Judge Walton ruled that Libby is unlikely to prevail on appeal. From Reuters:
Former vice presidential aide Lewis "Scooter" Libby must begin serving his 2 1/2-year prison sentence while he appeals his perjury conviction, a U.S. judge ruled on Thursday.
Libby will have to report to prison in six to eight weeks, unless his lawyers convince an appeals court to let him remain free.
Libby's lawyers said they would base the appeal on the contention that the special prosecutor, Patrick Fitzgerald, was improperly appointed.
They also plan to argue that U.S. District Judge Reggie Walton was wrong to exclude witnesses and classified material Libby had hoped to use in his defense.
Walton, however, said they were unlikely to prevail.
"I would have to conclude that although he doesn't pose a danger to the community and he doesn't pose a risk of flight ... there is not a likelihood of success," Walton said.
Robbins (for Libby): ...The question here is whether these are close questions. I don’t think it can be debated that these are close, and I think we’ll win.
When someone does not have to report to anyone, does not have to follow DOJ procedures, sometimes things go wrong. Under section 6c2 under ______ the AG is allowed to object to disclosure of classified information, if disclosure would damage national security. Fitzgerald did submit such a report because he assumed plenary authority.
Walton: but the CIPA issues did not arise until later when Libby asked for material.
Robbins: But this is an example of how things go wrong when authority is too broadly delegated. [Reads the language of the act, congressional statute]. Authority to AG, DAG, AAG. These are the ones who can make these disclosures, and no one else.
Walton: Be that as it may, your client through his counsel did not submit his request to Mr. Fitzgerald, their CIPA request, not to others. This issue was not raised at the time. Was this issue waived?
Robbins: My understanding is this document was declassified and made public after the case. I was not part of the history of this case. But Lawrence Walsh was denied this authority in the past.
Walton: I think your co-counsel did not address this.
Jeffress: This affidavit was submitted in camera. It has recently under seal, and we obtained it pursuant to your ruling, we received it in May.
Walton: Your time is up.
So Fitzgerald signed an affidavit for which he lacked authority, suggesting he was either inadequately supervised or improperly appointed.
The judge wonders why the defense didn't appeal this issue at the time. To which the defense responds, well, it was filed exclusively with the judge under seal, so we only saw it in May. And then time is up!
My question - which May do they mean? JOM commenters were ruminating about this issue in December 2006. OTOH, the motion to dismiss the indictment based on improper appointment was filed back in Feb 2006, so maybe the defense got this in May 2006.
OK, we have more CIPA discussion a bit later; here is a bit of it:
Walton: Do you think you were in full compline with what was envisioned by CIPA.
Fitzz: If someone had objected would could have gotten a second signature or could have made an application to close the courtroom. We are picking on the most minor violation.
Walton: There was a violation, so what is remedy.
Fitz: It was not a classified document and it would have been waived or we could have had any number of other signatures.
Walton: I assume suggestion by defendant is that you were given the authority by inference to handle CIPA matters even though it was not clear at the time that CIPA would be in play.
Fitz: They are misdescribing 6a as if it was 6c.
Fitz: AUSA’s handle CIPA material, so this notion that the alleged technical violation of CIPA was an issue of whether courtroom should be closed. These were issues that AUSA’a could have argued.
Walton: But if you signed something that you may arguably not have had the authorityto sign, does this go to you being a superior officer? One could infer you presumed such authority.
Fitz: If the defense thought this was an obvious error we could have dealt with it then. If there was a violation that I signed under one authority versus another authority, this is waiver and harmless error if it is error. We can’t turn around for filing on 6a and go through a whole trial and bring this out later.