Libby Attorneys Request Prison Term Delay

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."

CIPA is the Classified Information Procedures Act, which notes that only the attorney general or the deputy attorney general can declassify certain information. The defense argued that it was Fitzgerald who essentially declassified information contained in some documents submitted into evidence in Libby's case — specifically, CIA, White House and State Department memos.

Last week, Walton did not accept Libby's arguments and ordered that he be sent to prison in six to eight weeks once the Bureau of Prisons had found a slot for him in a facility. Lawrence Robbins, Libby's recently hired appellate attorney, follows up his brief noting, "Appellant should be granted release pending appeal."

Walton ordered Libby to serve 30 months in prison and pay $250,000 in fines earlier this month 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.

Last week, Walton ruled that Libby should report to prison within the next 45 to 60 days, despite a pending appeal of his conviction.

A formal, more detailed appeal asking the court to overturn his conviction and sentence will be filed at a later date.

Walton said at last week's hearing that Libby is "not a danger to the community," but that there is also "not a likelihood it [his conviction] will be overturned."