A dozen legal scholars, including a noted civil libertarian, Alan Dershowitz, are coming to the aid of a convicted White House aide facing a 2 1/2-year prison sentence. The scholars submitted an amicus brief Thursday to Judge Reggie Walton arguing that that there are serious constitutional questions about the legal authority of the special prosecutor who pursued Libby on obstruction of justice, perjury and false statement charges, Patrick Fitzgerald.

“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,” the scholars argued.

The issue is one of those which the defense contends could lead to Libby’s convictions being overturned on appeal. Judge Walton has already concluded that Libby’s appointment was constitutional. However, if the defense or the law professors convince the judge that there is a “substantial” possibility that higher courts might disagree, Libby could be released on bail.

Bail remains a critical question for Libby. Judge Walton has indicated he is not inclined to grant it. Many political observers believe that if Libby gets bail and his appeals fail, he stands a better chance of receiving a presidential pardon because President Bush’s term will be nearing its end.

Technically, the scholars took no position on the question of bail, but if Judge Walton agreed with them, bail would be highly likely.

Judge Walton granted the scholars permission to file their brief. However, his order doing so contained a caustic footnote questioning the motivation
of the legal academics and suggesting he might not give a great deal of weight to their opinion.

“It is an impressive show of public service when twelve prominent and distinguished current and former law professors are able to amass their
collective wisdom in the course of only several days to provide their legal expertise to the court on behalf of a criminal defendant,” the judge wrote.
“The Court trusts that this is a reflection of these eminent academics¹ willingness in the future to step to the plate and provide like assistance
in cases involving any of the numerous litigants, both in this Court and throughout the courts of this nation, who lack the financial means to fully
and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties,
incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of
justice and equity, whenever similar questions arise in the cases that comebefore it.”

Mr. Dershowitz’s presence on the brief is perhaps most notable because the Harvard professor has been viewed in many quarters as political liberal, at least until recently. Many of the other scholars who joined in are known libertarians or conservatives, such as a failed Supreme Court nominee of President Reagan, Robert Bork, who taught at Yale.

The remaining professors joining the brief were Vikram Amar of the University of California Hastings, Randy Barnett and Viet Dinh of Georgetown, Douglas Kmiec and Robert Pushaw of Pepperdine, Richard Parker of Harvard, Gary Lawson of Boston University, Thomas Merrill of Columbia, Earl Maltz of Rutgers, Robert Nagel of the University of Colorado.

The legal question centers on whether a 1988 Supreme Court decision, Morrison v. Olson, which upheld the constitutionality of a now-expired independent counsel statute, renders Mr. Fitzgerald’s appointment lawful. Mr. Fitzgerald was appointed to resolve potential political conflicts of interest in the Justice Department. He was subject to removal by the acting Attorney General, but was not under the department’s day-to-day supervision.