Was Ftizgerald's Appointment Constitutional?

Let me continue the discussion of the recent amicus brief filed in the Libby case that commenced over the weekend.

We had discussion of the original defense filing here and here.

As additional background the original defense filings are at the Scooter Libby Defense Org site, subject to an amusing caveat - the Scooter people have archive links to a "ScooterLibby.ORG", which is now an adult website (but seemingly safe for work!).  The correct archive links should be to to the same URL but substituting ".COM".  Here are the original defense filing.; Ex. A-D; Ex. E; Ex. F; and Ex. G-I.

Here are Fitzgerald's response; the Libby reply; and Judge Walton's ruling.

I have not noticed the lawyers at Volokh or PrawfsBlog chiming in on the constitutional question at hand but if anyone can find helpful links to one of the many Con-Law bloggers, please drop them in the comments.

That said, Prof. Volokh did opine on Judge Walton's odd and snarky footnote in which Walton ungraciously accepted the amicus brief.  Here comes the judge:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

It was snark directed against Evil BushCo, so the left gave it huzzas, but...

(1) I daresay neither Judge Walton nor his lefty cheerleaders have any idea how much (or little) pro bono work these professors do;

(2) the notion that experts in Constitutional law should keep quiet about the once-in-a-lifetime Fitzgerald appointment (which, per the experts, has no precise precedent in American jurisprudence) unless they also opine on every buy-and-bust that goes through Walton's courtroom is silly and contrary to the entire point of the amicus concept.  If the experts are out there, a court ought to want to hear them; certainly Planned Parenthood, the Brady Campaign, and plenty of other lefty groups file amicus briefs within their area of interest.

(3) Judge Walton could have said with equal logic that because bloggers are not covering every case he hears he is not interested in seeing them cover the Libby case.  Would the left have cheered that?

Whatever.  Maybe Walton is trying to provoke a quick pardon and spare himself embarrassment on appeal; it's a theory, anyway.  I saw the best reaction reported at the WSJ Law Blog:

The WaPo asked Professor Kmiec of Pepperdine about the judge’s order. “Judge Walton is right; we should be prepared to ’step up to the plate’ to help criminal defendants nationwide,” he told the Post. “Boy, am I lucky to live in the same town as Paris Hilton.”

Ahh, from Paris back to reality,  As to the constitutional question of Fitzgerald's appointment, how would I know?  But I will say this - following the lapse of the Independent Counsel law in 1999 the Department of Justice reflected and came up with some hefty guidelines for appointing a special counsel.  Presumably their objective was to steer past the various obstacles and issues identified in various court rulings on earlier independent counsels.

So, will these guidelines survive a constitutional challenge?  Who knows?  Comey, who appointed Fitzgerald after the Ashcroft recusal, did not even invoke or apply them.  Instead, he invoked four clauses of the laws empowering the Attorney General and solved the whole special counsel puzzle in a one paragraph letter.

Was it really that easy?  Hey, maybe the DoJ guidelines were the product of excessive bureaucratic caution and Comey was able to slice cleanly through the legal thicket with a few well-chosen sentences.  But I bet a reasonable court will rule that whether Comey succeeded is a close question and allow Libby his freedom pending appeal.  (Comey's process was discussed back in the day.)

So, why might Comey risk such a blunder?  Let me advance a theory so silly that I expect some lefty to embrace it - Comey, as a loyal Republican, deliberately appointed Fitzgerald as the Incredible Disappearing Special Counsel, secure in the knowledge that the appointment would placate the press but that any convictions would be tossed on appeal.  Crazy like a fox!

Slightly more seriously, maybe Comey figured that the new guidelines had been created by a bunch of Clintonoids who could not be relied upon to organize a beer bash for thirsty sailors, and that the new Administration and the new broom knew how to sweep clean.  Hey, somebody ought to ask him.

So what will an appeals court finally decide?  And what will the Roberts Court decide when they finally get this?  You tell me.  But on the related question of whether Fitzgerald was subject to adequate supervision, this response from the prosecution is still a laugh-track classic:

Furthermore, as a practical matter, much information about the investigation of the Special Counsel is in the public domain and therefore available to the Acting Attorney General in exercising the power to remove the Special Counsel.

Anyone supervising Fitzgerald just needs to check the newspapers!  Oh, golly.  Just for an example of how silly this is, how was such a well-briefed "supervisor" supposed to deal with the Russert situation?  In the tussling over Russert's grand jury subpoena both Russert and Fitzgerald concealed from the court the seemingly topical tidbit that, despite his protestations about a journalistic chill on sources, Russert had already cooperated with the FBI.

And how was Fitzgerald's "supervisor" suppose to notice these shenanigans from the press coverage?  In part becasue of Fitzgerald's complicity with his publicly filed document there was no contemporaneous press coverage of Russert's cooperation with the FBI; this only came out at trial. 

What was Fitzgerald up to, anyway?  He let Russert's attorneys file a misleading affidavit, he didn't call David Gregory or Andrea Mitchell to chat with the grand jury; Fitzgerald really went easy on NBC News.  Maybe his supervisor could ask him about that, well after the fact, and despite the limited news coverage.

Just to repeat - comments are open for thoughts and great links as the days unfold.

Comments

[clarice]

I blogged it, too.
People will say we're in love

Why did Comey do this? My guess has always been he wanted his friend Fitz to do this --and not because he wanted to protect those in the OVP with whom he was in non-stop war--and dreamed up this way around the Statute.
Worked on Walton, didn't it?

[cathyf]

Acting Attorney General in exercising the power to remove the Special Counsel

clarice found a cite where Scalia explicitly rejected the notion that "power to remove" equals "supervision" and also ridicules the idea that "can be removed by the president" equals "inferior officer". (It pointed out the all the cabinet officers are removable and unquestionably superior officers.)

I wanted to emphasize the Original Intent argument. The Appointments Clause was a reaction to unaccountable power, and the Founding Fathers were the grandsons and great-grandsons of the English civil war. They were reacting against the English Star Chamber, a court which was quite analogous to the special prosecutor -- a court set up to be outside of meaningful supervision, so that it could effectively prosecute powerful people. The members of the court will always subject to removal by the reigning monarch. In fact, the members' heads were always subject to removal from their necks by decision of the king. But to the Founders, that wasn't good enough. They wrote the Appointments clause specifically to rule out the notion that "power of removal" equals "supervision".

[clarice]

Let me elaborate. We know from drama queen Comey's own account he was fighting with the WH. We know from other accounts his dept was fighting Addington and Libby in the OVP.
We know that he knew about Armitage when he appointed Fitz.
I know that outside counsel--like Jacob Stein--would have looked at that fact and the obvious difficulties of pursuing an IIPA case and said machts nichts out of here.
I know that any friend of Fitz' and his "creative" approach to criminal law could be certain he'd not let this catnip filled mouse out of his paws.

[clarice]

cathyf, I agree entirely, but I'd go further as TM does, in ridiculing the possibility of ANY supervision under this scheme. (We all did at the time, and nothing has chancged my view of that. So even if Scalia's view is not adopted by the majority of the appellate panel, the fallback is, there was no timely,effective way for anyone to know if he warranted removal .)

[Jane]

Every time I look at this issue I wonder about timing and standing. Now it's not a big stretch to convince myself that Libby has the standing to challange this appointment, - but just to make sure, does everyone else think that is a slam dunk or could any issue attach?

The timing issue also nettles me. Should this have been challanged pre-trial - altho a nagging lost particle in my brain thinks it was, but if it wasn't, is that an argument to not reach the issue?

As an aside - I've been working on a brief all day - well just the facts portion, which I dare say is something I have rarely if ever done in my entire legal career. As a result I can't even imagine how much smarter all you guys are than I ever thought of being.

[hit and run]

Well, there's only one remedy. President Bush should recuse himself from the matter of Libby's conviction, leaving Vice President Cheney as Acting President. And Cheney should then appoint a Special President. He could then write a letter to the Special President along the line of the following:

June 11, 2007

Fred Dalton Thompson
United States Senator (retired)
McLean, VA

Dear Fred,

       &nbspBy the authority vested in the President by law, and in my capacity as Acting President pursuant to President George W. Bush's recusal, I hereby delegate to you all the authority of the President with respect to the trial and conviction of I. Lewis 'Scooter' Libby, and I direct you to exercise that authority as Special President independent of the supervision or control of any officer of the Administration.

/s/ Richard B. Cheney
Richard B. Cheney
Acting President

[clarice]

Heh, H & R.
Jane, Libby mounted a timely defense to the appointment. It is unclear whether he could have filed an interlocutory appeal from J Walton's denial of his motion to dismiss. In any event, I doubt that failure to file an appeal then is a barrier to appealing it now.

Roger Aronoff has a good article praising us all and suggesting that this case might force a closer look at what was happenin' at the agency.
http://www.aim.org/special_report/5523_0_8_0_C/

Well, that may be so--but it won't be in the appeal itself. And what he says is true only if he is taling in the broader sense of the civil case, the litigation by Plame against Libby et al and the Agency re her book.
Of course, to close observers the agency's monkey business merited close scrutiny beginning with Wilson's editorial and his testimony before the SSCI.

[SlimGuy]

Clarice

Just a poser thought here.

You would think Fritz's mandate would have least been sunsetting with the end of the Libby case after all appeals etc played out and should have been restricted to that case only.

Since it was not and is so broad a mandate, could he also parley it into further self authorized actions to enhance his game in the Conrad Black issue?

Just a what if here.

[clarice]

It is rather clear that he is AG only for this issue,SG, but I'd love to see him take on the AG role elsewhere so we can watch him hauled off to the loony bin.

[SlimGuy]

Question

If this thing goes all the way to SCOTUS does Roberts have to recuse himself due to the appointment of Walton to the FISA court?

[Jane]

Boy that is one heck of an article Clarice.

[clarice]

I thanked Aronoff for his generous comments--and when he says JOM, of course, the main credit goes to TM, but some is due to all the great commentors--You, Cathy Boris, Rick, Cecil (I know I left people out but I mean ALL of you.)

[Pal2Pal (Sara)]

OT -- Fox was just saying that Colin Powell is now working for Barack Hussein Obama.

[anduril]

But I will say this - following the lapse of the Independent Counsel law in 1999 the Department of Justice reflected and came up with some hefty guidelines for appointing a special counsel. Presumably their objective was to steer past the various obstacles and issues identified in various court rulings on earlier independent counsels.

So, will these guidelines survive a constitutional challenge? Who knows? Comey, who appointed Fitzgerald after the Ashcroft recusal, did not even invoke or apply them. Instead, he invoked four clauses of the laws empowering the Attorney General and solved the whole special counsel puzzle in a one paragraph letter.

Was it really that easy?

As I understand Comey's position, all that Congressional and Judicial wrassling with laws and regulations with respect to Independent and/or Special Counsels was utterly pointless, because the law authorizing such appointments (28 USC 510) had already been in existence for lo this last half century at least. The most cursory of research (one google hit) indicates that the verbiage about delegating the AG's functions goes back to 1950 or earlier--I'll guess earlier. Comey was the only guy smart enough to figure out that this seemingly mundane provision envisioned Fitz the Magnificent, "the functional equivalent of the AG," and thereby has made fools of those smart alecky legislators, judges, and lawyers. They thought they were faced with a legal Gordian Knot and along comes Jim Comey, ultimate straight arrow, who pulls out his sharp legal sword and cuts that knot in two, to the amazement and admiration of one and all. Will the courts of review share our awe and wonder? Stay tuned.

Gee, on second thought, I wonder whether Comey asked anyone to brief him on this? How about DoJ's own Office of Legal Counsel? Not to say that Comey isn't a legal genius, but straight arrows like him are usually also thrifty, brave and...humble. How interesting! Why wouldn't he ask OLC for an opinion, or did he? I mean, maybe just for laughs, to see if they were as clever as he?

[windansea]

Dershowitz on CNN on why he signed the brief and on Walton's snarky footnote:

It was a very serious issue raised by the lawyers. I would have filed the same brief against special prosecutors in the Clinton case. this is not a Republican-Democrat issue for me. It is the seriousness of the issue. And the judge reacted in a very childish manner by attacking the professors who had filed the briefs saying why don't we do work on be half of poor clients? I do half of my work pro bono and [probably have represented more poor people than any active lawyer in the United States today and other academics on the brief also have a long and distinguished history of of pro bono work. even Robert Bork who I disagree with about everything represents people pro bono. and [the Judge just was totally out of line] in making those [kind of] comments.

this is EW's transcript from the video clip

here

[clarice]

If he had, would Fitz have provided that when the appointment was first challenged?

I always thought it odd BTW that on this overarching (beyond this case alone) issue, the DoJ never did weigh in. Surely the appointment didn't give him the right to set Departmental policy beyond this case.

[cathyf]

Geez, H&R, I already nominated SlimGuy for best comment of the day with his "Plame was a big NOT NOC JOKE" but now you've come up with something that at least equals his brilliance.

[Other Tom]

If I correctly understand the present posture of this case, the immediate issue isn't whether or not the appointment will utltimately deemed to have been constitutional, but whether it's a close call. If it is, that's a reason not to send the defendant to the slams pending appeal.

Does anyone seriously doubt that it is a close call?

[SlimGuy]

If Fritz himself is such a legal eagle wonder kid that walks on water and makes the water he walks on, did he have any reservations as to the appointment authority granted to him and the issues it might raise?

I mean it's like hoping for a car for graduation and then realizing dad sprung for a stretch limo with a fully stocked bar with Paris Hilton and Lindsey Lohan as in flight entertainment.

[hit and run]

In other news...Clarice, sharpen your multi-tasking pencil...

WASHINGTON — What started out as a low-grade spy thriller, complete with furtive clandestine meetings over classified information in the heart of the nation's capital, has turned into a ponderous tale of legal delays and a debate over whether the government is trying to criminalize free speech.
...
The federal case, which is being handled by the U.S. District Court for the Eastern District of Virginia, was supposed to go to trial on June 4, but was postponed until the fall, the latest of several delays. Sources close to the case suggest the government has been forced to rethink its strategy after Judge T.S. Ellis ruled in April that the government could not keep much of its evidence against the defendants closed to the public. The judge was not swayed by the government's concern that classified and sensitive information would reach the public domain.

[anduril]

"And the judge reacted in a very childish manner..."

Oh yeah! Can I have a witness, Brother Dersh?

[SlimGuy]

Cathyf

I'm a widower, I know women have a right to change their minds, if not an obligation. LOL

Thanks for the nomination.

Mine was a simple one liner, H&R put together a real good bigger story.

Our cup runs over, we are truly blessed.

[hit and run]

Cathy:
Geez, H&R, I already nominated SlimGuy for best comment of the day

And he shall retain it.

How about a take off using that theme?

Novak: NOC NOC

CIA: Who's there?

Novak: Joe Wilson

CIA: "It was his wife It was his wife It was his wife !!!" --courtesy of the indefatigable Boris on the Libby Sentence thread)

[clarice]

H & R I have the AIPAC file sitting here and I keep putting off this horrible task of sorting thru them and writing about it. From inside I keep hearing the govt is not too interested in this coming to trial, and maybe with McNulty out the interest will be non existent.

Anyway, when I was practicing law, I found that whenever I broke my back to get a tough job done on time, the matter was delayed or dropped..and I learned my lesson.

[hit and run]

Slim:
Mine was a simple one liner, H&R put together a real good bigger story.

Yes, but yours is one that can effortlessly be used in endless mockery of the Wilsons.

And that alone qualifies it as superior.

[hit and run]

Clarice:
I found that whenever I broke my back to get a tough job done on time, the matter was delayed or dropped..and I learned my lesson.

I apologize for the ease with which I learned the same lesson.

I found that whenever I slacked off and failed to get a tough job done on time, the matter was delayed or dropped.

Oh yeah, I learned my lesson.

[SlimGuy]

Thanks H&R, btw I bet that case of that south of the border stuff I sent ya didn't influence that opinion in the least bit.

When people ask me if I'm free tonight , it gets the reflexive "Nope I'm not free, but I'm reasonable".

Free market capitalism at work.

[SlimGuy]

Repeating my

Question

If this thing goes all the way to SCOTUS does Roberts have to recuse himself due to the appointment of Walton to the FISA court?

[vnjagvet]

I've tried to stave off some silly criticism from commenters on Volokh and OTB with some analysis of the real legal issues, as has Beldar.

Here's the gist of it:

Now the question is whether the accused should be incarcerated pending appeal. That, in turn depends on 18 USC 3143, which provides in pertinent part:

(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial,

In the DC Circuit, a defendant who presents a "close question" of constitutional law which could result in reversal is considered to have raised a "substantial question of law" within the meaning of this statute.

[clarice]

That is exactly the test, vnjagvet and it is simple to understand unless one is simpleton as many posters are.

[windansea]

hmmm..certainly Libby poses no flight risk unless you are a nutkook who believes Libby would be immediately whisked off to the secret BushMcHaliburton Post Nuclear Ranch in Patagonia for a quick lobotomy.

[SlimGuy]

Libby a flight Risk????

Does Mark Rich have a guest house?

[Other Tom]

Slim Guy, my guess is that Roberts would not have to recuse himself.

[windansea]

A lot of people are angry at Bush and Cheney fot not intervening more in the case, weak statements of support etc but let's remember they are savvy political poker players. The last sentence in the Aronoff article reminded me how important the whole Plame Wilson affair is to this administration.

This case, rightly or wrongly, will forever be linked to the larger question of whether we were lied or misled into the war to topple Saddam Hussein and liberate Iraq. That's why it is so important that it is played out until the end, because this debate will resonate for many years to come.

So yeah, they are very interested, and keeping at arm's length and their powder dry. If appeals don't reverse the conviction I would not be surprised to see them declassify the whole shitpile and pardon Libby.

What do they have to lose at this point?

[clarice]

You're being kind, OT.

[Pal2Pal (Sara)]

THE ONLY PERSON BEING HELD AS AN ENEMY COMBATANT INSIDE THE U.S. MUST BE
RELEASED, ACCORDING TO U.S. APPEALS COURT RULING

Pamela Geller at Atlas Shrugs snarks:

Not to worry Scooter is going to jail - so it's all good. /sarc tag off

[cboldt]

I wonder who amicus is (are) in this ...

6/1/07 SUPPLEMENT "Memorandum in Support of" [1045477-1] motion unseal [1029757-1] filed by Amicus Curiae for Appellant Dow Jones Co Inc. [04-3138, 04-3139, 04-3140]

[windansea]

once you get past the first paragraph snark, this diary by mary2002 at kos is pretty interesting discussing the merits of the brief

http://www.dailykos.com/story/2007/6/11/152815/948

[SlimGuy]

OT

I see your point a bit in that Clarice the other day posed that it was just a secondary assignment to his current judgeship but I also lean more toward the unstated (if I correctly read between the lines) position by that very astute lady that there could be issues that could come to the fore.

From the quote I dug up a couple of days ago about the FISA court makeup from Wikipedia it is unfortunate that this judge was chosen to fill the vacancy because of the issue it could probably raise.

I am not saying Walton was not deserving of the appointment, even though his performance in this trial could raise questionable issues or that Roberts should have unfairly restricted him from consideration.

I am still trying to get a handle on what the FISA statute requires as to judge appointments and how large the pool is for selection to the mileage restricted appointments to the court.

I seem to note that the FISA review court, which is probably a much less invoked judicial entity, seems to have a lesser restriction due to the fact that the chances of something coming under their preview for adjudication are supposedly rare and if occurring requiring a significant bit of deliberation to sort it all out.

[Charlie (Colorado)]

Does anyone seriously doubt that it is a close call?

Walton.

[clarice]

cboldt--that is interesting..Do you have the amicus' name? It sure is taking the Ct of Appeals a long time to resolve that.

[clarice]

Fox reports the Gonzales no confidence vote does not have enough votes to go to the flooe.

[Rick Ballard]

Windansea,

How in the world would a favorable (or unfavorable) rulling by an appellate court resolve "the larger question of whether we were lied or misled into the war"?

'Niger = Africa' and 'sought = bought' will continue to resonate within the Soromind until its sole synapse fires for the last time, regardless of any appellate ruling.

[SlimGuy]

Even as a non lawyer, I as many others realize there are many specialty courts in existence , for example maritime courts and other such similar jurisdiction restricted entities.

We are limited in most cases into our grasp of how all these treaty inspired or other legally separated jurisdiction competent authority bailiwicks all tie into the bigger jurist universe.

As the years and the number of cases and decisions progress, it makes it harder for the SCOTUS to try to rule with certainty where it will not make ripples into various courts of venue in ways they did not even envision.

Perhaps it is time or nearly so to put another layer of courts between the existing courts and the SCOTUS.

We have reached the almost saturation point since issue advocacy instances are almost flooding the system to the point of overload.

The SCOTUS can only hear so many issues in a term and have to pick those which they consider most significant to the fabric of our judicial structure.

This limitation has the potential of leading to a real Hobson choice of case to grant for review.

By flooding the courts, rulings of lower courts that were not subject to review by SCOTUS can achieve the value of precedent, simply because they were by default not reviewed.

The total base of law has gotten so complex that there have emerged the well known specialty focused firms, such as tax law practitioners.

As a non lawyer, I see the need for another layer of courts to sort these issues into the controlling general groupings to act as a filter to the limited resource availability of the SCOTUS.

To me it is a weak point that needs to be addressed.

[Enlightened]

Hmmm, no confidence vote rejected by the Senate -

Dems are having a bad day. In fighting - again. Where is Mother Madame Speaker? her "children" are at it again -

"Edwards Advisor To Blogosphere: "You Can Go To Hell"
David "Mudcat" Saunders, a longtime Dem consultant who has helped Democrats in rural areas — notable victories include Mark Warner in 2001 and Jim Webb in 2006 — might be causing a bit of a headache for his current client, John Edwards. In his inaugural post on Time's Swampland blog: "So to those bloggers who believe in a straight-forward dialogue and exchange of ideas, God bless you and thank you ... At the same time, those Democratic bloggers, who have appointed themselves as intellectually superior and believe the only way to win an argument is to shot (sic) the loudest with personal attacks, you can go to Hell." Condemnations are already coming in from Duncan "Atrios" Black, Chris Bowers, and the Daily Kos community."
http://electioncentral.tpmcafe.com/blog/electioncentral/2007/jun/11/happy_hour_roundup

[cboldt]

-- Do you have the amicus' name? --

No. I said I wonder who they are.

[clarice]

Well, I read that and wondered if you were being "cute". I don't recall even reading that one had been filed in that case. Let me see if goodle has an answer.

[cboldt]

-- As a non lawyer, I see the need for another layer of courts to sort these issues into the controlling general groupings to act as a filter to the limited resource availability of the SCOTUS. --

Some issues are already specialized at the appellate level. Patent is, I know (not that the CAFC has done a splendid job), and a few other specialites that I don't know off the top of my head. No need for another layer, IMO.

[SlimGuy]

Yes, but yours is one that can effortlessly be used in endless mockery of the Wilsons.

And that alone qualifies it as superior.

Posted by: hit and run | June 11, 2007 at 03:51 PM

I bow to your judgment since you are the undisputed king of snark here.

I wandered across a single flower cropping up in the vast desert of thoughts and you do it multiple times each day like, well breathing or consuming adult beverages.

I have hit that sweet spot of the stopped clock being right a couple of times a day.

That is something fleeting at best.

H&R rocks, long live H&R.

[Semanticleo]

Just one question;

Assuming the SP is unconstitutional, what would check the power of an AG
gone off reservation? Not everyone at once, please.