Special Counsel Fitzgerald Not *Too* Special

Judge Walton has turned down the Libby defense request that Special Counsel Fitzgerald's indictment of  I. Lewis Libby be tossed out because Fitzgerald's appointment violated the Constitution (31 page .pdf)

That is not a surprise.  The key question is, did the judge allow for an expedited appeal?  Here is the 1 page order, which is silent on that.

Some reaction to the initial defense filing is here; here is background on the Fitzgerald response, and the final defense submisison.

Comments

[windansea]

good...I want the trial!

[Other Tom]

Here's hoping someone will actually read the opinion and give us a summary.

[clarice]

I will as soon as I can find it.

[Barney Frank]

I would think the real test of Libby's argument would be at the appellate or perhaps even SCOTUS level. Most trial courts are notorious for punting sticky issues like this.

[Jeff]

That is not a surprise.

Not a surprise to whom? Am I mistaken in thinking that for a number of commentators here it comes as something as a surprise?

[Sue]

I figured they were just throwing the kitchen sink at Fitzgerald and didn't expect a win, at least not at this lower level, but look at all the interesting things we found out when Fitz had to respond.

[topsecretk9]

Yes Jeff, if you read back most expected this was above Walton's pay-grade.

[Tom Maguire]

I will as soon as I can find it.

Is that link not working? I got a slow download when I tested it, but thr file did show up.

Jeff - as noted, the official position of many was that maybe a higher court would endorse this, but not Walton.

[clarice]

I am sure it is. I was out running errands, and catching up. I'll read it now, TM.

[Tom Maguire]

About the only bright spot in the 31 pages was that the judge had an even lower opinion of the Fitzgerald/Comey ESP affidavits then we did.

He also lectures both sides on how to file a brief, and resorts to principal-agent law to interpret the letters delegating authority to Fitzgerald.

I didn't see any mention of an expedited appeal, but I don't know where to look for it, either.

A key was this - a clear reading of Sec 510 means that the AG *can* delegate his responsibility to supervise litigation.

That strikes me as a point worth gnawing on.

[Rick Ballard]

Judge Walton has framed this as Morrison outweighing Edmond and has offered the defense a clear line of appeal based upon the lack of "bright line" rules being established in either case. Walton's reasoning is clear and I don't believe that he can be faulted if he is overturned. I'm a bit surprised as to why he took this on as an interpretive matter but I don't quite see it as a win or loss for either side because it will certainly be appealed.

I wonder if the appellate court will accept Walton's framing though. He's left some rather large holes concerning Fitz's presser and lack of adherence to DoJ prosecutorial guidelines that I would expect TeamLibby to exploit to the fullest.

(the decision is in a non-copiable format - if it shows up in a copiable format, please advise)

[cboldt]

The link is fine. I assume that [Doc 97] is in the same scanned form at PACER, and therefore isn't amenable to easy conversion to plaintext. I've been converting and posting the more interesting filings, albeit not always timely for discussion.

This is the outcome I expected, Walton wasn't going to rule that the appointment of Fitz was defective. That would open a pretty big can of worms - not just legally, but also politically. Afte all, if the appointment is defective, it's the fault of the person who MADE the appopintment, not the one who took it. I hope Libby appeals because I think this case presents an important legal issue in general.

[windansea]

A key was this - a clear reading of Sec 510 means that the AG *can* delegate his responsibility to supervise litigation.

oh yeah...who'd he delegate it to?

[sad]

We don't need ESP anymore, Fitz is supervised by himself.

[Other Tom]

Jeff: I, for one, explicitly stated that it was highly unlikely that a District Judge would grant this motion, but that it might be a different story in the D.C. Circuit. I certainly was not alone in that assessment, and in fact I think it can fairly be described as something of a consensus view among those posting here.

[please]

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

Posted by: clarice | February 23, 2006 at 06:34 PM

[Rick Ballard]

Tom,

Perhaps expedited appeal must be requested by a party prior to the judge asking for it. Not every decision is appealed and if I were a judge I don't think I would hang a bright light on my decisions by saying "Look, I know that this is subject to other interpretations so I'm deciding and kicking it upstairs at the same time."

I dunno - maybe it's done that way.

[sad]

please

selective quote quoting at best

[Patrick R. Sullivan]

It's hard to take seriously reasoning that says the SP didn't 'completely ignore' DOJ regulations. He just 'bypassed' them.

[Javani]

I'm split. Libby should be jailed for that "quaking aspens" letter. But my primary interest is UGO. Do we learn UGO sooner or later with this ruling?

[Wapo]

Alex Tribeca film festival or is that the car?

Nice pictures, maybe those were ammo, just not in the hips.

[clarice]

Well, you guys hit the high points.
Libby must ask for a certification to take an expedited appeal and I think it will be granted.

It is amusing that (p. 11) after reading the delegation powers so broadly as to abdicate the AG's duty to "direct and supervise litigation", the Judge stretches to argue this is not an absurd result. Of course, it is.

On the Appointments clause argument, the judge is forced to stretch yet again to find a superior officer.(And in saying this is akin to the Independent Counsel ,okayed in Morrison, he ignores the fact that the IC had to report his activities regularly to a three judge panel)
In finding supervision, the Court notes that it is a factual matter and then proceeds (fn7, p. 20) to reject out of hand some evidence that the defendant (and I) find probative to demonstrate there was no supervision--the presser and the utter absence of affidavits by those who succeeded Comey in officeHe does, as was noted, reject out of hand the Comey and Fitz affidavits.
It is interesting that the Judge relies on the 2 delegation letters from Comey: The first authorized Fitz only to investigate and prosecute the alleged unauthorized disclosure of a CIA employee's identity. The second (dated Feb 6) allows him to pursue other violations of law. Why is this particularly key? Because of Feb 4, 2004, Fitz knew who Novak's source was and he was not going after Comey. Yet with no supervision , Comey was in the dark when he expanded Fitz' delegation of authority.
.

[clarice]

Fn 13 p 25 seems a stuck on stupid kind of contention:"In fact, because the Special Counsel must comply with Dept of Just policies, many of which provide direction for how to proceed in prosecuting cases, the AG, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter."
(This after the preceding fn about the presser in which the J said"But even if violations as alleged occurred, that does not mean they were authorized by the authority given to the Special Counsel."

We are perplexed..and running in circles..

[Other Tom]

Thanks so much, Clarice. I can't recall federal practice concerning interlocutory appeals--can you enlighten us as to what matters are and are not appropriate for certification?

[clarice]

Other Tom I dug it up with some difficulty earlier. While I work on the opinion, maybe you can find it in the archives where we discussed the Motion to Dismiss?There was a recent key decision re Cheney and his energy policy task force in the US Ct of Appeals for the D of C Circuit.
************

I think the Judge's reliance on Agency law while understandable is wrong, because it ignores the factual circumstances of this matter.
It is clearest when on p. 26 he notes that agency can be revoked at any time.
Even Comey at his presser admitted that removal of the SP would create a substantial firestorm and would not be easily done. Indeed, that was a key part of Libby's argument for he contended that without supervision and oversight, it would be IMPOSSIBLE for the AG to give any reason for doing so.

[clarice]

The Court's reliance on Morrison carries with it the same failure to acknowledge the special circumstances here. He relies on the fact that he "is removable at will by the Dep Atty General". While as a simple matter that is true, it ignores the factual framework of this case as I described above in the discussion of the Agency argument.
Further, while the Court notes that Fitz hasn't the authority to ignore substantive or procedural policies and regulations, the Court ignores that supervision would bring other policy considerations to bear:I.e, cost/benefit; the likelihood of classified information having to be disclosed...in other words, all the discretionary considerations that would be brought to bear were this being handled in-house or were the IC provisions in affect and the prosecutor answerable to a judicial panel.

[maryrose]

Jeff:
You are sir, mistaken. Gee it felt good to post that.

[larwyn]

Fast and Furious today -

Not really OT at all:

Here's a hot link for the piece Clarice has excerpted.
It is truly chilling. May not just be power, but also greed $$$$,
as MacRanger has already suspected regarding Joe Wilson.

Don't miss this one and the links or you could be lost as
new revelations are published.
Douglas Hanson, National Security beat at American Thinker:
The Yellowcake Connection

[maryrose]

clarice; I wish Libby had you as one of his lawyers. You seem to be the only person of legal background that understands this case and the mistakes and errors of both Fitz and Judges Tatel and Judge Walton.

[clarice]

Thanks..

Other Tom, I found my earlier post on interlocutory appeals:

" am vague on the interlocutory appeal rights in criminal law and haven't fully researched them.

As best I can tell this(from Nixon v. U.S.) is still good law:

Under 28 U.S.C. § 1291, criminal cases generally are
not subject to appellate review “until after conviction and sentence.”
See Flanagan v. United States, 465 U.S. 259, 263
(1984); United States v. Pace, 201 F.3d 1116, 1118 (9th Cir.
2000). Courts, however, have carved out a small class of
cases from this jurisdictional bar under the “collateral order
doctrine.” Pace, 201 F.3d at 1119. To fall within this exception,
the appealed order must “1) ‘conclusively determine the
disputed question,’ 2) ‘resolve an important issue completely
separate from the merits of the action,’ and 3) ‘be effectively
unreviewable on appeal from a final judgment.’ ” United
States v. Bird, 342 F.3d 1045, 1046 (9th Cir. 2003) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 _____________

And my reading of the issue indicates that (a) if the judge dismisses the case, Fitz can appeal under normal appellate rules; (b) if he doesn't, this seems to me to come within the parameters of a special circumstance when an interlocutory appeal would be warranted by Libby."

[cathyf]

Not to put down Clarice, but Team Libby is not made up of slouches, maryrose. They seem to have a pretty good handle on things. And you don't put all your best arguments out there at once, either. Something that I keep reminding myself is that if Fitzgerald's appointment is ruled unconstitutional, then all of these other really good arguments about all sorts of things, from the function of the non-autistic brain to the proper role of the press in society, all these other arguments become moot. In Team Libby's paygrade you don't go borrowing trouble -- don't go crafting brilliant arguments at $800/hr until you know you need to submit them!

cathy :-)

[Jeff]

clarice - HO'd you get that February 4, 2004 date for the precise date that Fitzgerald knew who Novak's source was?

[Jeff]

read "How'd" for "HO'd". No insults intended.

[noah]

I noticed that the Judge repeatedly referred to Fitz remaining within the "four corners" of the two letters.

But UGO is not apparently prosecutable within those "four corners"...so where is the crime?

Also I think Fitz would have looked a lot worse without the second letter which it seems to me is pretty superfluous. As I have said before it is the fig leaf that saved his ass.

[noah]

And I don't think that Fitz has remained within those four corners...witness the kerfuffle when he misstated what Libby had been authorized to "leak". Isn't the NIE stuff totally irrelevant to his original charge?

[clarice]

Jeff, I just reread the comments on the earlier thread, and I think I was in error. I believe it was on Feb 24, 2004 that Fitz learned of UGO's identity.That's the date then, when it was closer in time to my reading of the original pleadings in which that date seems to have appeared.

Noah, you've put your finger on what is the critical error in the opinion IMO--the Judge can get to where he did only by ignoring a passle of inconvenient facts. Like what Comey and Fitz said, the occasions in which Fitz departed from DoJ policies, but more importantly what wasn't there--like any evidence of actual consultation and supervision; any role being played by Comey's successors; the difficulty of actually removing the SP under these circumstances; the different financing for this operation than in the IC counsel case; the fact that the IC was under judicial supervision;and the role of the DoJ in normal cases to bring to bear important discretionary and policy considerations on determinations which the prosecutor must make.

[Other Tom]

Thanks yet again, Clarice. How would Libby fulfill the third requirement? Seems to me he could get complete relief on appeal from a final judgment if he is convicted. Different subject: presumably UGO hasn't been charged because Fitz doesn't think he lied. Remember, he hasn't charged anybody with violating the Espionage Act or the Intelligence Identities Protection Act.

[noah]

OT, so you are saying that the only crime that Fitz is prepared to charge is perjury regarding a non-crime that he happens to be investigating?

Kafka call your office.

[Jeff]

Yes Jeff, if you read back most expected this was above Walton's pay-grade.

Right, and Walton evidently disagrees, and disagrees pretty categorically.

[Walter]

I found it interesting that the judge stated that Deputy AG Comey acted as AG only in matters related to the investigation into the alleged unlawful disclosure of specific classified imformation. (p. 7). So, Comey delegated only what he had, which was not the full powers of the AG.

I think that this could well be the best result possible for Libby, as the materiality of the (alleged) perjury must be viewed within this limited light.

[Walter]

OK, second-best.

[clarice]

Other Tom,I think the argument would be that if the appointment is invalid and the case proceeds anyway, he will be put to burden of defending against it without the issue being resolved.

In a normal criminal case, for example, a usual pre trial issue will be the admissibility of certain evidence. If the Judge errs in permitting it in, on appeal, the Court could determine that he shouldn't have and that that error materially affected the outcome and reverse the conviction or, alternatively, that it was harmless error which didn't affect the result..
But this is not an issue like that. It so infects the entire proceeding. The normal prejudice against trying these matters piecemeal doesn't seem to apply.And if Libby were acquitted, the issue which is an important constitutional one could never be resolved.

The Espionage Act is utterly inapplicable. And from what I can tell on the public record neither is the IIPA.

[JohnH]

Another reason that this case differs from a garden variety perjury case is that Rove and Libby are so prominent nationally, and therefore the prosecutor may well have formed an opinion of them well before the case was given to him. When the prosecutor has to exercise judgment in deciding whether, e.g., Rove lied, the preconceptions of the prosecutor could be a problem.

The same, of course, goes for a prosecutor deciding whether to believe a rabbi versus an unemployed gang member.

[Patrick R. Sullivan]

One thing Team Libby could do now is file complaints about Fitz's 'bypassing' DOJ regulations with the current AG. And keep up a steady stream every time Fitz makes a call without asking permission of his 'superiors'.

Then we'd find out if he is in fact being supervised by superiors.

[clarice]

Jess, you are being obtuse. We thought that he would not want to make such a precedent on his own and would find for the SP, but that a Court of Appeals or even the SCOTUS would have to make the final decision.

His opinion relies on not relevant law--the general law of agency--and ignores substantial and relevant facts. He says there is no bright line where he is acting, and I think in so doing he sets this up for an interlocutory appeal.

[clarice]

***JeFF, not JeSS***

And *****from what I can tell on the public record neither is the IIPA applicable*******

[Rick Ballard]

"I think that this could well be the best result possible for Libby"

Walter - could you do a little primer on that? How tightly would Fitz be held to the specificity?

I'm stuck on Plame's being a "WMD analyst" as being the only pertinent classified information improperly disclosed - and Libby does not appear to have disclosed that. At least Novak didn't pick it up from Libby but from UGO - who grabbed it from the INR report and notes.

[boris]

Actually, Tess would be more apporpriate.

Tess: this adds to the richness of the likelihood that they are actually

[Rick Ballard]

"I think that this could well be the best result possible for Libby"

Walter - could you do a little primer on that? How tightly would Fitz be held to the specificity?

I'm stuck on Plame's being a "WMD analyst" as being the only pertinent classified information improperly disclosed - and Libby does not appear to have disclosed that. At least Novak didn't pick it up from Libby but from UGO - who grabbed it from the INR report and notes.

[Walter]

Clarice,

Please help me on this, but wasn't one of the biggest concerns with previous IC/IP's was that, once appointed, they could investigate and prosecute anything they found?

Here, because the Deputy has no power to delegate any power he does not have, he cannot delegate the AG's power to investigate anything other than the "alleged leak of specific classified information" (Query re: Ashcroft's recusal letter: Did he narrowly or broadly recuse himself from all matters CIA-WH-Press that relate to Plame or merely "who disclosed Plame?".)

MJW: You pointed to the limited delegation earlier when I was on a tangent wrt the referral letter. Thanks.

[clarice]

Walter,the IC couldn't investigate anything he wanted to. As I recall when additional matters came up relating to Clinton, Starr asked the supervisory court to appoint another IC to handle that and was turned down. Indeed, IIRC, in this very opinion, the Court relies on language approving the IC in prior decisions which relied on limited jurisdiction and tenure.

[clarice]

pp. 28-29 of the opinion:"Second, just as in Morrison the Special Counsel here is 'empowered...to perform only certain, limited duties.[cite omitted]In Morrison, the independent counsel was limited to investigating and prosecuting certain federal crimes as prescribed in the grant of authority provided to her."

[noah]

Many have speculated that Fitz was hoping to "flip" Libby but for what?...apparently his only hope at nabbing higher-ups is if they were to lie about the case. The VP and Bush were not interviewed under oath so he couldn't get them for perjury...but I guess that doesn't matter...the "gotcha" would be grievous enough.

[clarice]

OT: A poster at AJ and Macs has drawn my attention to this incredible analysis of the 2005 Pulitzer winning Priest story and it appears little changed from the 2002 group story in the WaPo about renditions. The one difference is that the earlier story which attributed these detentions to Clinton praised the program. http://www.riehlworldview.com/carnivorous_conservative/2006/04/is_the_priest_s.html#more

[clarice]

same story different angle

[PeterUK]

Noah,
It looks terribly like Fitz is head hunting,looking back on security leaks,how many times has it been some nonentity leaking?
Sometimes it has been filing clerks,or even the cleaning staff with access to the waste paper bins.
Why is it,that somehow,the left and Fitz would not be content with that?

[Walter]

Rick,

I still haven't done my homework on the materiality prong of perjury or obstruction of justice.  As I mentioned before, most prosecutors have fairly unlimited jurisdiction.  Fitzgerald has pointed out in more than one filing that Libby's (confused statements/well-thought-out plan of obfuscation) caused him to continue his investigation for a year and spend much time, money, and court resources proving Libby's (cs/wtopoo) to be erroneous.

Lexis took me to the sentencing guidelines, and I got distracted.  Although they are not currently (and probably will never be) relevant, I’m dropping some links here because the likely punishment is much lighter than I’ve seen reported elsewhere. And hey, I wasted my time—why not waste yours?

Applying the guidelines, we arrive at an offence level of 14 (17 if the obstruction/perjury confused the prosecutor a lot (§2J1.2(b)(2))) for each count.  Because Fitzgerald has indicated that all of the offences were part of a common criminal scheme, the number of counts does not affect the sentence.  This corresponds to a recommended sentence of 15-21 (24-30) months.  Quite a change from the thirty-plus years you hear bandied about.

I invite the conspiracy-minded to spend some time thinking about these grounds for departure.

[Walter]

Clarice,

Thanks. Although convictions do seem to fall by the wayside frequently on appeal, I don't seem to remember many dropping for materiality/relevance concerns.

[Davis]

None of this nonsense would be necessary if the Bush Administration had purged all Democrats and their sympathizers from all government jobs. It is not to late to do it now - everyone in the Courts, the Justice Dept, certainly the intelligence agencies, State and Defense at least - should be required to pledge loyalty to the President. We are at War, for goodness sakes!

[noah]

Troll alert!

[ghostcat]

You can't purge careerists, and careerists are probably 80% Democrat.

[clarice]

I handled the first successful appeal of a conviction obtained by the Watergate Prosecutor. It was for perjury. The conviction was reversed because the Senate Committee before which the alleged perjury occurred did not have a one man quorum rule and the transcript couldn't establish that there ever was a full quorum present during the alleged criminal act.

If you review major perjury cases you will see that they are hard to sustain. I know of very few which like mine which were reversed on the ground that the forum was not lawfully constituted, but many on lack of materiality of the alleged perjury. It is at the very heart of the offense.

How is it material that Libby thought he discussed Plame with Russert and Russert testifies otherwise; that he thought he said to Cooper,"I heard it, too, from other press" and Cooper says he merely said "I heard it, too" or that Miller says he told her that Plame worked in the Bureau?

Just asking. Because assuming that Fitz can show that Cooper, Russert and Miller are absolutely credible witnesses with perfect memories and Libby isn't, so what?

[Walter]

Clarice,

Since you have looked at the cases, do you see perjury prosecutions failing at the summary judgement level or more commonly at the appellate level?

[vnjagvet]

Loyalty to the President should never be a requirement when the nation is at war.

Loyalty to our side in the war should be.

[ghostcat]

And all federal employees take an oath to protect and defend the Consitution, including Article III. All executive branch employees work for, and are accountable to, the President. Not the press. Not the Congress. Not even, in a practical sense, the public. Their political bosses are the ones accountable to, and removable by, the public. What the Mary McCarthys and Russell Tices of the Execurive Branch have been up to is subversion of the Constitution. Pure and simple.

[Sue]

Davis,

That isn't necessary. They should, however, pledge loyalty to their own oath.

[MJW]

One area in Walton's opinion that seems to me to be weak is the argument on page 8 that the AG's power to delegate his authority to perform "any function of the Attorney General" to "any other officer, employee or agence of the Department of Justice" constitutes an "as otherwise authorized by law" exception to the requirement that the AG "supervise and direct all litigation in which the United States is a party." First, it essentially nullifies the supervision requirement, allowing DOJ employees to be self-supervised -- which is to say unsupervised. This goes against the principle that the legislature is always assumed to pass laws for a reason. Second, it relies on an interpretation of "any function" so broad that it's simply untenable. Can the AG delegate his authority to appoint assistant U.S. attorneys to any employee of the DOJ? Third, it flies in the face of the Appointment Clause, the purpose of which is to ensure ultimate responsibility resides in a principle officer.

[Barney Frank]

I think Davis has a point. Doesn't everyone remember the hue and cry from the left when Clinton fired all the Federal Prosecutors?

[MJW]

Notably, Walton relies almost exclusively on Morrison, and punts on Edmond, and basically admits to doing so. He writes, "And while the question of whether the Special Counsel in an inferior office under Edmond is a much more difficult question because the Special Counsel's work in conducted largely without direction or supervision, the Court need [not] confront that analysis since Morrison remains binding authority."

(That assertion seems wrong to me. Edmond is also good law, and to be constitutional, the Special Counsel must meet both standards, not one or the other.)

[Walter]

Clarice,

Compare Morrison's grant of authority:

"...jurisdiction to investigate whether Olson's testimony, or any other matter related thereto, violated federal law, and to prosecute any violations."

with Fitzgerald's:

"...all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity."

Recall that Morrison arose because two non-targets were charged and they challenged the ability of the prosecutor to go after them. Any difference?

[Squiggler]

Or Reagan and the Air Traffic Controllers.

[Walter]

It looks to me as though Fitzgerald's authority might well be related to or defined by the referral. Any takers?

[MJW]

I find the oft used "temporary" appointment justification to decide a special counsel's office is inferior to be foolish. Many special cousels have stayed in business for more than four years. If that's temporary, so is almost every presidential appointment for a one-term president.

[MJW]

Walter: It looks to me as though Fitzgerald's authority might well be related to or defined by the referral.

A very interesting point. Without the referral, how is it possible to know exactly what subjects fall within Fitzgerald's mandate to investigate?

Which reminds me of another criticism of Walton's opinion. He admits to the sparsity of evidence, has the power to require Fitzgerald to provide more, but doesn't.

[Other Tom]

Clarice, you've perrsuaded me on the third element necessary for an interlocutory appeal. It occurs to me that the test as I originally construed it could never be met, so your construction makes a lot more sense. Noah, you ask "OT, so you are saying that the only crime that Fitz is prepared to charge is perjury regarding a non-crime that he happens to be investigating?" That's absolutely what I'm saying--just look at Libby. Although please note that there are other counts charged besides perjury; I believe there's a count for obstruction and another for lying to a federal investigator. And re Bush and Cheney, keep in mind that the latter offense does not require that the defendant be under oath (think Martha Stewart). But I have seen no credible suggestion that either of them lied.

[clarice]

Both good points, MJW.. I think basically, he relies on an argument of necessity and is not paying much attention to the facts and the law.

[MJW]

I mentioned this idea a while ago (and it's probably silly), but it seems like a possible option if Libby can't get an interlocutory appeal is to file an extraordinary writ challenging the jurisdiction of Walton's court to hear the case. Certainly, if Fitzgerald's appointment is illegal, he has no authority to bring an action in federal court. It seems to me that if there's any reasonable question of jurisdiction, it must be resolved before a case can continue.

[Walter]

MJW,

I ask, because I wonder, based on J. Walton's formulation of Fitzgerald's responsibilities, just why he would ask Libby about the NIE in front of the grand jury. Apparently he has no authority to do anything with the answers except disclose them in court filings.

[maryrose]

On hardball Nora ODonnell, John Harwood and Howard Fineman try to convince themselves that because Rove testified more than 3 hours that it can't be just to clarify some of Novak'sV testimony or to tie up loose ends. They also want Rove indicted so much they can taste it.

[maryrose]

What did Clinton get for his perjury besides his law license removed and a House impeachment?

[clarice]

MJW, I just wrote up a shortie on the opinion and I am persuaded it is awful. The judge gets where he does only by ignoring the law (particularly Edmonds), stuffing a lot of facts under the carpet, and engaging in some really dreadful circular reasoning. I do so hope that Libby finds some way to get this to the Ct of Appeals fast.

Surely it is not enough to ignore the law, statute, facts, and rely on this is the way is has to be because otherwise we can't prosecute high officials.

[larwyn]

WH Press corp demands that TV's be tuned to CNN.
JUST REPORTED BY BRIT HUME/FNC

One hour later tv were changed from FNC to CNN in the press room.

Tony Snow hasn't even taken up the podium yet!

This is good. All WH TV's should be tuned into CNN, might get the WH to jump out faster after
hearing the memes and lies 24/7 on that dispicable
network.

[cathyf]

I ask, because I wonder, based on J. Walton's formulation of Fitzgerald's responsibilities, just why he would ask Libby about the NIE in front of the grand jury. Apparently he has no authority to do anything with the answers except disclose them in court filings.

Walter, I agree. It's another angle to what I've been saying for weeks. When the adminstration set out the newly-declassified NIE remainder for Miller, they were acting as whistleblowers debunking Wilson's "forgeries" on the yellowcake intelligence. Fitzgerald "outed" whistleblower Cheney's "work-wife" who was acting as a covert agent for the government in this matter.

So when do we see Fitzgerald frog-marched out in handcuffs?

cathy :-)

[Squiggler]

I just finished reading one of the most frightening posts I've read in a long time over at AJ's site, which starts with this premise:

Mac Ranger let slip some new details on the coming storm regarding the rogue ex-CIA types, Joe Wilson and one Senator Jay Rockefeller. I have written many times the under reported, unappreciated fact surrounding the Plame Game was Joe Wilson’s 2002 trip to Niger was not his first for Valerie or the CIA. Seems Joe just missed the good Senator at the airports here in DC.

I noted in this post the conditions in Niger in 1999 when Joe visited. A military coup d’etat had occurred and Joe was there after it happened, and bragged about how he talked (bribed?) the coup leaders into establishing a Democracy and stepping down. No one pulls of a coup and then quietly steps down without a good retirement plan!

This post posits that the 2002 trip was actually a mad dash to tell certain people in Niger to lay low because the US sensed a problem in the Niger uranium trade and suspicions about Iraq. With two teams in place, the addition of Wilson (with no expertise or current contacts) to go to Niger makes no sense whatsoever. Unless of course that was a cover for a different kind of trip. Note that Valerie’s positions in the CIA and at Brewster Jennings gave her a birds eye view of the uranium trade - and what we as a nation might trip over.

Read it all, especially the correlation with the Rockefeller trip to Syria just a month earlier. Rats scrambling.

[Kate]

maryrose, the last time Rove testified in October it was like for 5 hrs and the media made a huge deal out of it. Someone said that a lot of that time is sitting around waiting. The actual testimony was probably far less.

And the last time, Rove's lawyer went to VanDeiHei (whatever) and said that Rove was still in trouble, things looked bad for Karl.

Seems like this triffling case has gone on for so long that we're now into reruns.

And that useless panel, they should be discussing, um, China, Iran, the real leak case. They just are stuck on Rove.

[Sue]

Squiggler,

AJ has a link to something else that is very interesting. The WaPo 2002 story on the CIA prisons. It looks like Priest recycled most of her Pulitzer prize winning story.

[Kate]

Now what? There's a Byron York blurb on The Corner saying that the left is excited that Rove might be indicted tomorrow. Reminds me of last October with all the rumors flying around. York discounts it.

[Sue]

Kate,

We wait. Nothing else we can do. ::grin::

[cboldt]

That third prong (effectively unreviewable on appeal) of interlocutory appeal under 1291 appears to be relevant in cases where immunity (from trial) is asserted. In that case, having the trial, regardless of outcome, effectively moots the claim of immunity.

The lectric law library has a piece on "Collateral Order Doctrine" that notes another class of cases, where the court below might certify an interlocutory appeal.

Section 1292(b) allows the district court to certify an order for interlocutory appeal if (1) the order involves a 'controlling question of law as to which there is substantial ground for difference of opinion,' and (2) 'an immediate appeal from the order may materially advance the ultimate termination of the litigation.'

I think Judge Walton would certify such an order, and expect to see a Motion for such an order from team Libby. There is substantial ground for difference of opinion, and if the appeal goes in Libby's favor, the case is disposed of, the litigation is terminated. This is a judicial economy justification for taking the appeal.

[topsecretk9]

Did I miss something? This is
Patrick J. Buchanan filed an hour ago...

"...McCarthy allegedly told the Washington Post our NATO allies were secretly letting the CIA operate bases on their soil for the interrogation of terror suspects. Apparently, McCarthy failed several polygraph tests, after which she confessed.

If true, she was faithless to her oath, betrayed the trust of her country, damaged America ’s ties to foreign intelligence agencies and governments, and broke the law. The Justice Department is investigating whether McCarthy violated the Espionage Act..."

[Patton]

God, that poor girl at Duke...did you know she was raped ten years ago by three guys and none of them were ever arrested.

Its De Ja Vu all over again.....

[pollyusa]

Rick Ballard

I'm stuck on Plame's being a "WMD analyst" as being the only pertinent classified information improperly disclosed - and Libby does not appear to have disclosed that. At least Novak didn't pick it up from Libby but from UGO - who grabbed it from the INR report and notes.

I don't believe the INR report or the attached INR analyst's notes ever refer to Plame as an analyst.

[Patton]

Rove indictment IMMINENT!!

Apparently Rove screwed up in the Grand Jury and told them when he talked to Cooper he had an itch and scratched his leg with his right hand.

But Fitz has a source that says he remembers Rove was clearly on the phone and scratched his leg with his left hand. LEFT HAND people!!

Sources close to the investigation said Fitz was flabbergasted when Rove screwed up and he knew he could nail him on at least two counts of perjury and obstruction.

Sources familiar with lawyers, or have met lawyers in the course of their incarcerations claimed that the left hand scratch by Rove is significant and proves the President was lying about WMD. They could not explain the connection, because it is classified.

A sobbing Joe Wilson commenting on the major slip up by Rove claimed vindication tonight and sobbed in front of CNN cameras that even though he feels vindicated by the pending left hand scratch indictment, he still wishes he could give Valerie her life back.

Wilson said, "People have to realize and wake up that you can't just make up scratching claims and people are going to believe you just because you work for the President".

UGO could not be reached for comment as he is in government protection in a CIA safe house dining on Lobster and Prime Rib at tax payer expense for all he has been put through with the rigors of memory recall and excuse management.

Bud Shuster Reporting.

CHRIS MATHEWS: Thanks Bud, now for a non-partisan look at the Rove hanging, lets turn to our panel of Howard Dean, Chuck Schumer and Larry Johnson.

[Tomf]

topsecretk9:

Interesting. Thank you. But what does that
mean?

[Tomf]

Sorry. Forgive. Meant for cboldt.

[cboldt]

clarice

How is it material that Libby thought he discussed Plame with Russert and Russert testifies otherwise; that he thought he said to Cooper,"I heard it, too, from other press" and Cooper says he merely said "I heard it, too" or that Miller says he told her that Plame worked in the Bureau?

Assuming arguendo that the investigation is legitimate, it's function is nominally to find whodunnit. Whodunwhat? Who rightfully knew Plame's "status" (for want of a better phrase) in the CIA and disclosed that to a person or persons who did NOT have rightful access to that information.

At this point, it's real tempting to jump ahead and say that Plame isn't/wasn't covert (for any of a variety of reasons - "everybody knew," or "she wasn't overseas"), but set that question aside, even though it's arguably a legitimate attack on the legitimacy of the investigation.

So, back to assuming arguendo that the investigation is legitimate, and it aims to find the person who leaked classified information. One of the witnesses in your investigation gives testimony that seems to indicate no basis for having official knowledge, but admits to being part of the rumor mill that is swirling with the previously-secret information. If you believe this testimony, that witness cannot be a leaker, and your investigation goes elsewhere.

For purposes of investigation, perjury is material if it has the ability to mislead the investigatory body.

A false statement is material if it has "a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed."

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01748.htm>
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01748.htm

The link above has quite a bit more. But if one steps into the shoes of the investigator, trying to find a leaker, I think a person who in fact had actual official basis for knowledge is obliged to tell that to the investigator (assuming the witness remembers having official background), rather than lead the investigator to a fact pattern that establishes the witness as just another person in the rumor mill, having no official basis for possessing the knowledge.

Note too, just having official basis does not make a person a leaker - it simply makes them possibly a leaker. But if they don't have official basis, it becomes impossible for them to be a leaker. Anyway, it's that sort of distinction that makes the testimony material.

[topsecretk9]

But what does that mean?

If true, I assume there HAS been a referral made to the DOJ by the CIA (ala Plame) which has not been reported to my knowledge and runs counter to the CW that it was just a firing and a slap on the wrist with full pension.

It also means, if true, the denial issued would appear to be hollow and the CIA's response to that denial -- that she failed polygraphs and then confessed (confessed being the key) are the basis of the referral.

It means, if true, she may be in deeper do-do than Rand Beers says.

[topsecretk9]

oh, NOW you say Tom F. ::grin::

[Squiggler]

This is too much ... the WH press corps has demanded that the TV feed on the plane be switched from Fox to CNN now that Tony Snow is coming onboard. Sheesh! And McClellan conceded to the switch, saying it had never been brought to his attention before.

[Tomf]

topsecretk9:

Again, sorry. Yours interesting too!