Libby Attorneys Request Prison Term Delay

Defense wants vice president's former aide to stay out of prison during appeal.

ByABC News
February 10, 2009, 5:40 PM

June 19, 2007— -- I. Lewis "Scooter" Libby's defense attorneys have filed a formal motion asking the court to allow him to delay the start of his prison term, pending the appeal of his March conviction.

A federal jury found Libby guilty March 6 on charges that he lied to the FBI and a grand jury, and obstructed justice in the investigation into the leak of the identity of Valerie Plame, a former covert CIA operative.

Tuesday's 122-page filing mirrors the main arguments that the defense team addressed before federal Judge Reggie Walton last week, questions concerning special counsel Patrick Fitzgerald's authority to bring the case, and whether "appointment of the special counsel violated the appointments clause of the constitution."

On the issue of Fitzgerald's December 2003 appointment to the special prosecutor role by then-Deputy Attorney General James Comey, the motion notes "An executive branch official, with the informal stroke of a pen, drafted two letters that created a new prosecutor with the 'plenary' powers of the attorney general, no supervision by anyone and no input of any kind from Congress."

Comey and Fitzgerald worked as assistant U.S. attorneys in the same New York district in the early 1990s.

The motion also discusses Walton's decision to not allow a memory expert to testify, since Libby elected not to testify at his trial. Libby attorney Ted Wells insisted after the March conviction that his client is "totally innocent;" the defense team maintained that Libby had a spotty memory, and should not have been convicted because of it.

Also questioned is Walton's ruling not allowing the defense to call NBC News' Andrea Mitchell about comments she made that reporters covering the intelligence community knew Valerie Plame Wilson worked for the CIA.

Noting that the defense was not able to provide arguments and detail about the daily morning threat and intelligence briefings Libby was consumed with in his role as Vice President Dick Cheney's chief of staff, the motion states, "Whereas the government got to offer detailed proof of conversations about Ms. Wilson on specific dates, the defense was generally permitted to offer only generic summaries of events spread over a span of many months. Whether the Constitution, CIPA and basic rules of evidence permit such a one-sided joust is plainly a 'close' question on appeal."