Special Counsel Fitzgerald Not *Too* Special

Judge Walton has turned down the Libby defense request that Special Counsel Fitzgerald's indictment of  I. Lewis Libby be tossed out because Fitzgerald's appointment violated the Constitution (31 page .pdf)

That is not a surprise.  The key question is, did the judge allow for an expedited appeal?  Here is the 1 page order, which is silent on that.

Some reaction to the initial defense filing is here; here is background on the Fitzgerald response, and the final defense submisison.

Comments

[windansea]

good...I want the trial!

[Other Tom]

Here's hoping someone will actually read the opinion and give us a summary.

[clarice]

I will as soon as I can find it.

[Barney Frank]

I would think the real test of Libby's argument would be at the appellate or perhaps even SCOTUS level. Most trial courts are notorious for punting sticky issues like this.

[Jeff]

That is not a surprise.

Not a surprise to whom? Am I mistaken in thinking that for a number of commentators here it comes as something as a surprise?

[Sue]

I figured they were just throwing the kitchen sink at Fitzgerald and didn't expect a win, at least not at this lower level, but look at all the interesting things we found out when Fitz had to respond.

[topsecretk9]

Yes Jeff, if you read back most expected this was above Walton's pay-grade.

[Tom Maguire]

I will as soon as I can find it.

Is that link not working? I got a slow download when I tested it, but thr file did show up.

Jeff - as noted, the official position of many was that maybe a higher court would endorse this, but not Walton.

[clarice]

I am sure it is. I was out running errands, and catching up. I'll read it now, TM.

[Tom Maguire]

About the only bright spot in the 31 pages was that the judge had an even lower opinion of the Fitzgerald/Comey ESP affidavits then we did.

He also lectures both sides on how to file a brief, and resorts to principal-agent law to interpret the letters delegating authority to Fitzgerald.

I didn't see any mention of an expedited appeal, but I don't know where to look for it, either.

A key was this - a clear reading of Sec 510 means that the AG *can* delegate his responsibility to supervise litigation.

That strikes me as a point worth gnawing on.

[Rick Ballard]

Judge Walton has framed this as Morrison outweighing Edmond and has offered the defense a clear line of appeal based upon the lack of "bright line" rules being established in either case. Walton's reasoning is clear and I don't believe that he can be faulted if he is overturned. I'm a bit surprised as to why he took this on as an interpretive matter but I don't quite see it as a win or loss for either side because it will certainly be appealed.

I wonder if the appellate court will accept Walton's framing though. He's left some rather large holes concerning Fitz's presser and lack of adherence to DoJ prosecutorial guidelines that I would expect TeamLibby to exploit to the fullest.

(the decision is in a non-copiable format - if it shows up in a copiable format, please advise)

[cboldt]

The link is fine. I assume that [Doc 97] is in the same scanned form at PACER, and therefore isn't amenable to easy conversion to plaintext. I've been converting and posting the more interesting filings, albeit not always timely for discussion.

This is the outcome I expected, Walton wasn't going to rule that the appointment of Fitz was defective. That would open a pretty big can of worms - not just legally, but also politically. Afte all, if the appointment is defective, it's the fault of the person who MADE the appopintment, not the one who took it. I hope Libby appeals because I think this case presents an important legal issue in general.

[windansea]

A key was this - a clear reading of Sec 510 means that the AG *can* delegate his responsibility to supervise litigation.

oh yeah...who'd he delegate it to?

[sad]

We don't need ESP anymore, Fitz is supervised by himself.

[Other Tom]

Jeff: I, for one, explicitly stated that it was highly unlikely that a District Judge would grant this motion, but that it might be a different story in the D.C. Circuit. I certainly was not alone in that assessment, and in fact I think it can fairly be described as something of a consensus view among those posting here.

[please]

Fitz removed. Case dismissed. Anything he said to the gj cannot be used because it was empaneled by someone without authority to do so.

I think it's a lovely constitutional argument and the motion neatly weaves in DoJ regs applicable to prosecutors and ignored by Fitz--like his press conference remarks..HEH

Posted by: clarice | February 23, 2006 at 06:34 PM

[Rick Ballard]

Tom,

Perhaps expedited appeal must be requested by a party prior to the judge asking for it. Not every decision is appealed and if I were a judge I don't think I would hang a bright light on my decisions by saying "Look, I know that this is subject to other interpretations so I'm deciding and kicking it upstairs at the same time."

I dunno - maybe it's done that way.

[sad]

please

selective quote quoting at best

[Patrick R. Sullivan]

It's hard to take seriously reasoning that says the SP didn't 'completely ignore' DOJ regulations. He just 'bypassed' them.

[Javani]

I'm split. Libby should be jailed for that "quaking aspens" letter. But my primary interest is UGO. Do we learn UGO sooner or later with this ruling?

[Wapo]

Alex Tribeca film festival or is that the car?

Nice pictures, maybe those were ammo, just not in the hips.

[clarice]

Well, you guys hit the high points.
Libby must ask for a certification to take an expedited appeal and I think it will be granted.

It is amusing that (p. 11) after reading the delegation powers so broadly as to abdicate the AG's duty to "direct and supervise litigation", the Judge stretches to argue this is not an absurd result. Of course, it is.

On the Appointments clause argument, the judge is forced to stretch yet again to find a superior officer.(And in saying this is akin to the Independent Counsel ,okayed in Morrison, he ignores the fact that the IC had to report his activities regularly to a three judge panel)
In finding supervision, the Court notes that it is a factual matter and then proceeds (fn7, p. 20) to reject out of hand some evidence that the defendant (and I) find probative to demonstrate there was no supervision--the presser and the utter absence of affidavits by those who succeeded Comey in officeHe does, as was noted, reject out of hand the Comey and Fitz affidavits.
It is interesting that the Judge relies on the 2 delegation letters from Comey: The first authorized Fitz only to investigate and prosecute the alleged unauthorized disclosure of a CIA employee's identity. The second (dated Feb 6) allows him to pursue other violations of law. Why is this particularly key? Because of Feb 4, 2004, Fitz knew who Novak's source was and he was not going after Comey. Yet with no supervision , Comey was in the dark when he expanded Fitz' delegation of authority.
.

[clarice]

Fn 13 p 25 seems a stuck on stupid kind of contention:"In fact, because the Special Counsel must comply with Dept of Just policies, many of which provide direction for how to proceed in prosecuting cases, the AG, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter."
(This after the preceding fn about the presser in which the J said"But even if violations as alleged occurred, that does not mean they were authorized by the authority given to the Special Counsel."

We are perplexed..and running in circles..

[Other Tom]

Thanks so much, Clarice. I can't recall federal practice concerning interlocutory appeals--can you enlighten us as to what matters are and are not appropriate for certification?

[clarice]

Other Tom I dug it up with some difficulty earlier. While I work on the opinion, maybe you can find it in the archives where we discussed the Motion to Dismiss?There was a recent key decision re Cheney and his energy policy task force in the US Ct of Appeals for the D of C Circuit.
************

I think the Judge's reliance on Agency law while understandable is wrong, because it ignores the factual circumstances of this matter.
It is clearest when on p. 26 he notes that agency can be revoked at any time.
Even Comey at his presser admitted that removal of the SP would create a substantial firestorm and would not be easily done. Indeed, that was a key part of Libby's argument for he contended that without supervision and oversight, it would be IMPOSSIBLE for the AG to give any reason for doing so.

[clarice]

The Court's reliance on Morrison carries with it the same failure to acknowledge the special circumstances here. He relies on the fact that he "is removable at will by the Dep Atty General". While as a simple matter that is true, it ignores the factual framework of this case as I described above in the discussion of the Agency argument.
Further, while the Court notes that Fitz hasn't the authority to ignore substantive or procedural policies and regulations, the Court ignores that supervision would bring other policy considerations to bear:I.e, cost/benefit; the likelihood of classified information having to be disclosed...in other words, all the discretionary considerations that would be brought to bear were this being handled in-house or were the IC provisions in affect and the prosecutor answerable to a judicial panel.

[maryrose]

Jeff:
You are sir, mistaken. Gee it felt good to post that.

[larwyn]

Fast and Furious today -

Not really OT at all:

Here's a hot link for the piece Clarice has excerpted.
It is truly chilling. May not just be power, but also greed $$$$,
as MacRanger has already suspected regarding Joe Wilson.

Don't miss this one and the links or you could be lost as
new revelations are published.
Douglas Hanson, National Security beat at American Thinker:
The Yellowcake Connection

[maryrose]

clarice; I wish Libby had you as one of his lawyers. You seem to be the only person of legal background that understands this case and the mistakes and errors of both Fitz and Judges Tatel and Judge Walton.

[clarice]

Thanks..

Other Tom, I found my earlier post on interlocutory appeals:

" am vague on the interlocutory appeal rights in criminal law and haven't fully researched them.

As best I can tell this(from Nixon v. U.S.) is still good law:

Under 28 U.S.C. § 1291, 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. To fall within this exception,
the appealed order must “1) ‘conclusively determine the
disputed question,’ 2) ‘resolve an important issue completely
separate from the merits of the action,’ and 3) ‘be effectively
unreviewable on appeal from a final judgment.’ ” United
States v. Bird, 342 F.3d 1045, 1046 (9th Cir. 2003) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 _____________

And my reading of the issue indicates that (a) if the judge dismisses the case, Fitz can appeal under normal appellate rules; (b) if he doesn't, this seems to me to come within the parameters of a special circumstance when an interlocutory appeal would be warranted by Libby."

[cathyf]

Not to put down Clarice, but Team Libby is not made up of slouches, maryrose. They seem to have a pretty good handle on things. And you don't put all your best arguments out there at once, either. Something that I keep reminding myself is that if Fitzgerald's appointment is ruled unconstitutional, then all of these other really good arguments about all sorts of things, from the function of the non-autistic brain to the proper role of the press in society, all these other arguments become moot. In Team Libby's paygrade you don't go borrowing trouble -- don't go crafting brilliant arguments at $800/hr until you know you need to submit them!

cathy :-)

[Jeff]

clarice - HO'd you get that February 4, 2004 date for the precise date that Fitzgerald knew who Novak's source was?

[Jeff]

read "How'd" for "HO'd". No insults intended.

[noah]

I noticed that the Judge repeatedly referred to Fitz remaining within the "four corners" of the two letters.

But UGO is not apparently prosecutable within those "four corners"...so where is the crime?

Also I think Fitz would have looked a lot worse without the second letter which it seems to me is pretty superfluous. As I have said before it is the fig leaf that saved his ass.

[noah]

And I don't think that Fitz has remained within those four corners...witness the kerfuffle when he misstated what Libby had been authorized to "leak". Isn't the NIE stuff totally irrelevant to his original charge?

[clarice]

Jeff, I just reread the comments on the earlier thread, and I think I was in error. I believe it was on Feb 24, 2004 that Fitz learned of UGO's identity.That's the date then, when it was closer in time to my reading of the original pleadings in which that date seems to have appeared.

Noah, you've put your finger on what is the critical error in the opinion IMO--the Judge can get to where he did only by ignoring a passle of inconvenient facts. Like what Comey and Fitz said, the occasions in which Fitz departed from DoJ policies, but more importantly what wasn't there--like any evidence of actual consultation and supervision; any role being played by Comey's successors; the difficulty of actually removing the SP under these circumstances; the different financing for this operation than in the IC counsel case; the fact that the IC was under judicial supervision;and the role of the DoJ in normal cases to bring to bear important discretionary and policy considerations on determinations which the prosecutor must make.

[Other Tom]

Thanks yet again, Clarice. How would Libby fulfill the third requirement? Seems to me he could get complete relief on appeal from a final judgment if he is convicted. Different subject: presumably UGO hasn't been charged because Fitz doesn't think he lied. Remember, he hasn't charged anybody with violating the Espionage Act or the Intelligence Identities Protection Act.

[noah]

OT, so you are saying that the only crime that Fitz is prepared to charge is perjury regarding a non-crime that he happens to be investigating?

Kafka call your office.

[Jeff]

Yes Jeff, if you read back most expected this was above Walton's pay-grade.

Right, and Walton evidently disagrees, and disagrees pretty categorically.

[Walter]

I found it interesting that the judge stated that Deputy AG Comey acted as AG only in matters related to the investigation into the alleged unlawful disclosure of specific classified imformation. (p. 7). So, Comey delegated only what he had, which was not the full powers of the AG.

I think that this could well be the best result possible for Libby, as the materiality of the (alleged) perjury must be viewed within this limited light.

[Walter]

OK, second-best.

[clarice]

Other Tom,I think the argument would be that if the appointment is invalid and the case proceeds anyway, he will be put to burden of defending against it without the issue being resolved.

In a normal criminal case, for example, a usual pre trial issue will be the admissibility of certain evidence. If the Judge errs in permitting it in, on appeal, the Court could determine that he shouldn't have and that that error materially affected the outcome and reverse the conviction or, alternatively, that it was harmless error which didn't affect the result..
But this is not an issue like that. It so infects the entire proceeding. The normal prejudice against trying these matters piecemeal doesn't seem to apply.And if Libby were acquitted, the issue which is an important constitutional one could never be resolved.

The Espionage Act is utterly inapplicable. And from what I can tell on the public record neither is the IIPA.

[JohnH]

Another reason that this case differs from a garden variety perjury case is that Rove and Libby are so prominent nationally, and therefore the prosecutor may well have formed an opinion of them well before the case was given to him. When the prosecutor has to exercise judgment in deciding whether, e.g., Rove lied, the preconceptions of the prosecutor could be a problem.

The same, of course, goes for a prosecutor deciding whether to believe a rabbi versus an unemployed gang member.

[Patrick R. Sullivan]

One thing Team Libby could do now is file complaints about Fitz's 'bypassing' DOJ regulations with the current AG. And keep up a steady stream every time Fitz makes a call without asking permission of his 'superiors'.

Then we'd find out if he is in fact being supervised by superiors.

[clarice]

Jess, you are being obtuse. We thought that he would not want to make such a precedent on his own and would find for the SP, but that a Court of Appeals or even the SCOTUS would have to make the final decision.

His opinion relies on not relevant law--the general law of agency--and ignores substantial and relevant facts. He says there is no bright line where he is acting, and I think in so doing he sets this up for an interlocutory appeal.

[clarice]

***JeFF, not JeSS***

And *****from what I can tell on the public record neither is the IIPA applicable*******

[Rick Ballard]

"I think that this could well be the best result possible for Libby"

Walter - could you do a little primer on that? How tightly would Fitz be held to the specificity?

I'm stuck on Plame's being a "WMD analyst" as being the only pertinent classified information improperly disclosed - and Libby does not appear to have disclosed that. At least Novak didn't pick it up from Libby but from UGO - who grabbed it from the INR report and notes.

[boris]

Actually, Tess would be more apporpriate.

Tess: this adds to the richness of the likelihood that they are actually

[Rick Ballard]

"I think that this could well be the best result possible for Libby"

Walter - could you do a little primer on that? How tightly would Fitz be held to the specificity?

I'm stuck on Plame's being a "WMD analyst" as being the only pertinent classified information improperly disclosed - and Libby does not appear to have disclosed that. At least Novak didn't pick it up from Libby but from UGO - who grabbed it from the INR report and notes.

[Walter]

Clarice,

Please help me on this, but wasn't one of the biggest concerns with previous IC/IP's was that, once appointed, they could investigate and prosecute anything they found?

Here, because the Deputy has no power to delegate any power he does not have, he cannot delegate the AG's power to investigate anything other than the "alleged leak of specific classified information" (Query re: Ashcroft's recusal letter: Did he narrowly or broadly recuse himself from all matters CIA-WH-Press that relate to Plame or merely "who disclosed Plame?".)

MJW: You pointed to the limited delegation earlier when I was on a tangent wrt the referral letter. Thanks.