Commentary - Jeralyn Merritt: Rough days ahead for Scooter Libby

To make things worse, Libby must now spend the next week in limbo and on edge, waiting for a decision from Walton as to whether he will be allowed to remain free pending appeal or whether he’ll be told to report to the hoosegow in 45 days to 60 days.

Appeal bonds aren’t easy to come by in the federal system. In order to get one, Libby must show that his appeal “raises a substantial question of law or fact likely to result in a reversal or a new trial” or a lesser sentence.

During the sentencing hearing, Walton expressed his inclination to deny Libby an appeal bail. Neil Lewis of The New York Times reported Libby’s lawyers raised two issues: “that Mr. Fitzgerald’s appointment as a special counsel was improper and that Judge Walton had erred in prohibiting the defense team from presenting experts on the fallibility of human memory.”

I find the memory expert issue more compelling. This was a trial where everyone remembered events differently and the jury had to decide whether Libby was lying or mistaken. Surely an expert in human memory who would have explained the principles of memory fallibility to the jury would have been helpful.

But Walton didn’t agree with this position before the trial when he excluded Libby’s memory expert, and I doubt he’s going to say now he likely was wrong.

Walton probably won’t grant Libby an appeal bail and I doubt the judge will be reversed by a higher court on the bond issue, so Libby may well be imprisoned within weeks.

Sure, President Bush could commute Libby’s sentence to probation so that he can remain free while the appeals process plays out or grant Libby a pardon.

I doubt Bush will do either. He won’t chance seeing his already tanking approval ratings drop lower. And a pardon now would spark massive outrage at Republicans with a presidential election just over the political horizon. Bush aides say he won’t interfere with the judicial process.

So Libby would be wise to begin preparing for the inevitable now. He’s going to jail. And Club Feds aren’t what they used to be. As The Washington Post reported recently: “Now, white-collar miscreants are forced to mingle with common street-level dope dealers. And they have to work for seven hours a day — sometimes at jobs that are boring and unfulfilling and beneath them. And some of these former country clubs no longer have a tennis court — or even a bocce court!”

But, before you bring out your hankie for Scooter, remember that he was convicted of obstruction of justice, making false statements to FBI officials and perjury before the grand jury.

In plain English, the jury found he lied to investigators and the grand jury about where he first learned of Valerie Plame Wilson’s job, who he told about it and that his lies were intended to impede a federal criminal investigation.

These are serious crimes. Libby is a lawyer, and he had lawyers representing him at every step of the process. After his indictment, his lawyers left no stone unturned in their efforts to challenge every scrap of evidence against him. The jury deliberated for days before arriving at its verdict.

I’m not willing to concede that there was no underlying crime here. Perhaps no underlying crime could be proved because Libby’s “obstruction of justice” was successful.

I empathize with Libby. As a criminal defense lawyer, I hate to see anyone go to jail. I think his sentence was harsh. But as a citizen, I know he must be held accountable, as punishment and to deter others.

I agree with those who say he’ll get his pardon eventually, probably after the 2008 election. But that prospect is likely of small consolation to Libby now as he prepares to see his life shattered in the coming weeks.

Good luck, Mr. Libby. I can only hope others learn from your misfortune. The lesson is, when the feds come calling with questions, either take the Fifth or tell the truth. There is no middle ground.

A member of The Examiner’s Blog Board of Contributors, Jeralyn Merritt is proprietor of Talkleft.com.