Prison May Be Long Way Off for Libby

Theodore Wells Jr., center, an attorney for I. Lewis
Theodore Wells Jr., center, an attorney for I. Lewis "Scooter" Libby, with Libby and wife Harriet Grant, is expected to pursue multiple appeals, including challenges to the judge's instructions and the prosecution's tactics. (By Mark Gail -- The Washington Post)
By Carol D. Leonnig and Michael D. Shear
Washington Post Staff Writers
Thursday, March 8, 2007

As I. Lewis "Scooter" Libby's attorneys began mapping his appeals yesterday, legal experts predicted that Vice President Cheney's former top aide has an excellent chance of avoiding prison time for his perjury convictions until late 2008, perhaps until after the presidential election.

Libby was convicted Tuesday of four felony counts of perjury, making false statements and obstruction of justice. He faces a likely prison term of 1 1/2 to three years when he is sentenced June 5 for concealing his role in the leak of undercover CIA officer Valerie Plame's identity to the news media.

But if Reggie B. Walton, the presiding federal judge, allows Libby to put off reporting to prison while he appeals his conviction, as expected, it could take until January 2009 for Libby's lawyers to exhaust his appeals, which could go all the way to the Supreme Court.

Libby attorney William Jeffress Jr. said yesterday that the defense's request for a new trial and preparation for appeals are not geared toward stringing out the process and awaiting a pardon. But Jeffress said he believes Libby should receive clemency from President Bush.

"As lawyers, we're working to vindicate him through the courts," Jeffress said. "But whenever the president sees fit to pardon him, I think he ought to do it."

Lawyers and legal experts expect Walton to sentence Libby to at least some prison time. But assuming Libby takes his conviction to the U.S. Court of Appeals, a three-judge panel could issue a decision as early as June or July of 2008. If Libby lost that appeal, he could ask for a rehearing or for the full appellate court to consider his case. That decision could take three months, and if he were turned down, Libby could petition the Supreme Court to hear his case.

The defense has said it also will ask Walton for a new trial before Libby is sentenced, arguing that some of the judge's decisions may have led the jury to reach an unfair verdict. Legal experts said judges rarely grant such requests, and doubted that Walton would do so.

That leaves Libby with a lengthy appeal process. Jeffress said he and Libby's other lead defense attorney, Theodore Wells Jr., are reviewing various issues that arose during five weeks of testimony and that they believe damaged Libby's ability to receive a fair trial.

The defense alleges that it was sensational and misleading, for example, when Special Counsel Patrick J. Fitzgerald was allowed to show jurors newspaper articles that indicated Plame was a covert officer and to argue that leaking a CIA officer's identity could damage national security and result in deaths.

Libby's lawyers also objected when Walton refused to allow them to question NBC's Tim Russert and Andrea Mitchell about statements they made outside of court that could have been used to raise doubts about their truthfulness and the prosecution's case.

Another key appeals issue is the limit Walton placed on Libby's "flawed memory" defense when Libby chose not to testify. Walton prohibited the defense from telling the jury about a series of classified threats and terrorist plots that the attorneys said were preoccupying Libby while he was questioned about the Plame case in late 2003 and early 2004.

Robert Mintz, a former prosecutor who is now a defense lawyer, said the argument with the most potential for success could be Fitzgerald's ability to indirectly describe Plame's status as covert and the leak as damaging.

"The defense will argue the judge allowed in information that wasn't relevant to the crime, that Fitzgerald never charged anyone with leaking the status of a covert CIA agent," Mintz said. "It could be something the court of appeals will latch onto."

Meanwhile, prominent Republicans pledged yesterday to press on with their multimillion-dollar fundraising effort on Libby's behalf. The Libby Legal Defense Trust already has raised $3.5 million to $4 million to pay for legal bills, according to a source familiar with the operations of the private organization, which is not required by law to disclose its donors.

Among the group's advisory committee members are former energy secretary Spencer Abraham, former presidential candidate and publisher Steve Forbes, former vice presidential nominee Jack Kemp, former U.S. attorney general Edwin Meese III and former CIA director R. James Woolsey.

Former Tennessee senator Fred D. Thompson, who did not know Libby until recently, said he has offered to hold a second fundraiser for Libby soon.

"It was obvious to me that Scooter was getting the shaft, quite frankly," he said. "I called him up and offered to help him."

© 2007 The Washington Post Company