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