John Dean: Libby focus shifts to highly political US Court of Appeals for DC Circuit

[seafan]

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

By John Dean
June 15, 2007

.....

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.

[napi21]

1. I'll be paying close attention to their decision too. Does anyone know

how this appeals court really works? Do attorneys representing each side argue the case before the 3 judges? If so, does Fitz present the side of the prosecution?

[KoKo]

2. Thanks for the post Seafan. The whole article is a great read even

mentioning Marcy Wheeler's excellent live blogging and how Walton mocked the "high profile" lawyers like Robert (suing Yale) Bork who sent the Amicus brief and how all Libby's lawyers are charging so much that Mary Matalin had to put out another "Fund Raising" letter!

Let's hope that those Republicans who are going to hear Libby appeal are above being bought out or sold out. Walton as a hard nosed Repug has done well...but with a panel of three that's alot to ask.

Still Repugs always yell "Rule of Law...Rule of Law"....so they will look like hypocrites.

[seafan]

3. A kick to spread the info. n/t