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Published on Monday, July 2, 2007 by The New York Sun

Scooter Libby Cannot Delay Sentence

by Josh Gerstein

A federal appeals court panel has unanimously ordered that a former White House aide, I. Lewis Libby Jr., is not entitled to remain free while he appeals his convictions for obstruction of justice, false statements, and perjury in connection with an investigation into the leak of a CIA officer's identity. Barring intervention from the Supreme Court or President Bush, Libby is likely to be required to report within the next few weeks to begin his 2 1/2-year prison sentence.

The three appeals court judges who considered Libby's request for release pending his appeal, David Sentelle, Karen Henderson, and David Tatel, offered only a brief explanation of why the motion was rejected. "Appellant has not shown that the appeal raises a substantial question" under the federal bail statute," the judges' order said. They noted that under the law a substantial question is defined as one that is "close" or "could very well be decided the other way."

The decision putting Libby ever closer to the jailhouse door is certain to step up pressure on Mr. Bush to grant a pardon or some other form of clemency. Libby has a large contingent of supporters who have asserted that he is the victim of overzealous pursuit by the special prosecutor who brought the case, Patrick Fitzgerald.

Libby's full appeal of his convictions could take another year or more. Aides to Mr. Bush have said he would not consider any pardon until the legal process was complete. However, some statements from the White House have suggested the president might take up the issue of clemency if Libby's jailing seemed imminent. Mr. Fitzgerald, who was appointed to investigate the leak to the press of the identity of a CIA operative, Valerie Plame, never brought charges against anyone for leaking. However, Libby was charged with obstructing the probe by lying about where and when he learned of Ms. Plame's CIA tie. A jury convicted Libby in March on two counts of obstruction of justice, two counts of lying to a grand jury, and one count of lying to the FBI.

Libby argued to the trial judge, Reggie Walton, that he should be released during his appeal because he had strong legal issues to raise. The most notable was that Justice Department officials gave Mr. Fitzgerald so much authority that he was constitutionally unaccountable. Judge Walton said he found that argument unpersuasive. Now, the appeals court seems to have agreed.

The appeals panel's ruling is also something of a snub to a dozen eminent legal scholars, including a Harvard law professor, Alan Dershowitz, and a former federal appeals court judge, Robert Bork. They attempted to file with the court an amicus brief contending that Libby had valid arguments against the constitutionality of Mr. Fitzgerald's appointment and conduct in office. The appeals panel refused the brief and, today, suggested that those issues are less substantial than the professors contended.

© 2007 The New York Sun

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