I've been among the minority of conservative legal pundits who've declined to decry the Fitzgerald prosecution as illegitimate or to trumpet Libby's obvious innocence.  I continue to think it's more probable than not that his conviction will eventually be affirmed by the DC Circuit, and cert denied the the SCOTUS.

But I do think he should be released (on a continuation of his current oral recognizance bond) pending appeal.

There is, and can be, no dispute about any of the section 3143(b) factors except whether Libby's defense team can raise a "substantial question of law or fact."  That is, he's not a flight risk and he's not dangerous. There is no reason to believe he's going to appeal only to delay something inevitable. His appellate points, if valid, would certainly result either in his conviction being overturn and a new trial granted, or his sentence being changed, or possibly the case being dismissed outright.

Libby's motion reads like it was thrown together in a frenzied day, and that's probably true. But I agree with you completely that it makes some very good points up front, as it should, about the "substantial question" standard.

I also agree with commenter Deconstructionist (#3 above) that they were wise to lead off with their "illegitimate appointment" point, and that, in general, they ought to emphasize appellate points that depend on issues of law rather than of fact.

I think they scored points with the observation that many of the pretrial and evidentiary calls during trial were close enough questions to prompt Judge Walton to write — and direct publication in Fed. Supp. 2d of — long memorandum opinions. That's inconsistent with the meme we're certain to hear next Tuesday from Team Fitzgerald, which will be that none of these things are close questions and all of Judge Walton's rulings are likely to be summarily affirmed by the DC Circuit.

I'm less impressed than you are with the memory expert argument. The transcript I read of the limited cross-examination Fitz did of her, outside the jury's presence, was pretty devastating; arguably Judge Walton did them a favor by excluding her testimony, and I'm far from persuaded that anything she could have said was a legitimate subject for expert testimony anyway (rather than being within the ken of an average juror using common sense). In any event, that ruling will be judged on an abuse-of-discretion standard, and an appellate court would have to find that it not only was an abuse of discretion, but that it probably affected the outcome of the case.  That's almost a sure loser, in terms of persuading Judge Walton that there's a "substantial question," and neither is it likely to be a basis for the DC Circuit to reverse him on an expedited basis on the release pending appeal issue.

One thing that I think is important, however, that I haven't seen mentioned here is that Fitzgerald has to essentially run the table at the hearing next Thursday.  He has to show that not a single one of Libby's potential appeal points, factual or legal, reaches the "substantial question" level. In other words, given that all the other requirements of section 3143(b) are satisfied, even a single "substantial question" by itself should justify release pending appeal, even if all of the other appeal points are obviously bogus.

   I also think that in actual practice, because judges are human beings, you always face a very tough row to hoe asking for appeal bond. The semantic difference between finding the substantial question likely to result in reversal, etc.  and  a substantial question  that would result in reversal, etc. if a favorable appellate ruling is made is important but you are still asking the judge to second guess himself.

   Personally, in the absence of danger to the community or risk of flight, I think bond should be granted pending appeal. now, this case with the spectre of pardon in the background is a little different. Usually, a defendant will only escape the eventual closing of the door if he loses on appeal by "cheating the hangman" and dying.