June 8, 2007
Libby Seeks Bail Pending Appeal
I. Lewis Libby's defense team filed its brief with the District Court seeking bail while he appeals his conviction to the D.C. Circuit and, if he fails there, most likely to the Supreme Court -- assuming there's no pardon, which is a different issue altogether. The brief (here, courtesy of TalkLeft), argues that there are questions about the conviction that are sufficiently close to permit U.S. District Judge Reggie Walton to find that the case meets the standard in 18 U.S.C. Sec. 3143. The first step is a determination that the defendant poses no danger to the community and is not a flight risk, both of which are not disputed. The more difficult issue is whether the legal issues Libby plans to raise on appeal meet the requirement of Sec. 3143(b)(1) that "the appeal is not for purposes of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial." While judges are unlikely to second-guess themselves, many will permit bail if there are questions at least sufficiently close that reversal by an appellate court is a reasonable possibility, even if not likely. White collar crime cases tend to have such issues, but while it may be more likely these days that defendants in such cases are allowed to remain free, it is certainly not universal, as former Enron CEO Jeffrey Skilling can attest from an FCI in Minnesota.
Libby's brief identifies issues regarding the constitutional authority of Special Counsel Patrick Fitzgerald, the exclusion of an expert on memory to testify about Libby's inability to recall conversations about former CIA operative Valerie Plame, Classified Information Procedures Act (CIPA) decisions, and the exclusion of certain classified evidence because Libby chose not to testify. The constitutional issue is anyone's guess because Fitzgerald's appointment was unique in the post-Independent Counsel world. The CIPA and evidentiary issues could result in a reversal, although these are the types of decisions appellate courts usually do not disturb on legal grounds or because the error is harmless. That said, the issues look to be of sufficient weight that the D.C. Circuit could reverse the conviction, so bail pending appeal is at least a possibility. As co-blogger Ellen Podgor discussed in an earlier post (here), even if Judge Walton turns down the defense request it can be renewed with the court of appeals, which may take a different view of the case. (ph)
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