Libby files Application for Release Pending Appeal

By Clarice Feldman

Tuesday afternoon, Lewis Libby filed an Application for release pending appeal. It is in pdf form here and in an unedited html format here.

To be eligible for bond pending appeal, Libby must demonstrate that there are close questions of law on which the Court of Appeals might reverse the trial court and which would result in reversal of the judgment of conviction (that is, that these close questions, if the Court of Appeals found other than did the District Court, are not questions of harmless error but would result in reversal of the conviction).The lower court found that Libby presented no risks of flight or danger to the community. Therefore, these are not in issue at this point of the proceedings, though such risks are normally part of the decision on whether to grant bail pending appeal.

He has selected three issues for the purposes of this appeal of the denial of bond pending appeal.

1. The constitutionality of Fitzgerald's appointment: in which among other things he argues that Fitzgerald made decisions under the Classified Intelligence Procedures Act (CIPA) which the statute reserves to the Attorney General, Assistant Attorney General or the Deputy Attorney General; and that the defense was not given these documents which showed Fitzgerald alone had made these decisions until May of this year, after the conclusion of the trial.

2.Whether the judge deprived Libby of his constitutional rights when he excluded evidence--including the daily summaries of the CIA briefings given him during the period of time about which he was questioned by the special prosecution --when Libby declined to testify at the trial. These briefings would have shown the critical and difficult matters he was facing and go to state of mind evidence.

3. Whether the Court's exclusion of testimony of NBC's Andrea Mitchell based on a case denying prosecutors the ability to call witnesses who have made out of court exculpatory statements for the purpose of impeaching them in front of the jury was correct.

Because of the length of the proceedings, I must defer until tomorrow a more detailed discussion of the filing.

In this pleading Libby observes:

"Judge Walton permitted Libby to self-surrender but declined to set a specific surrender date pending this Court's disposition of this bail application. Counsel are informed that the Bureau of Prisons will shortly designate a prison facility and direct Libby to report within a period of two to three weeks after designation. Accordingly, we respectfully request that the Court expedite action on this application."