by emptywheel
It appears that we've got our panel for Scooter's motion for release pending appeal--and we lucked out. Judges Sentelle, Henderson, and Tatel appear to be the panel--the same three judges that heard Judy's and Cooper's appeal on their subpoena. Sentelle is no liberal, not by any shade. But his decision on the appeal was reasonable. And Henderson and Tatel? They're probably not invited to many cocktail parties at Laurence Silberman's.
They've ordered the government to file its response to Libby's request for bond by the 22nd, Friday. And Libby's team must respond by the 26th.
So they're expediting this. But they're not the wingnuts who might have heard this motion ...
One more thing: they're not interested in hearing the Amici Illuminati's brief.
EW - very good news on the appeal panel. Do you know how such panels are filled out in the DC Circuit? My experience ranges from whatever the Chief Justice of the Court in question decides, to a random wheel, to considerations of particular expertise in the subject of the appeal.
Also encouraging - leave for appeal to file the amici brief on appeal - DENIED!!! The A.I. must be very insulted!
Posted by: Ishmael | June 20, 2007 at 18:02
Oops - missed your last line on the AI. Sorry!
Posted by: Ishmael | June 20, 2007 at 18:03
I thought we weren't going to know the identity of the panel until their final ruling was made. This is a real surprise.
Posted by: *xyz | June 20, 2007 at 18:04
*xyz
That's what I thought too. Am I misreading the order?
Posted by: emptywheel | June 20, 2007 at 18:08
nah -- EW, i think you've gotten it right!
this is very fine news! great scoop!
it is not on pacer yet, cool!
we do not know -- yet -- whether
these were to be the same amici --
illuminated, or not so. . .
that part remains luminous, i think. . .
but no matter -- we won't need 'em!
Posted by: nolo | June 20, 2007 at 18:11
At least someone sensible that has refused to hear the propaganda of the right wing luminati.
Posted by: ab initio | June 20, 2007 at 18:15
so the wingnuts are gonna be screaming about "activist" judges soon ???
I mean, considering that the judges ain't likely to act the way the wingnuts want, they must be "Activist" judges, right ???
anybody wanna take some bets on how long it takes the wingnuts to start howling ???
Judge Tatel, IIRC, he's the author of the ruling that included the phrase "The Plot Against Wilson", how likely is it that Judge tatel is willing to buy the "No Underlying Crime" argument ???
Posted by: freepatriot | June 20, 2007 at 18:16
freepatriot
Exactly, my friend. The truly activist judges those that believe the bill of rights is superseded by "national security" and those that believe that Jack Bauer was a hero are "strict constructionists" while those that rule against any wingnut or authoritarian scheme are surely "activist" and needs to be hounded out.
Posted by: ab initio | June 20, 2007 at 18:26
It was, iirc, Dan Froomkin who got a statement from the clerk that the panel wasn't named until the decision was announced. Could it be that this panel, determining the Illuminati's legitimacy to be friendly, is the same panel that will decide the bond appeal?
Posted by: TeddySanFran | June 20, 2007 at 18:28
ya, i'm worried about the noise. we know the panel too early. can they be cloistered like a jury so that they can ignore the shrieking sillys?
enjoyed all the youtubbies from the TBA. smart dresser that EW!
off to see "paris je t'aime"--any reviews?
Posted by: stagemom | June 20, 2007 at 18:28
It was, iirc, Dan Froomkin who got a statement from the clerk that the panel wasn't named until the decision was announced. Could it be that this panel, determining the Illuminati's legitimacy to be friendly, is the same panel that will decide the bond appeal?
Posted by: TeddySanFran | June 20, 2007 at 18:28
let us be clear here -- this is the
panel to decide the "release while on
appeal" motion -- the appeal itself, like
the panel that will hear that appeal "on
the merits" -- does not yet exist.
that is, robbins hasn't filed the
"on the merits" appeal yet -- this is
the "is it a close enough question"
to let him out, while on appeal, filing,
and panel. . .
so both pieces of information are consistent.
and yes, EW, this is expedited scheduling.
i actually think that makes it MORE likely
the panel is already set to deny the motion
to keep him out -- giving fitz only until
friday on a filing he saw last night for
the first time. . .
but i am -- as ever - the optimist, here. . .
Posted by: nolo | June 20, 2007 at 18:35
I think it is fair to assume that this is the panel that is hearing the appeal, and has been assigned because they had the earlier matters. Certainly, if they are denying the amici brief they are going to be deciding the motion for release pending appeal issue, as it makes no sense to have one set of judges decide the briefing schedule and whether an amici brief will be accepted, but have another set of judges decide the actual motion...
Posted by: bushworstpresidentever | June 20, 2007 at 18:39
by the way, anyone have a link to Libby's motion? I've seen news stories about it, but not the actual motion.
Posted by: bushworstpresidentever | June 20, 2007 at 18:41
IANA American lawyer, but I think nolo is right, and that this is an interlocutory appeal panel on the stay/bail issues only, not the appeal on the merits. We may not know the identity of the judges on that panel until they walk into the courtroom.
Posted by: Ishmael | June 20, 2007 at 18:47
What is the normal length of time an appeal on the merits takes in this court? And if the bail appeal is denied, how long does Libby have to appeal his conviction?
Posted by: Seamus | June 20, 2007 at 18:51
Tick tock tick tock. Time's running out, Scooter. Every Hail Mary your team has thrown has been a miserable failure. You can either go down in history as an unrepentant liar or as a repentant one. Either way, you're going down.
Posted by: Frank Probst | June 20, 2007 at 18:54
here is the link -- from">http://www.robbinsrussell.com/pdf/390.pdf">from lawrence s. robbin's
firm site -- it is 122 pages of PDF, about
3.8 megs. . . f.y.i. -- best on broadband. . .
next -- all i am saying is that it
is possible that a differing panel
will hear the underlying appeal, or
the appeal may be heard en banc
(or, "by all" -- though that would be
astonishing!) -- i do think the same panel
will ultimately hear the appeal on the merits.
today we are looking at whether he is to be
out on bail during that time -- while
all of the appeals are still-pending.
it is thus a "process" -- not "merits" -- hearing.
Posted by: nolo | June 20, 2007 at 18:54
I agree with all those who say this is only the panel for the release question. BUt IMO that is the big issue. If Libby doesn't go to jail now, he likely never will.
That said, Seamus, Walton said procssing would take 6-8 weeks (one has already passed). So that's how much time Libby has left for his appeal.
Posted by: emptywheel | June 20, 2007 at 18:55
What is the normal length of time an appeal on the merits takes in this court? And if the bail appeal is denied, how long does Libby have to appeal his conviction?
Posted by: Seamus | June 20, 2007 at 18:51
seamus -- the "normal" time is a fluid notion.
in his case, it could be late fall by the time
the merits are heard -- see my too long-ish, wonk-ish
post on that, here. . . the upshot is that it will
be about fifty days after the last brief is filed, before
the oral argument is held, then more time for the opinion to issue. . .
as to this expedited process hearing, it
could be right after the fourth of july break. . .
then he would likely get a quick answer on
any petition for cert. to the supremes. . .
he is still expected to be in fed-jail-camp in
about40 days, now, unless an appellate order changes that.
hope this helps. . .
it is all just my bunch o' hunches.
Posted by: nolo | June 20, 2007 at 19:02
There is a worse case (for some) scenario that most here have failed to see, and all have failed to address.
I can see scooter going to jail,
then winning his appeal, and getting a get out of jail card,
with appropriate apologies and of course Reimbursement for expenses and a per diem payback.
He would be glorified as a valiant warrior and courageous POW returned to home and he would be a thorn in the Liberals Sides for all eternity.
Another Super Ollie North!
Posted by: Jodi | June 20, 2007 at 19:22
Thanks for the answers, EW and Nolo. You both help make the workings of the federal judicial system less murky.
Posted by: Seamus | June 20, 2007 at 19:35
Aren't you supposed to be working?
Posted by: Neil | June 20, 2007 at 19:39
Well if he looks around the cell he may find yet another forgotten Judy notebook. Word was last week as the NY Times newsroom moved a few blocks west across town, a few dust kittens were likely to appear. For symmetry's sake, he should serve at least 83 days, like his associate Judy. Judy can write a letter to him about palms waving in the sultry oasis breeze, wondering if that falling star is a MIRV; which way is west, Judy? It seems to me Irv and Judy both got nipped by the people promulgating the causus. It is puzzling how either of them could have believed their expertise so expansive as to guess that part of the world's future politics.
Posted by: John Lopresti | June 20, 2007 at 20:32
Scooter's brief is at least written in more temperate language than the oral argument. The strongest argument is the one briefed first: the appointments clause issue. If the appellate court gives Scooter any relief, it will be on that basis. Not saying it will, just saying I think the memory expert and Mrs. Greenspan issues are dead losers.
Posted by: litigatormom | June 20, 2007 at 21:00
My take on the appointment issue is over at my place, but the gist is, I think it's a nonstarter. Fitz is a U.S. Attorney, appointed by the President and confirmed by the Senate. All Comey did was fill in a few missing issues and wall off the investigation from prying eyes. The delegation was not unusual in my experience. More details and some US code over at TiredFed.spaces.live.com
Posted by: TiredFed | June 20, 2007 at 21:19