Special Counsel Fitzgerald - Too Independent?

Byron York summarizes the latest legal filing from the Libby defense team - a motion to dismiss the indictment against Libby on the grounds that the authorizations constituting Special Counsel Fitzgerald's office were unconstitutionally broad.

Wow.

My questions:

(1)  What is the remedy?  Can the AG simply reconstitute Fitzgerald's office appropriately, so that Fitzgerald can re-indict Libby relatively promptly?  Or is all the evidence gathered by Fitzgerald, including Libby's grand jury testimony, now tainted and inadmissible?

If the latter, I don't think Libby will be re-testifying to a new grand jury.  Might Fitzgerald re-indict him on the basis of false statement to the FBI?

(2)  Does the defense get a second bite of the apple, or is this their only chance to file for dismissal?  With all the talk about Ms. Plame's classified status, I have been expecting a motion to dismiss on the basis of immateriality - the argument would be that Fitzgerald cannot indict for perjury absent an underlying criminal activity.

(3)  Who gets the blame if this motion is upheld - does the accusing finger point at Comey, Fitzgerald, or both?

UPDATE:  Andy McCarthy responds; Byron York comes back.

I believe I can tackle one objection raised by Mr. McCarthy, who wrote this:

Finally, as a constitutional matter, Pat’s authority came not from Jim Comey’s letter but from the President’s executive power under Article II. There was never a moment when President Bush could not have fired Pat – indeed, the President could fire him today (just as he could pardon Scooter today if he decided to). That he doesn't do so is understandable politics, but it doesn't change the legal reality.

Here is my answer to that - the filing makes clear that "principals", such as Cabinet Secretaries, must be confirmed by the Senate.

Bush can surely fire his Cabinet Secretaries.  Therefore, even if we presume that Bush can fire Fitzgerald,  that does not answer the question of whether Comey inadvertently elevated Fitzgerald to the functional equivalent of Cabinet rank, thereby creating a situation where Fitzgerald's status requires Senate approval.

MORE:  AP coverage.

UPDATE:  Carol Leonnig of the WaPo joins in with a dose of skepticism that I don't understand:

Several legal experts said yesterday that the Libby defense team was making a valiant and appropriate effort to defend its client, but said they doubted that the central argument for dismissing the charges would gain traction with the court.

"I think it's a nice try, but I don't give it much chance of success," said Scott Fredericksen, an associate independent counsel during the Reagan administration who helped investigate scandals at the Department of Housing and Urban Development.

Experts said the Libby defense claim is similar to a challenge the Supreme Court rejected by a vote of 7-1 in 1988. In that case, Morrison v. Olson , the Justice Department sought to quash subpoenas of its officials by an independent counsel. They argued that the law that allowed the appointment of independent counsels violated the president's authority under the Constitution and gave such independent investigators inappropriately broad powers.

The regulations written by the Justice Department to allow for the appointment of a special counsel such as Fitzgerald were adopted after the 1992 expiration of a separate law that authorized a judicial panel to appoint independent counsels. The agency decided the regulations were necessary because it was likely there would be times when the federal government's chief law enforcement agency faced conflicts while investigating some matters.

Though the independent counsel worked outside the executive branch, the special counsel regulations were written to work within the executive branch, legal experts said, and the attorney general has authority to deputize someone to prosecute the nation's laws.

"The regulations that created the special counsel are safe from attack," Fredericksen said.

Emphasis added, and we will say, I'm sure they are.  But, per both York and the filing, the defense is arguing that Comey, as acting AG, *did not follow* the standing regulations when he appointed Fitzgerald.  York has more on that here and here.

So are "Comey's Rules" also safe from attack, and why does Frederickson think so?

Here is an excerpt from York 1:

After the independent counsel law expired, the Clinton Justice Department came up with a set of rules governing the appointment and practices of special prosecutors for future investigations. Those rules included supervision and control of the prosecutor. But the Bush administration, for reasons that have never been made public, decided not to follow those rules and instead gave Fitzgerald unlimited powers -- a decision that some in the administration no doubt regret and one which raises real constitutional questions. Now we'll see what the judge in the CIA leak case thinks about it.

BARREL-FISHING:  I have no doubt that Andy McCarthy is a great American, but he needs to raise his game - here is another objection he raises:

I’m also constrained to observe that during the Lewinsky controversy, we looked with disdain on these hyper-technical legal maneuvers (like Clinton’s risible attempts to create new evidentiary privileges) whose unabashed purpose was to derail the prosecution. Back then, we used to say the important public interest was to resolve whether public officials had lied and obstructed justice. Now, such maneuvers somehow seem worthy, and we are apt to find the prosecutor, rather than the defendant, to be stonewalling.

Let's see - Clinton remained in office and used the powers of the Executive Branch to invoke executive privilege and to invent new privileges, such as the Secret Service secret protective privilege.  That presented an odd picture of "cooperation" with the investigation.

Libby has resigned and is currently employing every legal resource available to a *private citizen*.  Libby may or may not have obstructed the investigation while in public office, but, contra Clinton, he is clearly not inventing hyper-technical legal obstacles while in public office.

Surely there is a huge difference.

 

Comments

[clarice]

Fitz removed. Case dismissed. Anything he said to the gj cannot be used because it was empaneled by someone without authority to do so.

I think it's a lovely constitutional argument and the motion neatly weaves in DoJ regs applicable to prosecutors and ignored by Fitz--like his press conference remarks..HEH

[Sue]

Won't the original statements to the investigators, before Fitz took over, still apply?

[ordi]

clarice,

What are the chances the case dismissed? Who is the judge and who appoint that judge?

[Geek, Esq.]

Doesn't change the fact that Scooter perjured himself up one side and down the other.

The proper way to contest the validity of legal proceedings is a court filing, not perjury and then a court filing.

[narexbyrnes]

Let's see - I lied, I committed purgury. But I should not be held accountalble because I'm really busy, plus a friend of W's,which means I am above investigation by some lowly federal prosecutor. It's not a crime when the President does it, so it shouldn't be for me acting as the VP Sec of staff.

Yippee!

[clarice]

ordi the Judge is a Black Republican judge..http://64.233.179.104/search?q=cache:D-eGxMpm-PkJ:www.dcd.uscourts.gov/walton-bio.html+reggie+walton&hl=en&gl=us&ct=clnk&cd=1

He seems a decent guy--I've looked thru some of his big cases and see nothing wacky..

I thought the Motion was persuasive, but I haven't seen any response yet--The motion was just filed today.I'd like to see that,,so far I think the defense has made a good case for dismissal.

[topsecretk9]

Libby's lawyers want charges dismissed

Dumbest Headline ever

[clarice]

Sue, that is a tough question ..and I don't know. This is a most unique situation. But Fitz was the one who obtained the indictment and if his portfolio was unconstitutional, everything he did must be struck.---the entire indictment..

[clarice]

Another lovely thing about the motion is that this is a rather clear legal issue and one the Couret can resolve without an involved factual hearings.

[Sue]

Geek,

There was nothing to contest until someone was charged. Would Libby have had standing to contest anything without being charged? I don't know the answer for sure, but I would think the answer is no.

[ordi]

Geek and narexbynres,

It's just about sex! Move-on! The way the left spun MOANica-GATE it was not about perjury or obstruction of justice. It was all about sex!

Why don't you all just get over it and move on? Instead you are all trying to get revenge for Clinton's impeachment.

First I am not a lawyer, so take this as just one persons opionion.

Concerning the latest Libby filing, IMO this could be compared to NOT reading some one their Miranda Rights. Usually, the charges are dropped or the conviction over turned. End of story. But I could be wrong.

[Sue]

Clarice,

The false statements to the FBI were made before Fitzgerald was appointed, weren't they? Wouldn't they be valid, since they were under the direction of the AG at the time? They would have to be presented to a different GJ with the proper prosecutor, if the Judge rules Fitz was not proper, but it would seem the statements made while Ashcroft was still in charge would stand. The question would be whether someone wanted to take it back to a GJ.

[topsecretk9]

or is this their only chance to file for dismissal?

it's my understanding they get BITES at the apple, isn't that so clarice?

[ordi]

clarice,

Thanks for your professional opinion. I hope you are correct. Thanks for the link.

[topsecretk9]

The false statements to the FBI were made before Fitzgerald was appointed, weren't they?

Sue, I thought it was a meritage (some before and during)

[Rick Ballard]

"Doesn't change the fact that Scooter perjured himself up one side and down the other."

Lordy Geordy - does the phrase "asserted but unproven" ringle tingle the slightest bell in an otherwise vaucous cavern of a skull?

An agent of the Executive asserts an unproven fact and you run like a craven dog with a stolen bone in your jaws? What manner of Gramscian twit do you purport to be? Is proof not necessary any longer in that festering cauldron of feeling which you inhabit? Is "He is. therefore it must be true?" sufficient?

Cowardly dog serving a nameless but abhorrent master, don't enter here swathed in your puerile pleadings. Lay facts upon the counter or begone, mange ridden brute.

[Sue]

Top,

I don't think so. He hasn't gone to trial and a verdict hasn't been reached, regardless of the left's desire to convict him based on an indictment.

[clarice]

They can file additional motions for dismissal. I expect some will come after the discovery issues are resolved.

Some might even be made at the trial if one occurs.

Sue, I do not know about the validity of the statements, but the point is, if the Motion is sustained, the entire indictment will be thrown out.

[Sue]

Top,

I don't know. I thought Libby's statements to the FBI were before Fitzgerald. If not, then that is a kernuffle above my pay grade. I suspect if it is tossed, it will be lost, regardless of when they statements were made.

[narexbyrnes]

Nah, CLinton really was just about a dude getting a bj from a young stupid girl and then lying about it. (Ohh, look -lying was SERIOuS then).

Here we have lying about the effort to discredit a persistant critic of the war. Even AFTER you knew the Niger information was bogus, And only after the agent's cover was blown. All to serve a war started on a false premise and where over 2000 young soldiers have died. Oh yeah ,,,, they are equivalent.

[Sue]

Clarice,

I understand the indictment will be tossed if the motion is granted. I just wonder if they decide to start over, will all of the prior statements be tossed, even those made during the original investigation before Ashcroft recused himself.

[clarice]

Ordi, I told you I was the first person to beat the Watergate Prosecutor on Appeal..I won on a similar issue. To establish perjury you must, among other things, establish that the false statement was made before a "competent tribunal". In that case the Senate Committee had no one member quorom rule, and the transcript of the proceedings never established there was more than one Senator at the hearing throughout. Everything was tossed on appeal.

Sue, I'd be astonished if the case continues after Fitz is pitched..for one thing we have that tiny problem of materiality--there is no applicable statute.

[topsecretk9]

Sue
Fitz is the one that determines if he will use any and all statements so I think ownership regardless of time goes to him

also 7:12pm
Was that for bites of the apple? I think you thought I was asking something else (I didn't paste enough) but that was to TM's new question #2...

"(2) Does the defense get a second bite of the apple, or is this their only chance to file for dismissal? "

I think they bites, not a bite

[TM]

I think it's a lovely constitutional argument...

*IF* the case is dismissed on these grounds, Dems will freak out, and maybe they ought to. Comey can plead an excess of good intentions (he went the extra mile to make sure Fitzgerald was independent), but there seem to have been some thought-through Clinton-era regs developed to encompass prior court rulings.

So, was the fix in? Did Comey knowingly undermine the prosecution way back when?

[Sue]

Top,

I did misunderstand the question. I wasn't relating it back to Tom's original point. Sorry. Actually, that 2nd point wasn't there earlier. Something about skating was. ::grin::

[Sue is of course correct, and I apologize for the confusion; an early version of this post trailed off after question 1, while I took an Olympic skating break. TM.]

[Sue]

Tom,

I was just wondering the same thing.

[clarice]

No. I think he was a pain in the ass and left the DoJ in August 2005 to go to Lockheed. IIRC he was an opponent of the NSA program..But, hey, good idea to toss something new into the fever swamps.

[topsecretk9]

So, was the fix in? Did Comey knowingly undermine the prosecution way back when?

Love/Hate
Comey is the NSA opinionator

[clarice]

Yup, my recollection is right--per Wikpedia:

"In early January 2006, the New York Times, as part of their investigation into alleged domestic surveillance by the National Security Agency, reported that Comey, who was Acting Attorney General during the March 2004 surgical hospitalization of John Ashcroft, refused to "certify" central aspects of the NSA program at that time. The certification was required under existing White House procedures to continue the program. After Comey's refusal, the newspaper reported, Andrew H. Card Jr., White House Chief of Staff, and Alberto R. Gonzales, then White House counsel and now Attorney General, made an emergency visit to the George Washington University Hospital [1], to attempt to win approval directly from Ashcroft for the program. [2]"

Wikpedia (FWIW) confirms that Comey and Fitz were close friends..

[Cecil Turner]

*IF* the case is dismissed on these grounds, Dems will freak out, and maybe they ought to.

If Fitz had charged on an underlying crime, perhaps they'd have a legitimate beef. The perjury and obstruction counts have always been window-dressing, especially since it appears he had no actual crime to investigate.

[topsecretk9]

Oh, I didn't me, love/hate, I have no Opinion

Also, don't know if anyone read the Comey presser announcing Fitz (on Libby's site) but it is the Browback Mountain of press conferences (comey really, really likes Pat)

TM
I'm still crestfallen you Jeff got credit for my Libby knows what Judy knows speculation (wink), that rascally Jeff!

[clarice]

I love it when they go insane..and luckily that happens about once a week now.
BTW--speaking on insane--Morris says Gore's in the running again.LOL

[Sue]

Wouldn't you like to be a fly on the wall in Fitzgerald's office tonight? I wonder if they knew this was going to be pled? Or were they blindsided? I look forward to his response.

[clarice]

He isn't going to address it tomorrow. Tomorrow is the Ftizcape act..But I suppose this has to be weighing on his mind.

[maryrose]

At this point who cares if dems freak out.? Let them freak. They should have left it alone but noooo.. they had to get a special prosecutor and then today say well one was appointed,{I wonder why} Too cute by half they should have crossed their t's and dotted their i's and they didn't with Fitz so it's on them. If it's tossed nothing will be impacted. It was a far-fetched case to begin just as Woodward said.

[topsecretk9]

He isn't going to address it tomorrow.

Yes, but it isn't exactly a morale booster either!

[clarice]

No. It isn't..especially because of the skillful way the defense wove the constitutional overreach with Fitz' own...

[Sue]

I've been in law offices when the other side threw something at you that you hadn't figured on. No matter how many times you play devil's advocate, you don't always know what the other side will come at you with. I just wonder if Fitz was forewarned?

[topsecretk9]

I've been wanting to say...but looking at the talent pool now...the notion that Fitz hasn't read Libby's notes and is only now seeking his assistance in deciphering them,.. is umm, well let's just say the contrast is...stunning (and I bet that caused some big huge wide eyes at Baker Botts)

[clarice]

I think this was a well-kept secret..Welles said they'd be filing a motion about this time, but I haven't had one notion from anywhere that this would be their argument. (Even Waas apparently didn't know, and as we know he has sources EVERYWHERE.)LOL

[topsecretk9]

...and some "you have GOT to be kidding me" 's too....

[clarice]

Isn't that amazing, ts..?

[Rick Ballard]

TM.

If Dems freakout tomorrow - how will we distinguish it from today?

What is the nature of the "thing" in question and what venue is best suited for disclosure of that nature? Not the unnatural and selfserving pot of "the law" of a certainty. Perhaps not the selfserving aggrandizing arena of a Congressional hearing.

Perhaps only the national tribunal of the ballot - let's make our case as best we can and let it be judged by plebescite - as it always and forever (hopefully) shall be. The instance at hand is political in nature - not legal. Let Joe Wilson's defenders go forth and make a case for a proven liar - and best of luck to them. His (and their) party deserve the national trial - and we will gladly spot them the ancien presse to carry their standard.

This is not now nor ever has been about "law" and any "search for the truth" - let politics rule and the loser be damned.

[richard mcenroe]

"Lordy Geordy - does the phrase "asserted but unproven" ringle tingle the slightest bell in an otherwise vaucous cavern of a skull?"

Rick — The new buzzword among the MoveOnBots across the street is "consensus", as in "the consensus is Libby perjured himself."

Cuz a whut, ya know, "consensus" is way smarter sounding than "everybody knows..."

[maryrose]

ts;
Exactly right. The night before thepresser he's running around Plame's neighborhood asking her neighbors if they new she was undercover! Fitz seems to do a lot of things at the last minute. Like his delay in charging anyone and at the last minutenot charging Rove Is there no method to this madness?

[topsecretk9]

If Dems freakout tomorrow - how will we distinguish it from today?
HAH. Rick, exactly. And this is new and different how?

[Jeff]

I'm still crestfallen you Jeff got credit for my Libby knows what Judy knows speculation (wink), that rascally Jeff!

Don't blame me, I didn't put TM up to it. I agree with clarice, Comey is a conservative whose sense of justice made him a pain in the ass to the Bush administration, plus he's pals with Fitzgerald. I don't think the fix was in. Going way out of my depth, I also think the judge will not be impressed by Libby's team's arguments.

[Sue]

Jeff,

I wasn't either, until I read the motion. I must say, the motion is rather impressive. Whether the judge is impressed or not, we will have to see. I guess it depends on Fitz's counter argument.

[topsecretk9]

Fitz seems to do a lot of things at the last minute.
Mary, yep...you know I've never disparaged Fitz other than a few obvious observations at obviousness-es....

but could it be that maybe the guy just honestly has WAY too much on his plate? I mean maybe he's just grasping it now but in the normal course of prosecuting he thought he was managing all of his cases pretty well? Or since the wing things this winging would turn out okay, or something?

Anyone get this feeling?

[maryrose]

It will be interesting to see how this all plays out and whether Fitz has any tricks up his sleeve.

[topsecretk9]

Don't blame me, I didn't put TM up to it.

Yeah. You just have this oxygen sucking thing about you, don't you?

[clarice]

In reading the motion, I noticed something I hadn't realized..COmey had placed his asst Margolis as a supervisor over Fitzpatrick..Defense argues that this was improper. Interestingly, Margolis is a career attorney who previously worked for Ted Kennedy...Dum da dum dum dum

[topsecretk9]

I must say, the motion is rather impressive. Whether the judge is impressed or not, we will have to see.

Sue,
Cecil gives it a 50/50 (that's saying something), but I don't think it does get through just because of the politics BUT where you -rather impressive- I think will have an impressive effect and will color the judges view and set the tone on future rulings.

[topsecretk9]

And Clarice
they get to file dismissals motions if they choose no?

[Rick Ballard]

Richrad,

Well, the consensus that I'm holding right here sez that Joe Wilson is a lying **** ***** ***** ***** and his wife is a **** ***** ******* ***** of a **** ***** **** who should ****** ****** **** until the end of time. But that's just me. And Jeff, **** *** **** * ***** ******. Nasty enough fer ya? (the last word was 'object')

[Rick Ballard]

Richard - geez - I'm getting irritated.

[clarice]

ts..? Is your question does the defense get to file other dismissal motions? Yes, it does.

Fitz will reponse to this one. Libby will get to file a reply and a hearing on it will be set.

It is a complicated question whether the defense could take an immediate appeal of the ruling if they lose.

[Sue]

Clarice,

Couldn't Fitz also appeal if he loses?

[clarice]

The gpvernment has more limited options appealing criminal cases than a defendant does. Certainly if the motione is granted, the case is over and there is a final order to be appealed. Since it goes to a point of law, I should think he could.OTOH it does not involve a question likely to recur--a question that seems particular to this case alone, so I do not know if as a matter of policy the government would appeal it.

If Libby loses the appeal would be from an interlocutory order and those are permitted in very limited circumstances.I do not know if one would be permitted here and absent access to Lexis I can't really research it from home.

[Sue]

Thanks Clarice. I'm heading out anyway. What will be, will be...this isn't like guessing on whether Bush is smarter than Kerry. There will be a solid answer at some point. Have a good night.

[Rick Ballard]

Pretend you're on t'other side - assert strongly from complete ignorance.

Who'll know?

[clarice]

BTW, that doesn't mean Libby couldn't raise the issue on appeal at the end of the trial. I am only talking about whether he could appeal a denial of the motion NOW, before trial.

[clarice]

Thanks, you, too.

[JM Hanes]

tops
"but could it be that maybe the guy just honestly has WAY too much on his plate?"

I suppose if that defense is good enough for Libby, it must be good enough for Fitz, no?

[clarice]

It's a bit harder to do that Fitzcape trick in a written brief than it is before the mike, Rick..Let me try *Swoosh*

[JM Hanes]

"*IF* the case is dismissed on these grounds, Dems will freak out, and maybe they ought to."

I'm not sure that a politically generated 2.5 year investigation, resulting only in charges incidental (by which I do not imply trivial) to the suspected offense, ending up absolutely nowhere, is not, in fact, a valuable object lesson where such initiatives are concerned.

After the Clinton experience, Democrats were convinced that Independent Prosecutors had to go -- till this opportunity arose, and they revived the essential idea in the form of the Special Prosecutor they pro-actively demanded.

If I had been more impressed with the Fitzgerald operation, and the substantive nature of investigation, findings and indictment, I'd be more inclined to agree. I suspect the actual outrage will be largely confined to the folks who "already know" that Libby & others are crimminals at heart and those who have a political interest in declaring that (yet another!) miscarriage of justice has occurred on Bush's watch.

[vnjagvet]

Clarice:

On the client issue, it has been a long time since my gov't service ended thirty-five years ago, but I thought in criminal matters, the client was the United States, hence the caption of the case, United States v. Libby.

I think there has been a problem all along with the concept of Fitz's assignment. I have thought all along that this whole affair was a jurisdictional dispute solely within the Executive Branch. Had Fitz been appointed by the President (or by the AG at the request of the President) to investigat rendering a report to him as to the entire Plame situation, including the origins of the Wilson caper, the contents of his report, whether his reportage to the press was authorized and accurate, if not, why not, whether the actions of officials the VP and EOP offices were legal or not, and if not, whether and how they should or should not be prosecuted.

Then, if the President and AG felt it appropriate, actions up to prosecution could be taken in the ordinary course by appropriate Justice Department officials.

How such a report might have been publicized would have been in the President's discretion with whatever political fallout was appropriate.

If Fitz's assignment was limited to fact finding and recommendations, there would have been nothing whatever wrong with the assignment now under attack.

It is the elision of investigatory powers and prosecutory powers that are called into question in this motion, and I believe rightfully so

[Fredrik Nyman]

Two questionsfor our legal beagles:

1. How does the double jeopardy apply to indictments, if at all? That is, can someone be indicted twice for the same offense?

2. How does the exclusionary rule apply here, if it does? That is, if the judges agree that Fitzgerald's been given unconstitutional powers, does that taint any and all evidence uncovered by Fitzgerald?

[Leonidas]

"*IF* the case is dismissed on these grounds"

Shouldn't that be *WHEN* the case is dismissed on these grounds? No self-respecting judge would allow a case to go forward about the "outting" of Valerie Plame where her husband Joe Wilson outted her long ago. Unless, of course, that case had Wilson as the defendant.

[Rick Ballard]

Elision or conflation? Whose power was ellided? Fitz appears to believe that his prosecutorial power is unchallengeable - and Comey's letters hint at that understanding.

That's where, I believe, Team Libby has placed a modicum of faith. No US prosecutor is unchallengeable and Comey committed (knowingly or not) a grave error in his derogation of authority.

[clarice]

vnjagvet--you are right in criminal proceedings the prosecutor represents the U.S. I refer to the CIA as his client in this matter because that agency sought the investigation and has virtually all of the relevant documentation in its possession. I'm trying to think of similar cases and I'm afraid I'm too tired right now to think of one.
If this were a civil case, the plaintiff would be the CIA v.______and undoubtedly the DoJ would be lead counsel.

But if your point is that Fitz is supposed to represent the entire government, not just one agency, you have a point. My "client" reference is to the practicalities of the litigation..i.e. getting the evidence to establish there even was a violation of the IIPA from the agency which first indicated there was.

[Rick Ballard]

Another try.

You cannot grant what you do not possess.

The AG does not possess authority to conduct unsupervised investigations/prosecutions. Denominate supervision under a grant of authority or said authoriy is, in essence, frivolous.

[PaulV]

Perhaps the real goal is not outright dismissal of charges but a tactical goal of putting Futz limited fact finding and reluctance to share evidence with defense in perspective. It seems that he has had a problem of following official DOJ policy in his investigation.

[PaulV]

Perhaps the real goal is not outright dismissal of charges but a tactical goal of putting Futz's limited fact finding and reluctance to share evidence with defense in perspective. It seems that he has had a problem of following official DOJ policy in his investigation.

[clarice]

I'm pretty sure the real goal is dismissal.

I don't know the answer to the double jeopardy question and Rick answered the second question you asked, Nyman.

[clarice]

I'm too lazy and tired to go to the courthouse but it would be fun to watch the arguments tomorrow.

[TM]

I'm still crestfallen you Jeff got credit for my Libby knows what Judy knows speculation (wink), that rascally Jeff!

Jeff is surely quicker than me. Maybe we're outnumbered, Top.

[TM]

On the double jeopardy - I am virtually certain that superceding indictments would be possible, but... the real question would be, what evidence is allowed?

If Libby's grand jury testimony is tossed (along with that of Russert, Cooper, and Miller), abotu all that is left are some arguably false statements to the FBI.

A new or reconstituted Special Counsel might just proceed to trial on those statements without re-collecting the reporter's testimony, figuring Russert's trial testimony will mirror his defunct GJ testimony. But what a clown show, especially if Russert/Miller/Cooper change their stories - no perjury worries for them!

[topsecretk9]

a tactical goal of putting Futz limited fact finding and reluctance to share evidence with defense in perspective.

If not dismissed this definitely would be a nice second.

[topsecretk9]

Jeff is surely quicker than me. Maybe we're outnumbered, Top.

I am even sadder now, because I really did make the suggestion and Jeff bit--- I am going to take solace in that both of you two could not resist the sheer magnificence of my speculation and \!

[Squiggler]

Byron York's remarks were quoted, he was answered on The Corner by Andy, and then Mark Levin chimed in with 2 posts. I'll leave it to you experts and lawyers to explain it all to the rest of us.

From Mark Levin ...

Posted at 12:00 AM

Thursday, February 23, 2006

MORE FITZ & THINGS [Mark R. Levin]

While it is true that there is not a word in the Constitution about how the Justice Department is organized, there are statutory and regulatory words that do exactly that. While the president has the constitutional power to appoint Fitzgerald as special counsel to investigate XYZ, he specifically did not. Nor did he authorize Comey to grant him the authority of the attorney general. Nor did the attorney general (unless there is some order the attorney general put in place and Comey triggered). At a minimum, if normal procedures were not followed, I don't understand why not. An inferior constitutional officer cannot confer the powers of a superior constitutional officer on a third party.

Moreover, in the Libby case, Fitzgerald is not acting under his authority as a United States Attorney. They are confirmed to prosecute cases in given jurisdictions. Otherwise, Fitzgerald would not have had to receive a special counsel appointment at all.

The general point here is that this is not an academic debate. Congress -- through its budgetary authorization, appropriation and confirmation authorities, and the president -- through his appointment power, have resolved most of this through the statutory process. As I said upfront in my earlier post, I haven't taken the time to read all the filings, but I will be curious to learn, and will check, to see if there was an attorney general order in place, and if so whether it was complied with, when Comey conferred such extraordinary powers (and they are extraordinary) on Fitzgerald.

Posted at 11:54 PM

FITZ'N'THINGS [Mark R. Levin]

I'll chime in a little here, if I might. Obviously, my faith in courts and their ability to read the written word is low, as my book makes clear. But the fact is that this is a serious point, i.e., whether the deputy attorney general had the constitutional ability to confer the attorney general's powers on a third party. Indeed, it was a very serious issue when I served at the Justice Department, as chief of staff to Attorney General Meese. I have not read all the material filed with the court. However, I do know that we put in place a regulatory mechanism for such appointments should the occasion arise where the attorney general recused, i.e., attorney general orders. The purpose was to avoid the very kind of problem that is raised here.

Yes, there's a unitary executive, but that has nothing to do with Comey's power. His power was limited by an act of Congress, and signed into effect by a president. Even the attorney general's powers are limited by statute. Obviously, inferior officials do not assume the authority of the president. I suppose Fitzgerald can argue that he was exercising his authority as acting attorney general. But even then, the attorney general makes such appointments, e.g., special counsel appointments, through a regulatory process the attorney general set in place (or an earlier attorney general put in place). At least this is how it worked when I was at Justice.

[topsecretk9]

both of you two

Grrrr Me.

[flashback]

There is zero chance this case will be dismissed tomorrow.

[topsecretk9]

There is zero chance this case will be dismissed tomorrow.

Yep, Fitz has to respond, they have a hearing...DUH!

[JM Hanes]

This certainly throws the possible backstory in re the Feb. '04 memo into a whole new light, doesn't it?

PaulV

"Perhaps the real goal is not outright dismissal of charges but a tactical goal...."

Interesting observation. Dismissal would certainly qualify as a desirable result, but that likeliness of that result is an entirely different matter. It would certainly make sense to start with something which might have other ancillary benefits regardless of whether the case is dismissed outright or not.

[MJW]

On the previous Plame-related thread, I commented that the contents of the letter Fitz sent requesting the "clarification" of his authority to pursue related cover-up crimes might either support or contradict the assertion that Fitz wasn't operating under the supervision of the AG.

I suspect Libby's team will request discovery of Fitz's letter, which has never been made public.

BTW: I believe in double-jeopardy cases, jeopardy does not "attach" until the jury is impaneled and sworn, or in non-jury trials, when the court begins to hear evidence. Crist v. Bretz, 437 U.S. 28 (1978)

[MJW]

After posting the previous message, I began to wonder: What are the rules for discovery in a motion like this. It doesn't really seem to be directly part of the criminal case. I can't see how the discovery rules applicable to a criminal case would make sense. In some ways, it seems more like a civil action.

[MJW]

Something that seems odd to me (though it may not be) is that because Ashcroft recused himself, Comey supposedly had the authority to act as Attorney General in Plame-related matters due to 28 U.S.C. Section 508:

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

I may be too literal-minded, but I don't see how the AG's recusal makes him vacent, absent, or disabeld; and I don't see how section 508 allows for a partial transfer of authority. I would think that if the AG wanted to recuse himself, he could do so by delegating authority, but not by relinquishing it.

[MJW]

Whoops, I misspelled "vacant" (and probably several other words). I wish my browser had a spell-checker so I wouldn't look semi-literate (I'd still be semi-literate, I just wouldn't look it.).

[JM Hanes]

TM

"Here is my answer to that - the filing makes clear that "principals", such as Cabinet Secretaries, must be confirmed by the Senate."

The filing also makes it clear that the power of removal is of significantly less importance than the existence, or lack, of active oversight and supervision.

[JM Hanes]

MJW

The motion addresses the issues you mention in considerable depth. Here's a link where you can download the PDF, if you haven't already found it elsewhere.

[JM Hanes]

Others may want to go straight for the merits, but I like to start out on personal highs. So, will all of us who immediately predicted that Fitgerald's "66-minute press conference announcing the indictment" would come back to haunt him, please stand up and give each other a well-deserved round of applause?

Public statements must contain only "incontrovertible, factual matters." "Subjective observations" or statements that "may reaonably be expected to influence the outcome of a pending or future trial" are strictly prohibited. (p15)

Normally, where a prosecutor so clearly oversteps the regulatons and policies of the Department, a defendant might prevail upon the prosecutor's supervisor to take corrective action.... Because the Special Counsel has no supervisor and is free to ignore otherwise applicable regulations, that opportunity does not exist for Mr. Libby. (pp 16-17)

Not only violated all norms, but did so to the detriment of the defendent directly (which the motion details specifically, and none of which escaped the keen minds of JOM's Cult). Amen to the double dipping there.

And hey, I totally own Footnote #7, on p. 15:

At another point, Mr. Fitgerald suggested that even though compromising national security is not charged in the indictment, a prosecution for obstruction of justice was a way of holding Mr. Libby accountable for such uncharged conduct.

Can someone remind me about the circumstances of Mr. Comey's departure from the Justice Dept.? This motion evicerates him beyond redemption and then some. Even his final act, transferring authorities, is played as an act of professional cowardice. Conspicuous irony which will probably be lost entirely on the left: haven't Comey's NSA demurrers figured prominently in Democratic "legal" objections to "domestic spying"?

Among other irrelevant but tasty tidbits, I thought the simple act of quoting Carl Levin (p18) was indisputably delicious.

I can't wait to read the government's response, because, regardless of outcome, this is great stuff!

[Kate]

I am wondering if all the problems with the Libby prosecution will make Fitz less or more likely to indict Rove. My understanding is that Rove has not yet been cleared.

My initial guess would be less, but perhaps to regain momentum, take attention off his problems with the Libby prosecution, and get admiring reviews and breathless commentary from the media, Fitz just might indict Rove.

I no longer expect Fitzgerald to just do the right thing from a legal perspective. I think he's a hack.

[JM Hanes]

Oops, should have read the thread carefully first, I see that Clarice has already dispatched my question about Comey.

[kim]

I doubt Comey's act was a deliberate fix to ultimately derail prosecution. Instead there is a wonderful irony several of you have noted. It was Comey's overweening need to establish the insularity and independence of the prosecutor that not only created the possibility of this sort of Star Chamber, but actually required it. And his need was the direct result of political pressure(we'll leave his character out of it). Will we learn the lesson to not repeat this sort of baloney? It has now massively impacted both parties. Is it quits yet?
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[kim]

I'll bet the decision has been made to give up on Fitz and pursue Joe et al through the DoJ. If this motion is denied, Bush will can Fitz. And then we can move on.
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[kim]

Too big a political storm? Hah. The ball will then be in his opponents court to prove stuff. What have they got, Joe's fantasies? And grubby reporters, and slimy spooks? Let it all hang out.
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[TM]

I am leaving this note here to help me Hold This Thought for more research:
I am highly confident that, while kicking around the circumstances of Cooper's second subpoena with the Anon Lib, a particular document (probably a judge's opinion, but also probably citing something from Fitzgerald) made the point that, given his special appointment, Fitzgerald was *not* bound by DoJ guidelines on the questioning of reporters. However, Fitzgerald had chosen to voluntarily follow those guidelines.

That might be worth digging up (and it may already be mentioned in the new Libby filing). Things To Do! (after I get some coffee).

[Dwilkers]

Rick-

"If Dems freakout tomorrow - how will we distinguish it from today?"

No kidding, the same thought went through my mind. Since they run around in a perpeptual state of outrage I doubt anyone would even notice.

Maybe this will fly, I doubt it though. It strikes me as a hail-mary pass.

[kim]

Now here's where the internet doesn't seem so wondrous to me. I can make coffee, but am not worth a damn searching.
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