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February 16, 2007



There's something fishy about never getting a straight answer from any government official about Plame

Well, jerry, as I pointed out to Pete in another thread, Joe Wilson Himself was hanging out with Marcy just a few nights ago. There's never a straight answer out of him about Plame's job either, although perhaps it is more for lack of actually asking him about it.

JM Hanes


Comey appointed Fitzgerald as Special Prosecutor, and then, I suspect, realizing that DOJ reg's specify that an SP come from outside DoJ wrote the letter that Rick directed you too, specifically detaching Fitzgerald from DOJ apron strings. In the court docs, he asserted that he appointed Fitgerald under the AG's authority to delegate anything and everything to someone else.

We had a long discussion on this last April, a chunk of it is covered in this Post which might be a place to start. I believe there were a couple of related threads around that time. In the http://justoneminute.typepad.com/main/2006/03/waiting_for_st_.html#comment-15182224 ">P.S. Post which follows the first one, you'll also find a link, originally provided by MJW, to a terrific backgrounder which sorts out the whole choronology of Indpendent/Special prosecutors etc.


The question is: Do you believe Russert then, or Russert now, or Libby?

Yeah, that's an interesting way to look at it.

So, unless the Supremes want to risk overturning the applecart, they will continue to twist the words of the appointment clause to enable the bureaucracy to flourish.
I don't see the argument here. The bureaucracy has flourished just fine with everyone falling somewhere within the four allowable Appointments Clause categories. As far as I can tell, Fitzgerald is the only federal employee not under a proper supervisor -- and that's only as special prosecutor -- he's properly supervised in his day job as US Attorney in Illinois. Certainly many supervision arrangements in the government are incompetent, but everyone is at least nominally under some valid chain of command.

The appointment violated DoJ regulations, and yes that's a problem, but the real turd in the punchbowl as far as Fitzgerald goes happened when Comey left government employment 18 months ago.


Jane, honey, is that you?!

How did I miss this!

Yes dear, tis I. Remember that night at Tulagi's?



Thanks for the cites. I was around for those discussions; I certainly do not want to relive them.

I'm quite comfortable agreeing to disagree on this issue. I see your point, CathyF's point, and Clarice's point. I even see Well's point.

I just don't think that the courts are going to choose this issue to overturn Libby's prosecution on appeal.

I'll gladly buy you a beer or three if you visit flyover country after I am proven incorrect. But I'd probably do that anyway...

JM Hanes

I wasn't trying to make a point, Walter, so I'm not exactly sure what it is you think we're disagreeing about. I was just giving you what I had link wise, in particular the article that MJW posted because you seemed to be asking about the IP/SP chronology, and didn't seem clear on the how the SP regulations did or didn't come into play here.

The only reason I asked about the appointment issue coming up on appeal was because you suggested that the trial judge is normally expected to dispense with such issues -- which Walton specifically chose not to do. I obviously feel that this was an illegitimate appointment, but, unfortunately, I don't think that has anything to do with the chances of something ever being done about it at this point. It's a problem that actually needs to be cured through legislation, which is what I suspect the Supreme Court would end up saying if they were to address the issue.



While I certainly don't think I'll convince you, I'd like to at least make sure you're rejecting my arguments on the merits.

I think that Comey, as acting AG for this matter, can point to Section 600.2(c) and say he is complying with the Regulations. Not that it matters. Libby is precluded from bringing it up on appeal because (a) he didn't raise the issue at trial and (b) Section 600.10 expressly states that the Regulations may not be relied upon by defendants.

"The bureaucracy has flourished just fine with everyone falling somewhere within the four allowable Appointments Clause categories."

I quoted the language in Gantt and Hilario to show you that two circuit courts of appeal don't agree. Not saying they are right and you are wrong, but their opinions do carry more weight than ours.

Personally, I don't have an opinion on whether the appointment is valid or not. So long as I've made myself comprehensible, I'm quite happy to leave the subject with your conviction that Walton and the courts I (and he) cited are wrong.

As a practical matter, I sincerely doubt that this issue will be adjudicated. As I mentioned above, courts avoid (and are required to avoid) Constitutional issues like the Plague.

So, before they decide this, Libby must be convicted, they must rule against him on every other issue that he brings up on appeal, or, if they grant his appeal on some other ground, he must be convicted in a retrial and then have every other issue decided against him. Only at that point will a court evaluate this claim.

I'm hoping it doesn't get that far. Not only for Libby's sake, but because some of J. Walton's rulings have really bad precedential effect if allowed to stand. And while few of us are likely to be in the cross-hairs of a special counsel, the breathtaking sweep of Fitzgerald's interpretation of materiality with regards to perjury and false statements could hit anyone filling out a loan application. His position that defendants' rights to a fair trial must be "balanced" against CIPA and some ill-defined 1st amendment privilege invites other erosions.

Not good stuff say I!


Sorry, JMH.

I must have read too much into your comment. I really don't want to go over those issues again and I opened the can myself, so there's no one else to blame.

Your links answer azaghal's questions better than mine did. I hope he's still reading this thread.

JM Hanes

No problem, I just meant it as a quick summary and some background material. If I'd really thought about it, I'd have realized you were already here at the time.

Barney Frank


I know you don't want to rehash this stuff but I was reading your link to the CFR 600 regs. I wonder if you could give me yor opinion on a couple of points.

600.10 seems to say essentially that no rights are created for defendents by these regs. Does that mean the SP can violate the regs and the defendent has no recourse other than the goodwill of the AG?

600.3 states unequivocally that the SP will be from outside the US government. That survives an appeal simply because of 600.10?

600.6 seems to obviate Clarice's point about oversight to me. It seems to pretty clearly say consultation is at the SP's discretion not the AG's. Is that your reading?



600.10? Yup.

600.3? Yup.

600.6? Nope. See 600.7 & 600.8 for the "except as provided in this part" stuff. (and see 600.10).


"600.6 seems to obviate Clarice's point about oversight to me. It seems to pretty clearly say consultation is at the SP's discretion not the AG's. Is that your reading"

Fitz didn't argue that when Libby raised it, BF. He claimed there was an uncommunicated understanding between Comey and he and further that although he didn't communicate w/ Comey, Comey could supervise his work by reading what he was doing in the newspapers.

You are entirely welcome, TM

Barney Frank

Thanks Walter and Clarice.

I guess that's why I pay lawyers so much; so they can help me understand things like what "in this part" means. Reading comprehension was never my strong suit.


I'm getting paid for this?


Barney Frank

Sure, the checks in the mail.


Well, in that case, you're quite welcome.


I also have to do a bit of a crawl-back.

I particularly hate to do it after a long screed, but it's a bit like band-aids I guess. So here goes:


I was not complete in my analysis above. Libby raised both a constitutional and a statutory argument against the appointment. The constitutional one won't be addressed until and unless all statutory issues are dealt with. The statutory issue (excessive delegation of authority without appropriate supervision) can and will be addressed early on appeal.

And I'm probably wrong on my other point as well. Since no other point will completely dispose of the case (the other grounds for appeal would merely send it back for another trial), the appellate courts might well address the constitutional concerns in order to dispose of the case.

My bad.


hit and run

Let me just say a quick thanks to the Libby Defense Fund.

Just got the check in the mail today.

They really do pay per post, and aren't looking at the quality of them, if my check is to be believed.


H&R, you make me laugh. Even when it hurts to laugh.



There's something fishy about never getting a straight answer from any government official about Plame (ignoring the Matalins and Yorks and Toensings and those sorts), I uncharacteristically don't see a corrupt motive behind this.

Well Jerry I'm still waiting for the answer to my question from above, Do you think John Kerry should be investigated and/or procecuted for leaking the name of the CIAs chief intelligence officer during "open" Senate hearings on John Bolton?

That is information worth millions of dollars to enemies of the USA, of course Kerry says he just misspoke but the fact remains he disclosed the most secret operative in the CIA for public record.

Did Kerry know that was classified info and that he disclosed a covert agent? Yes without a doubt.

Did Kerry have a motive for disclosing that infomation? Well that information was worth big money to Russia, China and dozens of other countries around the world. And the public record of John Kerry shows he will do absolutely anything for money and/or power.

Yes absolutely let's discuss fishy, and I'm talking about the stench from really rotting corpses.

Answer me should there be a investigation of Kerry. Give me "a straight answer" in your words.

hit and run

Holly, thanks.

It's the least I can do. And I always try and do the least.

Seriously though, I feel horrible for not saying any word of support or encouragement the other day when you told bad (fka sad) about your breast cancer. I hope you are doing well and please know that you are in my prayers.


Jane, 3 or none, or dozens I'm (And you're) missing.


Maybee, Marcy does have some scruples in what she writes, for instance she won't speculate about people Fitzgerald is treating as "innocent accused"(though I occasionally do as they're all public figures anyway), though I've never met her I wouldn't be surprised if she didn't ask Wilson questions about Valerie's employment.

royf, I missed your question earlier and don't know much about this Kerry incident, so I'll have to do some Googling. I tend to see Kerry as a well meaning idiot but maybe that's being generous.


BTW, Larry Johnson said today that he and a number of other former CIA people went on Larry King and vouched that Plame was a NOC:


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