Here is a link to Fitzgerald's response (43 page .pdf) to the Libby team's argument that Libby has reasonable grounds for appeal with enough close calls and novel issues that Libby should remain free on appeal. An amicus brief arguing that the constitutionality of Fitzgerald's appointment is a close call is discussed here and here.
My thoughts on the Fitzgerald filing? I think I ought to read it first (but I like the first page font and their use of bold text) Go ahead and dig in; I'll try to catch up.
HMMPH: Ari Fleischer's surname is spelled "Fleisher" on p. 23 - grounds for reversal?
OK, my quick skim for a headline is coming up short - per Fitzgerald, the defense is wrong, wrong, wrong on every point. But I like this about calling Andrea Mitchell:
Likewise, defendant’s suggestion that, had Ms. Mitchell testified, the jury may have inferred from her demeanor or otherwise that Ms. Mitchell had heard a rumor about Ms. Wilson, told Mr. Russert about it, and later lied to protect Mr. Russert and the NBC franchise from embarrassment (Def. Mot. 21), is fantastical, as is the proposition that this unsupported “theory” raises a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that a the opposite of what a witness says is true.
Gee, juries don't need to see the witnesses and appraise their demeanor as part of gauging their credibility? Let's try cases by written submission, then - huge timesaver.
And this response goes to the heart of my own concern expressed during the trial (presumably the defense fretted about something similar):
And the judge had suggested yesterday that Andrea Mitchell would be called to give sworn testimony without the jury present; the judge will then decide whether the jury would benefit from her input. Controversy swirls around Ms. Mitchell because she had been working the Niger/uranium/Wilson story closely; in October 2003 she said on television that she had been aware, prior to the Novak column, that Wilson's wife was with the CIA, but she later denied it. So what will she say under oath?
I am skeptical of the proposed compromise, since it is really the role of the jury to evaluate a witness's deportment and demeanor in assessing her credibility. Instead, what may happen during the closed session is that Ms. Mitchell will sigh, sob, stare into space, tear her hair, rend her clothing, faint, and suffer a heart attack while denying any knowledge of Wilson's wife prior to the publication of the Novak column.
At which point the prosecution will jump up and announce that her credibility ranked up there with Abraham Lincoln, Gandhi, Mother Teresa, and Moses coming from the mountain top, and will demand that she be excused, and Judge Walton may agree (OK, in that special scenario, maybe not). C'mon, let the jury see for themselves, and don't let her have a warm-up appearance first.
WHERE DID THEIR LOVE GO?: Fitzgerald files a one-pager (1 page .pdf) correcting typos in the initial filing but overlooks the Fleischer error. We are on our way to the Supremes!
In another filing we learn that Lawrence Robbins will be appearing on Libby's behalf in court to bring his special expertise. KIDDING! However, the final defendant response is not yet online as of Wed early AM. [Ahh! - Here we are - (23 page .pdf)]