Scooter Libby Loses Bid To Stay Out of Jail
Updated at 15.07 pm Pacific; originally posted at 12.10 pm Pacific
As expected, US District Judge Reggie B. Walton said he would not allow Scooter Libby to remain free on bail while he appeals his conviction in the Valerie Plame investigation.
In addition to citing a list of celebrities who were allowed to remain free of jail during appeal, Libby's lawyers contended that special counsel Patrick Fitzgerald had "unconstitutional and unchecked authority" because Attorney General John Ashcroft and other Department of Justice officials recused themselves from the case. For in-depth discussion of this argument, see JustOneMinute and Firedog Lake for different interpretations.
FiredogLake live blogged the hearing, noting that Libby's legal team now includes a lawyer with experience before the Supreme Court. "Team Libby is going for broke and seems unconcerned about pissing off the judge in order to do its political PR work and to play to the conservative DC Circuit Court, which will hear the appeal. . . a court headed by Judge Silberman, a longtime conservative activist who had a hand in appointing Ken Starr to investigate former President Clinton."
As evidence, Judge Walton did not seem amused with the celebrity attorney appeals for leniency that he received last week:
WALTON: 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.
Pardon - Yes or No?
The Judge's decision is expected to result in a new flurry of appeals to President Bush to pardon Libby before he has to serve jail time. Through spokesmen, Bush has indicated he will wait for the appeal process to be exhausted. For example, USA Today reports that this afternoon Bush continued to resist public intervention. White House spokeswoman Dana Perino: "Scooter Libby still has the right to appeal, and therefore the president will continue not to intervene in the judicial process."
GOP candidates for president are mixed in their support for a pardon, with New York hopeful Giuliani providing perhaps the most verbose almost-supporting-a-pardon non-answer among those in the third debate.
On 24 December 1982, Bush's father did something similar to what political and legal advocates -- including some of the candidates -- are urging that Bush do for Libby. Bush the Elder pardoned Clair E. George -- as part of his six Iran/Contra affair pardons -- after George's conviction but before sentencing. On the other hand, Bush pardoned Caspar W. Weinberger less than a month before his trial date.
Dan Froomkin at the Washington Post has a round-up of newspaper editorials opposed to pardon. The list is broad and wide, including red and blue states, cities large and small: the Albany (NY) Times-Union, Chicago Tribune, The Day (New London, CT), Denver Post, Fort Worth Star-Telegram, Los Angeles Times, Milwaukee Journal and Sentinel, New York Times, Newsday, San Francisco Chronicle, Seattle Times and USA Today. (tip)
Other newspapers opposing a pardon: Albuquerque Tribune.
Newspapers and others calling for a pardon: the National Review, The New York Post, the Orange County Register and the Wall Street Journal.
In the PR war being battled over his pardon, Libby's supporters and legal team clearly believe the web isn't a principle weapon: the Libby Defense website was updated last on 1 June, according to its homepage (screen capture).
The President has more tools available than a pardon. A reprieve reduces the severity of a punishment, but the person remains "guilty." A pardon removes both punishment and guilt, which is why pardons are more controversial.
According to Newsweek, Bush has been "stingy" with pardons. Moreover, Libby "does not qualify to even be considered for a presidential pardon under Justice Department guidelines." That's because the guidelines have a critical requirement that Libby doesn't meet: one of time. From the DOJ:
The Department's regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 C.F.R. § 1.2).
Nevertheless, the President can do what he jolly well wishes -- as Ford, Bush the Elder and Clinton each demonstrated.