Dean's thoughts on Libby's Appeal.

Scooter Libby's Appeal: The Focus Shifts To the Highly Political U.S. Court of Appeals for the D.C. Circuit
By JOHN W. DEAN


From Findlaw website:

Libby's New Hardball Strategy - and His New Attorney

To push Judge Walton to the wall, Libby hired another law firm, whose lead partner is Lawrence Robbins. Robbins specializes in criminal case appeals, taking them all the way to the Supreme Court if necessary. Robbins is well-regarded within the small circle of appellate lawyers in Washington, and he is a friend of Chief Justice John Roberts, with whom he worked in the Solicitor General's Office. Based on the live-blog transcript from Firedoglake, it seems Robbins did his job aggressively, if not especially well.

Libby now has four firms that are among the highest priced in the nation representing him. A Washington attorney who travels in these circles estimated that Libby's legal team is costing no less than $2000 per hour, and those hours add up very quickly, between writing briefs and arguing in court. Proceedings relating to Libby's sentencing alone could have cost $50,000 to $75,000. It is little wonder that Mary Matalin has mass-mailed a new fundraising letter, seeking money for Libby's Defense Fund.

Libby's Increasingly Aggressive Efforts Have Backfired

Libby's Reply In Further Support Of His Motion for Release Pending Appeal was far more aggressive than any of his earlier motions. In a footnote on the front page, for example, the brief listed nine high-profile defendants whose motions for release pending their appeals had been granted: David Safavian, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynne Stewart, Bernie Ebbers, John and Timothy Rigas and Solomon Kaplan - whose cases were all briefly explained in an MSNBC report.

According to the live-blog transcript, Judge Walton handled this meaningless string of names just as one might have anticipated. The brief supplied absolutely no information whatsoever about the issues involved in each of the cases. The Judge therefore sensibly asked: "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?"

Will the D.C. Circuit agree with any of these appellate issues? And more immediately, will the D.C. Circuit stay Libby's sentence pending his appeal, given that trial judges are seldom overruled on such matters? News reports indicate that while the court is closed for a summer recess, there are judges available to form a panel to hear Libby's emergency appeal. How they respond to these issues will be something of a litmus test for the federal judiciary, which is now dominated by conservative Republican judges, from bottom to top. It will tell us all if the rule of law still prevails in a Republican judiciary, or if party loyalty can truly trump all.

There are ten active judges on the U.S. Court of Appeals for the District of Columbia of whom seven are Republicans and three are Democrats. In addition, there are four senior status judges of whom three are Republicans and one is a Democrat. In short, this court is composed of ten Republicans and four Democrats. It does not require a statistician to appreciate that the probability of Libby drawing a three-judge panel composed of at least two Republicans (a majority) is therefore extremely high.

If this court stays Libby's sentence, that will be a grievous mistake. Judge Walton has taken care to scrupulously follow the law, and he has clearly set aside the fact he was appointed by a Republican president. If the panel deciding upon the stay should overrule Judge Walton, that result ought send shudders through the land -- because it will mean the rule of law has become secondary to party loyalty.

So we'll see. I would be stunned if a GOP-majority panel or, indeed, any panel gave Scooter Libby a pass.