Here is Libby's reply on the bail question (23 page .pdf) [or copy/paste version at Cboldt]. And as noted in an earlier update, in another filing we learn that Lawrence Robbins will be appearing on Libby's behalf in court to bring his special expertise. Oh, here we go!
Here is some AP coverage with this tidbit:
If Libby's request to remain free is denied, defense attorneys will rush to an appeals court and ask judges there to put the sentence on hold.
So Libby can try for a quick appeal on the bail decision - interesting. Normally he would have 45-60 days to report to jail; whether a bail appeal would be heard in that time frame I don't know.
As to the political background, presumably folks who want to see Libby punished want him to go to jail ASAP. Their concern is that if Libby is left out during lengthy appeals Bush can pardon him on Jan 20, 2009 without paying any political price. On the other hand, if Libby is sentenced immediately, Bush cannot pardon him without risking a backlash - for example, the Senate may hold a No Confidence vote on the Attorney General, or Bush's prized immigration reform may collapse. Hmm.
Of course, their are other beneficiaries to a quick pardon - neither Judge Walton nor Special Counsel Fitzgerald need to worry about reversals on appeal if Bush ends this case with a prompt pardon.
And the middle ground idea floated by an adviser to Bush I still strikes me as a likely scenario - Bush can commute Libby's jail sentence but preserve the $250,000 fine and the felony conviction, thereby allowing Libby to fight for vindication on appeal while remaining on the streets. I'll guess that Bush and plenty of conservatives would prefer to see the process play out, with the hope that the courts will be on Libby's side; commuting the sentence kicks the pardon question down the road. I am quite sure that commuting now and pardoning later is an option, but I welcome legal advice on this point.
WELCOME TO THE CLUB: From a footnote in the reply:
David Safavian, who was convicted of obstruction and false statements, was recently held to be entitled to release pending appeal by a court in this
district. Likewise, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynn Stewart, Bernie Ebbers, 7ohn and Timothy Rigas, and Solomon Kaplan (among others) were also convicted of non-violent crimes, and were also afforded the same relief Mr. Libby seeks here.
A BRIEF RESPITE: David Frum promotes another alternative for Bush propounded by Professor PS Ruckman:
As interpreted by the Supreme Court, the Constitution allows the president to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, reprieves and amnesties.
A respite delays the imposition of a sentence. It in no way addresses issues related to due process or guilt of innocence. Nor does it change the nature (severity) of the sentence. It only delays the execution of the sentence.
Interesting - a pardon is far from the only menu option. I do hope that if Bush commutes, respites, or whatever, that he also move to declassify enough of Ms. Plame's background that we can reach a consensus on her covert status. And wouldn't it be great if he could jolly along the CIA Counsel on that very question?
FROM THE FILING:
The appellate court might also find significant the fact that Mr. Fitzgerald
assumed (and perhaps was ceded) significant powers under CIPA - an issue that did not arise at all in Morrison. Section 14 of CIPA expressly requires that "[t]he functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may Not be delegated to any other o_cial." (Emphasis added.)
That provision reflects Congress's clear concern that, given the extraordinary interests at play in a CIPA case, certain crucial steps must be taken by the
Attorney General himself or other specifically enumerated members of the Department.
For example, CIPA clearly provides that it is the AttorNey General who must sign and submit to the court the é 6(c) "affidavit certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." Yet, here, it was Mr. Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory scheme. This fact alone is compelling evidence that the Special Counsel, with all of his sweeping powers, qualifies as a principal officer under the Appointments Clause.
Here is a link to CIPA. Interesting point. OK, maybe it is simply evidence of a procedural faux pas, but one does wonder - if Fitzgearld's supervision was achieved by a daily perusal of the newspapers by the seniors at DoJ, how did they miss the fact that all these CIPA hearings were underway? Or, if they were aware of the CIPA hearing (I was!), why did they not exert a bit of supervision and handle the relevant affidavits properly? Hmm.
EVERYTHING NEW IS OLD AGAIN: My goodness, the JustOneMinute legal eagles swooped down on this CIPA point last December. Here are cboldt noting Fitzgerald's inappropriate signature and a cathyf response:
Interesting language from the North ruling:
In fact, CIPA expressly states, in Section 14, that the Attorney General's decisionmaking responsibility under CIPA may be delegated only to the Deputy Attorney General or an Assistant Attorney General (all presidential appointees, removable at will) and "may not be delegated to any other official."
This comment is particularly interesting to me in contrast:
Given Congress's clear, constitutionally based commitment of CIPA authority to the Attorney General as an agent of the President, it would be extraordinary if the independent counsel statute had to be read to strip any of that authority from the Attorney General.
The independent counsel was created by statute. Fitzgerald's appointment was improvised, and it's pretty clear that neither Comey nor anybody else gave any thought at all to this sort of sticky constitutional question.
Why isn't this immediate grounds for an appeal of the Appointments Clause ruling? Doesn't this mean that Fitzgerald is exercising specific authority that the Attorney General has no authority to delegate?
Hmm. Evidently it is grounds for a delayed appeal.