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.

[topsecretk9]

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.

[topsecretk9]

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.

[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?

[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.