Judge Wants Libby to Head to Prison, Despite Pending Appeal

Judge says no delay for Libby prison time; Libby's team seeking emergency stay.

ByJason Ryan, Pierre Thomas and Theresa Cook
February 10, 2009, 5:40 PM

June 14, 2007— -- A federal judge ruled that Vice President Dick Cheney's former chief of staff should report to prison within the next 45 to 60 days, despite a pending appeal of his conviction.

Judge Reggie Walton said I. Lewis "Scooter" Libby is "not a danger to the community," but that there is also "not a likelihood it [his conviction] will be overturned."

Libby's lawyers are expected to file an emergency appeal of Walton's ruling within the next few days.

The Federal Bureau of Prisons will review Libby's file and designate a time and place for him to report and begin serving his sentence.

Walton ordered Libby to serve 30 months in prison and pay $250,000 in fines last week but had postponed a determination of the start date of Libby's sentence to allow the defense and prosecution teams time to prepare their respective arguments.

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

At the top of the hearing, Walton said he had received hate mail and phone calls since the sentencing. "Unfortunately, I received a number of angry and meanspirited letters and phone calls … wishing bad things on me and my family," Walton said.

Walton said he discarded the letters but then, given the volume, decided to keep them in case anyone acted on the threats.

The judge said the harassment would not influence his decision.

Walton heard from the defense and prosecution for 30 minutes each before the lunch recess.

Libby appeared more tense than he had during much of the trial, at times tapping his fingers on the table.

Defense attorney Larry Robins argued that Patrick Fitzgerald, who was named as the special prosecutor in the CIA Leak investigation, lacked proper authority to bring the case against Libby.

Robins argued that the Justice Department gave Fitzgerald more authority than he should have been granted in his role. Fitzgerald "was expressly exempted from … following DOJ policy and procedure," Robins said.

The official at the Justice Department who granted Fitzgerald the authority to investigate the case served as an assistant U.S. attorney in the same New York district as Fitzgerald in the early 1990s.

"He was given the freedom … no special counsel has ever been given," Robins said.

"When someone doesn't have a supervisor … given the widest swath … sometimes things go wrong," Robins argued.

Additionally, Robins argued that Fitzgerald had overstepped the Classified Information Procedures Act, which notes that only the attorney general or the deputy attorney general can declassify certain information, such as that contained in some documents submitted into evidence in Libby's case — specifically, CIA, White House and State Department memos.

"He thinks he is the attorney general," Robins said of Fitzgerald.

But Judge Walton pointed out that some of the objections mentioned by Robins were never raised during the trial.

Fitzgerald argued that he did have the proper authority and that Judge Walton had considered the CIPA requests. "That was transparent," the prosecutor said.

Fitzgerald argued that the CIPA process may not be appropriately raised after the trial "to say gotcha."

Addressing questions on whether he had authority to bring the case against Libby, Fitzgerald said, "I was appointed to investigate violations of law … Any crimes related to the disclosure" of the name of Valerie Plame, the former undercover CIA operative who's identity became public in 2003.

In documents filed with the court Tuesday, special prosecutor Patrick Fitzgerald urged Walton to send the former White House aide to prison promptly. A judge has discretion to allow a defendant, whose conviction stands a good chance of being overturned, to remain free during the appeals process. Fitzgerald argued it was unlikely the conviction would be overturned.

But Libby's legal team said its client should stay out of prison through the appeal.

In a motion filed Wednesday, Libby's team also argued that former Bush administration official David Safavian, who was convicted last year as part of the scandal involving former lobbyist Jack Abramoff, was given the same allowance.

"Mr. Libby has met his burden and is entitled to release pending appeal. As noted in our motion, David Safavian, who was convicted of obstruction and false statements, was recently held to be entitled to release pending appeal by a court in this district," the motion noted.

Safavian was the chief of staff at the General Services Administration.

The defense team's argument stemmed from the basis of its appeal -- attorneys say Judge Walton did not allow the testimony of a memory expert during the trial, and that certain exhibits and statements made by NBC News anchor Tim Russert, the prosecution's key witness, were not presented to the jury.

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.

After last week's sentencing, Cheney had warm words for his former aide, calling him a man of "the highest intellect, judgment and personal integrity" in a statement released after the hearing.

In a nod to the pending appeal, Cheney continued, "Speaking as friends, we hope that our system will return a final result consistent with what we know of this fine man."

Cheney's office issued an identical statement Thursday.

There has been speculation that the president could pardon the former aide to the vice president, but after Libby's conviction, White House spokeswoman Dana Perino called talk of a pardon "wildly hypothetical."

After Thursday's ruling, Perino said, "Scooter Libby still has the right to appeal, and therefore the president will continue not to intervene in the judicial process. The president feels terribly for Scooter, his wife and their young children, and all that they're going through."

ABC News' Jack Date, Jon Garcia and Karen Travers contributed to this report.

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events