill Clinton) or Republican (Scooter Libby) - gets away with perjury.

(13) antimedia made the following comment | Jul 2, 2007 9:46:10 PM | Permalink

I think Bush both did the right thing and said the right things. However, I think this prosecution was BS from the beginning. It was a he said-she said thing, and Fitz was bound and determined to find somebody guilty of something in order to justify the millions spent.

We need a law passed that bars prosecution for political reasons.

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