Libby's Side - Response On Motion To Dismiss

The Libby defense team responds on their motion to dismiss the case - Libby_030331.pdf.

It is a 24 page .pdf file.

The initial motion to dismiss was discussed on Feb 24 here and here; the Fitzgerald reply and discussion are here.

For originalists, here are the the intial Libby filings, the Fitzgerald response (HTML) Fitzgerald Exhibits A-D, and Ex. E-G.

Now, if someone would be kind enough to read this and give me a headline...

MORE:  Pete Yost of the AP joins in.

Comments

[jerry]

Looks to me that they're scared of ol' Fitz. After that it's all huffing puffing bloviating torturous legal distraction.

[clarice]

Proposed headline (I read it and posted some highlights)
It's Not the THOUGHT That Counts

[clarice]

I'll redo the quick summary:

Libby argues that the legality of the appointment depends on its objective terms , not on any previously undisclosed subjective understanding between Comey and Fitzgerald. (In this respect it notes that both men were superceded by others and there isn't even a claim they were made aware of Comey's "intentions" never revealed before the Government replied to the Motion to Dismiss and which appear contrary to all his public statements.
And--If the Ct believes that the subjective,undocumented and previously undisclosed understanding of Mr. Comey and Mr. Fitzgerald is relevant, Mr. Libby requests an evidentiary hearing at which he may examine the witnesses and obtain heretofore undisclosed communications between Mr. Fitzgerald and Mr. Comey (or Mr. Margolis and Mr McCollum) and other documents concerning the authority of the Special Counsel

On p 17 of the pdf file Libby notes that Fitz learned as early as 2/24/03 who revealed Plame's identity to Novak:
"A properly appointed principal officer may well have disagreed with special counsel that, notwithstanding that revelation, it was worthwhile to pursue the investigation of Mr. Libby or others based on alleged inaccuracies in statements to the FBI. Now, hoever, it is too late for anyone to undo that decision."

__Another fabulous filing--He has the Fitz by the short hairs..

[clarice]

Rick--that doesn't work for me--I hit select all put it only copies the first page headers so PLEASE let me know when it's on html and give me a cite..I'm working on a new piece and want to fit it in........

[topsecretk9]

Boy, Comey and Fitz (who relies on newspaper "reports" so frequently) sure think they should be allowed to easily dismiss everything they say or mean, when challenged, don't they?

Do defendants get this luxury?

[clarice]

Remember nowhere in their reply with the freshly inked affidavits about "understandings" contrary to their repeated contrary statements, did they indicate A SINGLE MATTER in whcih there had been supervision and direction...NOT A SINGLE INSTANCE.

[clarice]

Honestly, I think one contrary is enough-It should read
"contrary to their repeated public statements"

[Sue]

Clarice,

They picked up on your no present employee of the department confirming his awareness.

Page 2: Attorney General Margolis and Associate Attorney General McCallum - whose role in this matter is asserted for the first time in the government's response. The government fails, for that matter, to provide an affidavit from Mr. Margolis, or Mr. McCallum or any other present employee of the Department confirming his awareness of the limits Mr. Comey 'intended' to apply.

[Patton]

Perhaps there's is a Brokeback Mountain kind of relationship.

Fitz says to Comey...or Comey says to Fitz

'I wish I could quit you'.

But neither has the authority to break those deep bonds.........

[topsecretk9]

"Government Officials ought not to be permitted to hand over vast, unsupervised powers to so-called inferior officers, and then deflect legal challenges by claiming that they never "intended" to do so."

Particularly when all you have to go on is their words-- i.e. Press Conference--- that indicate, unequivocally, otherwise.

I also like that they point out - it's still not clear whose holding the rulebook- since the rule maker left some time ago?

[topsecretk9]

Sue..got that. Ooops

[Neo]

With jail time unlikely till all appeals are exhausted and many conjecturing that Bush will pardon before leaving office, Libby will never see the inside of a jail cell.

I expect an immediate appeal if the judge rules against either party. If Libby's attoneies are correct, Fitz is uncontrolled so moeny for an appeal will be no object. The AG should then show Libby's counsel that they are incorrect and shut Fitz down.

[Sue]

Whoa...

Page 13: For example, it only recently came to light tha the Special Counsel learned as early as February 2004 who disclosed the CIA identity of Valerie Plame Wilson to Robert Novak.

[Patrick R. Sullivan]

I liked the line about supervision not being confined to occassionally reading the WAPO to see if anything new popped up.

Either Team Libby is a lot smarter than Fitz et al, or Fitz has a really weak position.

[Sue]

Whoa again...

Page 13: ...much of the information in the public domain about this case is flat wrong.

[Patrick R. Sullivan]

After reading the transcript of the Feb. 24th proceedings, the judge has to know that this is going to be a case full of headaches. Here's his way out of that. Accept Libby's very coherent argument and dismiss.

[Sue]

I doubt the judge dismisses because of potential headaches. I doubt the judge dismisses...period. But the Libby team made a strong argument for the government creating a strong precedent for future SPs. It might just fly.

[topsecretk9]

Sue

I keep WHoa'ing too.

[Sue]

Top,

If nothing else, Libby's team is getting information out. And getting digs in while doing so.

[topsecretk9]

--smack--(p.14)

unchallenged "presuppositions" have no precedential effect
See Webster v. Fall,

"Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been decided as to constitute precedents"

other-words, Law 101- nice try

[topsecretk9]

Also that comes under

"The Special Counsel's "Theoretical" Removability...

Comey's afterthought

[TM]

Another fabulous filing--He has the Fitz by the short hairs..

OK, I think so too, but I thought Fitzgerald was pretty good too. That said, this seems like a strong answer on Comey's ability to delegate authority but inability to delegate responsibility. Well, it is strong on the ESP appointment ("I thought he understood his limitations"), strong on the "read the papers for oversight"), and strong on a lot of stuff.

Are there any constitutional law bloggers that might be good on this and interested in it? Maybe one of the Volokh people (I imagine Glenn Greenwald is pre-occupied...). There is no way this argument is as good as it looks, but Libby's guys have me out-classed.

Secondly, am I alone in wondering about this "recently came to light, Feb 2004, Novak" comment? I haven't had time to track their cite (Mem 17 - thanks, guys!) and I am drawing a blank.

[topsecretk9]

Pat

You are right! That got a huge healthy HAH here.

"...The government also points out that"much information about the investigation of the SP is in the public domain and therefore available to the Acting AT in exercising the power to remove the SP"...

...Whatever Edmond contemplated by "direction and supervision at some level," it surely meant something more than periodically checking the Washington Post to find out if one's unchecked "subordinate" has gone too far..."

[topsecretk9]

I alone in wondering about this "recently came to light, Feb 2004, Novak" comment?

I think this is two-fold--recently came to light tothem, I.E Not in the WAPO public domain, but cloaked in the secrecy of Fitz.

as in taking a jab at his

"much information about the investigation of the SP is in the public domain and therefore available to the Acting AT in exercising the power to remove the SP"

[Sue]

Tom,

I didn't know the exact time Fitz found out about Novak's source. Very early in his investigation was all I had ever heard mentioned. February 2004 would have been very early.

[topsecretk9]

Sue above notice it was a clear drip.

It's obvious in the discovery and bound to come out, so they put smack in this.

[Patton]

Finally finished reading....

I need a cigarette....and I don't smoke.

[maryrose]

I don't get how checking the newspapers fits into the oversight of Fitz by Comey. We need Comey and his subordinates to state their degree of involvement or lack thereof and then some heads need to roll if they dropped the ball with this Runaway Prosecutor. Hey that could be the title of a new Grisham book or the one that TM and Clarice write.

[Sue]

This...

much of the information in the public domain about this case is flat wrong.

...taken with this...

much information about the investigation of the SP is in the public domain and therefore available to the Acting AT in exercising the power to remove the SP

...and add...

Certainly, the Acting Attorney General cannot meaningfully oversee the Special Counsel by reviewing the overheated speculation about this case.

...pretty much smacks Fitzgerald's argument upside the head. At least as far as knowing what was going on in the case by reading the newspaper.

[Sue]

That was about the dumbest argument Fitzgerald had in his reply, IMO. Oversight by public domain? Fitzgerald wasn't leaking. Unless Fitzgerald was sharing something with the Acting AG, and it appears he wasn't, the Acting AG would have had no way to know what Fitzgerald was up to by reading the newspapers. Dumb argument.

[Sue]

IANAL and I don't even play one on tv, but unless you read all the cases Libby's team cited, you really don't have anyway to determine how strong their argument is. And I haven't done that.

[Eric J]

TM: Don't be so cynical. "There is no way this argument is as good as it looks, but Libby's guys have me out-classed". The law and legal arguments ought to appeal to the rational brain. You have such a brain and have seen both sides' best cases and arguments. I've been a member of the Bar since 1970 and think they have Fitz by the shorts. I think the Judge will have to stretch a long way to avoid granting the motion. Best to all you rational brains. EJ

[clarice]

That was about the dumbest argument Fitzgerald had in his reply, IMO
It was all he had. Again--If he had a single document or memo or anything at all to show that no matter what Comey and Fitz said publicly there had been some superivision and direction, Fitz would have argued it.
Instead, he pointed to that weak bit in Comey's presser that theoretically he could but admitting that was hard to do. And in response to the argument in the Motion that this was preposterous in light of no knowledge at DoJ of Fitz' actions, Fitz reached to the bottom of the barrel and picked up the stupid suggestion DoJ would know from the press reports.(Worked for Tatel, though didn't it?)

TM, If the SP had a stronger constitutional argument than he presented , I have to think he'd have raised it. He raised a lot of dust and stuff and it's getting thrown right back in his face.

[clarice]

Clarification*that theoretically he could [FIRE THE SP]but admitting that was hard to do

[Rick Ballard]

HTML Version is here.

I did not reformat or check for OCR errors but it appeared to scan cleanly.

[clarice]

I love this pleading--I especially love this:
If the Ct believes that the subjective,undocumented and previously undisclosed understanding of Mr. Comey and Mr. Fitzgerald is relevant, Mr. Libby requests an evidentiary hearing at which he may examine the witnesses and obtain heretofore undisclosed communications between Mr. Fitzgerald and Mr. Comey (or Mr. Margolis and Mr McCollum) and other documents concerning the authority of the Special Counsel

If the judge thinks that the esp argument is relevant he SHOULD hold a hearing, and wouldn't we all like to know how Fitz and Comey communicated and Margolis and McCollum! There's got to be money in an ESP program that actually works.

[TM]

Don't be so cynical.

Hmm, where you see cynicism, I see humility and fatigue. I agree with Sue - without checking the cites and knowing the relevant history, it is hard for me to have confidence in my own opinion.

For example, they explain how Morrison followed Edmond and takes precedence (or the opposite). Seems like the sort of thing they would get right, but maybe other opinions have re-priortized those two cases - I wouldn't know, and it would not be their job to tell me.

That said, this looks brutal (which we said on Day 1) - with Fitzgerald saying that the AG can just pick up the paper to provide oversight, and filing affidavits saying this is what we understood to be his authority, well, anyone can see how weak that is.

I stand by my prediction - Walton denies the motion but expedites the appeal so that this can be killed above his pay grade. But very cool if he grants the motion and expedites.

And if Novak on Feb 2004 is news to us, then presumably that ties in to interview notes or a grand jury transcript the defense received. But whose? And if it is Novak (why would it be? Because Rove mentioned Novak to Libby?) then wouldn't Novak's first source be named (Offical One, the UGO, Armitage)?

Or did they get redacted transcripts for some reporters (IIRC, they did). One more thing to double-check.

[Rick Ballard]

Clarice,

The ex post facto arguments re Fitz and Comey's affidavit tickled me.

Neither affidavit suggests that Mr. Comey ever told Mr. Fitzgerald about the newly claimed limitations on his powers as Special Counsel—limitations that are nowhere mentioned in the letters of appointment, or in Mr. Comey's public statements, or in Mr. Fitzgerald's prior affidavit, or, apparently, in any other contemporaneous document. Nor does Mr. Comey's affidavit state that he communicated those limitations to his "successors," Associate Deputy Attorney General Margolis and Associate Attorney General McCallum—whose role in this matter is asserted for the first time in the government's response, see Resp. at 21.

Thwap!

[clarice]

It is not in the defense's interests to misrepresent the cases they cited. I read Morrison and Edmonds the first round, and they did not misrepresent them.

I think, in fact, the party sloppy about the law is Fitz and he has been nailed each time.

Now that Rick saved me by putting it in HTML..Here are some highlights:
(a)Despite the fact that Mr. Comey stated at the time of Mr. Fitzgerald's appointment that the Special Counsel did not "have to come back to the [A]ttorney [G]eneral and get permission" to "expand [his] jurisdiction," Exh. A. at 9, he now claims that it was his "understanding.. . that any expansion of the scope of the Special Counsel's investigation would require my approval." Comey Aff. f 3 (emphasis added). Mr. Comey dismisses his earlier statements as
1 All "Exh." citations herein refer to exhibits to our initial memorandum.

Case 1:05-cr-00394-RBW Document 75 Filed 03/31/2006 Page 6 of 24
"inadvertent[]," "extemporaneous," and "inartful[]." Id. 14. Similarly, despite the fact that as recently as August 2004 Mr. Fitzgerald characterized himself as "the functional equivalent of the Attorney General on this matter," Exh. E f 5, he now insists in response to Mr. Libby's challenge that he always "understood" he had no authority to expand his jurisdiction, and that he was required to follow certain substantive Department policies, see Fitzgerald Aff. ffl| 3, 4.2
_________

The fact that the Special Counsel ignored the Department's policies in his October 28, 2005 press conference is good evidence that he in fact understands his authority to be as broad as Mr. Comey defined it at the time of appointment. See Def.'s Mem. in Support of Mot. to Dismiss (hereinafter "Mem.") at 16-17. The Special Counsel denies that his press conference was not in compliance, pointing out that he "reminded the audience of the presumption of innocence on several occasions." Govt's Resp. to Mot. to Dismiss (hereinafter "Resp.") at 26. But nothing in the policy suggests that a passing reference to the presumption of innocence gives a prosecutor license to say whatever he wants in the remainder of his remarks. Mr. Fitzgerald also insists that he "stay[ed] within the four corners of the indictment in describing the charges." Id. Yet, he does not deny that he claimed the case involved disclosure of classified information or that at one point he incorrectly asserted that Mr. Libby was "the first official to disclose Flame's employment." See id at 26 n.9. Neither of those allegations appears anywhere in the indictment, and both seem wholly irrelevant to what Mr. Fitzgerald has elsewhere characterized as a simple perjury case. Moreover, it is hard to see, as the Special Counsel now claims, how flatly asserting the defendant's guilt or accusing him of uncharged crimes furthers any legitimate law enforcement goal. See id. at 27.
___________
The Court should reject the government's attempt to defend Mr. Fitzgerald's appointment by changing the factual record in this manner. Government officials ought not be permitted to hand over vast, unsupervised powers to so-called inferior officers, and then deflect legal challenges by claiming that they never "intended" to do so. The legality of the Special Counsel's appointment should depend on the objective terms of Mr. Comey's action, not on undisclosed subjective understandings offered for the first time in response to a legal challenge.
In virtually every other context, courts refuse to consider an executive officer's undisclosed subjective intent in determining whether the officer's actions were lawful.

Reliance on undisclosed subjective intent is particularly problematic when the intent manifests itself for the first time in affidavits prepared in the course of litigation. Courts routinely reject attempts to defend unlawful governmental action based on post hoc rationalizations—particularly where, as here, those rationalizations are offered by interested parties.

Notably, though the government dismisses Mr. Comey's statements at his press conference as "parol evidence," Resp. at 28, it freely cites those statements when it believes they support its position. See, e.g., id. at 14, 23.

[Franklinstein]

WHO CARES?

[cathyf]

Courts routinely reject attempts to defend unlawful governmental action based on post hoc rationalizations—particularly where, as here, those rationalizations are offered by interested parties.

Holy subpeona, Batman! Did Libby's lawyers really just accuse Fitzgerald and Comey of perjury?

(Blinks rapidly)

(Shakes head)

WOW!

cathy :-)

[clarice]

RICK--Great minds...LOL

[TM]

Here is the AP - not favorable to Fitzgerald, but not as tough as it could be (e.g., they don't mock the "read the papers" argument).

[clarice]

No cathy- there affidavits don't say they actually did anything contrary to their public statements--only that they INTENDED something else which they somehow never expressed or memorialized...But it will be interesting to see why these understandings never made it to the light of day..I want that hearing and THEN a dismissal..

[clarice]

TM, the WaPo article isn't favorable to Fitz or the position he's taking. I'd say it's well making fun of him. In any event, it's a far cry from the early the prosecutor who walks on water stories (OTOH at this point, the press is probably praying for a dismissal.)

[clarice]

Even asssuming the Court decided there was something to the post hoc affidavits of Comey and Fitz, there is nothing at all about their successors McCollum and Margolis--NOTHING..If Libby is right on Edmonds, the SP is in deep poo.

[Rick Ballard]

I wonder if Comey designated a specific reporter and paper for Fitz to use in making his reports?

[clarice]

LOL--Rick..Man this is such a beautiful pleading, it makes my hear beat with pride to know that in a world of drecky lawyers, there are some who are worth every cent they charge..It's so rational,crisp, on the mark and puruasive...

[clarice]

**************pErsuasive*******

[SteveMG]

This is why the good lawyers make the big bucks. And why, in part, independent/special prosecutors have always been a bad idea (i.e. no controlling authority (thanks, Al) over the investigatory authority).

Although my cynical side is telling me that the political response (which, let's face it, is the key concern here - sorry Scooter) will be that the Bush DOJ deliberately sabotaged the investigation to prevent the full disclosure of the corruption of the White House.