He didn't think so the first time. And after Scooter Libby's second request to stay out jail pending his appeal, Judge Reggie Walton issued another decisive answer: no.
Walton's decision turned on whether he thought the appointment of Patrick Fitzgerald, giving him the powers of the attorney general as special counsel, had violated the Constitution.
Supreme Court advocate Lawrence Robbins joined Libby's defense team for the hearing, arguing in no uncertain terms that the question was a "close call"—the barometer necessary for Walton to allow Libby bail.
"If the D.C. Circuit decides that Justice Scalia meant what he said, we are going to win," said Robbins, arguing over whether recent Supreme Court decisions over special and independent counsel powers meant that Fitzgerald was not properly supervised
But Walton was not convinced: Fitzgerald, he said, could be fired any time, which was sufficient. After calling a five minute recess (that lasted closer to 25 minutes), he announced that he was sure this "is not a close issue."
Robbins had one more request: could Walton stay the clock asking the Bureau of Prisons to set a date for Libby to go to jail until the D.C. Circuit hears the appeal on the granting of bail?
"I've never seen them act in less than six to eight weeks," Walton replied.
Robbins pressed, but Walton was unmoved. "I'll deny that request," he said, getting up from the bench.
Though Libby still has a few weeks of freedom, the ruling was little consolation. But even as Libby avoided the press (he took the backdoor exit to the courtroom for the first time), he took the time to greet the courtroom deputy on his way out.
Now he's hoping the third time will be the charm.
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