Special Counsel Patrick Fitzgerald, in a 43-page response to I. Lewis "Scooter" Libby's argument to the judge to remain free on bond pending the appeal of his conviction, said, "The government respectfully requests that this Court deny defendant's motion for release pending appeal."
Fitzgerald writes that Libby has only a remote chance for reversal of his conviction, "the chance of reversal by the Court of Appeals is, at best, remote — certainly not "substantial."
Libby's lawyers contend that their appeal will present substantive issues, "there has been a suggestion that Libby's appeal is merely a dilatory tactic...Libby's pre-trial and trial motions, combined with defense objections preserved in the record, present a number of close questions that are more than sufficient to satisfy the requirements" for appeal.
U.S. District Judge Reggie Walton reluctantly agreed to hold a hearing Thursday to address the issue of whether to grant bond while the former White House aide awaits his fate in prison. If Walton denies that, Libby would have to surrender to authorities within 45 to 60 days and pay a $250,000.00 fine.
Fitzgerald also takes issue with a friend of the court brief submitted by twelve prominent legal scholars challenging the appointment of the special counsel.
The 12 professors wrote,"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors."
They argued that Fitzgerald was given too much power and too little accountability.
Fitzgerald counters, "The Special Counsel is limited by the specific scope of the investigation he was directed to conduct. Accordingly, the Special Counsel cannot make any decisions that extend beyond his express jurisdiction. The Court further concluded that the Special Counsel had no authority to disregard Department of Justice policies promulgated by the Attorney General."
Judge Walton sentenced Libby to 30 months in prison for lying to authorities and obstructing the investigation into the 2003 leak of CIA operative Valerie Plame's identity, has said he sees no reason to grant Libby's request.
If Libby's request to remain free is denied by Walton on Thursday it is expected that his defense attorneys will expedite their appeals process and ask the appeals court to stay Libby's sentence.
