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June 07, 2007

Libby's Plea For Relief Cites Andrea Mitchell

Here are links to Libby's argument to remain free pending appeal (22 page .pdf), and associated exhibits (5 page .pdf).

Dig in.

MORE:  The defense is citing:

(1) the constitutionality of Fitzgerald's appointment;

(2) the memory defense and the denial of an expert witness;

(3) the substitutions under CIPA for classified info - unsurprisingly, the defense objected to some of the substitutions and preserved their right to appeal.

(4) "The court's exclusion of the government's statement admitting relevant facts and the CIA briefers' testimony following Mr. Libby's decision not to testify presents another substantial question on appeal."  Check your notes on that one - I remember Judge Walton went into a snit when Libby decided not to testify, and struck some of the proposed summaries.

(5) Andrea Mitchell and the court's decision not to allow her to be called.  My personal fave.  Let me poke around for something on the ruling being appealed - OK, I was furious:

Or, if Mitchell does not appear, I can offer a prediction - righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon.

Here is one more oldie on Andrea - did you know that Colin Powell was a guest at her wedding to Alan Greenspan?  Gee, think about her sources and whether she might have, hmm, misremembered in order to protect them.

Interesting old post here - given the detailed coverage of this case, outside observers knew more than the jury, so there is no special reason to hold the verdict sacrosanct.

And that is it.  The filings gives a good summary of the possible significance of Ms. Mitchell's possible testimony - let's see how the media bury this.

BUSH'S GAME:  The consistently insightful cathyf analyzes Bush's situation:

Well, Bush is a notorious poker player who doesn't tip his hand unless he needs to. If he were going to do what I want him to do, I would think, first, wait until we see if Walton denies the appeal bond. If he doesn't, then Bush should just keep his mouth shut. If he does, then the next step will be to appeal that decision -- and I think that appeal has an excellent chance of succeeding. Only if the appeals court denies the appeal bond should Bush commute the sentence.

I think that Walton is playing a dangerous game here. He is afraid that if Libby is allowed to appeal, then the appeals court is going to spank him very badly. So I think he is trying to force Bush to pardon Libby so as to moot the appeal and make it all go away. (Because, you see, a side effect of pardoning Libby is that it also "pardons" Walton and Fitzgerald and Russert by making any punishment for them dead letter.)

...If the appeals court decides that Walton is trying to screw with them, they will overrule him and grant the appeal bond so fast that Walton's head will be spinning for a week.

On that same line of reasoning, what Bush should want (as the guy who stood up twice and swore to defend and protect the constitution) is for the judicial branch to fix Walton's mess. The most effective way to do that is to give them enough room to do it -- anything which a prickly judge (and prickliness is a notorious aspect of judical character) would interpret as interference should be avoided unless absolutely necessary. What Bush should avoid at pretty much all costs is setting up a situation where the appeals court believes that Bush is going to pardon Libby anyway, because that would just piss them off, and who knows what sort of disaster they will cause if they decide to get revenge.

Very interesting.  That could argue for a commuted sentence if Libby is sentenced to immediate jail - Libby can still appeal in a fight for his fine and law license.

Or let Libby stay out on appeal - the appeals won't be done before Bush leaves office, so we can judge Bush's sincerity as he heads out the door with/without pardoning Libby.

Conservatives who think this case was a mess (me!) should still be wiling to support a temperate judicial review of the process.  *IF* the judges are willing to provide it.

No Mitchell No Peace.  Not quite "Mitchell Delenda Est", but keeping her out of the trial was a joke and if Walton now rules that it was not even a close or substantial question, he is deluded.

MY CURRENT FANTASY:  Walton rules that yes, the Mitchell issue is close and substantial, so Libby can stay out.  Let's see NBC News report on that.  Maybe Chris Matthews and Keith Olbermann can delve into the question of what Gregory, Mitchell and Russert knew, and when they knew it.  Hey, maybe CM and KO can stage a palace coup!

FROM THE ARCHIVES:  I wrote this while the jury deliberated:

However, the cooler heads at NBC (i.e., everyone else) are probably crossing their fingers and hoping for acquittals all around, most especially on the counts involving Tim Russert.  Otherwise, the defense will appeal, Judge Walton's decision to keep Andrea Mitchell out of the trial will be a basis for the appeal, and NBC News will have to "report" on the Tim Russert situation for months to come.  This will be especially difficult for David Gregory, erstwhile "newsman", who has been duct-taped by the NBC lawyers and not allowed to comment on whether Ari Fleischer, a key witness against Libby, lacks credibility.

OK.

SUSAN ESTRICH:

The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame's name in their effort to discredit her husband's criticism of the administration's war policy — was no. No one violated what we used to call the "Agents Law." Dick Armitage, the guy who admits he gave out her name in the first place, isn't facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn't hesitate to disclose her identity.

Libby is in trouble not for what he did, but because he wasn't as careful as the others during his interviews and grand jury testimony.

If he'd just said, "I don't recall" a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn't be bankrupt, ruined, disgraced and heading to prison.

There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven't committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it's not entrapment, but it's still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn't solve the crime; it creates it.

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Libby says the fooling are substantice issues he plans to raise on appeal:
The Appointment question
The Refusal to allow him to call a Memory Expert
The Substitution Issue Under CIPA
The Exclusion of the Govt's Admission of relevant facts and of the CIA briefers' restimony following Libby's decision not to testify
The Refusal to allow Libby to Call Andrea Mitchell to testify

"fooling" should be Following

I am just so glad that Andrea Mitchell, David Gregory and Tim Russert get personal mention in this appeal.

Me, too, Jane. I saw Tim on his dad last night on tv and wanted to thru a shoe at the set. I made a point on Danish tv to highlight Russert's skullduggery which the media has papered over.(The original lost statement to the FBI; Gregory's silence and the false affidavit.)

I'll go with Hugh Hewitt:

"If Judge Walton does not allow Libby to remain free pending the appeal, I expect President Bush to pardon him. It would be best for the justice system, though, that Libby be exonerated by the D.C. Circuit, but he should not serve a single day in jail or pay a dollar of the fine."

What in heck are you doing on Danish TV.

"fooling" should be Following

Posted by: clarice | June 07, 2007 at 03:36 PM

What should "substantice" be? Oh, wait, I get it: "substantive"! :-) I'm getting good at this, just wish I was better at that verification game.

So Clarice, on Point 1, Fitz's appointment, are we going to see your letter as part of the exhibits? I like this one best, but the Andrea one is great too. I'm talking about self-thrills, not necessarily the legal merits or lack thereof.

No Pardon for Libby

"No matter how much his advocates argue otherwise, he committed a crime and should pay the price."

"Advocates of a pardon can't deny that a jury found Libby guilty beyond a reasonable doubt. So they are suggesting that his perjury is no big deal because Special Prosecutor Patrick J. Fitzgerald never charged anyone with disclosing the status of CIA employee Valerie Plame. At Tuesday's debate, Giuliani complained that "ultimately, there was no underlying crime involved." But as a lawyer he, like Libby, knows that the law is entitled to every man's evidence. Libby's lies prevented that."

"Libby's apologists also are recycling an argument from the Iran-Contra scandal of the 1980s, when the special prosecutor who pursued Oliver L. North was accused by defenders of the Reagan administration of "criminalizing policy differences" over Nicaragua. But Libby faces prison not because he was an architect and promoter of the war in Iraq. As a high government official, he lied to agents of that government; he did so to foil a prosecution. As he well knew, that was a crime, and one for which he deserves to go to prison."

This has been the day from hell, Jane --Just as Soylent''s brownies went into the over, I got a call workmen were coming over and they keep needing to be let in , etc.I started researching the commutation issue and then MMBA called and said Danish TV needed one of us to go on--since I was unwilling to rush to the WH for this stupidity, they interviewed me by phone and I was so outraged at the crap I was hearing, I lost my temper for 30 minutes.
"substantice" is what I meant of course.Oh, and my computer was acting up as well.

I think the defense is on solid grounds on the appointment issue unless the Ct of Appeals buys the supervision by esp argument.

Remind me -- the issue being litigated here is whether Libby has any one ground for appeal which merits serious consideration, right? So the list here is intended and understood by all parties as simply a partial list of possibilities, right? In the actual appeal, Team Libby can bring in as many arguments as they want, and everyone understands that this filing is more like a movie trailer (or 5 movie trailers) -- enough to show that they will have a substantive argument in each case, but not the actual arguments.

It's a race with the LAT--will it go out of business before the Libby case is resolved? I hope so.

anduril: 'What should "substantice" be? Oh, wait, I get it: "substantive"! :-)'

clarice: '"substantice" is what I meant of course.'

clarice, do you ever wonder if your computer hates you? LOL (Or if nothing else, has an extremely puckish sense of humor...)

Justice for Mr. Libby

"Mr. Libby's apologists are trying to make him out to be a victim of overzealous prosecution.

"Their desperate arguments go something like this: How could Mr. Libby really have obstructed justice, as Judge Walton said he almost certainly did, when no one was ever even indicted for the crime of outing Ms. Plame?

"The reality, though, is that the crimes for which Mr. Libby was convicted -- false statements, perjury and, yes, obstruction of justice -- impeded special prosecutor Patrick Fitzgerald's investigation of the leak that exposed Ms. Plame. . . .

"The leniency Mr. Libby's loyalists seek for him would undermine confidence in the judicial system. Respect for the law must come before empathy for the man and his painful fall from grace. Mr. Libby has to serve his time."

Just anopther damned interruption as I was posting..URGH

Scooting to jail

"The spin that Lewis "Scooter" Libby got a raw deal with prison time and a hefty fine for lying to investigators probing the outing of CIA operative Valerie Plame is ludicrous. Truth is the raw material of justice. Without it there's no way to reliably convict the guilty or exonerate the innocent. Lying to authorities is serious business, something that Libby, Vice President Dick Cheney's former chief of staff, had to know. He did it anyway, so now he's a convicted felon, the same as those who never wore white collars or reported to work at the White House."

Pardon for Libby would send the wrong message

"A pardon would also say that people who work for the White House are above the law if they think they're doing the president's bidding, because the president could always let them off the hook."

"Some of those calling for a pardon are being hypocritical. The same people who believed it was right to impeach President Clinton over lies about sex now say it was wrong to prosecute a White House official for lies about irresponsibly leaking a CIA officer's name in a political fight."

"Presidential pardons are powerful tools that should be used with great caution. Bush has been stingy — his aides say careful — about granting them. He has awarded 113 in six years, compared with 396 by Clinton during eight years and 393 by Ronald Reagan."

"Libby would be an unusual beneficiary of a pardon. Bush hasn't pardoned anyone who hadn't completed his sentence. Libby hasn't even started his. Nor has he shown remorse for his actions."

"The White House says Bush won't intervene in the Libby case — for now. The pressure will grow if, as appears likely, the former aide isn't allowed to stay free pending appeals. But when Libby should be jailed and for how long are matters properly decided by judges interpreting the law, not by a president rewarding political loyalty. The best time for Bush to pardon Libby is never."

Looks like the puppets got their marching orders today.

Scooter still feeling no remorse for not remembering what the FBI said Tim Russert never told them in their lost notes?


Who would have thought that the majority of MSM editorial boards would write against pardoning Libby?

Beldar and a commenter at Patterico take a spin on the bail issue. WLS (the commenter) makes a cogent argument as to why Walton is going to deny bail. Of course, the fact that it is cogent, may, in Walton's case, be reason for confidence that he will grant bail. Just one of the many mysterys of the truly mediocre.

The idea concerning commutation sounds better and better but my concerns about the appeal process offering any hope that 'justice' will show up anywhere in the legal process appear well founded.

No Libby Pardon

"Bush is in no position to be granting a pardon for a simple reason: The White House has a big conflict of interest in this case... A pardon will assure Libby’s eternal loyalty on behalf of those who let him twist in the legal wind. A pardon would close a chapter on unseemly official behavior that remains woefully incomplete. It must not happen."

I think the defense is on solid grounds on the appointment issue unless the Ct of Appeals buys the supervision by esp argument.

What does "by esp" stand for, Clarice?

Didn't DoJ set up a special board to review and provide oversight of the SPs? Or that was the old IC? Comey actually did set a new precidence by spawning off a SP on his or her own without much oversight. Whatever Walton saw that Fitzgerald is indeed reviewed by somebody or something is not enough.

estra sensory perception--the record is clear that he was appointed outside the statute and NO ONE supervised his work. He could not point to a single communication between himself and anyone in the DoJ hierarchy from the time he was appointed and said that he and Comey had an unspoken understanding of hoe he was to work.

An AP headline writer with a sense of humor:
Judge freezes congressman’s assets

Speaking of Comey.......he gets intertwined deeper and deeper into the "get Cheney meme".

Now he's blabbing about Cheney voicing concerns over the NSA, blah blah blah

There is an awful lot of anti-Cheney sentiment in the lefty blogs and MSM since Libby's sentence. Someone has issued talking points to ramp up the anti - Cheney rhetoric. Lots of lefties crying No Pardon. A Libby pardon seemingly exhonerates the Evil Cheney.

I sense a disturbance in the force.....

lurker:

Actually, Comey didn't just set a new precedent, he explicitly suspended the DoJ's own regulations governing the appointment and supervision of Special Counsel. Fitzgerald's installation & subsequent mandate violated both the spirit & the letter of those regulations in almost every way -- starting with the specific requirement that the office Special Council should be filled by someone from outside the DoJ.

lurker, I disucssed the appointments issue here
Make Believe

Will Libby have a new set of lawyers to handle the appeal? I sure hope so. His defense team has seemed to me woefully over lawyered by the prosecution. They don't get it at all. And I cannot see them arguing the illegality or impropriety of Fitz's appointment with any level of competence.

I am reminded of my remarks after the end of the OJ trial and the announcement of Marcia Clark's $5 million advance book deal. At that time, my opinion was that I, a lay person, would have willingly lost the case for a million or less.

Over at The Corner McCarthy raised his head finally. Allows as how Scooter got a raw deal, but he shouldn't have lied. Bad memories are what trials are all about, so (my best guess at what he means) I suppose juries are there just to make the best guess at who's most believable. Remarkable. But then he ends up by comparing Libby and Clinton:

Finally, I dread the next time — and you know there will be a next time — when a high-ranking liberal Democrat lies to investigators and obstructs justice. When the outraged grumbling starts around here, like it (rightly) did with Clinton's lying and obstruction, the media is going to have an awful lot of material to quote from, and they are going to say, with considerable force, that it's not lying that matters to us but who is doing the lying. The invective is doing us no favors, just as it is doing Libby no favors.

Mark Levin responds:

Bad Fitz [Mark R. Levin]

I must respond to my friend Andy. The argument that lying before a grand jury is a prosecutable crime is not unknown to anyone here. It's the circumstances of this case, and specifically Patrick Fitzgerald's behavior, that causes many of us concern — as did Lawrence Walsh's conduct. I am very comfortable with my position and NRO’s. When a prosecutor acts as Fitzgerald has, both in bringing this case and in the sentencing phase, he should be condemned. There are many terrific prosecutors out there who would never have acted as he has. As for comparisons to Bill Clinton, which have been made to justify the prosecution of Libby, let’s take a more lawyerly look [ouch, Andy]: Clinton had his attorney unwittingly prepare a knowingly false affidavit, which was introduced during the course of his sworn deposition. Clinton had his subordinates repeat his knowingly false statements during both a grand jury investigation and civil litigation. Clinton’s repeated lies before a grand jury and during his deposition were not only material and relevant to underlying crimes, but the conduct went to the core of the investigation and civil suit. It’s absurd to make comparisons between Clinton and Libby.

So, I am more than happy to take up Andy’s challenge, or anybody else’s for that matter. And I am certain that those here who have expressed legitimate outrage in the Libby case do so not because he is a Republican, but because it is, in fact, an outrage. I denounce what Fitzgerald has done because I believe in the system of justice.

I still think this whole mess was orchestrated by the democratic party with Shumer as the conductor. I think Walton got his orders from Shumer all through the trial. I think Fitzgerald also got his orders from Shumer but was willing because of the Marc Rich case. I think Comey got his orders from Shumber to appoint a SP the way he did. I also think Walton is still getting his orders from Shumber. There is no other reason for his ignoring the Probation Office recommendation. I pity this country with this idiot on the FISA board and I wonder at Roberts for appointing him. I think one of the reasons that this whole thing was done to get Bush to pardon Libby so that the media could go wild with Bush's favoritism and broken promises.

Make no mistake, the democratic party is running this country. They openly state that any member who deviates from their platform risks no funds for re-election and the chance they will back a strong cadidate against them. That is the fear of the republicans also and that is why they fail to buck the democrats. Every day the democrats show their agenda and it is quietly ignored by both the media and the public. They are suborning the rule of law and justice and they don't care as long as they get what they want. After all, the ends justifies the means does it not.

And the statute that Comey hung his hat on--what a joke! It was just boilerplate statute that allows the AG to delegate some of his functions to underlings, not to create an unsupervised clone of DOJ and a cloned AG!

Mark Steyn goes off on Wilson - giggly little school girl gossip with National Command Authority in his own mind.

"An AP headline writer with a sense of humor"

NYT has one too. Hot Damn!

Where Coconut Road meets the Bridge to Nowhere. Thanks Rep Turner and Sen Stevens.

http://www.nytimes.com/2007/06/07/washington/07earmark.html?pagewanted=1&_r=1&hp&adxnnl=0&adxnnlx=1181196433-Jxp2M4CuG/vwcEkSr+I1KA%3Cbr%3E


Interesting that they included that juror's WaPo piece and pointed out that, during their deliberations, they had specifically wanted to hear from a memory expert. That ought to be deeply embarrassing to Walton, but it probably won't register.

History has provided, in due time, a bromide
for Gerry Ford. His pardon of Nixon was initially viewed with skepticism. Currently it was viewed as a necessary healing for the country after the debacle in SEA.

The conflict layered upon conflicts of interest re; the pardon of Libby will make
comparisons seem like those made between
a 'lightning bug' and lightning itself.

But the Plausible Denialists have no shame as long as their agenda is proffered as the only reasonable one. Good luck and good night to you all.

"That ought to be deeply embarrassing to Walton, but it probably won't register."

Isn't that totally dependent upon the person explaining the meaning to him? After all, he was perfectly clear about his need to "consult" prior to allowing his clerk to type up his (the clerk's) orders for judicial signature (review would be asking a bit much). It really might register if today's "consultant" spoke slowly and clearly, using very short words.

The problem comes in Walton's method of addressing justifiable embarassment. That's the really expensive part.

Good - Finally - don't let the door hit ya on the way out. Glenn calling ya back to the mothership? Sounds reasonable enough.

Oh brother - the New Scandal Arrives.

Fox News Apologized For Mistaking Conyers For Jefferson.

Seriously - Josh Marshall is all over it. Must be huge.

Geeez, what an error. Conyers hasn't been indicted yet.

here's more on post in the previous thread (hard to keep up with the back to back)

A former Arlington County youth sports coach who once headed the Virginia ACLU pleaded guilty yesterday to charges that he purchased child pornography so graphic that prosecutors called it "sadistic."

Charles Rust-Tierney, 51, admitted that he accessed more than 850 pornographic images of children as young as 4, including a six-minute video depicting the sexual torture of children set to a song by the band Nine Inch Nails. Authorities said Rust-Tierney used a computer in his 10-year-old son's bedroom to view the files, some of which were contained on CDs bearing an American flag logo...

.."So these were actual children under the age of 12 engaged in sexual activity?" Judge T.S. Ellis asked.

"I'm agreeing to that, yes, your honor," Rust-Tierney said.

"Well, is it true or not?" Ellis asked.

"Yes, it is," Rust-Tierney replied.

Rust-Tierney, a public defender in the District and a past president of the American Civil Liberties Union of Virginia, faces up to 20 years in prison when he is sentenced Sept. 7. His attorneys and prosecutors agreed to recommend a sentence of 8 to 10 years....

...Prosecutors said yesterday that they had identified at least 30 child pornography victims shown in the images and videos Rust-Tierney downloaded and that the images were created in places ranging from England and Texas to Scranton, Pa. ...

...The case has attracted national attention, with some critics and bloggers accusing the media of initially downplaying the story because of Rust-Tierney's ACLU connection. He was president of the board of directors of the ACLU's Virginia affiliate from 1993 to 2005 and resigned from the ACLU's board the day he was arrested in February...

http://www.washingtonpost.com/wp-dyn/content/article/2007/06/01/AR2007060101882.html

--The case has attracted national attention, with some critics and bloggers accusing the media of initially downplaying the story because of Rust-Tierney's ACLU connection.--

Gee, I wonder why they would say such a thing?

Mark Steyn, author of the NYT bestselling America Alone, will be appearing on FOX News'“Hannity & Colmes” TONIGHT at 9:00 pm EST

"Looks like the puppets got their marching orders today".

Shouldn't tat be Muppets?

Jefferson's alleged crimes are worse than all the alleged GOP crimes combined. Do the math leftards - if he is convicted check out how much time he might do. Compare/Contrast.

Democrat's For No Corruption.

Priceless.

With a great deal of due respect for Cathyf, I disagree with her analysis in one important respect: I very seriously doubt that Walton is concerend at all about what the D.C. Circuit might do, and I also doubt that the D.C. Circuit judges will atttempt to read any signals, or be influenced by any signals they do detect, concerning whether Bush is likely to pardon Libby or not. Every federal judge I have ever known becomes entirely indifferent, very early on, to possible reversals by the appeals courts. Ditto the appeals judges (perhaps because I practiced in the Ninth Circuit).

My recommendation for Bush would be to do nothing until the free-pending-appeal issue is resolved by Walton and, if necessary, by the Circuit. If, and only if, Libby's chance of avoiding prison is ultimately exhausted, he should there and then commute the sentence to exactly what Sandy Berger got. Not only would that outcome be eminently just, it would be absolutely bullet-proof. Let Chuck Schumer or Hillary Clinton or anyone else explain why what Libby did was more harmful to the country than what Berger did. (I suspect Hillary would like that discussion to go away very quickly.)

If the conviction is reversed on appeal while Bush is still in office, end of problem. If, in his final days in the White House, the matter is still on appeal, pardon the man. If the fugitive Marc
Rich can be pardoned, anyone can be pardoned. And Bush's wife is not goint to be running for office down the road.

"Shouldn't tat be Muppets?"

Naw - I would never denigrate the Muppets in such a manner.

Tops,
The offence that Charles Rust-Tierney is accused of has far more serious ramifications than simply downloading vile images. poor little Madelaine was abducted by a paedophile ring involved in this unspeakably vile trade.
Now this is one which need the book throwing at him,these aren't just images,they are pictures of real little children,alone,innocent and defenceless in the hands of monsters.

Because this article by Susan Estrich is so thoughtful and so soundly reasoned, I'm going to post a cite to it here, even though I did so on an earlier thread:

http://www.creators.com/opinion/susan-estrich.html

Perhaps some kind soul will be good enough to convert that form of citation into one of those click-on-it thingies all the computer-savvy folks are able to do in their sleep.

Ms. Estrich was the first female editor-in-chief of the Harvard Law Review, and is a liberal Democrat who managed Michael Dukakis's presidential campaign. I invite, but would be quite astonished to receive, principled commentary from the various trolls. (With the crop we seem to attract here, that is something I just can't imagine.)

"Now this is one which need the book throwing at him,these aren't just images,they are pictures of real little children,alone,innocent and defenceless in the hands of monsters."

Remember when the Lefties said Mark Foley was a child molesting pedophile?

But mum's the word on the monsters in the room.

Clearly the lefties minds are broken beyond salvagability.


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