Libby's Reply On Bail Pending Appeal

Here is Libby's reply on the bail question (23 page .pdf) [or copy/paste version at Cboldt].  And as noted in an earlier update, in another filing we learn that Lawrence Robbins will be appearing on Libby's behalf in court to bring his special expertise.  Oh, here we go!

Here is some AP coverage with this tidbit:

If Libby's request to remain free is denied, defense attorneys will rush to an appeals court and ask judges there to put the sentence on hold.

So Libby can try for a quick appeal on the bail decision - interesting.  Normally he would have 45-60 days to report to jail; whether a bail appeal would be heard in that time frame I don't know.

As to the political background, presumably folks who want to see Libby punished want him to go to jail ASAP.  Their concern is that if Libby is left out during lengthy appeals Bush can pardon him on Jan 20, 2009 without paying any political price.  On the other hand, if Libby is sentenced immediately, Bush cannot pardon him without risking a backlash - for example, the Senate may hold a No Confidence vote on the Attorney General, or Bush's prized immigration reform may collapse.  Hmm.

Of course, their are other beneficiaries to a quick pardon - neither Judge Walton nor Special Counsel Fitzgerald need to worry about reversals on appeal if Bush ends this case with a prompt pardon.

And the middle ground idea floated by an adviser to Bush I still strikes me as a likely scenario - Bush can commute Libby's jail sentence but preserve the $250,000 fine and the felony conviction, thereby allowing Libby to fight for vindication on appeal while remaining on the streets.  I'll guess that Bush and plenty of conservatives would prefer to see the process play out, with the hope that the courts will be on Libby's side; commuting the sentence kicks the pardon question down the road.  I am quite sure that commuting now and pardoning later is an option, but I welcome legal advice on this point.

WELCOME TO THE CLUB:  From a footnote in the reply:

David Safavian, who was convicted of obstruction and false statements, was recently held to be entitled to release pending appeal by a court in this
district. Likewise, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynn Stewart, Bernie Ebbers, 7ohn and Timothy Rigas, and Solomon Kaplan (among others) were also convicted of non-violent crimes, and were also afforded the same relief Mr. Libby seeks here.

A BRIEF RESPITE:  David Frum promotes another alternative for Bush propounded by Professor PS Ruckman:

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.

Interesting - a pardon is far from the only menu option.  I do hope that if Bush commutes, respites, or whatever, that he also move to declassify enough of Ms. Plame's background that we can reach a consensus on her covert status.  And wouldn't it be great if he could jolly along the CIA Counsel on that very question?

FROM THE FILING:

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 AttorNey 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.

Here is a link to CIPA.  Interesting point.  OK, maybe it is simply evidence of a procedural faux pas, but one does wonder - if Fitzgearld's supervision was achieved by a daily perusal of the newspapers by the seniors at DoJ, how did they miss the fact that all these CIPA hearings were underway?  Or, if they were aware of the CIPA hearing (I was!), why did they not exert a bit of supervision and handle the relevant affidavits properly?  Hmm.

EVERYTHING NEW IS OLD AGAIN:  My goodness, the JustOneMinute legal eagles swooped down on this CIPA point last December.  Here are cboldt noting Fitzgerald's inappropriate signature and a cathyf response:

Interesting language from the North ruling:

In fact, CIPA expressly states, in Section 14, that the Attorney General's decisionmaking responsibility under CIPA may be delegated only to the Deputy Attorney General or an Assistant Attorney General (all presidential appointees, removable at will) and "may not be delegated to any other official."

This comment is particularly interesting to me in contrast:

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 independent counsel was created by statute. Fitzgerald's appointment was improvised, and it's pretty clear that neither Comey nor anybody else gave any thought at all to this sort of sticky constitutional question.

and:

Why isn't this immediate grounds for an appeal of the Appointments Clause ruling? Doesn't this mean that Fitzgerald is exercising specific authority that the Attorney General has no authority to delegate?

Hmm.  Evidently it is grounds for a delayed appeal.

Comments

[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.

[anduril]

Somewhat OT:

Adult Material at The Corner (NRO)

[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/"