Toobin: Presidential pardon may be on Libby agenda

Story Highlights

• CNN legal analyst says a mixed verdict makes an appeal less likely to succeed
• Jeffrey Toobin says defense attorneys may be playing for time
• Toobin: Plan may be for presidential pardon before President Bush leaves office
• I. Lewis "Scooter" Libby found guilty on four of five counts in the CIA leak trial

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(CNN) -- A federal jury Tuesday found I. Lewis "Scooter" Libby guilty of obstruction of justice, making false statements and perjury in the investigation into how Valerie Plame's identity as a CIA operative was exposed.

He was found not guilty on one count of making false statements.

CNN's Heidi Collins spoke with CNN senior legal analyst Jeffrey Toobin about the verdict.

COLLINS: So far, Jeffrey, count one, obstruction of justice, and count two, also guilty. Count three ... not guilty on count three. So what do you make of all of this?

TOOBIN: Well, he's now been convicted of one count of obstruction of justice, one count of perjury. That means he is virtually certain to go to prison if this conviction is upheld. So this is very serious business.

COLLINS: Guilty on everything except count three. Does that say anything to you about that count? (Read details of the five counts against Libby)

TOOBIN: Well, it says that it was the weakest count. I think all of us who followed the trial thought it was the weakest count.

In a way, the fact that the jury did not convict Libby of all the counts will make the verdict that much harder to overturn on appeal. Because the appellate court will obviously see that this is a jury that looked very carefully at the evidence, that didn't just walk in there and convict him because they didn't like Republicans or they didn't like President Bush. They meticulously went through the evidence. And those kind of verdicts are harder to overturn on appeal than simply an across-the-board set of convictions.

[CNN's T.J. Holmes spoke with Toobin later about what might happen next.]

HOLMES: We hear now the defense wants to file a motion for a new trial. If that is denied, they will go with an appeal to this conviction. Take us through, what are the chances of either one of those happening? And the grounds for either one of those happening?

TOOBIN: Well, most appeals fail. It's important to remember that the vast majority of criminal convictions are upheld on appeal.

But there are really two factors at work here. There is the appeal, but there's also the clock. And that's going to be very important -- the calendar. Because the time for presidential pardons of controversial people is in the lame duck period, after a president is leaving office. So the real issue here is, can Scooter Libby extend his time outside of prison long enough to get to that lame duck period when he might actually get a pardon?

So let's do the math a little bit. He's apparently going to be sentenced in June. Post-trial motions will probably keep going through most of the summer. His appeal probably won't even begin until the fall. An appeal probably takes three or four months to be resolved. That would take us into January, February, March of 2008. If, like most defendants, he loses, he could then go for a [certiorari] petition. He could ask the Supreme Court to get involved in the case. That really might take him up to November 2008.

So it is possible that he will be out of prison pending sentencing during his appeal -- enough time for President Bush then to pardon him following the presidential election in 2008, before he leaves office in January 2009. Those are the kind of calculations that a lot of people are going to be doing now, and certainly Libby's defense team will do everything it can -- and it's even started today -- to slow this process down so that a pardon after the election becomes a possibility.

HOLMES: You're telling me essentially he just needs to hold on in hopes of getting that pardon? He can actually stretch this thing out? And do we have any reason to think certainly the president will give him that pardon?

TOOBIN: Well, we don't know. His father, the first President Bush, pardoned several people involved in the Iran-Contra affair during the lame duck period, 1992, before President Clinton was inaugurated in January 1993. President Clinton issued a number of very controversial pardons, including of the fugitive Marc Rich, during that period after the [Al] Gore-Bush election and before he left office in 2001.

So certainly that timing is going to be very important. And even today ... we heard that [defense attorney] Ted Wells was trying to delay the sentencing past June. So running down the clock is going to be a big strategy of the defense here.

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