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.
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.
(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?
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.