Yesterday it was reported that the panel which will hear Libby's application for bond pending appeal is composed of Judges Sentelle, Tatel and Rogers, the same judges who heard (and denied) Judith Miller's appeal of the order compelling her to respond to the subpoena issued by Fitzgerald.
Mr. Banks said the political impact of the case is likely to be less of factor than the court's unreceptive attitude to most appeals by criminal defendants. The judges "tend to be very deferential especially in criminal matters, unless there's an egregious error," the professor said.
"I think big ‘P' politics will come out in the wash, and it will turn on jurisprudential views," a lawyer who practices regularly before the court, Erik Jaffe, said. He said all the judges are reluctant to overturn the rulings of district court judges, such as Judge Reggie Walton, who has denied Libby a stay of his sentence.
Tom Maguire is more optimistic noting, among other things: STILL COVERT AFTER ALL THESE YEARS? Judge Tatel seemed to rely on Fitzgerald's obscure affidavit to infer that Ms. Plame did in fact have covert status as defined by the IIPA (rather than as defined by common CIA parlance, where "classified" and "covert" are interchangeable). With the passage of time we now know that Fitzgerald did not have an opinion from CIA Counsel as to Ms. Plame's coverage under the IIPA; he did not include any analysis from DoJ in his classified employment summary as to her IIPA status; and he chose not to present the formal CIA personnel record of the last date for which she received credit for service abroad.
I wonder if the judges will smile on this.
I'm with Tom. From what we can tell from the opinion, much of which remains in redacted form despite the ongoing Dow Jones/AP request to unseal it, it appears the prosecution's representations to that Court were disingenuous.