Judge Reggie B. Walton yesterday rejected the defense Motion to Dismiss filed by Lewis Libby. His opinion is deeply flawed, and I think the arguments made by Libby's counsel are compelling, so I hope a special interlocutory appeal is allowed before the end of the trial.

Criminal cases generally are not subject to appellate review 'until after conviction and sentence.' [See Flanagan v. United States, 465 U.S. 259, 263 (1984); United States v. Pace, 201 F.3d 1116, 1118 (9th Cir. 2000).]

Courts, however, have carved out a small class of cases from this jurisdictional bar under the "collateral order doctrine." [Pace, 201 F.3d at 1119]

Criteria for an interlocutory appeal

An interlocutory appeal of this ruling of Judge Walton may be a possibility under the guidelines set in U.S. v. Nixon: Under 28 U.S.C.