WASHINGTON Legal scholars joined the debate on Friday over the fate of former vice presidential aide Lewis "Scooter" Libby ahead of next week's hearing on whether he remains free while he appeals his perjury conviction.
Libby, Vice President Dick Cheney's former chief of staff, hopes Judge Reggie Walton won't force him to begin serving his 2 1/2 year prison sentence until he exhausts the appeals process that could last more than a year.
Experts say that would be an optimal time for President George W. Bush to pardon Libby, after the November 2008 elections but before he leaves office in January 2009. Bush has said he will not intervene in the case at this time.
White-collar criminals who pose no risk of flight are commonly allowed to remain free during the appeals process.
But Walton indicated at Libby's sentencing this week he might force him to begin his sentence within weeks.
Libby's lawyers argued in a court filing on Thursday that he should remain free because the conviction could be overturned on a number of legal grounds. Among them were the court's handling of classified material and Walton's decision to exclude testimony from a memory expert and CIA officials.
An appeals court could also conclude that prosecutor Patrick Fitzgerald was improperly appointed, they said.
A dozen prominent legal scholars from across the political spectrum argued that as well in a filing on Friday.
Experts ranging from former Supreme Court nominee Robert Bork to civil-rights advocate Alan Dershowitz said Fitzgerald's appointment might violate the U.S. Constitution because he has no checks on his authority within the Justice Department and the appointment was not approved by the Senate.
Walton ruled in April 2006 that Fitzgerald's appointment was not only lawful but also needed to create the perception of fairness.
Fitzgerald, the U.S. attorney in Chicago, was appointed as independent counsel in December 2003 to investigate whether any laws were broken when Bush administration officials leaked the identity of a CIA analyst whose husband had criticized the Iraq war.
No charges were brought for blowing CIA analyst Valerie Plame's cover, but Libby was found guilty in March of obstructing the investigation and lying to the FBI and a grand jury.