MICHELE NORRIS, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
Former White House aide Lewis "Scooter" Libby will have to begin serving his prison sentence while he appeals his conviction. Today, a federal judge refused to postpone the two-and-a-half-year sentence and he ordered Libby to surrender himself within weeks.
NPR's legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG: Today's decision is likely to increase pressure from conservatives on President Bush to issue a pardon. Libby's allies had hoped that if he could stay out of jail pending appeal, the president might pardon him later. But unless the Appeals Court intervenes to reverse today's ruling, Libby has only a few more weeks of freedom.
Federal law allows those convicted of crimes to be released on bond pending appeal only when a court concludes that there is a substantial legal question on which the defendant has a real chance of winning an appeal. So today, Libby's lawyers sought to persuade Judge Reggie Walton that such a close question does exist. Before hearing argument, Judge Walton disclosed that he'd received quote, "a lot of harassing and mean-spirited mail wishing bad things upon me and my family." Translation: he's gotten death threats.
He had no intention, said the judge, of letting that affect him as he moved on to hearing arguments. The big pitch by the defense was that it had a good chance of winning an appeal on grounds that Prosecutor Patrick Fitzgerald's appointment as special counsel was an unconstitutional delegation of executive authority.
Defense lawyer Lawrence Robbins urged the judge to pay special attention to a brief filed by a dozen constitutional scholars, from conservative Robert Bork to liberal Alan Dershowitz. The judge was unimpressed. With all due respect -he said it referring to the brief - I would have expected better from a first year law student. I think they just threw their names out there in some effort to exert pressure.
Defense lawyer Robbins contended that Prosecutor Fitzgerald had unbounded and thus unconstitutional authority because he wasn't supervised by the attorney general. Responded the judge: Wouldn't reporting to the attorney general have undermined the reason this special counsel was brought in to investigate? After all, the investigation was aimed at determining who in the White House had leaked the identity of a CIA operative and whether that broke the law.
If the Department of Justice is perceived as linked at the hip to the White House, and the special counsel reported to the attorney general who used to work at the White House, it seems to me the American public would have serious doubts about the integrity of the investigation. If that's how we have to operate, said the judge, it seems to me the system of justice is in serious trouble.
The Supreme Court upheld a far more independent special prosecutor in 1988, he observed. And that decision is binding. In the last analysis, said the judge, Patrick Fitzgerald's authority was limited by the fact that he could be fired at will by the attorney general.
As to the other grounds for appeal, Judge Walton dismissed them as not even remotely close. If the Court of Appeals were to rule that he'd been wrong on those issues, he said, then we as trial judges would be sitting here like bumps on a log and you can just throw out the rules of evidence. The evidence of perjury in this case, he reiterated, was simply overwhelming.
The defendant talked to nine people, including the vice president, about the identity of CIA operative Valerie Plame Wilson. He downloaded information about her. Tasked people at the State Department and CIA with finding out more about her, and then told the grand jury he didn't remember anything about her identity.
Yes, said the judge, he'd written lengthy opinions about which evidence could be admitted and why, but nobody should have drawn any conclusion from that that these were closed questions. They were not. And so the judge ordered Libby to report to prison when ordered to by the Bureau of Prisons, probably in 6 to 8 weeks.
Nina Totenberg, NPR News, Washington.
NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR's programming is the audio.