Bump and Update: As expected, Judge Walton denied Scooter Libby's request for an appeal bond and ordered him to report to prison within weeks. Team Libby will immediately appeal. Marcy Wheeler provides analysis of the ruling.

As for the time it will take the D.C. Circuit to decide Libby's appeal of Walton's decision, I can only go by how long my last one took in a different Circuit. The Notice of Appeal was filed on Jan. 18 and the 10th Circuit issued its order upholding the trial court on March 8, about 7 weeks later. I would think the D.C. Circuit might take longer.

This means Libby almost certainly will be designated and ordered to report before the Appeal is decided. So, unless the Circuit Court stays Walton's order pending the outcome of the appeal, which is not likely, or Bush commutes Libby's sentence to probation before his surrender date, Libby will do at least some time in prison.

****

Pach at Firedoglake will be live-blogging the Scooter Libby appeal bond hearing. Here's the latest:

More...

Scooter Libby is fighting hard to get an appeal bond. He's even bringing another lawyer on board, Lawrence Robbins, to "bring his special expertise."

Personally, I think Libby should get the appeal bond. Judge Walton doesn't seem inclined to agree, but nothing is certain until he rules tomorrow morning.

Note that Libby will not be going to jail tomorrow even if the appeal bond is denied. Fitzgerald doesn't oppose that and Judge Walton said he intended to grant a voluntary at last week's sentencing hearing. He will be granted a voluntary surrender date between 30 and 45 days from now. During that time, Team Libby will appeal the denial of bond, should that occur, to the D.C. Court of Appeals.

I summed up the grounds in his initial request (pdf) here. Christy at Firedoglake analyzes Fitzgerald's response here and here.

Today, Tom Maguire of Just One Minute posts Libby's response to Fitzgerald (pdf) and provides his analysis.

Jane of Firedoglake writes about Obama's general counsel Robert Bauer calling for a Libby pardon.

More...

The downside to sending out mass fund-raising letters is that you never know in whose hands they will wind up.

This one from Mary Matalin, in which she pleads for contributions for Scooter Libby's appeal and argues Libby is innocent, ended up in mine.

Here it is in its entirety. Enjoy.

Writing in The Hill, Byron York laments the fact that Judge Walton is "determined" to send Scooter Libby to jail pending his appeal:

At sentencing this week, Walton also said that he saw no reason why Libby shouldn’t be behind bars sooner rather than later — in other words, that he should begin serving his sentence while his appeal is underway. Why the hurry? These days it’s often the case that when a defendant is judged no danger to society and no danger to flee the country, he is allowed to remain free on appeal.

Tom Maguire seconds the motion. I had the same thoughts when I first heard this. But we were all wrong. I think it is due to the fact that York, Maguire and I are not well versed in criminal law. You see, going to jail pending appeal is the norm, not the exception. The relevant statute says:

Somewhat lost in the pleasure that Judge Walton's now famous footnote has provided, is the question of whether law professors make a credible argument that Fitzgerald's appointment runs afoul of the Appointments Clause of the Constitution. The law professors argue:

The dispositive Constitutional question then is whether the Office of Special Counsel to which Mr. Fitzgerald was appointed is inferior office within the meaning of the Appointments Clause.

If it is not an "inferior" office, all agree, then it is subject to Presidential appointment and Senate confirmation. But there is more to it than that. Patrick Fitzgerald was a duly appointed and confirmed U.S. Attorney. Does that matter? Not only does it matter, it decides the case imo. Let's explore these issues on the flip.

David Broder would have done himself a favor if he had read the Washington Post reporter who actually covered the Scooter Libby trial, Carol Leonnig before he penned his embarrassing regurgitation of GOP Talking Points. Published the same day Broder wrote his nonsense, Leonnig wrote, in part:

3. Libby didn't leak Plame's identity.

Oh, brother, am I tired of this one. Libby wasn't charged with the crime of knowingly leaking classified information about Plame; he was charged with lying to investigators. But the overwhelming weight of the evidence at the trial -- including reporters' notes of their interviews with Libby -- showed that Libby had indeed leaked classified information about Plame's identity, even though that wasn't what put him in the dock. The jury agreed that Libby lied when he said that he'd been telling reporters only what other reporters had told him about Plame's role at the CIA.

What is unclear is whether Libby knew she was a covert CIA agent at the time he discussed her with reporters -- a key point in determining whether this was an illegal leak. But Walton said that Libby "had a unique and special obligation" to keep such secrets, well, secret.

Oh brother Carol, are you and a lot of people tired of the nonsense from your colleague David Broder.

A million thanks to Jason Leopold of Truthout who just sent me a copy of the 103 page Scooter Libby sentencing transcript he purchased from the court reporter.

If a major media outlet doesn't publish it, I'm not going to post the whole thing or share it because this is how court reporters make their money and as a practicing lawyer, I don't want to break any rules.

I will read it late tonight and post pertinent excepts. If there's any part you particularly would like to read, let me know in the comments.

In other Libby news, via How Appealing, Judge Walton is allowing an amicus brief to be filed regarding the appeal bond issue. His order is here (pdf) and Howard says to check out the disparaging footnote.

The amicus brief by law profs is here.

Team Libby today filed its Motion for Appeal Bond, listing the grounds upon which they believe the Court erred before and during trial. I've uploaded the motion(pdf) and attached exhibit (pdf).

I think they make some excellent arguments, particularly about the standard. It's not necessary that Judge Walton believe he was wrong, or that reversal is probable, only that the issue presents a close question or one that could have been decided the other way.

The grounds Libby raises:

More....

I have an op-ed in the Washington Examiner today on Scooter Libby's sentence and his chances for an appeal bond.

For another first-hand account of the sentencing hearing, check out Scott Shrake at Huffington Post.

A sentence to prison is often thought unfair, particularly by the defendant and his or her family. Scooter Libby's extended conservative family is, in the words of David Frum, "weighted down by the sheer, glaring unfairness here." Their argument is that there's no "underlying crime," and their logic goes something like this: the outing of Valerie Plame as a CIA operative wasn't shown to be a criminal act, so Scooter shouldn't be punished for lying about it to the FBI and a grand jury.

It isn't perjury if you lie about events that are not themselves criminal? If you can figure out how that makes sense, give yourself a gold star.

Anyway, the Scooterists are after a pardon. Here's an interesting presidential tidbit:

President Bush has pardoned 113 people during his presidency, including a Tennessee bootlegger and a Mississippi odometer cheat.

Bootleggers and odometer cheats are the president's kind of people. Is Scooter?

More...

I won't have the transcript of Tuesday's sentencing hearing in the Scooter Libby trial until today. But, Neil Lewis of the New York Times, reports:

The judge said there was no issue that Mr. Libby’s lawyers could appeal that seemed to present a reasonable chance of succeeding. But he relented somewhat and said they could file briefs next week detailing their arguments that there were two reasonable grounds for appeal: that Mr. Fitzgerald’s appointment as a special counsel was improper and that Judge Walton had erred in prohibiting the defense team from presenting experts on the fallibility of human memory.

I have thought all along that Judge Walton's refusal to allow a memory expert to testify at trial was a critical error. But Judge Walton ruled Libby's case is distinguishable from a case of faulty eyewitness memory, which is notoriously unreliable and therefore might require expert testimony.

More...

The Republican candidates for President were asked at the New Hampshire debate tonight whether Scooter Libby should be pardoned. They were told to give a yes or no answer. From the transcript:

I just want to do a quick yes or no, and I’m going to go down the rest of the group and let everybody just tell me yes or no, would you pardon Scooter Libby?

REP. PAUL: No.

MR. GILMORE: No. I’m steeped in the law. I wouldn’t do that.

REP. HUNTER: No, not without reading the transcript.

MR. HUCKABEE: Not without reading the transcript.

SEN. MCCAIN: He’s going through an appeal process. We’ve got to see what happens here.

MR. GIULIANI: I think the sentence was way out of line. I mean, the sentence was grossly excessive in a situation in which at the beginning, the prosecutor knew who the leak was —

MR. BLITZER: So yes or no, would you pardon him?

More....