Government Response On Libby's Bail/Appeal

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)]

Comments

[hit and run]

Of course, Fitz says this:

...none of these issues is “substantial” or likely to result in reversal or in an order for a new trial. Therefore, the motion should be denied.

Though I do find myself unfairly on the verge of snark due to scare quotes around "substantial".

But hey, at least Fitzgerald footnotes this:

1The government does not contend that defendant poses a risk of flight or danger to the community, or that defendant’s appeal is frivolous, or brought solely for purposes of delay.

Fair and balanced, that one.

[Jane]

What time is the hearing? 10:00? And isn't Nifong's hearing today too?

[Maybeex]

My prediction:
Fitzgerald recommends sending him to prison pending appeal, so Libby's going to prison.

[Rick Ballard]

There's nothing new in the argument about Edmond and Morrison that I can see at a first pass. He kisses Walton's butt rather profusely in his agreement with Walton's sterling reasoning but there can't be any surprise at that. No response at all to the amici that I can see.

He might have a stronger case for himself if he declared himself out of business as a Special Persecutor. He kinda ignores (what a surprise) that aspect. Maybe he plans on unsealing the Rove indictment within 24 business hours?

[cboldt]

The hearing is 11:30 on Thursday. Libby gets to rebut Fitzgerald. His reply is due tomorrow.

[Digger]

I can imagine this lingering, lingering, lingering. The only way to get Ms Mitchell before a jury is a new trial, I can’t see that happening. When it is off the news, it will end up like the Tom Delay matter, is Ronnie Earle in the rest home yet?

[RichatUF]

...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...

As opposed to newspaper articles provided to the jury "not for there truth value but for Libby's state of mind". And the articles all claimed that Val was 'covert'. Maybe I'll read the Fitz filing now.

RichatUF

[RichatUF]

The only way to get Ms Mitchell before a jury is a new trial, I can’t see that happening.

Another point about Mitchell-during the trial Walton said [when he was thinking about allowing the defense to call her] that she could be confronted with her notes (he said something like, I don't see how I'll be able to keep them out, or words to that effect). This has always been the point about Mitchell [and Mr. Impossible, Tim Russert] Mitchell's notes->Russert impeachment. Its risable to suggest that NBC booked Joe on MTP without doing the least bit of gumshoe work or somehow put the show together on Saturday. She made the calls to her sources at CIA and State and to get a WaPo profile, NYT editorial, and MPT appearence (on on July 6th) required some pretty good advanced planning.

RichatUF

[hit and run]

“General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate. Mr. Gorbachev, open this gate. Mr. Gorbachev, tear down this wall!”

--Ronald Reagan, June 12, 1987

[anduril]

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.

Gotta love that "otherwise." Is that shorthand for:

the jury may have inferred from her demeanor or from listening to Ms. Mitchell's recorded statements to Don Imus 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

[Charlie (Colorado)]

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.

I don't have time to go back and research it right now, it being just before time for work, but didn't amici address just that question, with precedent that holds just the opposite?

[Rick Ballard]

I erred in stating that Fitz didn't address the amici - he has a long footnote (11) that dismisses their brief. His statement that

Second, the amici state that unlike
the Independent Counsel law, no statute requires the Special Counsel to follow Department policies.
As this Court concluded, as a member of the Department, the Special Counsel was obligated to follow such policies to the extent possible.

begs the question of who is to determine whether he followed guidelines "to the extent possible" and what remedy was available when he didn't.

[anduril]

I'm as guilty as the next of injecting the odd snobbish bit of Latin into my posts, but in the spirit of this new multicultural age that we live in I suggest that we can the amici stuff and go with "the twelve amigos."

[Jane]

What I want to know is what was I doing on the day an Amicus brief became "the amici"? I keep thinking Don Amechi, and what the hell did he have to do with this miscarriage of justice.

I've notice a few other words that also became commonplace when I wasn't looking lately - like "efforting". Whose idea was that?

[qquirl]

Fitz and Chayes. Plame 2 visits Montreal.

Plame and Woolsey not to be forgotten, now Chayes has hit Montreal. The news articles out of Canada and Afghanistan show why people may want to know if someone is a CIA agent acting of behalf of the Directorate of Operations.

Petitions to stop Quebec soldiers from going to Afghanistan. Oil fight in Alberta. African bug nets under Stronach traded for solidarity with Bono (who swears 'it's that Harper),' Karzai asassination. UN arresting the attackers(like those NJ terrorists-not that Karzai is already President and wants a place on the intelligence committee courtesy of the people of NJ - like London). US shooting Afghan police that got that mean beheader who wanted to show everyone what a spy was when you mention Chayes.

There are alot of articles. I don't have the time to put them all up and don't want any problems. Chayes is just Plame 2, Canada didn't ask who. The answer is to call the President, who defers to Dick because of his CIA past. Maybe this is just because someone may have and the Plame thing started. Plame and Chayes have one thing in common. If they are agents, they're known and bad.

http://www.freerepublic.com/focus/f-news/1848800/posts

[clarice]

It is because the trier of fact gets to weigh the demeanor of the witnesses that Cts of Appeal so rarely disturb the findings of fact of trial court judges, It is considered a very important factor.

Since the proffer re her testimony came from counsel whcih we know previously filed a false affidavit with Fitz' connivance that this response is particularly rich.

In other cases where the evidence adduced in the investigation has been weal Fitz has said he'd just present it to the jury for them to decide...something I strongly disagree with. I think the prosecutor should have a firm sense of the law's having been violated before beginning--otherwise frankly it's a matter of his playing on the prejudices of the jury to nail someone who rubs him wrong. (See Conrad Black trial.)
anduril, I like "the twelve amigos".

[clarice]

**weaK (not weal)**********

[BobS]

anduril, RichatUF:

To keep things simple for simple minded fools like me, is it accurate to say that Walton's refusal to allow Andrea Mitchell's testimony kept Libby's defense from access to exculpatory evidence/testimony?

Also, I don't quite undertstand the NBC angle. Does it revolve around that first appearance by Wilson on MTP?

[Nick Kasoff - The Thug Report]

If Wilson had justice at the level which the left claims is due the terror suspects at Gitmo, he'd be a free man. Pardon him, Mr. President.

Nick Kasoff
The Thug Report

[anduril]

Before I start paying bills, I thought I'd dump a few links on everyone. First from the other Hitchens, Christopher's Tory brother Peter, a column entitled Is democracy the same as freedom? Some teaser quotes:

We like to preach democracy to others. How much are we really attached to the rule of the people ourselves?

I don't think we are, very. The governing elites of the 'democracies' have built elaborate defences against true democracy, which they are afraid of, often with reason. In the USA, there is of course the Supreme Court, America's liberal House of Lords, which is in charge of social and moral legislation and has a very sketchy relationship with the ballot box. There are also the many one-party cities, where there is no serious chance of a change of local government, and the bosses have a lot of influence over how the national vote goes in their state.

The original plan of Washington DC was designed to make the capital easy to defend against mobs (the same, interestingly, is true of 19th century Moscow and 19th century Paris).

...

But in many ways the greatest obstacles to the power of the voters are the political parties, which have become entrenched corporations, dedicated to keeping themselves alive...

How much does it matter? I'm torn. I'm not convinced at all that a half-informed electorate are the right people to take great national choices.

...

On the other hand, there's no doubt that an elite, however benevolent and intelligent, can become wholly cut off from the true conditions and concerns of the people. I think the absurd complacency of the government about crime and disorder is an example of this, as is the political class's inability to grasp just how bad the state schools are.

Democratic mechanisms are an important way of ensuring that these complaints are heard - provided the parties are open to new ideas and prepared to transmit them upwards. But the whole development of spin doctoring has been designed to make sure that the people are persuaded to want what the parties plan to do anyway, or are distracted by 'manipulative populism' - the pretence of decisive action on such things as crime, while the real liberal agenda carries on in the background, unobserved.

...

I think we would be wise to see democracy as a mixed blessing to be treated with caution, not as a glorious end in itself. Freedom under the law is the thing we should aim for above all.

I'm always sneering at Andy McCarthy's idiotic pronouncements in re Libby (can't seem to help slipping into Latin shorthand), so here's a link to a very thought provoking article of his today: Lawfare Strikes Again. The fact is, I think I agree with Scalia, as I believe his position would be, but Andy does bring up a lot of the issues. Only one teaser quote:

Specifically, a divided panel of the Fourth Circuit U.S. Court of Appeals in Virginia ruled that the commander-in-chief may not detain a terrorist operative as an unlawful enemy combatant if that operative has managed to enter the United States and is present here lawfully — something perhaps worth the president’s consideration as he insists on trying to resuscitate an ill-advised comprehensive immigration bill that would make every illegal alien’s presence lawful.

Regardless of the constitutional issues, I think Andy is certainly justified in placing this case in the context of the late failed immigration reform proposal.

[Other Tom]

Jane, I'm with you on refusing to accept "effort" as a verb.

I got to write an amicus brief as a first-year associate. I was amazed when my supervisors marked up the very first draft to use "amici" in the way the twelve amigos use it. That is, the brief would say things such as, "Amici suggest that blah blah blah..." Not "the amici," just plain amici. I studied Latin for four years as a kid, but don't remember much about it except what it taught me about English. I have no idea whether this usage is what a Roman might have said, or is just a recent lawyers' construct.

[anduril]

Jane, read the McCarthy article I link to and you'll find him using "purporting" as an independent, active verb form! Perhaps that's SDNY patois for something or other. :-(

[windansea]

I suggest that we can the amici stuff and go with "the twelve amigos."

the lefties are calling them the Bork 12 probably because it rolls off their forked tongues easier than Dershowitz 12

[anduril]

Or maybe because "bork" sounds like an obscene verb--a mode of expression they seem to gravitate toward.

[Jane]

I got to write an amicus brief as a first-year associate.

OT,

One of the deficits in my law school and law career is that I never wrote briefs. I had a prior skill that law firms needed so I was never a summer associate, or first year associate who wrote briefs because I was busy doing other stuff for them. That deficit has plagued me throughout my career.

I started my own law firm 2.5 years out of law school, and every person I've ever hired is someone who can write legal briefs. I really don't know much about the law - never have in fact. I often have said that I'm a "facts lawyer" not a "law lawyer". To this day my eyes glaze over when I try to read the law.

That doesn't bother me, and hasn't really hindered my career, but I sure do feel stupid in these kinds of conversations. Quite frankly I marvel at the rest of you.

[hoosierhoops]

I'm expecting 2 new best sellers after the appeal runs it's course.
The Da Amicus Code and The Da Amicus code decoded..hopefully when the movie rights are sold Tom Hanks won't be reprising his role.
________________________________
And from our esteemed Hit & Run..

“General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate. Mr. Gorbachev, open this gate. Mr. Gorbachev, tear down this wall!”

--Ronald Reagan, June 12, 1987

while you are time traveling H&R please drop me off an envelope to my house with the following note:
Buy Microsoft and morgage the house when you hear of Yahoo.com just do it!

[danking]

"Another point about Mitchell-during the trial Walton said [when he was thinking about allowing the defense to call her] that she could be confronted with her notes (he said something like, I don't see how I'll be able to keep them out, or words to that effect)"

That really bothered me at the time and still does. Here we have the judge intimating that Mitchell's notes could spell trouble for her testimony and Walton does his level best to keep her off the stand.

[anduril]

yes, danking, i found that to be an odd way of putting it, too. to say the least.

[hit and run]

Bork is a verb from his confirmation, and what the left is doing can probably be considered similar this time.

They're trying to Bork los doce amigos.

[clarice]

danking that was in the pre trial period when the judge looked at her notes and said that after reading them he didn't see how he could block the defense from calling her to the stand. (Let me guess--I think those notes reflect a contact with Armitage or Harlow or Wilson.)

[anduril]

begs the question of who is to determine whether he followed guidelines "to the extent possible" and what remedy was available when he didn't.

Posted by: Rick Ballard | June 12, 2007 at 10:25 AM

Rick, seems logical that "the functional equivalent of the AG" in charge of the Libby question would be the one to decide whether the guidelines were followed or not. If you aren't satisfied with his response, you go to court. It's a very expedited process, the downside being that in court "the functional equivalent of the AG" files heavily redacted affidavits that leave one guessing about the basis for the eventual ruling.

[qquirl]

Mueller's jet is off to Afghanistan with Fitz.

Plame's 'fair Game' book is out in October.

I hope Joe can save Val and Fitz can save Sarah!

'Fair Game' 1995
http://www.imdb.com/title/tt0113010/

[hit and run]

From: hit and run
Sent: Monday, June 12, 1987 11:40 AM
To: hoosierhoops
Subject: Hot Stock Tip!

Dude, buy Microsoft! It's sooo boss, homie.

Totally gnarly!

[cathyf]

I keep thinking Don Amechi

Except that the correct pronunciation of "amechi" is ah - may - key

I suppose it is possible that Don had an ancestor whose name was "Amici" who decided that if he wanted it pronounced correctly then he needed to mangle the spelling...

[RichatUF]

BobS...

is it accurate to say that Walton's refusal to allow Andrea Mitchell's testimony kept Libby's defense from access to exculpatory evidence/testimony?

I would say that Walton's refusal was an error because there was no other way to confront Russert. Its ridiculous in a way, Russert was on vacation and Mitchell was the host of Meet the Press for July 6 2003

from the archive:

...Our guests, just back from a three- day fact-finding trip to Iraq, the chairman and ranking member of the Armed Services Committee, Senator John Warner of Virginia and Senator Carl Levin of Michigan....Insights and analysis from William Safire and Elisabeth Bumiller of The New York Times, David Broder of The Washington Post and Robert Novak of the Chicago Sun-Times....

It unbelievable that Russert would have something important to add if the "first leak" was of Wilson's wife's name and it was "fist published" by Robert Novak. Mitchell would have the goods in her notebooks (unless she uses the Miller-Cooper school of filing and notetaking).

Also, I don't quite undertstand the NBC angle. Does it revolve around that first appearance by Wilson on MTP?

Others have written at length on this point and I would not want to mis-represent their views. The thing that bothers me is the word games [incantations] that NBC lawyers and NBC staff have used to hide what they know and when they knew it. During Russert's questioning at trial, he said that "he did not name her". Well, we can drive a "Did you here Wilson's wife is in the CIA and she sent him?" and Libby could have said "I heard that too".

I dislike the: "Plame�=Wilson's wife�=Ms. Wilson" game and NBC should have stepped up to the plate a long time ago to clear this matter up.

RichatUF

[RichatUF]

yikes...

"fist published"..."fiRST published"

RichatUF

[cathyf]

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.

I'm puzzled, Judge Walton. Isn't the sum total of this case that the "factfinders" (judge and jury) were supposed to decide, from demeanor evidence alone, that the opposite of what Libby said is true? Libby's "demeanor" as Dick Cheney's employee, in this case...

[Other Tom]

It's Don Ameche, isn't it? As in Alan "The Horse" Ameche? Both of them pronounced it in the Americanized way, Ah-MEE-chee. From my night-school Italian lessons (we're going next month) I think the Italian pronunciation is as Cathyf says.

[Charlie (Colorado)]

What I want to know is what was I doing on the day an Amicus brief became "the amici"?

I'm sure we picked it up from some lawyer.

I keep thinking Don Amechi, and what the hell did he have to do with this miscarriage of justice.

He did it right after he invented the telephone.

[Charlie (Colorado)]

There are alot of articles. I don't have the time to put them all up and don't want any problems. Chayes is just Plame 2, Canada didn't ask who. The answer is to call the President, who defers to Dick because of his CIA past. Maybe this is just because someone may have and the Plame thing started. Plame and Chayes have one thing in common. If they are agents, they're known and bad.

What?

[clarice]

Silly, Charlie. The guy who invented the phone was Mr. Macaroni.

[Charlie (Colorado)]

Buy Microsoft and morgage the house when you hear of Yahoo.com just do it!

And sell everything when the NASDAQ crosses 5000.

[Charlie (Colorado)]

What does Yankee Doodle have to do with it?

[clarice]

Something about feathering your cap IIRC.

[qquirl]

Sorry Charlie(Marx?),

CSIS would be calling CIA or the President right here.

The time things are okay, but if you open a bank account, the judge siezes it and pockets the cash.

[hit and run]

Charlie:
What does Yankee Doodle have to do with it?

Play a recording of Yankee Doodle Dandy, performed by James Cagney backwards.

While stoned.

In complete darkness.

With oatmeal rasin cookies baking in the oven.

And your left foot submerged in 82 degree water.

Wearing an indian headdress.

[RichatUF]

damn I had a great comment and it vanished into the typepad unknown...it might have been the smartest thing I've ever written

I blame Bush

RichatUF

[qquirl]

NPR play something backwards?

Marconi and Marx.

[hit and run]

Rich:
it might have been the smartest thing I've ever written

Bummer.

I blame Bush

Well, for now, this will have to hold that honor.

[anduril]

From my night-school Italian lessons (we're going next month) ...

Posted by: Other Tom | June 12, 2007 at 12:20 PM

Great idea. Here's another pronuciation tip:

Martini = Mahr=TEE-nee,

just like English. :-)