Andy’s position is identical to the argument made by Fitzgerald in opposition to Libby’s argument against imprisonment. The statute speaks to a “substantial question of law or fact likely” to result in a new trial, etc. Fitzgerald and Andy argue that the judge has little or no latitude.
It’s worth repeating that Walton spent 31 pages attempting to refute a six page filing in support of Libby. Clearly there’s a substantial question of law, which required Walton to spend 31 pages justifying his ruling against the appointments clause challenge. The purpose of the statute is to dissuade frivolous claims. If Walton had ruled that Libby would not go to prison pending appeal, there are few outside of Fitzgerald’s office and moveon.org who would conclude the judge improperly interpreted the statute. The “substantial question” language is intended to prevent frivolous arguments – kitchen sink arguments, if you will, designed to delay the inevitable.
As for the “likely” part of the statutory language, that simply means that if the substantial question of law or fact is persuasive to the appellate court, would it likely result in, among other things, a new trial. I don’t think there’s any question that if Fitzgerald’s very appointment is found unconstitutional, given the broad delegation of authority that Comey attempted to confer on him, this case would be dead.
In short, the statute provides a two-part test: whether a substantial question of law or fact has been raised; and, if the appellate court were to rule for the defendant on the substantial question, whether it would have affected the outcome of the trial. In Libby’s case, I don’t think there’s any debate about that.
Andy and I are far apart on Walton’s ruling. The issue is not, as Andy suggests, whether the appellate court is ultimately persuaded by the substantive argument. Nobody can prove a ruling in advance. And that’s not the task the statute imposes on Walton. Nor is the test whether Walton believes his ruling was correct, as Andy also argues. I know of few trial judges who believe they have ruled incorrectly. That’s why the statute provides for an objective two-part test. The substantial question and likelihood burdens were met. Walton failed to adhere to the statute and his decision was gratuitous.