At the risk of dampening the celebration, let me just say that Judge Walton’s decision to send Libby straight to jail is not, in any way, our victory. It is quite simply a victory for the rule of law.
If anything stood out from Pachacutec’s superb liveblogging, it was Judge Walton’s impatience with the suggestions the Defense kept making that Walton could be bullied into treating Libby differently. He was not going to be bullied by the Libby supporters (in addition to Michael Horowitz) who have sent threatening letters.
Disclosing that he has received many angry letters in response to the sentencing, wishing bad things to him and his family. He had thrown away a few, but then decided he had better begin to save them, in the event someone were to act on these threats, a record would need to remain.
And he was not going to be bullied by a bunch of lawyers with fancy credentials, either. Team Libby’s latest addition, Lawrence Robbins, tried to pull rank on Walton on two occasions. First, when Walton mentioned Scalia’s dissent in one of the cases governing the appointment of a Special Counsel, Robbins effectively told Walton that it didn’t matter what Scalia wrote in his dissent. All that mattered was that Robbins was present when Scalia read his dissent, so he has some kind of secret insight into what Scalia meant.
Walton: Also, re: Scalia, if we had a situation where the special counsel could be removed at will, this would have changed his position regarding Morrison.
Robbins: Well I doubt that since I was there when Scalia read his opinion.
Similarly, when Walton pointed out that numerous circuits had not seen the conflict in law that the Defense is banking on with respect to Fitzgerald’s appointment, Robbins purported to know what the DC Circuit will do.
Walton: Several circuit courts who have reviewed this do not come out where you are regarding the harmonizing of Morrison and Edmond.
Robbins: I think DC Circuit will reconcile them differently.
But from the very start, Walton seemed unimpressed with Robbins’ lawyering, as when he pointed out that a footnote Robbins wrote effectively argues that white collar criminals shouldn’t have to report directly to prison.
Walton: Asks for clarification on reply, clarification of footnote in defense brief. Is the argument that I am obligated to offer release on a white collar case just because other judges have done so? Just throwing out these names does not override the law, that’s not being suggested here, is it?
Robbins: We agree. The point of footnote 1 is these cases illustrate that how close the question is on appeal is important.
Walton: But the footnote does not identify the issues, and just because these people cited are high profile people, this does not mean judge should override the law. [my emphasis]
Walton treated the Amici Illuminati brief with even greater contempt.
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. [Reggie pissed]
Robbins: These 12 scholars believe this is a close question.
Walton: If I had gotten something more of substance from them, maybe.
The only issue that Walton seemed to treat with any merit today is a CIPA issue, which Tom Maguire laid out here. This is an issue that Robbins discovered and included in his brief of yesterday. But, as Fitzgerald and Bonamici pointed out, it’s not something the Defense ever objected to, raising the real possibility that they’ve effectively waived their right to appeal on the issue.
What I think Judge Walton’s decision finally came down to, though, was ensuring that the Executive can be held accountable. From the liveblog:
Walton: Wouldn’t that undermine the purpose of this statute, that everyone is [accountable] under the laws of the US? If you work in the [White House] you still have to follow the law. If the investigative agency is linked [to] the hip with [an] investigation, then the public [can have no confidence that the] investigation is fair and just. If we have to operate this way our system of government loses significant credibility with the average Joe on the street, who already thinks the system is unfair.
The only way to ensure that we can hold the White House accountable to the rule of law, Judge Walton seemed to be saying, is to send Libby to jail.
To add one more cautionary note, here is Sebastian Dangerfield’s description of what will happen now that Libby’s team has said it will file an immediate appeal.
Here’s what Team Libby should be prepared to do. If I were them, I’d have a signed notice of appeal and check for the filing fee in the hands of a lackey, ready to file by hand the moment the sentence is finalized. The rules say they do not need a separate notice of appeal of the bail denial; they can just file an application. So they should also have in hand an application to the court of appeals for a stay of the sentence pending appeal, with a brief in support. That application is briefed on a motion schedule — not a full appeals briefing schedule — meaning Libby files the application and a brief in support and Fitz will have 10 business days to respond.
The applicable rule requires a “prompt” disposition by the court, so it does not seem that Team Libby needs to file anything separate to get expedited consideration, but they will write their application in the purplest of prose I’m sure. Like I say, if I were them — and had their resources — I’d have all this in hand TODAY, and thus start the clock as fast as possible.
The court definitely is in its summer recess, but it has panels available for emergency matters. My guess is that they are pretty busy, but I’m sure they decide lots of these, as well as dealing with emergency cases.
The sum is this: If Libby snares a [sympathetic] “summer panel,” there’s a chance he could be sprung before his report date. But my feeling is that the court is busy enough — and that Libby is going to be throwing so many issues at the court — that it’s going to be a couple of months before a decision.
In other words–Scooter Libby may yet avoid the inside of a prison cell, even without a Bush pardon. But for now, anyway, the rule of law has won the day.