"Scooter" Libby and attorney Theodore Wells
Jonathan Ernst  /  Reuters
Lewis "Scooter" Libby, right, seen accompanied by his attorney Theodore Wells as they arrive at Libby's sentencing June 5, 2007, will return to face the judge next Thursday, in an attempt to delay his prison reporting date.
By Producer
NBC News producer
updated 6/8/2007 4:16:29 PM ET 2007-06-08T20:16:29

What happens when a dozen prominent law professors from across the legal spectrum - from Robert Bork to Alan Dershowitz - petition the judge in the Libby case to give credence to the concept that Special Counsel Patrick Fitzgerald's constitutional authority in prosecuting the case is in question?

U.S. District Judge Reggie Walton will have to address the issue next week when he has been asked by Libby's attorneys to consider releasing their client on bond pending appeal of his conviction for perjury and obstruction of an FBI investigation of the leak of CIA agent Valerie Plame's name to reporters.

The 12 professors write, in a joint amicus brief, "The constitutional issue to be raised on appeal is substantial."

"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors," the professors wrote.

Was Fitzgerald given too much power and too little accountability?

The professors argue the Special Counsel's appointment was unique since he was not appointed by the president or approved by the Senate and exempted from complying to some Justice Department policies.

The legal minds write, "It appears to be undisputed that there is no day-to-day supervision of Special Counsel Fitzgerald by anyone, and no way short of removal even to assure that he complies with the policies of the Department of Justice or the Executive Branch."

They argue Fitzgerald had "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and was "directed to act 'independent of the supervision or control of any officer of the Department.'"

They also argue that Fitzgerald's appointment and prosecutorial powers were beyond the scope of the constitution, "With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed "superiors" politically accountable for his actions, and it is at the very least a close question whether the mere power of removal does anything to solve the problem."

U.S. District Judge Reggie Walton reluctantly agreed to hold a hearing next Thursday to address the issue of whether to grant bond while the former White House aide awaits his fate in prison. If Walton denies that, Libby would have to surrender to authorities within 45 to 60 days and pay a $250,000.00 fine.

On Tuesday Walton said, "Mr. Libby failed to meet the bar. For whatever reason, he got off course."

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Libby's attorneys, in their last minute filing to attempt to keep Libby out of prison, cite a recent case in the D.C. Circuit where a judge allowed a defendant convicted of obstruction and sentenced to 18 months in prison to delay reporting to prison until the appeal process had ended.

Also at his sentencing Walton said Libby's long career in public service argued for leniency. However, the seriousness of the offense and Libby's "obligation" as a lawyer and government official to be truthful required a sentence that would "promote respect for the law," the judge said.

Libby could have a better chance of release if his supporters can convince the judge the constitutional question is a close call.

But U.S. District Judge Reggie B. Walton last year rejected the same argument, saying then that Fitzgerald's powers are limited because he can be removed by the Justice Department.

Fitzgerald was appointed special counsel in 2003 by his former colleague and friend, then-Deputy Attorney General Jim Comey. John Ashcroft, who was serving as attorney general, had recused himself from the investigation because of his White House contacts.

Fitzgerald will have until Tuesday to respond to Libby's filing and that of the 12 law professors.

Judge Walton has scheduled a hearing on the issue on Thursday.

The Associated Press contributed to this story.

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