Friends no help to Libby
Those of a certain political persuasion are indignant that Scooter Libby was convicted, and accordingly, sentenced to a prison term of 30 months. So they gathered up a dozen prominent legal scholars to file an amicus brief in support of Libby’s motion for stay of the sentence pending appeal as, they claim, Libby’s appeal raises a substantial legal question. That legal question revolves around whether the indictment should be dismissed because of alleged improper delegation of authority to the special prosecutor.
Judge Reggie Walton, pictured right, 
a GWB appointee who had ruled against Libby on this issue, gave leave to the scholars to file their brief. However, Judge Walton included the following sardonic footnote in the order granting leave:
It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trust that is a reflection of these eminent academics’ willingness in the future to step up to the plate and provide like assistance in cases involving any of the numerous litigants both in this Court throughout the courts of nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure do so could result in monetary penalties, incarceration or worse. The Court will certainly no hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it. Just how unimpressed Judge Walton actually was by the offering of the likes of Robert Bork, Alan Dershowitz, and even, from my own beloved law school alma mater University of Colorado, Robert F. Nagle, was revealed at the hearing of the motion. According to this post at The BLT: The Blog of Legal Times, Judge Walton dismissed the amicus brief as “not something I would expect from a first year law student." When Libby’s counsel suggested there must be significance in the fact that 12 scholars who ordinarily “couldn’t agree on the best way to give change” for a nickel, the judge replied, “I guess if I’d gotten smart submissions, maybe.”
Having some experience with briefs from first year law students, I decided to take a look at the amicus brief myself. I don’t know that I’d agree that the average first year law student would necessarily have done better in terms of analysis, but I will say that the persuasive tone was underwhelming. After all, to obtain a stay of the sentence, Libby had to must show both that the legal question presented is significant and that he is likely to prevail on that question. A tepid statement like “the question is, at the very least, one that could well be decided the opposite way from this Court’s conclusion,” p. 5, has more the flavor of a memorandum written by a first year associate than of a brief written by a first year law student.
Judge Walton ordered Libby to appear to commence his sentence in 6-8 weeks. An "emergency" appeal is expected.
Meanwhile, the WSJ's Law Blog offered the scholarly 12 the opportunity to rebut Judge Walton's opinion, with their replies here.
Hat tip to How Appealing.
