Judge won’t put off Libby’s prison term

Times Staff Writer

I. Lewis “Scooter” Libby moved a step closer to a prison cell Thursday when a federal judge refused to delay his sentence while he appeals his conviction on perjury and obstruction charges in the CIA leak case.

Lawyers for the former chief of staff to Vice President Dick Cheney said they would file emergency papers in the hope of overturning the ruling by U.S. District Judge Reggie B. Walton that denied bail for Libby.

Unless the appeals court intervenes, Libby, 56, will probably have to report to prison in six to eight weeks. He would be the first former White House official in three decades to serve time in prison.

Walton’s decision ratchets up pressure on the White House to decide if it will pardon Libby or commute his 30-month sentence.


The White House said that the president would not get involved at this point.

“Scooter Libby still has the right to appeal, and therefore the president will continue not to intervene in the judicial process,” the White House press office said in a statement.

Some legal scholars suggested President Bush might eventually choose a middle ground, allowing the conviction to stand but reducing or eliminating prison time.

“I would think commuting the sentence as opposed to issuing a pardon is a pretty attractive option,” said George J. Terwilliger III, a deputy attorney general when Bush’s father was president who was also was a leader of Bush’s legal team during the 2000 Florida recount.


“It allows the principle to stand that a person who is convicted of perjury or otherwise being untruthful in the investigatory process presents a serious matter.”

The politically charged case took a bizarre turn Thursday when Walton announced that he had received a number of “angry, harassing, mean-spirited” letters and phone calls “wishing bad things on me and my family” after sentencing Libby last week.

Without disclosing the letters’ contents, he said he was concerned enough that he had decided to keep copies for investigators to pursue in case he became the victim of foul play.

Libby sat with his lawyers facing Walton as the ruling was issued.


He was then processed by federal probation officers, making arrangements for his surrender in a few weeks. He left the federal courthouse with his attorneys without commenting.

Special Prosecutor Patrick J. Fitzgerald also declined to comment.

Defense lawyers argued that Libby was entitled to bail because there was a good chance that his conviction would be overturned on appeal.

In particular, they cited problems with the appointment of Fitzgerald, saying that it violated a clause of the Constitution that requires executive-branch officers to be confirmed by the Senate or subject to supervision. Fitzgerald was appointed special counsel by a Justice Department official acting for then-Atty. Gen. John Ashcroft, who had recused himself from the case.


Libby attorney Lawrence S. Robbins argued at the hearing that Fitzgerald’s position fell within a legal gray area: On the one hand, his appointment as special counsel had not been approved by the Senate; on the other, he was given broad and unfettered authority. The resulting status, Robbins said, violated the Constitution.

Fitzgerald argued that as a sitting U.S. attorney he had been bound to follow Justice Department rules and regulations, and that as the special counsel he could have been fired at any time.

Walton agreed with the government, saying “it was not a close issue.”

He said the defense was arguing, in effect, that only someone with close ties to the White House could legally investigate the Bush administration. “If that’s going to be how we have to operate, our system is going to be in serious trouble with the average Joe on the street who thinks the system is unfair already,” Walton said.


In handing down his sentence last week, Walton ignored dozens of leniency requests from past and current public officials and Libby’s friends and former law partners. The judge was equally dismissive Thursday of a special brief filed on Libby’s behalf by a dozen prominent law professors.

Walton had chided the group of “luminaries” in an earlier order in which he suggested they were attracted to the case for publicity reasons. At the hearing, he said the substance of their brief was “not something I would expect from a first-year law student.”

“The evidence of guilt was overwhelming,” and arguments by Libby’s lawyers Thursday for release were “not close,” Walton said near the conclusion of the two-hour hearing.

“Unless the Court of Appeals overturns my ruling, he will have to report” to prison, the judge said.


Legal experts said appeals courts rarely overturned trial judges’ bail decisions.

The federal appeals court in Washington has taken a conservative turn in recent years, but Walton himself is a conservative judge, one of Bush’s first appointments to the federal bench in 2001.

Judges upset bail rulings “very, very rarely, but this is a very, very rare case,” said Douglas A. Berman, a sentencing expert at Ohio State University law school.

“Walton is a pretty careful judge. He has handled this in a careful way, to give the D.C. circuit judges plenty of reasons to feel comfortable leaving well enough alone.”


Fitzgerald was appointed in December 2003 to investigate how the identity of former CIA operative Valerie Plame became public in July 2003.

Libby was convicted of lying to investigators and to a grand jury about conversations he had with reporters about Plame, whose husband, former envoy Joseph C. Wilson IV, had accused the Bush administration of misleading the public about its reasons for going to war in Iraq.