Libby Ordered To Jail, Soon

Judge Walton ruled that Libby is unlikely to prevail on appeal.  From Reuters:

Former vice presidential aide Lewis "Scooter" Libby must begin serving his 2 1/2-year prison sentence while he appeals his perjury conviction, a U.S. judge ruled on Thursday.

...

Libby will have to report to prison in six to eight weeks, unless his lawyers convince an appeals court to let him remain free.

Libby's lawyers said they would base the appeal on the contention that the special prosecutor, Patrick Fitzgerald, was improperly appointed.

They also plan to argue that U.S. District Judge Reggie Walton was wrong to exclude witnesses and classified material Libby had hoped to use in his defense.

Walton, however, said they were unlikely to prevail.

"I would have to conclude that although he doesn't pose a danger to the community and he doesn't pose a risk of flight ... there is not a likelihood of success," Walton said.

Firedoglake had liveblogging: 1, 2, 3, commentary.  This account of the CIPA issue (discussed yesterday)  is cryptic yet amusing:

Robbins (for Libby): ...The question here is whether these are close questions. I don’t think it can be debated that these are close, and I think we’ll win.

When someone does not have to report to anyone, does not have to follow DOJ procedures, sometimes things go wrong. Under section 6c2 under ______ the AG is allowed to object to disclosure of classified information, if disclosure would damage national security. Fitzgerald did submit such a report because he assumed plenary authority.

Walton: but the CIPA issues did not arise until later when Libby asked for material.

Robbins: But this is an example of how things go wrong when authority is too broadly delegated. [Reads the language of the act, congressional statute]. Authority to AG, DAG, AAG. These are the ones who can make these disclosures, and no one else.

Walton: Be that as it may, your client through his counsel did not submit his request to Mr. Fitzgerald, their CIPA request, not to others. This issue was not raised at the time. Was this issue waived?

Robbins: My understanding is this document was declassified and made public after the case. I was not part of the history of this case. But Lawrence Walsh was denied this authority in the past.

Walton: I think your co-counsel did not address this.

Jeffress: This affidavit was submitted in camera. It has recently under seal, and we obtained it pursuant to your ruling, we received it in May.

Walton: Your time is up.

So Fitzgerald signed an affidavit for which he lacked authority, suggesting he was either inadequately supervised or improperly appointed. 

The judge wonders why the defense didn't appeal this issue at the time.  To which the defense responds, well, it was filed exclusively with the judge under seal, so we only saw it in May.  And then time is up!

My question - which May do they mean?  JOM commenters were ruminating about this issue in December 2006.  OTOH, the motion to dismiss the indictment based on improper appointment was filed back in Feb 2006, so maybe the defense got this in May 2006.

OK, we have more CIPA discussion a bit later; here is a bit of it:

Walton: Do you think you were in full compline with what was envisioned by CIPA.

Fitzz: If someone had objected would could have gotten a second signature or could have made an application to close the courtroom. We are picking on the most minor violation.

Walton: There was a violation, so what is remedy.

Fitz: It was not a classified document and it would have been waived or we could have had any number of other signatures.

Walton: I assume suggestion by defendant is that you were given the authority by inference to handle CIPA matters even though it was not clear at the time that CIPA would be in play.

Fitz: They are misdescribing 6a as if it was 6c.

Fitz: AUSA’s handle CIPA material, so this notion that the alleged technical violation of CIPA was an issue of whether courtroom should be closed. These were issues that AUSA’a could have argued.

Walton: But if you signed something that you may arguably not have had the authorityto sign, does this go to you being a superior officer? One could infer you presumed such authority.

Fitz: If the defense thought this was an obvious error we could have dealt with it then. If there was a violation that I signed under one authority versus another authority, this is waiver and harmless error if it is error. We can’t turn around for filing on 6a and go through a whole trial and bring this out later.

Comments

[Charlie (Colorado)]

I can't think of another time I more wanted to be mistaken.

[hit and run]

Title of Post:

Libby To Jail, Soon

Concluding Sentence:

A greater surprise will be if an appeals court does not grant Libby relief pending a full review of his appeal.

[vnjagvet]

I agree with you, Tom. Had Walton ruled in Libby's favor, it would have been a huge surprise. As it is, I am reasonably sure the Libby team was prepared for this development and will merely fill in the blanks it left in its already prepared appeal on the "rulings of the court below".

Walton's snarky footnote to the Order granting leave to file the Amicus Brief will, IMHO, not serve him (or Fitz) well before the DC Circuit.

I predict GWB will not have to exercise any of his executive options to keep the Scooter out of the clink.

The Judicial Branch will do the heavy lifting here.

[Pal2Pal (Sara)]

OT - via Sweetness and Light and al-Jazeera:

The United Nations has extended its mandate for US-led forces in Iraq after the country’s foreign minister said they were “vitally necessary” for security and regional stability.

Hoshyar Zebari called the UN security council’s move “very positive for Iraq”.

He said all Security Council members understood “what the Iraqi government is facing”, illustrated by the bombing of Samarra’s Askariya shrine on Wednesday by “terrorists … seek to destroy the fabric of Iraqi society”.

The resolution adopted by the Security Council last year, which extended the mandate of the multinational force for one year starting on December 31, authorised a review of the mandate by June 15.

At an open council meeting, Zebari said that despite Iraq’s daily violence, “the government has made tremendous strides toward the day when security will be provided by a self-sufficient, Iraqi national security force”.

He said: “While Iraqis will always be grateful for their liberation from an absolute despot, no Iraqi government official - indeed, no Iraqi citizen - wants the presence of foreign troops on Iraqi soil one day longer than is vitally necessary.

“But today, and for the foreseeable months at least, the presence of [foreign] troops is vitally necessary not only for Iraq but also to safeguard regional security and stability.” …

And for our educationally challenged trolls who I'm sure have forgotten -- yes, we are there under UN mandate.

[cathyf]

Walton's explanation of his Mitchell ruling is comedy gold (punchline emphasized): ... Hint to judges everywhere - the American system of jurisprudence is not predicated on the notion that defendants and prosecutors get absolutely equal treatment.

Hon, consider this the most gentle of criticism, but you missed the punchline. The punchline is that Walton conducted a trial which was, in its entirety, "asking the jury to draw inference upon inference upon inference that [was] rank speculation absent evidence." And the secondary punchline is "If the government had tried to make this kind of case it clearly would be reversible" in a hearing where Walton ruled it wasn't close to reversible!

[MJW]

When the supposedly limited nature of Fitz's mandate was argued, Libby's side should have brought up the extensive investigation of the NIE disclosure. As cathyf pointed out recently, the NIE didn't contain the identities of any covert agents. Though it was arguably "related" to the Plame investigation, since it occurred at least in part in response to Wilson's op-ed, I think there's almost no doubt that under the old independent prosecutor law, the prosecutor would be required to seek approval to expand the investigation (and might well be denied). Many on the left side hoped Fitz would investigate the whole subject of pre-war intelligence, and under the broad interpretation or relatedness that allowed the NIE inquiry, he could have. (I recall that there was information that Fitz also looked into the yellowcake memo forgery -- if so, thats more evidence of the expansiveness of his mandate.)

[vnjagvet]

Reading the additional excerpts of Judge Walton's rulings today, I am struck by his loose reasoning.

This is even more grist for the appellate mill to grind when it frees Scooter.

There will be wailing and gnashing of trollteeth.

[Pal2Pal (Sara)]

Is it my imagination or did I miss an article? It seems NRO/The Corner people have been deafening in their silence since the defense response was filed.

[Pal2Pal (Sara)]

Jeralyn says that from her own appeals experience, Libby will be in jail before the DC Court rules on the appeal. Will they really act that slowly?

[Cycloptichorn]

There will be wailing and gnashing of trollteeth.

Strangely enough, this has been predicted for some time, and has failed to come to pass as of yet.

Maybe by the next deadline. But I doubt it.

[clarice]

vnjagvet, I so hope you are right. I remember many times being in despair about what I thought were unjust rulings and just girding up, going back into the fray and eventually prevailing, but the toll on the innocnets of bad decisions is harder to bear as I get older.

[MJW]

As much as I hope the appeals court will overrule Walton on the bond issue, and as much as I think they should, I'm not particularly hopeful. A few days ago, cboldt linked to some articles on the issue, which suggested that, due to the nebulous nature of the "substantial" question requirement, the appeals courts tend to rubber-stamp the trial court's decision.

At least the brief should be entertaining to read; unlike in a pleading submitted to Walton, there will be little reason not to openly disparage Walton's reasoning.

[cathyf]

Reading the additional excerpts of Judge Walton's rulings today, I am struck by his loose reasoning.

This is even more grist for the appellate mill to grind when it frees Scooter.

If the appellate court rules Fitzgerald's appointment unconstitutional, then all of that other nonsense becomes moot and will never see the wrath of appellate scorn.

If anything, a significant possibility is something like this: the appeal of this decision today will cause the appellate court to examine the question of whether the stated appeal bases are close questions. They will decide that the appointments clause question is very serious, and, after granting Libby bond, will request that the two sides brief on that question first. Then they will dismiss the indictment and vacate the conviction and sentence, without anybody even getting to the point of briefing on Fitzgerald's and Walton's misconduct at trial.

I might believe that Walton even planned it this way, but I can't imagine such a sophisticated thought being managed by such a witless bully.

[Tom Maguire]

Re "Concluding Sentence: " - how often are we told that the headline writers don't always talk to the guy who did the story?

Of course, this case has me talking to myself...

[TexasToast]

Actually, Tom, I have a suspicicion that, as is often the case, your first reaction is the "answer", so the headline is probably closer to the truth .....

[fortif]

UN. They just made a move in Afghanistan after the Karzai asassination. The insurgents were arrested. Some Afghan police got shot too. Iraq and Afghanistan have a connection since the US started talking to the Taliban and Iraq insurgents at the same time; then there were the coordinated attacks. It seems to be a mistake to talk to both, but Pakistan isn't an option.

The NIE is not a response to Joe or Val. While they may have been allowed to make some big deals that will damage the US, espceially after the attacks, the NIE is not a response to them.

Why hasn't Plame been served for lying? It can't be any clearer she was, so what is the reason for the stall?

[hit and run]

TM:
Of course, this case has me talking to myself...

Well hey, you have yourself much better positioned than say if you made a 70% prediction one way or the other.

[anduril]

(I recall that there was information that Fitz also looked into the yellowcake memo forgery -- if so, thats more evidence of the expansiveness of his mandate.)

Posted by: MJW | June 14, 2007 at 04:07 PM

Slight correction, MJW (and I appreciate your posts): it's more evidence that he was the one who ultimately defined his own mandate--as "the functional equivalent of the AG." Any glimmer of "related" and it was his if he wanted it. Read Scalia in Morrison on that "related" business.

[anduril]

Hint to judges everywhere - the American system of jurisprudence is not predicated on the notion that defendants and prosecutors get absolutely equal treatment. This is a trial that might send a man to prison, not a basketball game; defendants routinely get treatment that would not be allowed a prosecutor, starting with "innocent until proven guilty", running past "the right to confront witnesses", and including the right to imply the prosecution witnesses are hiding something even if the incurious prosecutor has not bestirred himself to examine that possibility.

Oh, Tom, that's, like, sooooo old school! Are you, like, Atticus Finch?

Hey, if you don't laugh...

[clarice]

That's true, MJW--absolutely so. He traveled to Rome to look into it. Very good catch.

[cathyf]

But of course the yellowcake memos were inside the constraints of Ashcroft's recusal. 'Cause, ya' know, Karl Rove must have created the forgeries, right?

[Pal2Pal (Sara)]

Repeating my question from 4:16:

Jeralyn says that from her own appeals experience, Libby will be in jail before the DC Court rules on the appeal. Will they really act that slowly?

[Other Tom]

At each and every step, the Left seems to think it's over. It's not: wake me when Libby's in jail.

[RalphL]

"That's true, MJW--absolutely so. He traveled to Rome to look into it. Very good catch."

Well, who wouldn't, when someone else is paying?

IANAL, but it sounds like Waltoon is confusing judicial impartiality with neutrality in the law, perhaps because he thinks he is the law.

Looks like honest, criminal-coddling liberals would be all over that.

[RalphL]

70% don't know who Libby is.

"honest, criminal-coddling liberals"
sorry, that's an oxymoron.

[clarice]

Really digging about in the old files bin or is that the best Jason can do at the moment? 7 days to countdown on one year anniversary of his promise to reveal all about the Rove sealed indictments! I cn't wait.

In the meantime, though it's wayyyyyyy off topic, I love this.
http://www.reason.com/blog/show/120785.html

Once again the global waming nutters propose solutions to impoverish the poor and waste resources, including energy.

[RichatUF]

MJW says...

I recall that there was information that Fitz also looked into the yellowcake memo forgery -- if so, thats more evidence of the expansiveness of his mandate...

Whoa...I'm stunned, and that is saying something in this trial. Fitz [per Clarice] traveled to Rome to investigate the Niger forgeries. I thought Rockefeller and Levin had the FBI investigate them in March and April 03 and the FBI investigation of the matter determined that it was that doc forger Rocco for profit. I didn't think Fitz's mandate was so expansive that it included the forged documents-now I'm sort of creeped out.

RichatUF

[Other Tom]

Buck up, folks--our main main Paul Potts made the papers in Oz, and he may perform for the Queen. I love this story, even without Martinis. (I almost fear to watch after the cocktail hour begins. Hanky time.)

http://www.news.com.au/story/0,23599,21904047-2,00.html

[Pal2Pal (Sara)]

SCOTUS Rules Against Union Election Spending

States may force public sector labor unions to get consent from workers before using their fees for political activities, the Supreme Court said Thursday.

[Pal2Pal (Sara)]

RE: Paul Potts

I have seen about 5 minutes of the talent show and landed there by fate or accident while surfing the channels. I too reacted to him with leaky eyes.

[fortif]

Fitz travelled to Rome. The document was from the Niger embassy there. Forged documents are a FBI specialty with currency, etc. coming under Secret Service. Rumor is the CIA came out with the forgeries.

FBI moved overseas and has gone downhill ever since. I wonder if Fitz went to see his pal Chayes from Harvard in Afghanistan.

Maybe Potts should bet Knighted. OZ?

[CH]

"Nearly 70 percent of Americans oppose a presidential pardon for former White House aide Lewis "Scooter" Libby after his conviction on perjury and other charges related to a CIA agent's exposure, according to a CNN poll out Monday."

Yea, but if President Bush orders that Libby's jail sentence be suspended awaiting an appeal, I believe that a majority of the people would agree with that.

[Other Tom]

CH: Doesn't matter whether they agree or not. How many agreed with the pardon of Marc Rich?

[Jane]

So here is what I want to know:

Who sits on the Appeals Court?

Is this initial emergency appeal heard by 1 Judge, 3 Judges or the whole panel? Has it been filed? How soon after filing will it be heard? If it is denied at the first Appeal - the emergency stay not the whole appeal, what if anything are the options?

[hit and run]

Other Tom:
I almost fear to watch after the cocktail hour begins. Hanky time.)

Yeah, I can't watch videos at work, so I just now got to it.

Two beers in and now my wife and neighbor are making fun of me for tearing up.

[Pal2Pal (Sara)]

Ruth Graham, wife of Billy Graham died at 5:05 today. I cannot imagine what it would be like to lose your spouse of 65 years.

[RalphL]

"Huffingtong Post"

I like it.
Clarice has been giving typoing lessons.

[Other Tom]

"Senate Majority Leader Harry Reid today refused to say whether he called outgoing Joint Chiefs of Staff chair Gen. Peter Pace incompetent, but he did say he thought Gen. Pace 'had not done a very good job.'

"John McCain called Reid's comments 'highly inappropriate and regrettable.'"

--Real Clear Politics, June 14

Reid was at 19% approval before this story broke.

[clarice]

h & r, can we put you in charge of organizing the Jason Leopold anniversary next week? And if we do, can you promise not to spend all the party fund on booze--I mean this time throw in a couple of pretzels or something...?

[fortif]

Mr. Moore. Roger. You know Clinton is Irish too and there is that Oxford company.

Better novel: Plame was using Joe to get him to go bad like Howard and Ames CIA trainer. Use him as a bad agent. Plame later joins PC as a retired teacher and goes to Joe's country.

[Jane]

OT, that latest clip from the AU is longer and even more fun. I can't get enough of Mr. Potts, that's about my 10th go thru.

[hit and run]

And if we do, can you promise not to spend all the party fund on booze--I mean this time throw in a couple of pretzels or something...?

How about goldfish? We've lots of goldfish. And some of those cheese-n-crackers...school's out now so we don't need those for lunches...

[Jane]

I'll bring the pretzel's Clarice - spend it on the booze!

[hit and run]

I can't get enough of Mr. Potts, that's about my 10th go thru.

Good -- mrs hit and run and the neighbor just hopped in the car to get more beer. And pizza*. So I can get more Potts without the ridicule.

-----------
*Hey, if you want we can have the Jason party tonight. We'll have plenty of beer and pizza....

[hit and run]

Jane:
spend it on the booze!

I'm picking up pinot grigio for you.

Or is there something else you would rather?

[RalphL]

Is someone channeling Carol Herman?

[Other Tom]

I'm pretty sure the emergency appeal, as well as the ultimate appeal, will be heard by a three-judge panel. They will be selected randomly from the twelve-to-fifteen judges on the circuit court.

Sometimes (at least in the Ninth) a district court judge will be picked as one of the three. Don't know how that works.

[PatrickR]

'TO THE BORDER OF SMART-ASSERY'

Which was the only proper response to the trip deep into the heart of DUMB-ASSERY of Walton; i.e., that Scalia's Morrisson dissent supported him.

Of all the stupid--not worthy of a first year law student--things Walton has said in this case; the jury didn't need a memory expert, Andrea Mitchell didn't really tell Gloria Borger that she knew about Wilson's wife (when she admitted to Imus that WAS what she'd said), that the prosecution was protected by the V and VI Amendments and deserved a fair trial, that Libby would be crazy not to testify, the; 'Yo, Antonin's my main man.' was the perfect cherry for this parfait.

[clarice]

OT: That's how it worked here the last time I had to do that.

I can't tell from the Court's website who is on the rota now. Here is a list of the judges and their bios. (I do hope Judge Brown is on the panel. Like cathyf she is a staunch federalist with a good grasp of the Constitution.)

Court

[listener]

Can anyone help me understand what sort of precedent would be set if the appointment of a prosecutor - with the powers of the attorney general - were upheld?

If I were a swampie I'd stop and think about that but then I'm guessing foresight is not on their resumes