Fitzgerald As Unconfirmed Principal Officer - The CIPA Problem

One of the arguments raised by the Libby defense team is that Fitzgerald's appointment is unconstitutional because the terms of his appointment effectively made him a "principal" officer, which would normally require the advice and consent of the Senate.

Fitzgerald's reply is that his appointment was a simple delegation of the Attorney General's power and that he remained an "inferior" officer regulated by Department of Justice regulations and supervised by the Attorney General, or one of his deputies, or someone.

This point was raised by the defense in early 2006 (lots of links in the intro to this recent post; Gov't response discussed/linked here) and re-surfaced when the defense filed its arguments for appeal.

HOWEVER!  In the most recent defense reply a very cryptic but seemingly powerful point is made for what appears to be the first time:

The appellate court might also find significant the fact that Mr. Fitzgerald assumed (and perhaps was ceded) significant powers under CIPA - an issue that did not arise at all in Morrison. Section 14 of CIPA expressly requires that "[t]he functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may Not be delegated to any other official." (Emphasis added.)

That provision reflects Congress's clear concern that, given the extraordinary interests at play in a CIPA case, certain crucial steps must be taken by the Attorney General himself or other specifically enumerated members of the Department.

For example, CIPA clearly provides that it is the Attorney General who must sign and submit to the court the é 6(c) "affidavit certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." Yet, here, it was Mr. Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory scheme. This fact alone is compelling evidence that the Special Counsel, with all of his sweeping powers, qualifies as a principal officer under the Appointments Clause.

Here is a link to CIPA:

Sec. 14. Functions of Attorney General

The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.

Hmm, the CIPA powers can not be delegated, as noted by the defense.  Yet it was Fitzgerald signing off on the CIPA documents, as frequent JOM commenter cboldt noticed last December, triggering the following point from cathyf:

Interesting language from the North ruling:

In fact, CIPA expressly states, in Section 14, that the Attorney General's decisionmaking responsibility under CIPA may be delegated only to the Deputy Attorney General or an Assistant Attorney General (all presidential appointees, removable at will) and "may not be delegated to any other official."

This comment is particularly interesting to me in contrast:

Given Congress's clear, constitutionally based commitment of CIPA authority to the Attorney General as an agent of the President, it would be extraordinary if the independent counsel statute had to be read to strip any of that authority from the Attorney General.

The independent counsel was created by statute. Fitzgerald's appointment was improvised, and it's pretty clear that neither Comey nor anybody else gave any thought at all to this sort of sticky constitutional question.

Perhaps the defense is now having the same insight.  Well, fair enough - the CIPA filings occurred after the motion to dismiss related to the appeal of the constitutionality of Fitzgerald's appointment.

Now, one might ask whether this can be dodged by arguing that Fitzgerald's appointment made him the equal of an Assistant Attorney General, an inferior officer eligible for this delegation.  That is a problematic answer:

Title 28, Section 506. Assistant Attorneys General

The President shall appoint, by and with the advice and consent of the Senate, ten Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties.

*IF* I am following, that argument would imply that Fitzgerald was functioning in a position that was subject to Senate confirmation.   He was confirmed as a US Attorney, but the promotion to de facto Assistant AG was not confirmed, so this may not be the road the prosecution wants to travel.

Well.  If any legal eagles see a good answer for the prosecution,we would love to see it.  It does appear that Fitzgerald acted as if he held powers that exceeded his station.  This certainly calls into question the nature of his supervision by his superior officers at DoJ, who were surely aware of the CIPA hearings - didn't they wonder who was approving the government's submissions?  And, having learned it was Fitzgerald approving them, how did they let this breach of the law continue?

Or if they did not intervene (and they seem not to have), doesn't that imply that Fitzgerald was being treated as a principal rather than an inferior officer?  If so, his role would violate the appointments clause.

We will no doubt learn more tomorrow at the hearing.

And do keep in mind - Judge Walton is not being asked to conclude that Fitzgerald's appointment was unconstitutional; he is simply being asked to decide whether it is a tricky enough question that Libby should remain free while an appeals court takes a whack at it.  That hurdle seems to be easily cleared, but I am sure the judge will find a way to minimize it.

Comments

[Poppy]

Bush could fix this without pardoning Libby, all he needs to do is send a letter to the Senate, with a copy to the court and the Libby defense.

The letter to the Senate would state that Bush has recognized in hindsight that Fitz was acting as a principal officer and needed to be confirmed by the Senate. Blame Comey for his terrible oversight of not pointing out that fact that Fitz was operating in an unconstitutional role without appointment and advice and consent of the Senate.
Request the Senate confirm Fitz to his position so he can legally continue in his office. Of course all his prior actions would have to be reviewed by the courts for any reversible errors.

THIS GIVES BUSH THE ABILITY TO:
- DISS COMEY
- APPEAR TO SUPPORT FITZ
- GET LIBBY'S CONVICTION THROWN OUT.

[cboldt]

I have to say I was surprised to learn that Courts have the power to appoint independent prosecutors for the purpose of pressing criminal contempt charges. ZERO involvement of the executive, upheld by SCOTUS.

[clarice]

TM:Well, fair enough - the CIPA filings occurred long after the appeal of the constitutionality of Fitzgerald's appointment.
TM there was no appeal; I think you meant long after the motion to dismiss on the basis of the unconstitutionality of Fitz' appointment.

[Good point and I have made a change - TM]

[cboldt]

Just to quibble with the "long after" characterization of the timeline, the first CIPA filing was by Team Libby on 23 January 2006, the motion to dismiss on grounds of defective appointment was made on 23 February 2006, and a filing indicatative of CIPA sophistiation was made by Team Libby on 24 February (MOTION To Bar Ex Parte Submissions Under CIPA Section 4 Without A Particularized Showing Of Exceptional Circumstances).

[Hmm, only one business day... OK, when was the first actual affidavit signed by Fitzgerald presented? I probably ought to know, but the comment thread to which I linked was December. Well, I'll change "long after" to "after".]

[clarice]

BTW Is Sharon a genius or what? He pulls out of the "occupied territories" leaves them alone and they take all that aid they keep getting and use it to buy weapons to kill eachother.

Tell me again, bien pensants, why the Palestinian question has to be resolved before there can be peace in the Middle East.

[topsecretk9]

Someone mentioned Comey's press conference the other day -- Here is a link in case anyone is interested...

I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation; that is, that he has the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive decisions to make. I expect that he will only consult with me or with Assistant Attorney General Ray, should he need additional resources or support..

-----------------

Q: Could you fire Fitzgerald?

MR. COMEY: That's a great question. (Laughter.) Now I believe that I could revoke the delegation of authority that I've given to him. I don't believe that I could --

Q: So how does that move it outside the traditional chain of command, as you put it?

MR. COMEY: Well, because what I've done with Fitzgerald is -- the normal outside counsel, appointed outside, or the ordinary U.S. attorney, if he needs to issue a subpoena involving the media, for example, or if he wants to grant immunity to somebody or if he wants to take an appeal, has to come for approval to the Department of Justice. Pat Fitzgerald will not, for these purposes.

He is a --

Q: If you don't like what he's doing, you can end it.

MR. COMEY: Well, in theory, if I know what he's doing, in theory I could, yeah. And I'd better have a darn good reason for doing it, because you'd have your hands in the air.

Yes, sir?

[cathyf]

Geez, doesn't that press conference give you the creeps? I mean the reporters were falling all over themselves to stroke Comey. **shudder**

[clarice]

Sprinkle a little chum on the water, cathy.......

[cboldt]

Self-investigation is always problematical. And Clinton v. Jones opened the door to compelling executive testimony in a civil case. For political dirty tricks by the party in power, the "game" says stiffing investigation altogether is the winning legal strategy.

There are, however, political consequences for playing/bluffing a legal hand. I'm still fascinated by the Libby case, and it has ramifications and insights far beyond what I saw a year ago.

[anduril]

Tell me again, bien pensants, why the Palestinian question has to be resolved before there can be peace in the Middle East.

Posted by: clarice | June 13, 2007 at 08:45 PM

Simple. Because if their problem isn't solved they'll all kill one another.

It's a bit like a hostage taker holding the gun to his own head.

[anduril]

I'm amazed that TSK9 hasn't yet come up with Schumer's reaction to the Fitz appointment. He should have been enraged, given that Fitz was serving a GOP admin and was nominated by a very conservative GOP senator. Schumer should have been screaming bloody murder, demanding someone independent and approved of by Larry Tribe. Wanna bet?

Stop me if I've said this before: what a doofus Ashcroft was. Traveling the country, speaking to captive audiences of DoJ employees and delighting them with his impromptu singing. God, Schumer and company must have been laughing fit to be tied.

[Other Tom]

It may be a distinction without a difference, but in the Clinton case the operative facts in the underlying case arose before he assumed the presidency.

Clarice, on the earlier thread you mentioned the issue of an interlocutory appeal (an appeal that is sought, and under the right circumstances allowed, even while the case is still pending at the trial-court level). I assumed all along that the only reason such an appeal wasn't taken was that it was clearly not available--is that right? My God, if it was available, or even arguably so, I can't imagine why they didn't attempt it.

[anduril]

How about this? Isn't it possible to have an appeal certified as involving an important federal question, and then you get bumped up in the queue? Who would do that? Gonzalez, a judge?

[Pal2Pal (Sara)]

Other Tom -- It has been 103 degrees out here in the Temecula/Murrieta area today, how is it down by the Bay where you are? 6:30 PM and we are still at 99.

[cboldt]

-- My God, if it was available, or even arguably so, I can't imagine why they didn't attempt it. --

If it's arguably available now, it was arguably available then. The argument hasn't evolved or developed from the time it was first made.

There are differences in threshold and rationale for advancing an interlocutory appeal, compared with advancing a motion for bond pending appeal. Defense had to have made a conscious decision to defer this avenue. "Gaming the judiciary." Huzzah!!

[lurker9876]

Fitzgerald's reply is that his appointment was a simple delegation of the Attorney General's power and that he remained an "inferior" officer regulated by Department of Justice regulations and supervised by the Attorney General, or one of his deputies, or someone.

If that is the case, then shouldn't the TeamLibby put the AG, one of his deputies, or someone on the stand to testify exactly what they saw over Fitz's work?

Clarice, I'd say let the Palestinians kill each other off. Sharon was really brilliant in shutting them off from Israel. Looks like Egypt is allowing the Palestinian civilian into Egypt. That way Hamas and Fatah cannot use human shields.

cboldt:

I have to say I was surprised to learn that Courts have the power to appoint independent prosecutors for the purpose of pressing criminal contempt charges. ZERO involvement of the executive, upheld by SCOTUS.

Where does this say this part? But it wasn't a court that appointed Fitz.

Wonder if Fitz knows it's a lost cause if the TeamLibby goes on up to the Appellate Court. Fitz' 43 page filing was ill-prepared and sets the tone of deperation. But TeamLibby's filings were excellent and to the point. JMHO.

[Other Tom]

Anduril: my recollection is that, when that is your avenue to the court of appeal, it is the trial court that has to certify it. But I also recall that there are other circumstances where you can get appellate consideration even without the trial court's acquiescence. I just don't remember what they are.

More of the hazards of practicing law as a hobby, and with no consequences for being wholly in error.

Evening phalanx of Martinis were (was?) a huge success.

[Other Tom]

"If it's arguably available now, it was arguably available then. The argument hasn't evolved or developed from the time it was first made."

But it would not be "interlocutory" now (judgment having been entered), whereas it would have been then. Right?

[Enlightened]

Sara - I work in South San Fran - it cooled down around noon, it's about 65 now...

But, I live in Cordelia, about 55 miles from here and it has cooled down to about 97....

[cboldt]

-- But it would not be "interlocutory" now (judgment having been entered), whereas it would have been then. Right? --

Yes. Interlocutory implies a deviation from the routine, an interruption to settle something that is better settled before proceeding with what follows in the routine. The propriety of Fitz's appointment falls in this category, better settled before the trial than after the trial.

One criteria for granting an interlocutory appeal is that the issue be unsettled, other wise every criminal would go for interlocutory appeal after interlocutory appeal, tying up the court bureaucracy. Libby's case is per se unique, being a one-off grant of authority. IMO, better to run it up the flagpole early.

[Other Tom]

In Coronado, it hit 73 today. Down to about 64 tonight; forecast 74 tomorrow.

[clarice]

OT when the judge denied the motion to dismiss cboldt and I did some paltry research on the topic of interlocutory appeals. The federal rules deal with two kinds of interlocutory appeals--one required the certification of the judge , another IIRC doesn't.

I don't remember the specifics, but at the time I believed Libby could have appealed then. (After all it was the kind of issue which if resolved in his favor would utterly obviate a trial at all.) In retrospect I think he was wise to wait because--see the CIPA discussion--the improper conduct became even more obvious as the trial progressed.

[Other Tom]

Cboldt, I believe we are in agreement. Which still leaves me wondering why the defense didn't seek to take an interlocutory appeal from the judge's initial ruling. I recall thinking at the time that they almost certainly would, and when they didn't I figured they must have thought they couldn't get it heard.

But it's always easy after the fact to second guess some other guy's trial tactics.

[lurker9876]

Not only that, Clarice, we learned more during the trial as we find more pieces to fit the puzzle. Fitz' revelations during the trial actually gave Libby more ammunition.

[Other Tom]

Clarice, we're cross-posting again.

God, Sara--we're 65 miles from Temecula here, and there's thirty degrees difference. Not unheard of, but it seems a little bit unusual. I guess Gore is right...it must be the SUV's...

[clarice]

I have been a long time watchers of political trials. It often takes some time for the heat to wearoff long enough for people to see clearly what happened and to have the balls to stop it.

[lurker9876]

Oh, Clarice, that is what I had expected. Americans are getting tired of the media hype over the Wilson story and all.

Now we're seeing more and more people coming out of the cracks to complain about Fitz. Amazing!

[cboldt]

-- I recall thinking at the time that they almost certainly would, and when they didn't I figured they must have thought they couldn't get it heard. --

And why would they not get it heard? Whatever the reasons for denial then, are the same reasons that play for denial now.

If your case "on the law" is strong, you press it early to avoid all the hassle of trial. It the argument isn't so strong, reserve it in case you lose at trial. Well, here we are.

[clarice]

TM, It's time to clean the litter box again.

[lurker9876]

cboldt, could it be that the Team Libby had been collecting ammunition before and during the trial to build their appeals?

[Sue]

Did they raise the issue at trial? I'm thinking you can't appeal what you didn't raise, but maybe I'm thinking of something else. Not a lawyer here, but I play one now and again.

[clarice]

Yes. He moved to dismiss early on based on the appointments clause Sue.

[Sue]

On second thought, are they raising the CIPA issue now merely to show another instance where Fitzgerald was acting without supervision?

[Sue]

Clarice,

I remember the dismissal motion. I was referring to the CIPA issue.

[cboldt]

-- could it be that the Team Libby had been collecting ammunition before and during the trial to build their appeals --

Sure. But that would be a wasteful, and IMO stupid strategy. Why go through the crap of a trial, if your argument is that the prosecutor lacks authority to prosecute?

Water over the dam, and I like the argument - I just prefer it to have been litigated months ago.

[cathyf]

Italactico!

[cathyf]

emphatico?

[clarice]

Sue,There are two CIPA arguments:One is that the CIPA issue was unfairly resolved by the Judge and that was objected to at the time. The second is noting that CIPA resolutions can by statute only be made by principal officers and Libby was not one--that is just additional evidence in the appointments issue which as I noted was properly raised at the appropriate time.

[Sue]

Clarice,

That is what I was asking. Was the CIPA issue being used as additional evidence since I don't remember an objection to his signing off on the affidavit at the time.

[Pal2Pal (Sara)]

Well OT if it is as hot tomorrow, I might have to consider lunch at the Del. Many years ago, I used to hang out with a contractor who built many of the homes in the Cays and I fell in love with Coronado. I used to take my Mom to lunch there on a regular basis, but I haven't been over there now since she died in 2004.

[lurker9876]

-- could it be that the Team Libby had been collecting ammunition before and during the trial to build their appeals --

Sure. But that would be a wasteful, and IMO stupid strategy. Why go through the crap of a trial, if your argument is that the prosecutor lacks authority to prosecute?

Water over the dam, and I like the argument - I just prefer it to have been litigated months ago.

Thanks, cboldt.

[Other Tom]

So I guess I simply restate what I said: certainly in retrospect, they should have sought the interlocutory appeal immediately. And while it may be true that the intervening proceedings have lent a bit of factual support to their legal argument, I'm sure that Libby himself would have just as soon given it a try way back when.

[Other Tom]

So I guess I simply restate what I said: certainly in retrospect, they should have sought the interlocutory appeal immediately. And while it may be true that the intervening proceedings have lent a bit of factual support to their legal argument, I'm sure that Libby himself would have just as soon given it a try way back when.

[Other Tom]

Sara--I'm at 710 J. l If you're in town, stop in and say hi.

[lurker9876]

Why didn't Libby try the interlocutory appeal at all?

[clarice]

lurker, no one but he and his defense team could possibly answer that.

[Pofarmer]

Lurker, my guess is they didn't think the prosection had a case. I don't think they counted on the moonbat judge and jury though.

"Where's Cheney, Where's Rove?"

[JM Hanes]

2 x Wow! The Libby reply is great stuff! Ya gotta love these guys -- they obviously kept their ammunition dry for their reply to Fitz' response! They were not about to give him any time to catch his breath, schmooze up Walton (or calm him down?), or run around wrangling affadavits from the usual suspects. If I'd had a clue the CIPA thing was in the tubes, I could have saved myself -- and everybody else -- a book length post.

No more Mr. Nice Guy with Walton either, they clearly decided to take this game to the Judge. I have no doubt that when their actual appeal is filed, we're going to see a whole lot more on a whole lot more. Correct me if I'm wrong, but somewhere along the way I got the impression that they've had an appeals specialist, if not one of their own, on board, working diligently away from the outset. Or did I just make that up?

I just fell out when they hit Walton on the meaning of "any." What goes around, just keeps going, and going. Things may go rotten tomorrow, but today's a good day. The Amicus Brief was terrific in its own way, mostly because it was the first sign that anybody else was really watching and might actually do something. This one, though, was like watching the home team connect with the ball.

[Charlie (Colorado)]

Harmless error at best.

Speaking of "tone of desperation."

[JM Hanes]

As self-appointed irony monitor, I can't help noting that my first meaningful captcha check window finally showed up saying: s9yrup Nice, eh?

[cathyf]

Why didn't Libby try the interlocutory appeal at all?

We all asked each other at the time -- we were stumped. The only thing that I can think of is the structure of Walton's decision. Walton's decision was a classic example of begging the question -- he asserted that Fitzgerald's appointment was not what Comey clearly said in plain English, but instead did not go outside the bounds of constitutionality. Sort of the "Comey was exercising literary flair" theory -- ah yes, there's that old literary flair leitmotif again...

To argue against this, Libby needs to show that Fitzgerald was seriously outside of the bounds of supervision. He needs a long and serious list. It is possible that they didn't think that the list was long enough, and they needed to give Fitzgerald more rope to prevail in the argument.

And the list certainly did get longer. We found out in the trial that Fitzgerald assisted Russert in filing a false affidavit. We found out that the FBI agents lied in their notes, and "lost" the most important ones. We found out that Fitzgerald threatened Cooper with jail to get his testimony, brought an indictment on the basis of the testimony, even though Cooper's notes supported Libby's story. We found out that Fleischer named particular reporters as having been the recipients of Fleischer's leaks, while Fitzgerald filed a (false) affidavit leaving them off the list of reporters who received leaks.

That's just off the top of my head -- I'm sure that others can think of more cases illustrating Fitzgerald's lack of supervision, and now these are all facts, established at trial. Sure, some of these they got during discovery, but not all. And if I understand correctly, they still have been denied access to Mitchell's notes, since they only get that sort of stuff if she testifies, right?

[clarice]

Right, cathyf. And if that is why they waited--great for them;they got what they hoped they would.

Also, with time the heat dissipates. When I represented someone convicted by the Watergate Prosecutor, state law required he give up his elected position upon conviction. I told him we could use that as a basis for seeking an expedited appeal. He turned it down, gave up his office and on appeal--long after the luster was off the prosecution and the ancillary scandal he was tagged in--he won.

[Charlie (Colorado)]

On the topic of interlocutory appeal, it seems I recall someone saying at the time that interlocutory appeals are so unusual, and of necessity require asserting that the trial judge is full of the unexcreted products of digestion, that there is a pretty substantial disincentive to them.

Am I nuts?

More than usual, I mean.

[Tom Maguire]

The second is noting that CIPA resolutions can by statute only be made by principal officers and Libby was not one

I need some help here - even though they are subject to Senate confirmation, surely the Assistant Attorneys General are *not* principal officers, are they? Wouldn't they be inferior to the AG?

And same question for the Deputy AG - isn't he inferior?

Where I am coming out is that even though Fitzgerald was confirmed as an Assistant US Attorney, he was never confirmed as an Assistant AG, so he just can't have CIPA power.

Or else, he was improperly made a principal (lack of supervision).

But maybe the prosecution can argue he was just made an improperly elevated inferior officer (like an improper Assistant AG.)

[clarice]

I think one of the tests of "principal officer" is Senate confirmation, TM. Of course they are subordinate to the AG but then the AG is subordinate to the President yet is a "principal" officer.The question is more of delegating policy making to unelected and unconfirmed officers.

I meant to say BTW that while we are concentrating on the appointment and CIPA arguments and the Mitchell matter, I think the defense has made powerful arguments that the Judge denied Libby his Sixth Am right in allowing at the 11th hour the prosecution to withdraw its unqualified admissions of fact and in denying the defense the right to call the CIA briefers.

[clarice]

Charlie, of course you are not nuts, but I don't think we agreed that that was the hang up on an interlocutory appeal.
The problem with an interlocutory appeal is more likely that it comes devoid of much of a record which is helpful to evaluate the issue.
**TM we were sort of cross posting.Being confirmed as an Asst US Atty doesn't constitute confirmation to a different post,I think.

[Other Tom]

Off-topic, but absolutely urgent:

"'Make love not war' may be the enduring slogan of anti-war campaigners but in 1994 the US air force produced its own variation on the philosophy.

"What if it could release a chemical that would make an opposing army's soldiers think more about the physical attributes of their comrades in arms than the threat posed by the enemy? And thus the 'gay bomb' was born."

Who was president and commander-in-chief at the time of this outrage?

[RichatUF]

But maybe the prosecution can argue he was just made an improperly elevated inferior officer (like an improper Assistant AG.)

Ryder v. United States (94-431), 515 U.S. 177 (1995)

graf--

The latter court agreed with petitioner that the two civilian judges who served on the Court of Military Review had not been appointed in accordance with the dictates of the Appointments Clause, U. S. Const., Art. II, §2, cl. 2, but nonetheless held that the actions of those judges were valid de facto. We hold that the judges' actions were not valid de facto.

more...

...The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 440 (1886).... [long part not copied]... petitioner raised his objection to the judges' titles before those very judges and prior to their action on his case. And his claim is based on the Appointments Clause of Article II of the Constitution--a claim that there has been a "trespass upon the executive power of appointment," McDowell, supra, at 598, rather than a misapplication of a statute providing for the assignment of already appointed judges to serve in other districts...Petitioner is entitled to a hearing before a properly appointed panel of that court. The judgment is reversed, and the case is remanded for proceedings consistent with this opinion.

I don't know if this is brought up in the Libby response (or in Fitzgerald's) but it is was what I managed to google on "de facto office" [I just wanted to give Fitz a hand doesn't look good]

RichatUF

[clarice]

OT:Don't ask. Don't tell.(P.S. I like that sort of unconventional warfare notion.)

[RichatUF]

looks like Garth/Jason is back....YEAH

loyalty to your country always. loyalty to your gummint when it deserves it.
tough on crime hypocrites.

You forgot ALL CAPS RAGE and MORONS!!!!!!

RichatUF

[clarice]

BTW I think this is the Lawrence Robbins who's joined Libby's team:

LAWRENCE S. ROBBINS is a trial and appellate litigator who handles both criminal and complex civil litigation. Larry served as an Assistant United States Attorney in the Eastern District of New York from 1983 to 1986, an Assistant to the Solicitor General from 1986 to 1990, an Associate Independent Counsel from 1990 to 1992, and as a partner in the Washington office of Mayer, Brown & Platt thereafter. Larry has tried dozens of criminal and civil cases in federal and state courts across the country, and has argued seventeen cases in the United States Supreme Court and some thirty others in the federal circuit courts of appeals. In recent years, Larry has concentrated on criminal appellate litigation, including the recent successful appeals in United States v. Brown, 459 F.3d. 509 (5th Cir. 2006), and United States v. Hurwitz, 459 F. 3d 463 (4th Cir. 2006); and the representation of companies and individuals before the SEC and in other governmental investigations. Larry received a B.A. in economics, summa cum laude, Phi Beta Kappa, in 1974 from Yale University, and a J.D., magna cum laude, in 1978 from Harvard Law School, where he served as Developments Editor of the Harvard Law Review. He is also a Fellow of the American College of Trial Lawyers.
Admitted in the District of Columbia and New York.

[cathyf]

Rich (and anyone else so tempted), please, if you must read his posts, please don't respond on this thread. Scrolling by him is not that hard. Knowing whether I need to scroll by you is not.

[cathyf]

in denying the defense the right to call the CIA briefers

...ah... I missed that one during the trial. I thought that Team Libby had decided not to call them (for example they wanted to keep their argument focused, and focused elsewhere.) I missed entirely that particular one of a multitude of 6th amendment offenses (there were so many!)

[clarice]

I think the judge's pique at Libby's decision not to testify is inexplicable..His counsel always reserved that, and allowing the prosecution to withdraw its admissions, limiting to pablum the CIPA documents and refusing to allow him to call the CIA briefers certainly had impact on his defense, cathyf.

[Bill in AZ]

Clarice: "BTW Is Sharon a genius or what? He pulls out of the "occupied territories" leaves them alone and they take all that aid they keep getting and use it to buy weapons to kill eachother."

I have searched the web for a matching grants program where I can donate for weapons for one side and have them matched on the other side - no luck yet, but will let you know when I find one.

Lawrence Robbins, EDNY... wonder of he knows of Fitz's perfidity during Fitz's tenure at SDNY when he waas busy disconnecting terrorism dots.... the perp/victim dyslexia problem he has.

gormless garth thinks TM deleted his posts - as if his posts were even worth deleting...

[clarice]

Bill--I love that matching grants program. I bet when PUK shows up he'll be glad to manage that one.

[Bill in AZ]

gormless garth - er.... yawn....zzzzzzzzzzzzzz

[clarice]

In six days we will reach the one year anniversary of the date Leopold promised to file a report on the sealed Rove indictments.

[Other Tom]

RichardUF: I can't tell from the excerpt you posted from the Ryder case what effect it might have here. I don't think I've seen it cited by either side, but didn't go back to check. I also don't know whether it conflicts at all with the authorities cited by the defense in the following passage in their reply brief:

"Finally, the government contends - for the first time in this filing - that even if
the Special Counsel's appointment were unconstitutional, reversal would not be required
because Mr. Libby 'was not prejudiced and . . . any error was harmless.' Resp. at 15 n.

"The government has never before made this argument, and for good reason. Where,
as here, a federal official exercises authority in violation of federal law, his actions must
be invalidated regardless of whether specific prejudice is shown. See rouNg v. United States e_ rel. VuittoN et Fils S._., 481 U.S. 787, 809-14 (1987) (plurality) (contempt convictions must be reversed, regardless of any showing of harm, where district court erroneously appoints counsel for an interested party to prosecute alleged violations of a court order)i id. at 815-25 (Scalia, 7., concurring in the judgment) (concluding that
appointment of counsel to prosecute contempt charges exceeded district court's power under Article III and that convictions therefore must be reversed)i Nguyen v. United States, 539 u.s. 69, 79 (2003) judgment of court of appeals constituted in violation of federal law must be invalidated without assessment of prejudice)i cf. United States v.
Providence 7ourNa1 (To., 485 u.s. 693 (1988) (dismissing case for want of jurisdiction because special prosecutor lacked the statutory authority to represent the United States in a petition for certiorari). Indeed, the D.C. Circuit has already indicated that a violation of
the Appointments Clause qualifies as structural error and therefore cannot be subjected to harmless error review. See Landry v. Fed. Depositions. (Torp., 204 F.3d l 125, l 130-32 (D.C. Cir. 2000)."

[Other Tom]

You're right, Clarice--and I can't let today (still June 13 on the Left Coast) pass without noting the thirteen-month mark for the Rove indictment itself. It must be terribly stressful for Karl to be under that cloud all this time, but according to Jason and Crazy Larry he's still working with Fitz on flipping to give up Cheney.

[clarice]

Well, Fitz has been so busy prosecuting other innocents--like Kipnis and Lord Black it must be very hard for him to sort thru all that evidence Rove is giving him.

[Bill in AZ]

fitz - fighting crime one victim at a time. When all the victims are off the street and in prison where they belong, perps will have no choice but to make an honest living.

[clarice]

From Mark Steyn's account of the Black case in MacLeans today:
"Mr Kipnis is on trial for one big reason and one small reason: First, he refused to do a deal with the US Attorney which would have involved a guilty plea and the loss of his law license. Second, he's the token American in an otherwise all-foreign defendants' line-up, and you do get the vague feeling he's been put there by the government to provide a figleaf and deflect accusations of Canadaphobia.

He was, as Judge Amy noted, "differently situated" from the other defendants in more than a geographical sense: for a start, he derived no financial benefit from his "role" in the "conspiracy". Three months ago, it seemed likely his defence would diverge from Black and Boultbee's in significant ways that might well damage the principals. Instead, Kipnis' case has been mostly consistent with Black's and the skill with which it's been marshalled has helped the other defendants.

My bet: He'll be acquitted - which will be small consolation for a victim of malicious prosecution whose life has been ruined."

[topsecretk9]

In six days we will reach the one year anniversary of the date Leopold promised to file a report on the sealed Rove indictments.

Oh yes indeedy - AND Wilson just gave an exclusive interview to Jason - Mr. TruthOut (I am sure that interview pleases Emptywheel and Murray Wass! HAH!) - TruhtOut assured that they were working with Wilson on the 24 biz hour indictment sealed vs. sealed to prop up their amazing scoop!

Seriously - the man is a swine - Wilson and Larry sat stone faced while Marci and Murray Waas trashed Jason at Yearly Kos as Wilson was his SOURCE! Talk about twisted!

[topsecretk9]

Mr Kipnis

Clarice -- this makes me sooooo mad - it IS akin to Nifong only without the sexual aspect and fair minded people should be very worried - I mean this affects small business - it awry and wrong.

I am sorry - Soros is like a convicted felon in France - why is HE = a felon = not looked into ala Fitz's model on Conrad Black?

[clarice]

The whole case is a farce. In the meantime the trustee Fitz had installed over Black's empire is bleeding the company dry at $900/he and Kipnis who did nothing wrong is not practising his profession, is running a suburban sign company and struggling to pay his legal bills.

[Pal2Pal (Sara)]

It is like the world has gone nuts. $54mil pair of pants with crying plaintiff/judge/attorney to this:

Suit filed against highest Illinois court CHICAGO, June 13 (UPI) --

A Kane County newspaper is suing the entire Illinois Supreme Court on charges of violating its constitutional rights and those of a former columnist.

The suit by Shaw Suburban Media Group, owner of the daily Kane County Chronicle, accuses Chief Justice Robert Thomas of using the court system he controls to win a $4 million libel judgment against the paper, The Chicago Sun-Times reports.

Thomas was awarded the money after a jury found he had been libeled by then-columnist Bill Page who accused the chief justice of cutting a political deal in a disciplinary action.

In arguing the libel case, Thomas called his fellow Supreme Court justices as witnesses, forcing the court would to recuse itself from reviewing any appeal of the verdict.

The Chronicle asked the federal court to set aside the libel judgment and order the entire case be retried once Thomas, a former kicker for the Chicago Bears, is a private citizen.

The judge's term expires in 2010 but he could seek retention for another 10-year term.

[Pal2Pal (Sara)]

And this, which with all the Libby filings no one noticed, I guess:

White House subpoenas in attorneys probe WASHINGTON, June 13 (UPI) --

Subpoenas were issued Wednesday to two former White House employees in connection with the congressional probe of the firing of U.S. attorneys.

The Senate Judiciary Committee issued one for former White House political director Sara Taylor, while the House Judiciary Committee subpoenaed former White House Counsel Harriet Miers, CNN reported.

The committees are investigating whether the firings of eight U.S. attorneys last year were politically motivated and possible White House involvement.

Tuesday, e-mail turned over to the committees indicated that aides to presidential adviser Karl Rove and Miers were actively involved in shaping a response to the uproar that resulted from the firings, The Washington Post reported.

White House spokesman Tony Fratto said there was much ado about nothing involving staff exchanges.

"If you're talking about presidential appointees, it's perfectly natural that staff be involved in those discussions," Fratto said. "This is more proof there was no wrongdoing in the effort to replace those U.S. attorneys."

Taylor resigned from her White House job two weeks ago and Miers quit in January.

[SlimGuy]

Till this trial, I knew little of Fritz. But based on books about his 9/11 related cases the Libby trial and now the Conrad Black issue I am developing the impression that instead of being the legal genius walking on the water, he is more like that dweeb at the shallow end of the pool emptying his bladder and hoping no body notices.

[MJW]

Several brief comments.

Ryder v. United States, 515 U.S. 177, was cited on page 31 of Libby's original dismissal motion.

The Appointment Clause not only requires Presidential nomination and advice and consent for principal officers, but also for inferior officers except those that Congress provides may be appointed by the President, the courts, or department heads. So the fact that the Deputy Attorney General, etc., require advice and consent doesn't imply they're principal office. I doubt any of the officers named in CIPA, except the AG, is a principal officer. However, by law, all the officers require Presidential nomination and confirmation by the the Senate. Fitz wasn't nominated or confirmed except as U.S. attorney, so I don't see how in the CIPA matter Fitz can claim to be acting in the capacity of any of the officers, except through a (forbidden) delegation of authority.

I agree with cboldt that court appointment of private attorneys to prosecute contempt seems rather questionable. Scalia also agrees, and dissented on that point.

[Jane]

"What if it could release a chemical that would make an opposing army's soldiers think more about the physical attributes of their comrades in arms than the threat posed by the enemy? And thus the 'gay bomb' was born."

The resident lesbian and I had quite a discussion about this in the office yesterday. We wondered if it was a Viagra-like substance that posed the threat. She of course was worried that if the government could render people gay, are they also working on a chemical to make people straight.

Gives a whole new meaning to the phrase "make love not war".

[boris]

It smelled like turpentine, it looked like Indian ink
I held my nose, I closed my eyes, I took a drink

I didn't know if it was day or night
I started kissin' everything in sight
But when I kissed a cop down on Thirty-Fourth and Vine
He broke my little bottle of Love Potion Number Nine

[Other Tom]

By God Boris, it fits, don't it?

Here's one for one of the lawyers. I should know, but haven't a clue: When Walton denies Libby's motion and the matter goes to the D.C. Circuit, will that court view the matter de novo (translation: review the record and decide the outcome on its own, without regard to what Walton has done)? Or will it allow Walton's decision to stand unless it finds he abused his discretion?

[cathyf]

OT, are you asking about Walton's (anticipated) decision to deny bond during appeal? Or Walton's decision that Fitzgerald's appointment is constitutional?

[Other Tom]

Good question, Cathyf. The only thing before Walton today is the decision on bond pending appeal. If (when) he denies it, and the defense files its emergency appeal, what will it be appealing? Do they think they can get the Circuit to hear the whole ball of wax on an emergency basis, or will they just be trying to persuade them on the close-substantive-question/bond issue, with the full appeal on the merits to follow according to the normal appellate schedule?

[Other Tom]

P.S.--Obviously, if and when the appeals court considers the entire appeal, it will apply the law on its own. My original question was directed only at the denial of bond.

[Jane]

Since I am now due elsewhere I can only assume this is scheduled to go down at 10:00 AM. Is that correct?

[anduril]

Oh my, clarice: "group interviews" in the Haditha case? How do some of these investigators and prosecutors live with themselves?

[cboldt]

The hearing is scheduled for 11:30. Marcy is planning to liveblog it.

On standard of review, I would think the defective appointment issue would be handled de novo, as it is novel. On an error for bail pending appeal, they pretty much have to peek at the substance of the proposed appeal. I don't see the question as one of abuse of discretion - the statute and case law is pretty straightforward. The issue isn't like an evidentiary ruling or some other aspect of trial counduct where the trial judge has plenty of room for discretion.

I wondered above, whether Fitz would appeal if Libby is granted bail pending appeal.

[Charlie (Colorado)]

Charlie, of course you are not nuts, but I don't think we agreed that that was the hang up on an interlocutory appeal.

You realize I'm keeping a link to that.

[Other Tom]

Cboldt: In other words, if they conclude that it's a close question, they order bail without deciding the question itself (yet). Right?

[Charlie (Colorado)]

I wondered above, whether Fitz would appeal if Libby is granted bail pending appeal.

Can he? I would think he'd really have to bring in flight risk at that point, and since he's already said Libby's not a flight risk....

[Sue]

Moot points. Walton is going to deny Libby bail. He has rarely bought Libby's arguments and I don't see him doing anything different today. I also think the amicus brief pissed him off and hurt any chance Libby had in him ruling for bond.

Now, sit back and watch Libby win today. I have rarely, if ever, been right. ::grin::

[anduril]

It appears that another of the Twelve Amigos has spoken out on Walton's footnote, but indirectly:

Hitchens Connects Paris With Scooter:

Here's the conclusion of Siege of Paris: The creepy populism surrounding high-profile defendants, a moving piece by Christopher Hitchens:

I cannot imagine what it might be like, while awaiting a prison sentence for a tiny infraction, to see dumb-ass TV-addicted crowds howling with easy, complicit laughter as Sarah Silverman (a culpably unfunny person) describes your cell bars being painted to look like penises and jokes heavily about your teeth being at risk because you might gnaw on them. And this on prime time, and unrebuked. Lynching parties used to be fiestas, as we have no right to forget, and the ugly coincidence of sexual nastiness—obscenity is the right name for it—and vengefulness is what seems to lend the savor to the Saturnalia. There must be more than one "gossip" writer who has already rehearsed for the day that Paris Hilton takes a despairing overdose. And what a glorious day of wall-to-wall coverage that will be!

Stuck in my own trap of writing about a nonsubject, I think I can defend my own self-respect, and also the integrity of a lost girl, by saying two things. First, the trivial doings of Paris Hilton are of no importance to me, or anyone else, and I should not be forced to contemplate them. Second, she should be left alone to lead such a life as has been left to her. If this seems paradoxical, then very well.

Perhaps to compensate for its ridiculous decision to put her on Page One on Friday, the New York Times report shifted from the sobbing, helpless child to the more portentous question of another "high-profile defendant." It cited an even more acid piece of creepy populism, in the form of an order from Judge "Reggie" Walton, who poured his witless sarcasm on those who had filed a brief in support of Lewis "Scooter" Libby. Would such "luminaries," sneered Walton, be equally available for other litigants? It's not his job to arbitrate such a question, and he seems not to understand the law, but if his words mean anything, and from a federal judge at that, they appear to mean that to be a public figure is to risk double jeopardy in the courts. No doubt Judge Walton will relish the coming days in which he can order Libby to report to prison. One hopes that his moral superiority, and his keen attention to public opinion, remain as untroubled and secure as those of Sarah Silverman. It seems that this is now the standard. How splendidly we progress.

I don't want to put words in Professor Barnett's mouth, but he does appear to up Professor Dershowitz' "childish" ante by adopting Hitchens' "witless sarcasm" characterization.

In the interest of fairness, I'll include a response post:

Shortly after Jerry Falwell's death Christopher Hitchens appeared on CNN and said so many disgusting, impolite (impolite is a much too mild of a word for his venomous speech), and highly inappropriate things given the circumstances, that I find it impossible to ever give the slightest amount of credence to or respect for anything thought or written by such a vile, emotionally disturbed, and down right ill-mannered person.

Anyone who could speak in such vile and inappropriate terms immediately upon the death of an individual (other than a Pol Pot or Hitler or Stalin or someone of that kind of evil) does not have the maturity or reasoned judgment necessary to take seriously on any other issue.

Sorry, but that's how I feel about Christopher Hitchens.

While Hitchens has unquestionably said many well nigh unforgiveable things in his time, I guess I'm not as fastidious as the poster, bearing in mind my wife's oft repeated dictum: even a broken clock is right twice a day.

[anduril]

Sorry, the post of the Hitchens commentary was by Randy Barnett at the Volokh Conspiracy.

[Rick Ballard]

Anduril,

It is clear from Clarice's cite that Eckenrode needs to be hired by the NCIS to provide additional training to their investigators.

The Fitzlaw/DoJ runs a much better railroad than does the NCIS.

[cboldt]

-- if they conclude that it's a close question, they order bail without deciding the question itself --

They're free to do whatever they want. But if Walton denies bail, and the Circuit Court upholds denial of bail, that would telegraph their initial impression on the merits of the appeal.

If bail is denied, and that decision is appealed, the best reversal by the Circuit Court would be limited as you describe, just to the denial of bail, and not on the underlying (not even yet formally before them) issues.

[anduril]

Rick, the piece that clarice quotes doesn't say (or I didn't notice) whether the NCIS "interviewer" took her own notes or let the "interviewees" write the notes themselves--perhaps as a type of take home assignment. Between Eckenrode and the NCIS, it seems to be pretty much of coin toss. :-(

[Jeff Dobbs]

Sue:
Now, sit back and watch Libby win today. I have rarely, if ever, been right

But wait!!! Who's cuter, Fitz or Wells? Or Jeffress? Or Robbins? Or ???????

[Sue]

H&R,

You are. ::grin::