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June 13, 2007

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Other Tom

My hope (rather forlorn) is that, if neither Walton nor the D.C. Circuit allows him to remain free, Bush will commute immediately, mooting the pardon question pending the appeal. (I think a perfect commuted sentence would be exactly what Sandy Berger got.) From Clarice, I understand the an appeal in the D.C. Circuit these days is likely to last beyond November, 2008, at which point Bush could pardon with impunity.

My understanding--I've been begging for someone with actual knowledge to weigh in on this--is that, should Libby ultimately prevail on appeal, he would be entitled to have his attorneys' fees picked up by the taxpayer. Any other resolution and he is personally on the hook for them, i.e. broke.

Forbes

TM: Don't know if you saw this posted on David Frum's blog on NRO--a comment from a reader--but I thought it merited reposting here as germain to your thread:

As interpreted by the Supreme Court, the Constitution allows the president to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, reprieves and amnesties.

A respite delays the imposition of a sentence. It in no way addresses issues related to due process or guilt of innocence. Nor does it change the nature (severity) of the sentence. It only delays the execution of the sentence. In my study of pardons from 1789-1932, I found hundreds of respites. Most of them delayed sentences for periods of 30 to 90 days and were granted to 1) delay executions 2) allow additional time to study a clemency application or 3) to allow an individual to remain out of prison during the appellate process. When the time period expired, presidents frequently extended the delay with a follow-up respite. Woodrow Wilson, for example, granted 16 respites to an individual, delaying entrance into prison for almost two years. After the 16th respite, he (Wilson) granted a full and unconditional pardon.

So, I am just utterly mystified that the conventional wisdom (among media and government officials) is that, somehow, Bush will be forced to pardon, or decide not to grant a pardon, to Libby if the judge does not grant bail. Bush could simply issue respites until the last day of the term, if he liked.

If the president thinks Libby deserves to remain out of prison during the appeal, has faith that the appeal is legitimate (or with merit), wants to avoid disrupting the judicial process (as would be the case with a pardon) and would prefer to revisit the issue after the election ... respites are the silver bullet.

One of the last high profile examples of this use of the clemency power, by the way, was when Clinton delayed the execution of Garza in order that a study of discrimination in federal sentencing could be completed.

The entire post can be read here:
http://frum.nationalreview.com/post/?q=MzkyNDhlN2JiMjE2YThiMjM0YzZkNWY3OTdjYTY4NmE=

Jane

Can someone explain to me the Lawrence Robbins joke?

RalphL

If Bush knows he can do this, you'd think he would already have done so. Perhaps someone's told Libby privately he will if jail appears imminent.

Other Tom

I inadvertently left out the respite option raised by Forbes, which I had never thought of before someone brought it to our attention here the other day. It certainly puts another arrow in Bush's quiver, but I wish I could be more confident that he was going to do anything at all.

Without having looked at any of the cases the defense cited, I was certainly comforted by the way they addressed the "harmless error" question. If Fitz had any faith in that issue, I would think he would have done more than raise it in a footnote without a single citation to authority.

RalphL

How do you pronounce 7ohn Rigas?

Other Tom

RalphL, I've tried to game this thing out as if I were Bush. I would be determined not to let the man enter the prison system, but I wouldn't act to stop that from happening until I had to. (Remember, I'm Bush, not me.)

I would see whether Walton granted the relief currently sought by the defense. If he didn't, then I would see whether the Court of Appeal did so. If the Court of Appeal doesn't intervene, then I'd intervene--with the respite option, I guess, although I'd love to see him commute the thing right now, and still allow the appeal to proceed. If the appeal were still pending as of election day, what I would do would depend on who wins. If it's a Democrat, I issue a full pardon the next day.

PatrickR

I liked the bit about it being an 'odd notion' that the general public has the knowledge about memory functioning, that specialists who spend their entire lives studying and publishing findings in scholarly peer reviewed journals.

Also, I think they're strong on the Andrea Mitchell ruling. I.e. it isn't the prosecution who has 6th Amendment rights, it's the defendant. That the hearsay thing doesn't apply to defense witnesses who may offer exculpatory testimony.

cathyf
If Bush knows he can do this, you'd think he would already have done so.
Not if he values allowing the judicial branch the opportunity to clean up this mess without executive branch interference. Play your cards close to the vest until you NEED to show them.

Look, the quickest way to get judges to behave like jr-high girls is to telegraph that they don't need to be grown up because the Chief Grownup will come fix their screwups with a pardon.

hit and run

Jane:
Can someone explain to me the Lawrence Robbins joke?


I assume Tom saw the name relating to this case and went and googled it to find out more about attorney Robbins....and found Dr. Robbins of headache fame.

An indirect link to headaches and memory? Or something.

Kinda like that Tom Maguire guy in Santa Fe who is Director of the Santa Fe Convention & Visitors Bureau that I claimed was our Tom, in cahoots with the Wilsons who were moving there.

Or something.

clarice

This part of the brief sounds an awful lot like yesterday's discussion here:
while Morrison might dictate the outcome if a court were confronting a
special prosecutor whose authority was identical to that of the independent counsel in all
material respects, it does not have the binding effect that the government posits. Because
the office at issue in Morrison and in this case differ in several significant respects, and
because Edmond and Morrison are concededly in "tension," it is at least a close question
whether Morrison applies at all. See I. Lewis Libby's Mot. to Dismiss (filed Feb. 23,
2006) (Dkt. 45) at 19-21 (outlining the differences between the appointment of the
Special Counsel here and the independent counsel under the Ethics in Government Act).
Second, given the sweeping scope of his powers, the appellate court might well
conclude that the Special Counsel is a principal officer - under Edmond_Morrison.'
To take one example, unlike the independent counsel, Mr. Fitzgerald is not obligated by
any statute or regulation to comply with 7ustice Department policies and regulations. We
recognize that this Court reached a different conclusion on that question. But, as with its
other conclusions regarding the scope of Mr. Fitzgerald's power, it did so by applying
principles of agency law. The appellate court might well decide that the application of
agency law is misplaced since it assumes the answer to the question presented: whether

' Contrary to the government's assertion, Resp. at 8-9, it has consistently been the
defense's position that the Special Counsel is a principal officer even under the Morrison
analysis. See Mot. to Dismiss at 18-22.

3

the Special Counsel is an agent of a principal within the Department or a principal
himself.
In considering this question, the court of appeals might instead rely on the
language in Mr. Comey's February 6, 2004 letter, language that actually defines the
scope of the appointment and expressly relieves Mr. Fitzgerald of any obligation to
comply with 28 G.F.R. é 600 et seq. Those regulations require all other Special Counsel
to comply with Department policies and regulations. By virtue of Mr. Comey's letter,
Mr. Fitzgerald would appear to be exempt. The appellate court could, moreover, easily
find irrelevant the fact that Mr. Fitzgerald is obligated to comply with Department
policies in his role as a U.S. Attorney since, in his role as special counsel, he is relieved
of numerous other requirements otherwise binding on a U.S. Attorney.
The appellate court might also find significant the fact that Mr. Fitzgerald
assumed (and perhaps was ceded) significant powers under CIPA - an issue that did not
arise at all in Morrison. Section 14 of CIPA expressly requires that "[t]he functions and
duties of the Attorney General under this Act may be exercised by the Deputy Attorney
General, the Associate Attorney General, or by an Assistant Attorney General designated
by the Attorney General for such purpose and may Not be delegated to any other o_cial."
(Emphasis added.) That provision reflects Congress's clear concern that, given the
extraordinary interests at play in a CIPA case, certain crucial steps must be taken by the
Attorney General himself or other specifically enumerated members of the Department.
For example, CIPA clearly provides that it is the _ttorNey General who must sign and
submit to the court the é 6(c) "affidavit certifying that disclosure of classified information
would cause identifiable damage to the national security of the United States and

4

explaining the basis for the classification of such information." Yet, here, it was Mr.
Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory
scheme. This fact alone is compelling evidence that the Special Counsel, with all of his
sweeping powers, qualifies as a principal officer under the Appointments Clause.
The government insists that it need not demonstrate "day-to-day supervision" to
establish inferior officer status under Edmond. See Resp. at 15 n. 13. That may be true.
But Edmond clearly requires "direction and supervision" by a principal officer "at some
level." As the foregoing examples show, here there is no supervision at all.
Third, contrary to the government's suggestion, Mr. Fitzgerald's theoretical
removability is not necessarily dispositive on the inferior-officer question. See Resp. at
13, 14 n. l l. While removability may be a "powerful tool for control," the court of
appeals could easily conclude that that power has no practical, and therefore no legal,
significance, where it is not coupled with some degree of supervision or direction. Here,
there is no oversight or monitoring mechanism in place and, unlike other special counsel,
Mr. Fitzgerald has no obligation to report significant developments to the Department.
What's more, in a case necessitating numerous in camera and ex parte proceedings under
CIPA, Mr. Fitzgerald's conduct cannot be effectively monitored from afar. We are aware
of no case where supervision was so wholly lacking, yet the power to remove was held
sufficient to render an officer inferior. Whether the appellate court will reach that
conclusion here is, in our view, quite doubtful. It is, at the least, a close question.
Finally, the government contends - for the first time in this filing - that even if
the Special Counsel's appointment were unconstitutional, reversal would not be required
because Mr. Libby "was not prejudiced and . . . any error was harmless." Resp. at 15 n.

5

12. The government has never before made this argument, and for good reason. Where,
as here, a federal official exercises authority in violation of federal law, his actions must
be invalidated regardless of whether specific prejudice is shown. See rouNg v. United
States e_ rel. VuittoN et Fils S._., 481 U.S. 787, 809-14 (1987) (plurality) (contempt
convictions must be reversed, regardless of any showing of harm, where district court
erroneously appoints counsel for an interested party to prosecute alleged violations of a
court order)i id. at 815-25 (Scalia, 7., concurring in the judgment) (concluding that
appointment of counsel to prosecute contempt charges exceeded district court's power
under Article III and that convictions therefore must be reversed)i NguyeN v. United
States, 539 u.s. 69, 79 (2003) _udgment of court of appeals constituted in violation of
federal law must be invalidated without assessment of prejudice)i cf. United States v.
Providence 7ourNa1 (To., 485 u.s. 693 (1988) (dismissing case for want of jurisdiction
because special prosecutor lacked the statutory authority to represent the United States in
a petition for certiorari). Indeed, the D.G. Circuit has already indicated that a violation of
the Appointments Clause qualifies as structural error and therefore cannot be subjected to
harmless error review. See Landry v. Fed. Depositions. (Torp., 204 F.3d l 125, l 130-32
(D.G. Cir. 2000).
Nor can it be said that Mr. Fitzgerald's unsupervised and undirected exercise of
principal-officer power has not made a difference in this case. As Special Counsel, he
has made numerous crucial decisions - implicating national security, First Amendment
interests, and the appropriate use of prosecutorial resources - that are typically subject
to oversight and approval by a principal officer properly appointed by the President with
the advice and consent of the Senate. Here, by the express terms of Mr. Fitzgerald's

6

appointment, no such oversight or review occurred. If, as Mr. Libby contends, the
appointment of Mr. Fitzgerald and his exercise of the authority conferred upon him was
unconstitutional, the remedy is dismissal of the indictment.

Jane

Dr. Robbins of headache fame.

I am just getting further and further out of the loop!

For some reason I don't have a lot of hope in the bad appointment appeal, but the Andrea Mitchell thing fills me with outrage. Since I've got a tin ear these days, the appointment issue will undoubtedly carry the day.

maryrose

Andrea Mitchell recently called "republicans"torturers" and was caught on tape saying it.

Other Tom

Jane--I strongly favor the appointment issue; among other things, if the defense is right that's the end of it all, whereas the Mitchell thing might not rise to the level of reversible error. But my ear is at least as tinny as yours, so where does that leave us?

clarice

Yes, and it was based on her take on the Republican candidate's debate which should give you a clue as to how much of her views of the facts are based on reality and how much on partisanship.

For her role in this case alone, she should be shunned in civil company.

anduril

Well, I can't figure how to select text with this pdf, but at any rate on page 6 they address the question of harmless error. They cite authority that under the appointments clause there is no such thing as harmless error, so Libby needn't show harm as I was speculating. Good.

clarice

OT: Here's my take on it. If the Ct reverses on the one off appointments issue, that's it. On the memory thing, it is very difficult. Courts hate to expand the amount of expert testimony on the simple, not unwarranted assumption that it lessens the role of the jury as finder of fact, and on the practical sense that everyone charges with perjury will bring in a memory expert.
If it reverses on the NBC fandango , there will have to be a new trial.
If it reverses on the CIPA issue, there will have to be a new trial.

While the other arguments are, IMO good ones, I prefer the appointments issue as a clean resolution of the matter.(Of course, it is consistent with my own view of the constitution, the facts here, and the overreaching of all these outside counsel plays.)

anduril

The arguments re Andrea Mitchell seem very strong to me. And let me rephrase my last post:

When the question of the appointments clause arises, the defendant need not show harm--as clarice notes, the indictment is simply thrown out: there is no such thing as "harmless error" in that case.

That's important, IMO, because the government argument seemed to lean on that a bit.

Jane

OT,

Don't get me wrong, I love the appointment issue altho it leaves room for the moonbats to say that Libby was guilty, we just got him off on a technicality - not that I care what chirp is coming from that quarter. The other stuff is much easier to understand, and puts the "blame" on Walton, which I like.

Now what I'd really like is for the defense to establish a Schumer-Fitzgerald-Wilson conspiracy to bring down the WH and overthrow the government, thus revealing the left's traitorious nature as well as their incompetance (because they only got Libby) - but I won't hold my breath.

What I worry about most is the Appeals Court deferring to Walton and taking Libby away from his children to the unmitigated glee of every troll on the planet - who will then show up here to gloat.

cathyf

If the appeals court rules Fitzgerald's appointment unconstitutional, is Miller entitled to any recourse?

Tom Maguire

As it slowly sinks in - the apparent fact that Fitzgerald undertook some CIPA functions reserved by statute to other officers does seem like a gaffe by him.

clarice

Give an ass enough rope, TM.........
Cathy, that's an interesting question ( a sneaky way to say I've no idea and it would take a lot of research to determine , though I do not recall she ever challenged the appointment which may have some impact on her right afterwards to claim false imprisonment. After all the facts respecting the appointment were all in the open when he prosecuted her.)

boris

who will then show up here to gloat

And be used for target practice by angry Mongols.

Jane

If Fitz has exceeded his authority Miller ought to sue him personally, alleging that he knew as much. She could tie him up for at least half the time he's been screwing with everyone else.

BobS

Breaking News:

Ed Gillespie replacing Bartlette as WH counsel

BobS

sorry....Dan Bartlett

hit and run

Jane:
If Fitz has exceeded his authority Miller ought to sue him personally, alleging that he knew as much. She could tie him up for at least half the time he's been screwing with everyone else


I'm thinking one or more of the 12 Amigos might as well represent Miller pro bono for such a case...

Jane

I'm thinking one or more of the 12 Amigos might as well represent Miller pro bono for such a case...

Hell I bet Clarice and Cathy would do it and OT, and I could be their helpers.

hit and run

TM:
As it slowly sinks in - the apparent fact that Fitzgerald undertook some CIPA functions reserved by statute to other officers does seem like a gaffe by him.


You know, for someone who was reading through the filing primarily to look for typos to make a joke, that seemed to stand out to me.

But that just meant that it probably wasn't all that big a deal since I have no idea what any of this stuff really means in a legal sense.


PS...

TYPO FOUND: By the way, there IS an extraneous period on page 8 beginning the 1st full paragraph!


SlimGuy

Jane

I've been looking at this as more a major BDS inspired dirty trick level attack.

The left had to vote for the AUMF due to political pressure (and their own past intel) and gritted their teeth to do so.

Powell and Grossman were already in the dog house over the failure of Turkey to allow passage of our troops and Grossman was an old buds to Joe Wilson.

It all looks like a setup developed as a pure plan to discredit the war they had just voted for and create whatever damage they could, or at a minimum tie up a lot of resources by the White House.

Schumer managed the Comey/Fritz part of the game play, Fenton Communications along with their client the VIPS and players in the CIA just shuffled it along.

Once it got down to Libby only, MSM players in the trial were already torqued over Miller being put into the crossbar hotel and such and looking as this as a threat to their goals in life.  Also some outsiders could have laid pressure on them to manage their recall or suffer a total cutoff of sources which gave them food for thought.

Fritz missed a lot of holes he could have looked at closer if he was in search of truth and justice, that many here have pointed out he ignored.

Just a theory, but it sure has less issues to make it fit as compared to Rosie's fire melting steel issues. 

 

 

anduril

Could someone please spell out for me what TM was referring to:

As it slowly sinks in - the apparent fact that Fitzgerald undertook some CIPA functions reserved by statute to other officers does seem like a gaffe by him.

Sorry if I'm a little slow here, but this really interests me. With page references, please?

RichatUF

Slim Guy...

The left had to vote for the AUMF due to political pressure (and their own past intel) and gritted their teeth to do so.

One problem with it is that Joe's trip was in Feb02 and the AUMF was Oct 02. I find it hard to believe that the CIA had everything planned out that far in advance. If preventing the war was the goal they did a piss poor job. If they were stalling-Mission Accomplished.

Rocco's onto something let him dig it out.

RichatUF

SlimGuy

RichatUF

Joe's trip was made then but I think the left was working all sorts of what if games after the last two elections.

Personally I think the whole Foley affair was just another variation on the theme.

Joe's trip may not have been plotted, but if any of the players knew about it or Joe put the word out through a few connections, a prior trip by him could have just been a bolt on addition of choice to make a working plan.

clarice

anduril:

The appellate court might also find significant the fact that Mr. Fitzgerald assumed (and perhaps was ceded) significant powers under CIPA - an issue that did not
arise at all in Morrison. Section 14 of CIPA expressly requires that "[t]he functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may Not be delegated to any other o_cial."

(Emphasis added.) That provision reflects Congress's clear concern that, given the extraordinary interests at play in a CIPA case, certain crucial steps must be taken by the
Attorney General himself or other specifically enumerated members of the Department.

For example, CIPA clearly provides that it is the _ttorNey General who must sign and submit to the court the é 6(c) "affidavit certifying that disclosure of classified information
would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." Yet, here, it was Mr.
Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory scheme. This fact alone is compelling evidence that the Special Counsel, with all of his
sweeping powers, qualifies as a principal officer under the Appointments Clause.


Other Tom

Clarice, we're in agreement on the beauty of a reversal on the appointments issue. And Jane, I couldn't care less what the moonbats would have to say about it--the more it enrages them, the better.

What I am less sure of is whether, should the Court of Appeal agree with the defense on either NBC or CIPA, they would necessarily reverse.

I also think Maguire is correct that Fitz's usurping of CIPA functions is a real nugget buried within the appointments issue--there's a real bright line there, drawn by a statute, and Fitz crossed it.

Tom Maguire

I put in an UPDATE on the CIPA issue - maybe it is just me, but it is pretty easy to spin that up. For example, where was the vaunted supervision while Fitzgerald signed the CIPA warrants? Surely the newspapers covered that, yes? I mean, we all knew that the CIPA hearings were happening - what did Fitzgerald's supervisors think was happening, and who did they think was signing off on that CIPA stuff, and why were they OK with that?

From CIPA:

Sec. 14. Functions of Attorney General

The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.

I'm only reading it, but it seems pretty clear. And it seems to cut directly to some combination of failure to exercise practical supervision and/or a belief that Fitzgerald's delegated power was ginormous.

Re Judy Miller - IIRC, we sort of mocked her (OK, Floyd Abrams) failure to challenge the constitutionality of the Fitzgerald appointment back when Libby finally did. I don't think anyone had really floated that idea prior to the Libby team.

clarice

You think if they agree on the NBC and CIPA arguments they'd find it harmless error? I don't think so, but God knows I've been proven wrong so many times.

The CIPA functions bit is a beauty. Whoever dug it up deserves kudos.

I never understood why the DoJ did not file a brief on the Motion to Dismiss on the appointments clause and the Miller case or why , when they didn't, the Courts failed to invite their participation--it seemed to me, again, that Fitz was making policies for the Dept which exceeded this case alone.

SlimGuy

OT

There would be some screaming on the left, but not any where near the magnitude as it would be if we were talking Rove instead of Libby.

They have got their mileage out of this and their attention has wandered on to Gonzo and Reid playing his cut and run cards.

Even Waxman's Plame hearing was toned down compared to the trial itself.

mefolkes

Slightly off topic, but NRO is taking several minutes for each page to load. I hope anduril's link didn't bury them in traffic.

clarice

Frankly, I don't give a crap what the left will do. Short of hanging Libby in front of the Capitol alongside Cheney and Rove they will bitch. I think if the Ct(s) refuse to grant bond and the President grants respite, a presidential announcement similar to the one Beldar offered up the other day will persuade most reasonable people that (a) the President is continuing to let the law run its course w/o WH interference while(b) offering Libby no more than other similarly convicted persons regularly get--esp since 12 prominent professors of constitutional law across a broad spectrum of politics agree that he meets the test for bond.

SlimGuy

For the left , if Libby does the time behind bars all they can do is clap and say hey and they don't have anything to complain about.

Trial gets thrown out or a do over and they pitch a fit.

Pardon (or variation thereof) and they call foul.

hit and run

TM:
I put in an UPDATE on the CIPA issue - maybe it is just me, but it is pretty easy to spin that up. For example, where was the vaunted supervision while Fitzgerald signed the CIPA warrants?


So, court ends up ruling Fitz appointment unconstitutional -- and Dems, seeing Libby go free, Fitz off his throne and unable to cast any more clouds over the OVP, say AHA!

Schumer: Out of control prosecutor who could have been but wasn't supervised!!! Another reason Gonzales MUST GO!!!!

cboldt

Who signs the CIPA 6(c)(2) affidavit question was beat-up a bith in this old thread: http://justoneminute.typepad.com/main/2006/12/a_day_in_the_li.html

Charlie (Colorado)

For her role in this case alone, she should be shunned in civil company.

Other than you, where would one find civil company in DC?

Pal2Pal (Sara)

Let the left/Dems scream all they want. They are in a far more weakened state than they were just after the election and during the Libby trial. The public is catching on that they were lied to and that Dems in power means more corruption not less and more dirty tricks not less. Reid admitted today/yesterday? that they overreached and set the expectation bar too high, making unrealistic promises. The word backlash comes to mind. And I don't think it has been lost that although our media has declared Bush a pariah on the world stage, that contrary to that assessment, he was greeted like a rock star on his recent trip to Europe.

I found the Defense response very complicated to understand for the nonlawyer. I am anxious to see the breakdown by those who understand the citations and the relations between the various issues.

Jane

Oh dear, I mustn't be tarred with some sort of belief that I actually care what any moonbat thinks - because I really really really really don't.

clarice

cboldt is right--that earlier discussion was very well done. Here's his cite to the Oliver North case discussion on the role of the AG in CIPA classifications. http://www.usdoj.gov/osg/briefs/1988/sg880220.txt

hit and run

Thanks for the link cboldt! Interesting.

In that thread, you provided this:
Application to SCOTUS for a Stay Pending Appeal - US v. North

From which Clarice quoted:

a. The responsibility under CIPA for protecting classified information, and for deciding whether it may be disclosed, clearly belongs to the Attorney General, as the agent of the President. Neither the Independent Counsel nor the district court nor the court of appeals has ever suggested to the contrary. In fact, all persons involved in this proceeding have taken it as a given that it is the Attorney General, and not the Independent Counsel, who makes the disclosure decisions under CIPA."

And the thread is chock full of good stuff...start at that "provided" link and keep on reading....

clarice

TONS of good stuff.like this from the AG's brief:
". The independent counsel statute does not override this clear
commitment of CIPA authority to the Attorney General. Nothing in the
independent counsel statute expressly addresses CIPA. Nor, although
CIPA was enacted in 1980, does CIPA address the independent counsel
statute, which was first enacted in 1978 (and was reenacted in
modified form in 1982 and 1987). As far as we have been able to
determine, moreover, nothing in the legislative committee reports
accompanying CIPA or the independent counsel statutes reflects any
express congressional judgment about how the statutes are to relate to
one another.

Given Congress's clear, constitutionally based commitment of CIPA
authority to the Attorney General as an agent of the President, it
would be extraordinary if the independent counsel statute had to be
read to strip any of that authority from the Attorney General. The
provision relied on by the Independent Counsel and the courts below,
28 U.S.C. 594(a), need not be so read. That provision gives the
Independent Counsel the Attorney General's authority only with respect
to "all investigative and prosecutorial functions and powers" within
the Independent Counsel's "prosecutorial jurisdiction." But the
Attorney General's authority to control access to classified
information under CIPA -- here, the authority to ensure that there is
a full opportunity to make careful decisions about the disclosure of
classified information -- is not properly regarded as an
"investigative" or "prosecutorial" power. This power to protect
sensitive national security information is rooted in the President's
constitutional responsibility for foreign relations and exists wholly
apart from the pendency of any criminal investigation or prosecution.

In fact, even the Independent Counsel does not construe Section
594( a) to make him the "Attorney General" for CIPA purposes. The
Independent Counsel has acknowledged throughout these proceedings that
the authority of the Attorney General under CIPA remains with the
Attorney General. The court of appeals likewise refused to adopt a
reading of Section 594(a) that would transfer the Attorney General's
CIPA authority to the Independent Counsel. See App. C, infra (noting
view that Attorney General may file Section 6(c) and (e) affidavits
and reserving possibility that Attorney General may appeal if
affidavits disregarded). But if the Attorney General's CIPA authority
in the district court is not transferred to the Independent Counsel by
Section 594(a), neither are the Attorney General's appeal rights under
CIPA. One is no more investigative or prosecutorial than the other.
/8/"

cathyf
After all the facts respecting the appointment were all in the open when he prosecuted her.
Not true. If Walton is correct and a key point of fact is whether Fitzgerald was constrained to the leak investigation, process crimes, and Ashcroft's recusal, well I could very well see a situation where it's a matter of enumerating all of the ways that Fitzgerald was off the reservation, and then looking at whether it's a short list or a long list, and looking at all of the items and seeing if any are WAY off or if they are all just a little off. That determination can't be made without all of the facts, and there were lots of facts not public at that point.

If that's what it comes down to from a legal point of view, then, no, it was NOT obvious that Fitzgerald took his appointment letter literally rather than taking his appointment as the intersection of what the letter says and what the constitution allows.

I think that subpeona'ing Miller had nothing whatsoever to do with Plame. I think that Fitzgerald used Plame as a pretext, and the subpeona was to check out Libby's story of disclosing to Miller the declassified-especially-for-her NIE. If that's true, he was WAY off of the reservation. There was no reason for Ashcroft to recuse on the NIE declassified for Miller, delivered by Libby investigation at all; there are huge reasons for Fitzgerald to recuse (Rich pardon and Islamic Charities leak.)

And, to the extent of the knowledge available to her and her attorneys at the time, they DID protest the subpeona. And they protested on the grounds that Plame couldn't be protected under the IIPA and so it wasn't a legitimate leak inquiry. They did NOT know that Fitzgerald had identified the source for Novak's column, or that Fitzgerald was improperly investigating the NIE declassification. So obviously they couldn't object on those grounds.

cboldt

-- [Reporter Miller's counsel] protested on the grounds that Plame couldn't be protected under the IIPA and so it wasn't a legitimate leak inquiry --

32 (or 36, I forget) purveyors of so-called "news" mounted that argument in an effort to obtain en banc review of an adverse appellate decision. I don't recall Miller's counsel making that argument directly.

clarice

That's a very good point cathy. I noted that re the govt's brief when we wondered why Libby hadn't sought an interlocutory appeal and observed that the trial made clearer Fitz' overreach. I should have extended the same argument to Miller. Thank you for noting that.

cboldt, that was the media position. I believe Toensing was counsel for the media.

clarice

For any scholars popping in, Senators Dole and Mitchell made some very specific suggestions re special prosecutors--a quick skim indicates most of the main suggestions were either not later incorporated in the regs or followed here.


http://www.brook.edu/gs/ic/report/rptfull.htm

fschmieg

Although I agree with all of the outstanding legal arguments presented here, I, unfortunately, believe they are all for naught. Judge Walton has given ample evidence that he has already made up his mind. I wonder if he will even read what the defense has submitted. He is lock, stock, and barrel in Fitzgerald's pocket. Only an appeals court can help here. Or the President if so inclined. Too bad the defense tried to throw Rove under the bus in their opening during the trial. That can't help Libby now.

clarice

Well, Oliver North's motion for stay pending appeal was denied by BOTH the District Ct and the Ct of Appeals and he had to go to the SCOTUS where as far as I can tell he got it (Can't find the ruling but I've no recollection of his serving time. Do you?)

Other Tom

"Other than you, where would one find civil company in DC?"

You want a friend in Washington, get a dog.
--Harry S Truman

SlimGuy

I tend to agree Walton won't be moved based on his track record in all the proceedings leading up to this point.

Hopefully the higher levels of our judicial system will offer their purpose of correction and adjustment and compliance with the law.

I also agree with others that GWB will give the system the maximum opportunity to clean it's own house and use the least amount of corrective action to defuse the situation as best as he can without being heavy handed.

SlimGuy

You want a friend in Washington, get a dog.
--Harry S Truman

Posted by: Other Tom | June 13, 2007 at 03:41 PM

Or get a Chinese dog that gives birth to cats in the litter so you show no favoritism.

Pal2Pal (Sara)

Wiki on Oliver North:

North was tried in 1988 in relation to his activities while at the National Security Council. He was indicted on sixteen felony counts and on May 4, 1989, he was initially convicted of three: accepting an illegal gratuity, aiding and abetting in the obstruction of a congressional inquiry, and destruction of documents (by his secretary, Fawn Hall, on his instructions). He was sentenced by U.S. District Judge Gerhard A. Gesell on July 5, 1989, to a three-year suspended prison term, two years probation, $150,000 in fines, and 1,200 hours community service. However, on July 20, 1990, with the help of the ACLU (see [1]), North's convictions were vacated, after the appeals court found that witnesses in his trial might have been impermissibly affected by his immunized congressional testimony.[3]

The Supreme Court declined to review the case, and Judge Gesell dismissed all charges against North on September 16, 1991, after hearings on the immunity issue, on the motion of the independent counsel. Essentially, North's convictions were overturned because he had been granted limited immunity for his Congressional testimony, and this testimony was deemed to have influenced witnesses at his trial.

cathyf
Too bad the defense tried to throw Rove under the bus in their opening during the trial. That can't help Libby now.
Hmmm... Maybe... Let me throw this theory out there for comment:

Fitzgerald's appointment has its foundation in Ashcroft's recusal. Ashcroft's recusal was about Rove, Rove, Rove, and only Rove -- Ashcroft had no more reason to recuse than any other DoJ official if Rove was not a target. Given Fitzgerald's conflict of interest with respect to both Libby (Rich pardon) and Miller (Islamic Charities leak), what should have happened is that as soon as the case zeroed in on Libby and Miller, Fitzgerald should have recused himself and tossed it back to the Ashcroft, who should have vacated his recusal at that point.

Fitzgerald spent three years pretending that this was an investigation of the "leak" of Plame's CIA affiliation, that her CIA affiliation was classified, and that Rove was a target in this matter, in order to keep himself as head of the investigation. The legal term for lying about something to materially affect the outcome of a legal proceeding is "obstruction of justice". Because of Fitzgerald's obstruction and conspiracy to obstruct, Libby came to believe (falsely) that he was going to be held responsible for something that Rove did. Since Fitzgerald's obstruction was not evident until well into the trial, Libby's lawyers brought this up during their opening statement, and it materially harmed their defense. Fitzgerald's perjury (in all of the legal filings of the case) and obstruction deprived Libby of his constitutional rights to mount a proper defense, so was far from a harmless offense.

Pal2Pal (Sara)

BREAKING - Guatemala struck by 6.8 magnitude earthquake off Pacific Coast.

SlimGuy

cathyf

Even though he may have not known it going in to the process, at some point he had to face the issue that Libby and Miller became prime issues in the case he was working on.

Even if he came in as pure as snow to do the deed as the case needed, once he became aware that two of the prime participants had certain issues with him, ethically should he not have also recused himself or as I stated a couple of threads back made it clear in the judicial record of the case.

At this point all know the history between them, but as far as the case itself goes, it is silent on the issue.

clarice

So, Cathy, you think all that business about the gal in the Time offices and Rove's lawyer and the repeated calling of Rove was just a sham?
I am no fan of Fitz' but I expect he could make a decent case that he wasn't certain until after he indicted Libby that there was no case against Rove.
OTOH maybe he did know all that earlier--for example, if Rove said he had no recollection of telling Cooper but he may have because whatever he knew wasn't classified information and he felt no obligation to be discrete about it if asked..Whatever..it may explain Fitz' continued fight to keep the redacted portions of the Miller case redacted.

cathyf

I don't know if it was really a sham or not. I just know that Fitzgerald had a motive for perjury and obstruction with respect to the question of how long the case against Rove was really in play. A motive far more plausible than anything Fitzgerald or anyone else has come up with as far as Libby's supposed motives to tell his "lies".

clarice

Certainly his biggest sham was pretending this was ever about the leak of Plame's identity and in this he was aided by the perfidious Armitage. And Novak's fear that he'd be charged if he told the truth. That allowed him to get Miller jailed, to build up anmus in the media, public and jury pool against Libby and to grievously wound the Administration.

cathyf

I'm not sure to what extent Team Libby would want to pursue this line of speculation. It would be more about constructing a perjury and obstruction case against Fitzgerald, and is kind of a sideline for Libby's interests. If Fitzgerald was committing crimes that were allowed by his lack of supervision, and the crimes had the effect of preserving his position on the case and preserving it without supervision, well, it certainly adds more evidence to the claim that he wasn't supervised!

Pal2Pal (Sara)

Through the years, I've learned to trust my internal b.s. meter, my gut reactions. When I saw Fitzgerald's presser, my visceral reaction to Fitz the Man was so intense, I started looking around the Blogosphere to see if I was alone in my feelings that this man was a snake and could not be trusted. I had visited JOM a few times before that, but not on posts related to this issue. I was not a regular reader and had never posted a comment. Then, thru a link, I came here again and found a core group of posters who had been following the investigation closely and seemed to have about the same impression of Fitz that I had experienced, although theirs was more legal than visceral. The rest is history.

There is just something about Fitzgerald that isn't quite right. Isn't kosher, if you know what I mean. He is too cute by half on what he says, the points he makes and even on how, IMHO, he twists the law to suit his preconceived notions. Nothing that has happened since the presser has changed my mind. I do not believe he is a good person. I think he is vindicative and petty and these are not good traits in anyone and especially not in a prosecutor.

Ordinarily I don't have much sympathy for reporters who withhold information to the detriment of a defendant, but in Judy Miller's case, I think what Fitz did was just plain crap. I makes me despise him even more. I would dearly love to see this arrogant SOB brought down. I wish cathyf's analysis would prevail and I could wake up and find out that Fitz has been indicted for obstruction and other crimes.

BobS

clarice/cathyf:

Thanks for your insights here.

From the trial transcript, I've been troubled by Fitz' closing argument to the jury. Can anything here be used as part of Libby's appeal.

It seems to me he intentionally went back to Plame's alledged outing and inserted Rove and Cheney into his argument to inflame a dem jury and distract from what Libby was actually on trail for.
And they were certainly quite a departure from what he said publically when the indictment was announced.

I was furious when I first heard it, but it confirmed my suspicions of Fitz questionable intentions.

cathyf

Another angle... If there is something remotely close to probably cause that Fitzgerald is guilty of perjury and obstruction, and is using his position as the prosecutor on this case to even attempt to cover up those crimes, then Libby has the right to demand that he be removed, immediately.

Stew on that for awhile... Fitzgerald couldn't come up with a single federal employee other than himself to write any brief supporting his position on the appointments clause -- Comey had been gone from DoJ for 18 months at that point. If Fitzgerald is drummed off the case in disgrace, what happens?

SlimGuy

Not being a lawyer, I have not read the source docs on this since I don't have a good way to evaluate them.

But have the after trial issues for appeal in any way addressed the wrongful assertions made by Fritz related to the Russert issue in higher courts?

I mean even during the trial Judge Walton slammed Russert about his contrary affidavit and the jury still did not discredit him or bring a bit of question about his careful word usage concerning Ms Phlame.

Tom Maguire

I put in another update to reflect some of the CIPA discussion from last December. Jimniny, how did that lie dormant lo these many months and then pop back up? Seems like a point the defense should have been pounding, and me too.

cathyf
From the trial transcript, I've been troubled by Fitz' closing argument to the jury. Can anything here be used as part of Libby's appeal.
Well, here's how it works: if the appointment is unconstitutional, then the indictment is dismissed. If the closing argument causes the conviction to be overturned on appeal, then Libby gets a new trial. So that means that if the appointment is unconstitutional, then the closing argument mischief is a moot point.

The appeals court work in a logical order. They will start with the issue(s) that have the potential to make other issues moot. So they start with the appointments clause question, and only if they avoid dismissing the indictment will they trouble themselves with Fitzgerald's misconduct in the closing.

It's a basic principal of law that courts only rule on points which can affect the outcome of a still-live legal proceeding. Now what I'm not sure of is if the appeals court rules that there is going to be a new trial, whether they will take up every single instance of Fitzgerald misconduct and give a ruling on each one. This is more than the bare minimum of "here's one reversible error, retrial, we won't worry about any other reversible errors because that was mooted when the conviction was reversed." But it would fit with the philosophy that if they neglect to admonish Fitzgerald for any of the misconduct, and he repeats it at the new trial, then they will be faced with a new appeal that they could have headed off by a more complete opinion the first time. On the one hand, the appeals court does not want to waste their time on moot points, but they want even less to waste an entire trial and appeal if they could have headed it off.

clarice

TM, How did we miss it? Well, I went back and read it and it was as if for the very first time. And that's not the first time I've had the feeeling, even about stuff I recently wrote.

cathyf, I don't see without more that Fitz willever face prosecution, though a bar complaint might someday be in the offing or removal from his position or both.

OTOH I can't seriously imagine if the Ct of Appeals orders a new tria; even the gormless Gonzales will allow him to continue.He will revoke the delegation, have officials inside the Dept review the matter and undoubtedly decide to bring down the curtain .

MJW

First, way to go cboldt for your early mention of the CIPA issue.

Second, this to me seems like it might be a separate appeals issue, rather than just part of the appointment challenge. Since the CIPA hearings were closed, we don't know if it was brought up previously by the defense. If it wasn't, is mentioning it in a post-verdict pleading to the trial court enough to preserve it for appeal, or does it have to be presented prior to or during the trial?

BobS

So cathyF...ty, btw.....I take it that you feel that Fitz closing can be found as misconduct?

Also, if its found...as you indicated in an earlier post, that Fitz should have recused himself when the investigation came to Libby...is this grounds for new trail or reversal?

hit and run

Clarice:
I don't see without more that Fitz willever face prosecution, though a bar complaint might someday be in the offing


"Dammit! I'm out of beer again! Keep up, bartender, I drink these things pretty fast, you know. It's not like my desire to drink a lot of beer is classified information, if you know what I mean. There is a cloud over this bar! Yeah, yeah, I don't wanna hear it, you used to be a super special prosecutor. Whatever, your tip wholly rests on your ability to keep this glass full."

clarice

I don't see why if you've argued at the appropriate time that the appointment was unconstitutional and preserved your right to raise it on appeal, you need raise it repeatedly everytime it is clear that is the case, mjw.

It rightly belongs in the appointment argument I think--it is compelling evidence of the extra-statutory nature of the appointment, and Libby argued originally that the appointment was outside the statutes, regs and constitution.

clarice

h & r--stand still for a minute.*THWACK*

Sue

Bwahahaha"...your tip wholly rests on your ability to keep this glass full." I had to read that the second time to realize it was a bar complaint. I'm not sure what was funnier to me. H&R's complaint or my lack of understanding it was a bar (as in liquor) complaint.

Pal2Pal (Sara)

Clarice -- "gormless Gonzales"

I love reading your posts. I come to the strangest words that, even as an avid reader, I've never seen, let alone heard, before. Most of the time, the word is one of your famous and sometimes funny typos, but just to keep us all on our toes, you come up with one of those never seen words that are actually real words. I learned a new word today.

GORMLESS: Chiefly British. Lacking intelligence and vitality; dull.

I am thinking about how I can find ways to use it three times so that it will be forever mine (or so said my 6th grade English teacher).

cathyf
I don't see without more that Fitz willever face prosecution, though a bar complaint might someday be in the offing or removal from his position or both.
Yeah, but as far as Libby goes, he just wants Fitzgerald out -- actually convincing a grand jury to bring an indictment is someone else's responsibility entirely.

Think of it this way: a guy steals a car, and uses it as a getaway car for a bank robbery, and crashes it and is killed in a high-speed chase. There is no trial -- the robber is dead -- but the car's owner uses the police report as documentation when filing the auto insurance claim.

cathyf

I see that Wayne's bud has shown up in the recent posting list. Can everyone please simply scroll on over? Responding to him is pointless, and the responses clutter up the thread.

clarice

AMEN,cathyf.

lurker9876

I thought that I read in Fitzgerald's response to Libby's original filing is that Fitzgerald claims that if there was another SP, that SP would come up with the same conclusion and presented the same argument. And the verdict would be the same.

Something like that.

I don't agree.

Rick Ballard

I second cathy's suggestion. For those in need of distraction, a review of the Executive Summary of the BCCI affair that RichatUF linked yesterday shows how these things generally work out.

Do you remember who Bert Lance was?

Beginning with Bert Lance in 1977, whose debts BCCI paid off with a $3.5 million loan, BCCI, BCCI nominees, and top officials of BCCI systematically developed friendships and relationships with important U.S political figures. While those which are publicly known include former president Jimmy Carter, Jesse Jackson, and Andrew Young, the Subcommittee has received information suggesting that BCCI's network extended to other U.S. political figures. The payments made by BCCI to Andrew Young while he was a public official were at best unusual, and by all appearances, improper.

A blast from the past in the "Jimmy Carter - Mouth for Hire" series.

Bill in AZ

waynes bud - do you mean gormless garth? sorry, couldn't resist...

MJW

clarice, to me, it seems that the CIPA filing goes beyond the appointment issue. Suppose the appeals court decides that Fitz's appointment is valid because he was essentially performing the duties he was appointed to perform as a U.S. Attorney. They they seeming have to conclude he lacked the the authority to file the CIPA petition since he is neither the Deputy Attorney General, the Associate Attorney General, nor an Assistant Attorney General, and the function can't be delegated to any other official. (Clearly, the specific statute would take precedence of the general statute Comey relied on to delegate authority to Fitz.)

clarice

If the appointment was unconstitutional..his investigation was..any new investigation would have to start anew. And no evidence adduced by an unconstitutionally appointed judge could be used, I should think.
I doubt knowing what this case really was about, the Ct of Appeals would make the same ruling on the media subpoenas, that the DoJ would make the same judgements on the CIPA classifications, that the same judge would be hearing the case.

clarice

mjw, it's such a unique issue, you may be right. OTOH if the Court finds that it was perfectly okay to delegate to Fitz all the powers of the AG, then it seems to me that would include specifically enumerated functions like the CIPA determinations.

cboldt

-- Second, this to me seems like it might be a separate appeals issue, rather than just part of the appointment challenge. --

Nothing says it has to be one or the other. But I think the defense strategy is sound. Libby is attacking the CIPA 6(c) substitutions independently, asserting that the substance of the substitutions represent reversible error.

Pal2Pal (Sara)

Obama’s top lawyer advocates pardon for Libby

At first it sounds good, until you get to the last paragraph:

“A pardon is just what Bush's opponents should want,” Bauer wrote. “A pardon brings the president into the heart of the case. It compels him to do what he has so far managed to avoid: accept in some way responsibility for the conduct of his Administration in communicating with the public about national security and in its treatment of dissent.”
clarice

***unconstitutionally appointed PROSECUTOR****

Tom Maguire

OTOH if the Court finds that it was perfectly okay to delegate to Fitz all the powers of the AG, then it seems to me that would include specifically enumerated functions like the CIPA determinations.

I don't see how the AG can delegate a power deemed by statute to be non-delegatable (non-delagacious?):

The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.

*MAYBE* the DoJ can argue that Fitzgerald became "an Assistant Attorney General designated by the Attorney General for such purpose" but what seems to be missing is missing is any paperwork making that designation. There also seems to be a "spirit of the law" issue - my guess is that the Assistant for CIPA Filings" is a special post, not a double-secret assignment, and the entire point is to ensure review of CIPA filings, as did not happen here.

Now - no mention of the CIPA issue in the Liby filing from a few days back (of course, that was an overview of their issues, but still...

And I'll bet there was no mention in the first go-around, mainly because (if that uncertain servant memory can be trusted) the appointments challenge was resolved *before* the CIPA hearings/certifications. But I have not checked the original arguments on this point.

SO, is there any reason to worry that the defense is too late with this issue? I would guess not, but still...

cboldt

Under the fact pattern of this case, Libby wants to expose more classified information to advance his case. It seems that Fitzgerald acted in the interests of the executive by limiting what was disclosed. Whatever was disclosed via substitution, the Court thought was sufficient for a fair trial.


I think the CIPA(6) signatory point is better attacked as an error of the Court, than as Fitzgerald acting at odds with executive prerogative to control the release of classified information.

anduril

WOw! Thanks, everyone for the CIPA material. I've been off attending to family duties and came back to all this great material.

I can easily understand how everyone missed this issue. I once was subjected to CIPA training--for what seemed like ages! Talk about a snoozer. I almost reflexively go for Page Down when I see that acronym.

cathyf, interesting take on Miller and the NIE part of the investigation. That looks like a pretty good example of what I called of the self-extensible nature of Fitz's delegation of jurisdiction. Is it "related" to the Plame investigation? Yes, in the sense that Libby was part of the Plame investigation and Libby talked to Miller. Some stretch, but after all, Comey told Fitz to go forth and use his powers as he saw fit. Seems pretty clear once again that this was a political witch hunt.

My brother the lurker, btw, worked for an independent counsel once. He recalls that the IC was almost paranoid about getting the Department to spell out in very exact detail precisely what his jurisdiction was--and to stay within that grant. Fitz, on the other hand, grabbed that grant with both hands and worked it to death--as Comey intended he should do.

BTW, I did retry Opera and immediately realized one of the things that irked me--same as with Konqueror. At least in my version you can't embed RSS feeds in your menus. I use Google Reader, but I like redundancy--a lot of times it's more efficient to just use the feeds that are embedded in the menus rather than go to Reader.

Re Obama and the pardon issue--no surprise. I think the Dems are wracking their brains--those who have one--to figure a way to dupe Bush into a pardon now, so they can lock in their political victory and beat it to death: culture of corruption redux.

MJW

clarice, the statue Comey relied on simply says:

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.
However, CIPA specifically says:
The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.
As you well know, a specific statue overrides a general statute, so I have little doubt the court would conclude that the CIPA functions cannot be delegated.

cboldt, my concern is that the CIPA issue might not have been preserved as a separate appeals issue, so that if Libby loses the appointment issue, he can't use the the irregularity to challenge Walton's CIPA rulings independent of his specific decisions of of what to allow as substitutions. (I stress that I don't know the rules on preserving issues for appeal.)

cboldt

By "error of the Court," I mean that the substance of the substitutions was inadequate for a meaningful defense.

anduril

TM: "I don't see how the AG can delegate a power deemed by statute to be non-delegatable"

And certainly not with Comey's one liner delegation letter--at a minimum he'd have to spell out that CIPA was part of the package, to overcome the wording of CIPA. Which of course would land them in the appointment clause bind.

clarice

I should think a motion to dismiss on the ground that the appointment was unconstitutional and extra-statutory is broad enough to cover all the activities the prosecution engaged in that covered this,TM.

The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.>

Well. cathyf and I have always believed that delegating all the functions and duties of the AG is worse..and this CIPA thing seems to me just one indicia of the overbreadth of the delegation and the overreaching of the prosecution.

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