In their last filing before facing U.S. District Judge Reggie Walton Thursday, attorneys for I. Lewis "Scooter" Libby are seeking the same relief awarded to Martha Stewart in their motion asking the judge to allow Libby to be released on bond pending the appeal of his conviction.
Libby's lawyers cite a list of high-profile defendants, including celebrity home and garden expert Stewart, who were allowed to remain out of jail while their cases were appealed.
The list includes: David Safavian, Frank Quattrone, Kirk Shelton, Lynn Stewart, Bernie Ebbers, John and Timothy Rigas and Solomon Kaplan.
Stewart, who was convicted of lying to prosecutors about a 2001 stock sale, was sentenced to five months in prison. She was allowed to remain free on bond while appealing her conviction, but she decided to serve her sentence in the federal correctional facility in Alderson, W.Va.
Wall Street banking star Quattrone was sentenced to 18 months in prison for obstructing a federal securities investigation and also was allowed his freedom pending appeal.
Safavian, the convicted friend of disgraced lobbyist Jack Abramoff, who was sentenced to 18 months in prison for lying about his dealings with Abramoff, is free on bond pending appeal of his conviction.
U.S. District Judge Paul Friedman granted Safavian, a former top procurement officer in the Bush administration, and one-time chief of staff at the General Services Administration, a request to stay out of prison. The judge wrote at the time, "The Court will grant Mr. Safavian's motion for release on bond pending appeal because he has shown by clear and convincing evidence that (1) he is not likely to flee or pose a danger to the community; and (2) he has raised substantial questions of law or fact."
The judge said if one or more of those questions is resolved in his favor, a new trial likely would be required for Safavian.
Walton reluctantly agreed to hold a hearing on Libby's motion Thursday. At Libby's sentencing last week, Walton indicated that he is not inclined to let Libby remain free pending appeals.
Special Prosecutor Patrick Fitzgerald opposes delaying the sentence. He wrote Walton and said, "The government respectfully requests that this Court deny defendant's motion for release pending appeal."
Libby could seek expedited appeal
Fitzgerald also said that Libby has only a small chance for reversal of his conviction. "The chance of reversal by the Court of Appeals is, at best, remote — certainly not 'substantial," he wrote.
Libby, former chief of staff to Vice President Dick Cheney, contends he has a good chance of winning an appeal and a new trial.
He was convicted in March for perjury and obstruction of an FBI investigation of the leak of CIA agent Valerie Plame's name to reporters.
Walton imposed the stiff 30-month prison sentence and a $250,000 fine last week, and said his decision came "with a sense of sadness" because he was torn between admiration and disappointment.
"I have the highest respect for people who take positions in our government and [try] ... to protect this country," Walton said.
But, he said, "I also think it is important we expect and demand a lot from people who put themselves in those positions. Mr. Libby failed to meet the bar."
If the judge refuses to delay Libby's prison sentence, it is likely that the former top White House aide will begin serving his 2 1/2 years in a federal corrections facility in six to eight weeks.
One last option for Libby's defense attorneys could be rushing to the appeals court and petitioning the judges to stay his sentence.