The issue is whether or not Fitzgerald was entitled by his position to view classified documents that Scooter Libby wished to use to prove that he was too busy to remember who said what, and when. The Libby defense team contends that he was not, as a US attorney, entitled to do so, by law. They then use the fact that he did view these documents, anyway, as an argument that Fitzgerald was acting unconstitutionally, as a superior officer of the executive branch, but without Senate confirmation.
The appeals panel of three judges who are hearing the emergency appeal on Libby’s immediate incarceration have reportedly rejected an amicus brief written by several law professors. Meanwhile, trial judge Reggie Walton has filed a 30 page brief detailing his reasoning on the major appeals issues.