Amicus Brief In Libby Case

An amicus brief (9 page .pdf) supporting the Libby's team contention that Fitzgerald's appointment may have been unconstitutional has been filed by a cadre of law professors led by Messrs. Dershowitz and Bork.

Josh Gerstein of the Sun has coverage, as does the AP.  From the Sun:

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 convictions being overturned on appeal.

We have earlier thoughts, as well as the defense motion.

As noted, the defense cited their inability to call Andrea Mitchell as one basis for appeal.  As predicted, that tidbit has achieved a near-total news blackout, although Matt Apuzzo of the AP notes it in this concluding paragraph:

Defense attorneys argued in their filing Thursday that Special Prosecutor Patrick Fitzgerald lacked the constitutional authority to bring charges against Libby, the former chief of staff to Vice President Dick Cheney. They also said they were unfairly prohibited from questioning NBC reporter Andrea Mitchell about why she said lots of journalists knew Plame's identity. AP

MORE:

Others will recognize the signatories to the amicus brief, I have no doubt.  But here we go:

Douglas Kmiec: bio, recent writing.

Beyond the university setting, Kmiec served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).

Viet D. Dinh: bio

Professor Dinh was Assistant Attorney General for Legal Policy at the U.S. Department of Justice from 2001 to 2003. As the official responsible for federal legal policy, he conducted a comprehensive review of Department of Justice priorities, policies and practices after 9/11 and played a key role in developing the USA Patriot Act and revising the Attorney General's Guidelines.

Gary S. Lawson, Boston University School of Law:

Earl M. Maltz, Rutgers School of Law:

Thomas W. Merrill, Columbia Law School:

Robert F. Nagel, U of Colorado: Law School

Richard D. Parker, Harvard Law School:

Robert J. Pushaw, Pepperdine University Schol of Law:

Randy E. Barnett, Georgetown University Law Center:

Vikram Amar, University of California Hastings College of the Law:

Robert Bork:

Alan Dershowitz:

MORE:  We had discussion of the original defense filing here and here.

The original defense filings are at the Scooter Libby Defense Org site, subject to an amusing caveat - the Scooter people haev archive links to a "ScooterLibby.ORG", which is now an adult website (but safe for work!).  The correct archive links should be to to the same URL but substituting ".COM".  Here. for example, is the orignal defense filing.

Here is Fitzgerald's response; the Libby reply; and Judge Walton's ruling.

The amicus brief notes that Morrison is not controlling here, so my To-Do list is to re-read Walton's opinion with that in mind. 

Comments

[Rick Ballard]

I wonder who will be tasked to explain the brief to Walton? Qucik, get me a 64 color set and a roll of butcher paper.

[anduril]

Oof! That's a very annoying font that they used in their brief. It's a good thing they have the big names, otherwise it'd never get read.

[topsecret k9]

In addition to the points Professor Amar makes, a “superior’s” power of removal is retrospective in nature: it can punish a prosecutor for a decision he has made, but the “superior” cannot by the act of removal veto or prevent that decision, in the way a true supervisor could.

and

“If an official is not appointed by the President, but rather through some other avenue available under Article II for inferior officers, then political accountability needs to be ensured in some other way.” Laurence H. Tribe, supra, at 684

there is the Tatel situation - but I wonder if Fitz had to answer to someone for his actions if the little Russert situation (and false filing) would have been allowed or would Fitz have been called to the mat for it?

Also - what if Fitz had taken a different direction and gone after the Wilson's for blabbing to reporters? I'm sure the leftoids would be all over this super special appointment as unconstitutional and whining like crazy he was an unsupervised super cop.

[topsecret k9]

crap - I swear I meant to click preview. Sorry.

[Rick Ballard]

Those law profs cribbed from CathyF, upon whom I confer the honorary degree of Juris Doctor on behalf of TAC University.

Honestly, that brief could have been written ditectly from a JOM thread we had over a year ago. Those boys are right on top of things.

PS - CathyF - there are some fees involved concerning the degree. I'll be in touch concerning the total.

[anduril]

Here's a passage I found significant, pointing out a fact I had forgotten:

Special Counsel Fitzgerald, by contrast, was delegated “all the authority of the Attorney General with respect to the Department=s investigation into the alleged unauthorized disclosure of a CIA employee’s identity,” and “direct[ed]” to act “independent of the supervision or control of any officer of the Department.” 429 F. Supp. 2d at 40 (quoting December 30, 2003, letter from Comey to Fitzgerald). In a concurrent press conference, the Deputy Attorney General “seemingly indicate[d] that the Special Counsel could expand his jurisdiction.” 429 F. Supp. 2d at 41 n.10. Whether or not one “construes those statements as merely providing the Special Counsel the authority to investigate and prosecute violations of law that are committed during the course of his investigation,” id., these are not facts identical to those of Morrison v. Olson. To our knowledge, the Special Counsel appears to occupy virtually a “class of one” in the history of special prosecutors, insofar as his appointment did not arise (a) under the governing Department of Justice regulations (28 C.F.R. Part 600), (b) pursuant to the now-defunct Independent Counsel Act, (c) as a result of direct Presidential action, or (d), as in the Watergate investigation and Teapot Dome scandal, with guidance from or other restrictions imposed by Congress.

I can't quote Comey's press conference, but the first few words of his letter to Fitz on 2/6/04 strike the same chord:

At your request, I am writing to clarify that my December 30, 2003, delegation to you of "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue.

So the delegation of "all the powers of the Attorney General...is plenary." That doesn't really leave much wiggle room. Moreover, Comey says that he is writing, at Fitz's request, merely "to clarify" this situation. In other words, this was his initial intent, and he's only spelling it out like this because Fitz asked him to. As a very practical matter, Comey is not actually expanding Fitz's jurisdiction in this letter--he's telling him that, in virtue of the "plenary" delegation of "all the powers of the Attorney General" Fitz has the authority to expand his own jurisdiction--or, as Fitz would say in his inimitably self effacing style: I am the functional equivalent of the Attorney General, a principal officer under the United States Constitution, and I don't need no stinking confirmation hearing.

Pretty strong brief, in my view, and in particular in its argument that Morrison is in no way controlling.

[Sue]

anduril,

The font looks like Times New Roman 12, one of the fonts allowed in federal court documents.

[cathyf]

PS - CathyF - there are some fees involved concerning the degree. I'll be in touch concerning the total.

Hey, as long as I get to do that more-than-168-billable-hours-per-week thingy that lawyers are (in)famous for, sure, I'll cut your degree mill in for a little of the action.

Although my 13-year-old has a draw program and some artistic talent -- I'm sure he could dummy up something just as impressive-looking...

[anduril]

No way is that Times New Roman 12--in my Acrobat Reader set at 100% the small case letters are barely a third as tall as the upper case letters. Can't be.

Whoaaaa! I just opened that in my other pdf readers, kpdf and xpdf, and it clearly is Times New Roman. That is weird. I did think that courts required only certain fonts. Huh. What's up with my Acrobat?

[anduril]

No way is that Times New Roman 12--in my Acrobat Reader set at 100% the small case letters are barely a third as tall as the upper case letters. Can't be.

Whoaaaa! I just opened that in my other pdf readers, kpdf and xpdf, and it clearly is Times New Roman. That is weird. I did think that courts required only certain fonts. Huh. What's up with my Acrobat?

[Sue]

anduril,

::grin:: I don't know, but I laughed at your whoaaa!

[anduril]

Hmmmmm. Look at Dinh's Bio. He may well have known some of the major players, like Goldsmith, maybe Comey too. Certainly Yoo. Wonder what Dinh thought of Ashcroft and some of the others, and whether he was involved in any of the NSA/FISA controverseys?

[anduril]

Well, before I got all shirty about my eyesight and all, I thought I'd better check it out in some other readers, even though Acrobat is the standard. And I was very surprised. Nope, I'm not a cowboy, but back in my college days "Whoaaa!" was a favored expression of surprise.

[Sue]

I opened it in adobe and it was in the Times New Roman 12. Not sure what happened on your end. Hinky dinky things occur that have no explanation.

[clarice]

I have always thought this was a damned fine argument and the original briefing of this issue by Libby's counsel was masterfully done, one of the finest pieces of trial briefing I can recall.

[anduril]

Here's what I was getting at up above. Comey's delegation to Fitz is based on a statute that allows the AG to delegate some of his "functions." But, as the brief notes, Comey turns around and says Fitz has plenary AG authority and can expand his own jurisdiction! That's not a function, that's a clone job, but there's only one AG in this country. Someone needs to sort this out--how about the Court of Appeals?

[Rick Ballard]

Anduril,

But, wait! There's more!

Fitz had unrestricted access to the funds necessary to operate as SuperPersecutor - no need to even worry about a DoJ audit function (which might be construed as a method of "supervision" sufficient to knock down the 'one off' argument).

I think that the grant of the purse to Fitz without restriction should have been mentioned in the brief but maybe the law profs missed that JoM thread.

[DrJ]

Anduril,

The Adobe Reader font issue must be a Linux thing (though I run it on FreeBSD). I see the same thing as you, but it is fine with other PDF readers and it is fine on the Windows version of Acrobat or Reader.

I've never seen this before -- ever -- and I have rendered some exceedingly complex PDF images.

[clarice]

Whew! For some time I couldn't get here at all. Hinky dinky typepad.

Yes, Rick--the fact that Congress could not cut off his funds is a substantial departure from the IP which the ct considered in Morrison.

You know--checks and balances.

The brief is artfully done. None of the professors had to or did take a position on the ultimate issue (is this constitutional). They did no more than set out something Walton needed to grant bail and the filing will make it hard for him to refuse.

Three D chess.

[Lady Sara]

I was going to comment that without Lawrence Tribe as one of the amicus briefers, Walton would probably not think it worth the paper it printed on, but I see that the brief gets around this by citing Tribe. So maybe even in a DC court of libs, it will carry some weight. Am I way too cynical about Walton and the DC court?

[Enlightened]

Hmmm. Trollers sadly silenced by facts.

Oh happy day!

[PeterUK.]

"I wonder who will be tasked to explain the brief to Walton? Qucik, get me a 64 color set and a roll of butcher paper".

Might be better to start with the finger paints.
BTW,Patrick Fitzgerald,the dangers of no Congressional Oversight made flesh.Odd the Democrats weren't baying for it then.

[anduril]

Must be, DrJ, although like you I've never encountered this before.

This brief restores my sense of optimism. Although it's only directed at the issue of whether there are significant issues for appeal, one has to assume that this group will weigh in at the appeal stage. Their intellectual heft will come in handy.

[clarice]

Kudos to the professors who wrote this and signed on to it.

[kim]

I of course like Marcy's take on the amicus brief, especially her discovery of Walton's reaction (which I also support):

http://thenexthurrah.typepad.com/the_next_hurrah/2007/06/shorter_reggie_.html

[clarice]

Why don't you tell us what her thoughful take is, kim? My hazmat suit is in the laundry.

[Enlightened]

Waaah. Walton knows the 12 are correct - hence his pissy fit.

Crickets Chirping.

[Enlightened]

Clarice - bottom line - Marcy knows the jig is up, Walton knows the brief is probably correct, and pissed about the fact the 12 got the brief together so quickly.

So his "comment" that Kim loves so much is basically Walton whining about getting back at the 12 on future other cases.

Typical leftwing mode of operation.

Nothing to see here.

[Enlightened]

The trollies didn't get their marching orders today -

Most of the talking points are still pushing the deflated USA gasbag, the AG no confidence vote coming up, and just a stench of desperation to drum up a new scandal and fast - GWB and DC tenure is swiftly coming to a close.

Might have to switch to the Democratic culture of corruption. That could hurt.

[vnjagvet]

Look at what appears to me to be a snide footnote in Judge Walton's Order at this link:

Why would a District Court Judge feel the need to put something like this in an order granting leave to file a brief? To their argument?

Does it appear to you to telegraph biased antipathy to the authors of the brief?

Just askin'

[vnjagvet]

BTW, I think that footnote is what Kim is referring to.

[clarice]

Liink doesn't work..

[BarbaraS]

The statement Reggie made that Libby deserved to be in jail immediately was a dead giveaway. There is prejudice aplenty here or a plan to force someone's hand. Reggie is still taking orders from Shumer, I see, as is Fitzgerald.

[Enlightened]

Vnjagvet - Same snide remarks that Kim suppports above -

I'm guessing that like many people, Walton doesn't like getting his nose rubbed in it - so he made a point of informing them he will get back at them at a future time.

I'm really starting to dislaike Walton intensely. He's whining like a school boy. It does not reflect well.

[lurker9876]

I see that Clarice mentioned that Congress cannot cancel out Fitz' budget. Confirms that this is unconstitutional in my mind.

This amici brief was very well done.

I read this from Comey's letter:

"includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses."

1) Investigate...related to the underlying alleged unauthorized disclosure;

2) Federal crimes committed in the course, and with intent to interfere with your investigation.

a. Fitz found no evidence of unauthorized disclosure in the beginning of his investigation. But he continued with his investigation.

b. Fitz did not provide evidence of INTENT interfering with his investigation. All he had were newspaper articles and the words of the journalists. And the words of the journalists were inconsistent and contradictory.

I am surprised that EW is having a change of heart.

[JohnH]

Walton wants us to think that Libby is Paris Hilton. But Libby is not the equivalent of one of Walton's other defendants. Libby's prosecution involves very great issues of national concern, such as the press trying to re-write the history of how the Iraq war came into being. It is highly insulting that Walton wants to make Libby out to be a garden variety criminal.

[clarice]

Ah here:"It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools 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 Court trusts that this is a reflection of these eminent academics' 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 our 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 come before it."

Very snarky and injudicious.

[hoosierhoops]

Off topic...
-- Screaming and crying, Paris Hilton was escorted from a courtroom and ordered back to jail Friday after a judge, overruling the county sheriff, said she must serve out her entire 45-day sentence behind bars rather than in her Hollywood Hills home.
_________________________________________
At first i think i felt relief the justice system works somewhat for everyone..
Then i felt pity for this young women..
Raised by parents that taught her nothing of responsibility and quite frankly raised a spoiled brat..
I hope years from now with all her money and influence she can look back on her pathetic life and feel she accomplished something of import besides just going to parties..Maybe do something to improve others lot in life..help children in Africa, feed the poor, be an inspiration to others..spend some of that 100 million on something other than herself..
we can only hope for her sake..

[lurker9876]

Here is the footnote that Walton wrote (copied from EW's site):

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools 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 Court trusts that this is a reflection of these eminent academics' 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 our 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 come before it.

[clarice]

Unfortunately, now that Walton has tipped his hand--he was just named to the FISA court (by a rotation process).

[Enlightened]

"Very snarky and injudicious."

Which does not surprise anyone here - well, except for, uh, nevermind.

[PeterUK.]

What does Marcy Wheeler do for a living?

[Lady Sara]

Very snarky and injudicious.

Spoken like a man so sure of his protection by the Godfather Don that he is untouchable. Snarky and injudicious and downright discourteous. The idea that this Judge is going to sit on the FISA court is quite frightening.

[Enlightened]

"What does Marcy Wheeler do for a living?"

Besides troll midwifery?

[Enlightened]

Ok - that was snarky. I digress. It's Friday, the Martini bar is open in 30.....

[lurker9876]

Roberts nominated Walton, btw. Not AG.

Amici Curiae with the footnote.

This footnote confirms that Walton bears heavy watch by the DoJ for doing so many wrong and unethical things in Libby's case. Walton did not ensure Libby a fair trial.

How can a judge threaten these prominent lawyers for future cases? Walton was not interested in justice and equity at all.

[anduril]

Well, discretion being the better part of valor and all that, I'm going to restrain my optimism. After all, Andy McCarthy may thunder back at the profs and blow them away with some SDNY logic.

Hey--never been so glad to see my concerns blown away. I expect the argument on appeal will take this appointment stuff and tie it in with due process concerns, even equal protection (possibly). Something like: supervision of prosecutors and establishment of guidelines isn't done for its own sake, it's to prevent miscarriages of justice. If Fitz had actually supervised, some adult might have said: no, no, Fitzie, don't misrepresent the state of your investigation to the Judge; no, no, Fitzie, don't misrepresent Val gal's status to the Judge; no, no, Fitzie, don't play games with the Judge about Russert's testimony, no, no, Fitzie, don't muddy the jury pool at your presser, and on and on ad nauseam. Point: this isn't a theoretical argument; actual harm and injustice was done that likely wouldn't have occurred but for the unconstitutional delegation.

[vnjagvet]

Sorry:

Here's the old fashioned way:

http://howappealing.law.com/LibbyWaltonOrder060807.pdf

[Jane]

I have always thought this was a damned fine argument

You certainly have and between you and Cathy it could not have been articulated more clearly. Congratulations to both of you.

[clarice]

He wasn't threatening them he was being sarcastic about their being willing to help a "rich" Jew and not the kind of defendants he sees everyday, I think. OTOH I am positive all these professors do pro bono work and that Walton is really pissed because his plan to force the president into granting a pardon and precluding judicial review must now surely fall.

This is a remakable tip of the hand.

[anduril]

Ohmigod! I can't believe he wrote that! Snide remarks to trusted confidants, well, OK, but part of the permanent record???? clarice, I'll bet your absolutely right about their pro bono work, and will they be pissed now??

[clarice]

I've added this snark and injudicious comment to my long running blog today on this case. Really the judicial conference must find this astonishing. Many have told me they were persuaded that Walton hated Libby and Wells and I was sceptical ==I have been before him on a jury call and just thought him a somewhat slow, insufferably self-important type--Now, I see those others were right.

[lurker9876]

Well, if they had to file it, I am sure that they are already pissed.

This could also backfire on Andy McCarthy for defending his "friend of impeccable standards".

[Jane]

Clarice,

Given what you know about Walton, including what you conjecture, and about DC Judges in general, and the climate today, how much weight, if any do you expect to be given this brief. And do you see any holes in the brief based on all the work you have done on this issue?

[PeterUK.]

"Libby's prosecution involves very great issues of national concern".

Prosecutorial overreach is an International problem,which concerns many in the UK because of the extradition treaty with the US.Directors of companies can be plucked from their homeland and incarcerated at the whim of some hotshot prosecutor out to make a name for themselves.

[cathyf]

PS - CathyF - there are some fees involved concerning the degree. I'll be in touch concerning the total.

Hey, as long as I get to do that more-than-168-billable-hours-per-week thingy that lawyers are (in)famous for, sure, I'll cut your degree mill in for a little of the action.

[clarice]

Jane, I haven't reread all the initial filings on the appointments issues but I agree with the professors this is a substantial issue and I was disappointed in the ruling which I felt seriously skimmed over the weakest points of the prosecutions response (ESP and supervision by newspaper, for example).

This is a very savvy Ct of Appeals likely to take seriously the professor's notion that this is a significant constitutional issue, but I cannot so early make any predictions on outcome. I will say the injudicious fn by the judge has now alerted this court to his bias. Seriously. They respect these guys, know how much pro bono stuff they do and will certainly take this into consideration on other issues like the Andrea Mitchell an the CIPA rulings.(Very telling. Very intemperate.)

[Lady Sara]

He wasn't threatening them he was being sarcastic about their being willing to help a "rich" Jew and not the kind of defendants he sees everyday,

If this is the case, then I find it even more disgusting than I did before. Is Walton known to be an antisemitic and if so, what is he doing on the bench? Not just a political witch hunt, but a judicial hate crime too.

[JM Hanes]

TM:

"Others will recognize the signatories to the amicus brief, I have no doubt."

And the Wilsons have.....Erwin Chemerinsky!

[Lady Sara]

Do lawyers get to make oral argument in front of the Appeals Court or is it all done by brief?

[Enlightened]

Do you think Walton is stupid enough to think that:

1) No one would see his footnote except the brief authors, and

2) These twelve "eminent academics" had not been following this trial keenly, thereby preparing the brief in the course of only "several days" was not unusual?

Clarice - Do you think any of the 12 would respond publicly to Walton's footnote?

[Rick Ballard]

"I'll bet your absolutely right about their pro bono work, and will they be pissed now??"

Anduril,

What might have been a single shot has now been turned into an opening salvo. Judge Reggie done bought hisself a peck o' grief.

Clarice,

I really do appreciate the fact that these professors took the time and made the effort to present a clear and cogent argument before the court. I realize that making the argument earlier would have been a futile gesture and that their timing was determined by the course of the process.

I'm still a little amazed at how closely their reasoning tracked that displayed by CathyF JD in various comment threads. And I'll bet that the open purse argument makes it into their brief to the appellate court.

It's truly unfortunate that Walton wasn't given an ego commensurate with his intellectual limitations. He's going to find out what the difference is between humbled and humiliated.

[SlimGuy]

I am under the impression that they have been following this trial as close as the JOM crowd has and had a mailing list among themselves and put drafts of this together right after the trial phase ended and had it ready for submission at this point.

I don't think it is just Libby they are advocating for , but their wish to address defects in the legal handling just for the sake of maintaining the proper execution of the law on it's own merits.

[SlimGuy]

I wonder what the Fritz pucker factor would have hit the scales at if this group had been Libby's defense team for the trial.

[Charlie (Colorado)]

I am positive all these professors do pro bono work and that Walton is really pissed because his plan to force the president into granting a pardon and precluding judicial review must now surely fall.

Clarice, I'll be you dinner that Walton denies. Not that I imagine it will survive the Court of Appeals, but I just read this as signaling determination as well as snark.

[Sara]

I doubt this amicus brief was put together quickly. These are all professors of Constitutional Law and from the time made his first ruling on Fitz's appointment, they have probably been working on it and just waiting for the proper time in the course of the legal events for its filing.

[Sara]

from the time **Walton** made his first ruling

[cathyf]

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools 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 Court trusts that this is a reflection of these eminent academics' 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 our 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 come before it.

Wow. Just wow. I'm trying to formulate some sort of measured and reasonable letter to Justice Roberts. So far I'm not doing so well -- I'm as close to speechless as I get. So far what I can manage is quoting Walton, followed by a: "You appointed the person who wrote this to the FISA Court?!?!? ARE YOU FREAKIN NUTS?!?!?!?!?"

Ok, I'm still working on measured, reasonable and temperate...

[Sara]

Sounds good to me cathyf.

[lurker9876]

Add my name to your "petition" letter list.

[Enlightened]

Seriously - the utter disdain by Walton for the signatories is just dripping in this footnote.

Prominent and Distinguished
Their Collective Wisdom
Emminent Academics
These Luminaries

Wow. Just - wow.

It might just be me, but I think Alan Dershowitz will not take kindly to this rebuff-

[anduril]

And the Wilsons have.....Erwin Chemerinsky!

Posted by: JM Hanes | June 08, 2007 at 07:03 PM

Did you listen to that goofball being interviewed re the Wilson/Plame civil case? Did not know his *** from a hole in the ground--and basically admitted it.

[Rick Ballard]

"Ok, I'm still working on measured, reasonable and temperate..."

What's wrong with your original start? I think it's a very measured, reasonable and temperate response.

[Enlightened]

I think my post might need clarifying.

I think Walton was being utterly sarcastic when referring to the signatories as I mentioned above.

[Jane]

So of course I'm missing the point as usual:

- who's quote was this:

"It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools 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."

Walton? And where did he make it so we know about it?

[boris]

Wonder who Walton calls for "advice"?

Any guesses ...

Perhaps the area code starts with 666.

[boris]

vnjvet's link

[Enlightened]

"Walton? And where did he make it so we know about it?"

Jane - It was Walton, in a footnote on the grant order for the amicus brief -

There is a link by lurker higher up the thread, it is the only footnote -

[DEMO]

And meanwhile Bork the tort reformist is suing for being a klutz. And up next a no confidence vote on Fredo.

[Enlightened]

Oh lookie! Bottom feeders coming up for air! Whoooeee - Martini time!

[lurker9876]

I seriously doubt that the no confidence vote will affect Gonzales. This no confidence vote is non-binding. They know that they cannot force Gonzales to retire. Then the Senate Judiciary Committee will be finished. In the meantime, they just have to deal with Gonzales, regardless of whether they trust him or not.

There are just a few more months to go so let him finish it the term.

[Semanticleo]

Marci has a take on Walton's response to the filing of the brief;

"Check out the footnote in his order allowing Bork and friends to submit their brief.

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools 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 Court trusts that this is a reflection of these eminent academics' 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 our 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 come before it.

'Luminaries' indeed.

[Enlightened]

Uh, as usual you're late an unprepared.

[Semanticleo]

"Uh, as usual you're late an unprepared."

I visit JOM just to read your clever and inspired comments, Enlightened-Lite.

[Charlie (Colorado)]

Wow, Leo, are you behind or what?

[Semanticleo]

Sorry, missed Lurker123xyz's entry.

[JM Hanes]

anduril:

In regard to questions you (at least I think it was you) were raising in the Relief thread about Fitz/Comey & the SP regs and about Fitgerald's funding, here are some details from earlier JOM discussions.

I posted on the suspension of 28CFR600 (the DoJ's Special Prosecutor regulations), with a postcript which follows immediately thereafter.

Back in September I took a look at the SP's expenditures. The GAO reviews include the following footnote which is relevant to the question of Congressional involvement/approval:

We reviewed the legal authority for the Department of Justice to use the permanent indefinite appropriation to fund the expenditures relating to Special Counsel Fitzgerald's investigation and, in our opinion to the Chairmen of the House and Senate Appropriations Committees, concluded that such was not an illegal, improper, or unauthorized use of the appropriation. B-302582 (Sept. 30, 2004).

Apologies if you aren't the person whose interest I think I'm responding to! (Appalling syntax, no?) Just FYI, as I'm off to read the amicus brief.

[Enlightened]

"I visit JOM just to read your clever and inspired comments, Enlightened-Lite."

You would do well to learn it, live it, love it, alas you just can't get the hang of JOM.

Next time - study up before dropping in expectedly un-enlightened.

[Semanticleo]

Next time surprise me and offer a salient
idea which does not pander to the local intelligentsia.

[Jane]

Thanks Enlightened. I agree with whoever said Walton will deny Libby's request.

I don't really have a bead on Walton. He seems enthralled with Fitz for reasons that escape me; He probably has a case of BDS and was also probably starstruck with Russert. He doesn't seem particularly smart, altho he probably was at some point. But mostly he seems driven by something anti defense - who knows what it is.

[Enlightened]

Uh, no surprises where you're concerned.

But glad to see you whipped out your Wikipedia.

[lurker9876]

JMHanes, believe that was me asking how SP Fitz got paid.

We reviewed the legal authority for the Department of Justice to use the permanent indefinite appropriation to fund the expenditures relating to Special Counsel Fitzgerald's investigation and, in our opinion to the Chairmen of the House and Senate Appropriations Committees, concluded that such was not an illegal, improper, or unauthorized use of the appropriation. B-302582 (Sept. 30, 2004).

That's odd. Who made this decision? They did not say that SP's appointment was unconstitutional but rather that the appropriation was proper, legal, and authorized....by whom? Comey first, then Gonzales?

[Sara]

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools 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.

A man who was truly interested in doing the right thing by the law, might look at the timeliness of the brief and say, "whoa, if these distinguished Constitutional experts can address the issue this quickly, maybe I DID make an error." Walton's arrogance is mindboggling.

[OnTheThirdRail]

Clarice,

I read in another thread someone mentioned that you got a response back from the DOJ about the letter you sent about Fitz's conduct. Have you posted that here or on AT? Could you post a link?

Thanks!

[Semanticleo]

'But glad to see you whipped out your Wikipedia."

You know about Wik. I'm impressed.

[Other Tom]

My recollection is that Cathyf and Clarice were all over this issue like a cheap suit a very long time ago. It was the stuff they wrote here that persuaded me that this is an excellent point for appeal, and I've always thought it was by far the most likely to sway the D.C. Circuit.

Walton's gratuitous footnote is really remarkable--he may very well come to regret putting it in there. If the Libby team get the right panel in the Circuit, that footnote is going to leap off the page at them. It can't help the prosecution at all, and may very well hurt them.

Does Walton think those twelve profs are getting paid for this? I believe he is a genuine dunce, but in that regard he's by no means alone on the federal bench.

Sometimes the trolls' reactions are the things that make me go to sleep grinning from ear to ear. This is certainly one of those occasions. And Enlightened, the Martini bar is inexcusably late opening out here (it's almost 5:30), but be assured it will open within thirty seconds after I hit the "post" button.

[Enlightened]

Dammit! My red-assed baboon got out again - if you guys spot it, try and corner it for me...it likes special brownies....I'm off to the Martini bar....

[Semanticleo]

Juicers think the juice is medicinal.

[Semanticleo]

It isn't

[Sara]

You guys are off to your special brownies and late martinis -- you should have my job. I'm on orders not to screw this up. I'm sitting here waiting for some damn button to change from INFO to TICKETS at precisely 6 pm PDT and enter a 10 digit code so that my son and a friend can get their 2 free Ozzie Osborne tickets for a concert in late July. Sheesh! I need a tray full of special brownies and at least a pitcher of Marguaritas in lieu of martinis.

[Enlightened]

first one to speak was the monkey of the week...

[Enlightened]

***weak, not week***

[boris]

Both work.

[topsecret k9]

HAH -- well isn't this interesting...this is Dershowit's HUFFINGTON POST BIO

ALAN M. DERSHOWITZ is a Brooklyn native who has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,” and “America’s most public Jewish defender.” He is the Felix Frankfurter Professor of Law at Harvard Law School. Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.

While he is known for defending clients such as Anatoly Sharansky, Claus von Bülow, O.J. Simpson, Michael Milken and Mike Tyson, he continues to represent numerous indigent defendants and takes half of his cases pro bono...

Link

This might help Marci and Walton:

in·di·gent
1. lacking food, clothing, and other necessities of life because of poverty; needy; poor; impoverished.

pro bono
done or donated without charge; free: pro bono legal services.

[Rocco]

Sounds like Walton is trying to strike at the Libby supporters and intimidate others.

Reggie Walton-"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 come before it."

David Corn-"Did senior Bush officials blow the cover of a US intelligence officer working covertly in a field of vital importance to national security--and break the law--in order to strike at a Bush administration critic and intimidate others?"

[SlimGuy]

Sort of reminds me of Rush telling his engineer to play sound bite number 6 or something like that.

[anduril]

JM Hanes, as lurker said, that was him--but no problem, I read it all with interest.

My argument all along was that the statute that Comey used as authority for the "delegation" to Fitz allows the AG to delegate only "functions," not his own authority. Someone was has been delegated a "function" is obviously still under supervision and is not authorized to, oh, expand the scope of their "function," as the brief notes. I've believed all along that delegating functions must be carefully distinguished from what Comey did--which was without any legal authority and is probably also in violation of the constitution.

I found your supposition about the background to Comey's second letter to be utterly convincing. That was certainly an agreed upon letter, following upon discussion between the two. I also found your comments on the discrepancy between the "delegation" that Fitz was handed and the authority that previous special counsels had to be very much on point--in fact, I believe that that, too, is at the forefront in the minds of the 12 amigos. It is interesting, and gratifying, to see the thrust of their brief tracking the discussions on JOM so closely.

[JM Hanes]

Great stuff! Any bets on who gets the SCOTUS gig?

I once dropped in on a trial that an Asst.D.A. friend was prosecuting in NYC. It was the first time I'd ever seen the inside of a court room, so I arrived early, and what to my wondering ears did I hear, but the Judge telling his clerk of court to call his decorator about the wall paper that hadn't arrived on schedule. Whoa, so to speak.

I suspect a lot of Judges get used to being the most important guy in the room real fast and to saying pretty much whatever they want. Like Howard Dean, when he first made those comments about pickup trucks & Dixie flags, they think they're talking to the people in the room. It can be an unpleasant surprise to discover you've got a wider audience.

On Walton's bias, I don't think he's got a chip on his shoulder about rich jews. From the snarky remarks we've heard him direct at Jeffries, et al., along the way, I'd say that chip includes the rich and the elite of any ilk.

[topsecret k9]

MAINE VOLUNTEER LAWYERS PROJECT Volunteers helping low-income people solve legal problems Over 3,500 VLP volunteers have contributed their time, energy and expertise to helping their fellow Mainers solve legal problems over the past two decades. We salute all those who have provided the “hands and feet” to transform justice from an abstract ideal to a reality for our state’s citizens. Their commitment to Doing Maine Justice is the heart and soul of our organization. Volunteers for for the Common Good...Thomas W. Merrill, Esq.

PDF

[anduril]

Other Tom, I picked this up just now from Freepers; details of Burglar sentence. Note that the plea was to a misdemeanor; the judge couldn't change that, but she did what she could:

As a result of the incredibly apathetic USJD investigation and prosecution of Sandy Berger’s theft and destruction of unique and classified documents from the National Archives, and as the result of a plea bargain authorized by the USJD, Berger agreed to a $10,000 fine, a revocation of his security clearance for three years and a lie detector test, which to this day has not been administered. This sentence was augmented by US Magistrate Judge Deborah Robinson who increased the fine to $50,000 and added two years probation and 100 hours of community service. Robinson said, “The court finds that the fine [recommended by government prosecutors] is inadequate because it doesn't reflect the seriousness of the offense.”

[JM Hanes]

Or maybe just rich & elite lawyers of any ilk.

[Maybeex]

, 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.

Ha! Yes! Haven't we noticed all along that Walton has a thing about money?
The first time he said something was one of the first days of the trial, when he snarked about Wells and Jeffries surely having enough resources to go through a box of something Fitzgerald had dumped on them.
It lasted through the trial when he warned Cathie Martin to move her water because they didn't have enough money to replace their computer if she spilled.
Finally, when the attorneys were going through exhibits he talked about his poor clerks not being paid for overtime.

The man is a reverse snob, and I do believe it colors his opinion of Libby.