Government Response On Libby's Bail/Appeal

Here is a link to Fitzgerald's response  (43 page .pdf) to the Libby team's argument that Libby has reasonable grounds for appeal with enough close calls and novel issues that Libby should remain free on appeal.  An amicus brief arguing that the constitutionality of Fitzgerald's appointment is a close call is discussed here and here.

My thoughts on the Fitzgerald filing?  I think I ought to read it first (but I like the first page font and their use of bold text)  Go ahead and dig in; I'll try to catch up.

HMMPH:  Ari Fleischer's surname is spelled "Fleisher" on p. 23 - grounds for reversal?

OK, my quick skim for a headline is coming up short - per Fitzgerald, the defense is wrong, wrong, wrong on every point.  But I like this about calling Andrea Mitchell:

Likewise, defendant’s suggestion that, had Ms. Mitchell testified, the jury may have inferred from her demeanor or otherwise that Ms. Mitchell had heard a rumor about Ms. Wilson, told Mr. Russert about it, and later lied to protect Mr. Russert and the NBC franchise from embarrassment (Def. Mot. 21), is fantastical, as is the proposition that this unsupported “theory” raises a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that a the opposite of what a witness says is true.

Gee, juries don't need to see the witnesses and appraise their demeanor as part of gauging their credibility?  Let's try cases by written submission, then - huge timesaver.

And this response goes to the heart of my own concern expressed during the trial (presumably the defense fretted about something similar):

And the judge had suggested yesterday that Andrea Mitchell would be called to give sworn testimony without the jury present; the judge will then decide whether the jury would benefit from her input.  Controversy swirls around Ms. Mitchell because she had been working the Niger/uranium/Wilson story closely; in October 2003 she said on television that she had been aware, prior to the Novak column, that Wilson's wife was with the CIA, but she later denied it.  So what will she say under oath?

I am skeptical of the proposed compromise, since it is really the role of the jury to evaluate a witness's deportment and demeanor in assessing her credibility.  Instead, what may happen during the closed session is that Ms. Mitchell will sigh, sob, stare into space, tear her hair, rend her clothing, faint, and suffer a heart attack while denying any knowledge of Wilson's wife prior to the publication of the Novak column.

At which point the prosecution will jump up and announce that her credibility ranked up there with Abraham Lincoln, Gandhi, Mother Teresa, and Moses coming from the mountain top, and will demand that she be excused, and Judge Walton may agree (OK, in that special scenario, maybe not).  C'mon, let the jury see for themselves, and don't let her have a warm-up appearance first.

WHERE DID THEIR LOVE GO?:  Fitzgerald files a one-pager (1 page .pdf) correcting typos in the initial filing but overlooks the Fleischer error.  We are on our way to the Supremes!

In another filing we learn that Lawrence Robbins will be appearing on Libby's behalf in court to bring his special expertise.  KIDDING!  However, the final defendant response is not yet online as of Wed early AM.  [Ahh! - Here we are - (23 page .pdf)]

Comments

[Jeff Dobbs]

Of course, Fitz says this:

...none of these issues is “substantial” or likely to result in reversal or in an order for a new trial. Therefore, the motion should be denied.

Though I do find myself unfairly on the verge of snark due to scare quotes around "substantial".

But hey, at least Fitzgerald footnotes this:

1The government does not contend that defendant poses a risk of flight or danger to the community, or that defendant’s appeal is frivolous, or brought solely for purposes of delay.

Fair and balanced, that one.

[Jane]

What time is the hearing? 10:00? And isn't Nifong's hearing today too?

[Maybeex]

My prediction:
Fitzgerald recommends sending him to prison pending appeal, so Libby's going to prison.

[Rick Ballard]

There's nothing new in the argument about Edmond and Morrison that I can see at a first pass. He kisses Walton's butt rather profusely in his agreement with Walton's sterling reasoning but there can't be any surprise at that. No response at all to the amici that I can see.

He might have a stronger case for himself if he declared himself out of business as a Special Persecutor. He kinda ignores (what a surprise) that aspect. Maybe he plans on unsealing the Rove indictment within 24 business hours?

[cboldt]

The hearing is 11:30 on Thursday. Libby gets to rebut Fitzgerald. His reply is due tomorrow.

[Digger]

I can imagine this lingering, lingering, lingering. The only way to get Ms Mitchell before a jury is a new trial, I can’t see that happening. When it is off the news, it will end up like the Tom Delay matter, is Ronnie Earle in the rest home yet?

[RichatUF]

...as is the proposition that this unsupported “theory” raises a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that a the opposite of what a witness says is true...

As opposed to newspaper articles provided to the jury "not for there truth value but for Libby's state of mind". And the articles all claimed that Val was 'covert'. Maybe I'll read the Fitz filing now.

RichatUF

[RichatUF]

The only way to get Ms Mitchell before a jury is a new trial, I can’t see that happening.

Another point about Mitchell-during the trial Walton said [when he was thinking about allowing the defense to call her] that she could be confronted with her notes (he said something like, I don't see how I'll be able to keep them out, or words to that effect). This has always been the point about Mitchell [and Mr. Impossible, Tim Russert] Mitchell's notes->Russert impeachment. Its risable to suggest that NBC booked Joe on MTP without doing the least bit of gumshoe work or somehow put the show together on Saturday. She made the calls to her sources at CIA and State and to get a WaPo profile, NYT editorial, and MPT appearence (on on July 6th) required some pretty good advanced planning.

RichatUF

[Jeff Dobbs]

“General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate. Mr. Gorbachev, open this gate. Mr. Gorbachev, tear down this wall!”

--Ronald Reagan, June 12, 1987

[anduril]

Likewise, defendant’s suggestion that, had Ms. Mitchell testified, the jury may have inferred from her demeanor or otherwise that Ms. Mitchell had heard a rumor about Ms. Wilson, told Mr. Russert about it, and later lied to protect Mr. Russert and the NBC franchise from embarrassment (Def. Mot. 21), is fantastical, as is the proposition that this unsupported “theory” raises a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that a the opposite of what a witness says is true.

Gotta love that "otherwise." Is that shorthand for:

the jury may have inferred from her demeanor or from listening to Ms. Mitchell's recorded statements to Don Imus that Ms. Mitchell had heard a rumor about Ms. Wilson, told Mr. Russert about it, and later lied to protect Mr. Russert and the NBC franchise from embarrassment

[Charlie (Colorado)]

as is the proposition that this unsupported “theory” raises a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that a the opposite of what a witness says is true.

I don't have time to go back and research it right now, it being just before time for work, but didn't amici address just that question, with precedent that holds just the opposite?

[Rick Ballard]

I erred in stating that Fitz didn't address the amici - he has a long footnote (11) that dismisses their brief. His statement that

Second, the amici state that unlike
the Independent Counsel law, no statute requires the Special Counsel to follow Department policies.
As this Court concluded, as a member of the Department, the Special Counsel was obligated to follow such policies to the extent possible.

begs the question of who is to determine whether he followed guidelines "to the extent possible" and what remedy was available when he didn't.

[anduril]

I'm as guilty as the next of injecting the odd snobbish bit of Latin into my posts, but in the spirit of this new multicultural age that we live in I suggest that we can the amici stuff and go with "the twelve amigos."

[Jane]

What I want to know is what was I doing on the day an Amicus brief became "the amici"? I keep thinking Don Amechi, and what the hell did he have to do with this miscarriage of justice.

I've notice a few other words that also became commonplace when I wasn't looking lately - like "efforting". Whose idea was that?

[qquirl]

Fitz and Chayes. Plame 2 visits Montreal.

Plame and Woolsey not to be forgotten, now Chayes has hit Montreal. The news articles out of Canada and Afghanistan show why people may want to know if someone is a CIA agent acting of behalf of the Directorate of Operations.

Petitions to stop Quebec soldiers from going to Afghanistan. Oil fight in Alberta. African bug nets under Stronach traded for solidarity with Bono (who swears 'it's that Harper),' Karzai asassination. UN arresting the attackers(like those NJ terrorists-not that Karzai is already President and wants a place on the intelligence committee courtesy of the people of NJ - like London). US shooting Afghan police that got that mean beheader who wanted to show everyone what a spy was when you mention Chayes.

There are alot of articles. I don't have the time to put them all up and don't want any problems. Chayes is just Plame 2, Canada didn't ask who. The answer is to call the President, who defers to Dick because of his CIA past. Maybe this is just because someone may have and the Plame thing started. Plame and Chayes have one thing in common. If they are agents, they're known and bad.

http://www.freerepublic.com/focus/f-news/1848800/posts

[clarice]

It is because the trier of fact gets to weigh the demeanor of the witnesses that Cts of Appeal so rarely disturb the findings of fact of trial court judges, It is considered a very important factor.

Since the proffer re her testimony came from counsel whcih we know previously filed a false affidavit with Fitz' connivance that this response is particularly rich.

In other cases where the evidence adduced in the investigation has been weal Fitz has said he'd just present it to the jury for them to decide...something I strongly disagree with. I think the prosecutor should have a firm sense of the law's having been violated before beginning--otherwise frankly it's a matter of his playing on the prejudices of the jury to nail someone who rubs him wrong. (See Conrad Black trial.)
anduril, I like "the twelve amigos".

[clarice]

**weaK (not weal)**********

[BobS]

anduril, RichatUF:

To keep things simple for simple minded fools like me, is it accurate to say that Walton's refusal to allow Andrea Mitchell's testimony kept Libby's defense from access to exculpatory evidence/testimony?

Also, I don't quite undertstand the NBC angle. Does it revolve around that first appearance by Wilson on MTP?

[Nick Kasoff - The Thug Report]

If Wilson had justice at the level which the left claims is due the terror suspects at Gitmo, he'd be a free man. Pardon him, Mr. President.

Nick Kasoff
The Thug Report

[anduril]

Before I start paying bills, I thought I'd dump a few links on everyone. First from the other Hitchens, Christopher's Tory brother Peter, a column entitled Is democracy the same as freedom? Some teaser quotes:

We like to preach democracy to others. How much are we really attached to the rule of the people ourselves?

I don't think we are, very. The governing elites of the 'democracies' have built elaborate defences against true democracy, which they are afraid of, often with reason. In the USA, there is of course the Supreme Court, America's liberal House of Lords, which is in charge of social and moral legislation and has a very sketchy relationship with the ballot box. There are also the many one-party cities, where there is no serious chance of a change of local government, and the bosses have a lot of influence over how the national vote goes in their state.

The original plan of Washington DC was designed to make the capital easy to defend against mobs (the same, interestingly, is true of 19th century Moscow and 19th century Paris).

...

But in many ways the greatest obstacles to the power of the voters are the political parties, which have become entrenched corporations, dedicated to keeping themselves alive...

How much does it matter? I'm torn. I'm not convinced at all that a half-informed electorate are the right people to take great national choices.

...

On the other hand, there's no doubt that an elite, however benevolent and intelligent, can become wholly cut off from the true conditions and concerns of the people. I think the absurd complacency of the government about crime and disorder is an example of this, as is the political class's inability to grasp just how bad the state schools are.

Democratic mechanisms are an important way of ensuring that these complaints are heard - provided the parties are open to new ideas and prepared to transmit them upwards. But the whole development of spin doctoring has been designed to make sure that the people are persuaded to want what the parties plan to do anyway, or are distracted by 'manipulative populism' - the pretence of decisive action on such things as crime, while the real liberal agenda carries on in the background, unobserved.

...

I think we would be wise to see democracy as a mixed blessing to be treated with caution, not as a glorious end in itself. Freedom under the law is the thing we should aim for above all.

I'm always sneering at Andy McCarthy's idiotic pronouncements in re Libby (can't seem to help slipping into Latin shorthand), so here's a link to a very thought provoking article of his today: Lawfare Strikes Again. The fact is, I think I agree with Scalia, as I believe his position would be, but Andy does bring up a lot of the issues. Only one teaser quote:

Specifically, a divided panel of the Fourth Circuit U.S. Court of Appeals in Virginia ruled that the commander-in-chief may not detain a terrorist operative as an unlawful enemy combatant if that operative has managed to enter the United States and is present here lawfully — something perhaps worth the president’s consideration as he insists on trying to resuscitate an ill-advised comprehensive immigration bill that would make every illegal alien’s presence lawful.

Regardless of the constitutional issues, I think Andy is certainly justified in placing this case in the context of the late failed immigration reform proposal.

[Other Tom]

Jane, I'm with you on refusing to accept "effort" as a verb.

I got to write an amicus brief as a first-year associate. I was amazed when my supervisors marked up the very first draft to use "amici" in the way the twelve amigos use it. That is, the brief would say things such as, "Amici suggest that blah blah blah..." Not "the amici," just plain amici. I studied Latin for four years as a kid, but don't remember much about it except what it taught me about English. I have no idea whether this usage is what a Roman might have said, or is just a recent lawyers' construct.

[anduril]

Jane, read the McCarthy article I link to and you'll find him using "purporting" as an independent, active verb form! Perhaps that's SDNY patois for something or other. :-(

[windansea]

I suggest that we can the amici stuff and go with "the twelve amigos."

the lefties are calling them the Bork 12 probably because it rolls off their forked tongues easier than Dershowitz 12

[anduril]

Or maybe because "bork" sounds like an obscene verb--a mode of expression they seem to gravitate toward.

[Jane]

I got to write an amicus brief as a first-year associate.

OT,

One of the deficits in my law school and law career is that I never wrote briefs. I had a prior skill that law firms needed so I was never a summer associate, or first year associate who wrote briefs because I was busy doing other stuff for them. That deficit has plagued me throughout my career.

I started my own law firm 2.5 years out of law school, and every person I've ever hired is someone who can write legal briefs. I really don't know much about the law - never have in fact. I often have said that I'm a "facts lawyer" not a "law lawyer". To this day my eyes glaze over when I try to read the law.

That doesn't bother me, and hasn't really hindered my career, but I sure do feel stupid in these kinds of conversations. Quite frankly I marvel at the rest of you.

[hoosierhoops]

I'm expecting 2 new best sellers after the appeal runs it's course.
The Da Amicus Code and The Da Amicus code decoded..hopefully when the movie rights are sold Tom Hanks won't be reprising his role.
________________________________
And from our esteemed Hit & Run..

“General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate. Mr. Gorbachev, open this gate. Mr. Gorbachev, tear down this wall!”

--Ronald Reagan, June 12, 1987

while you are time traveling H&R please drop me off an envelope to my house with the following note:
Buy Microsoft and morgage the house when you hear of Yahoo.com just do it!

[danking]

"Another point about Mitchell-during the trial Walton said [when he was thinking about allowing the defense to call her] that she could be confronted with her notes (he said something like, I don't see how I'll be able to keep them out, or words to that effect)"

That really bothered me at the time and still does. Here we have the judge intimating that Mitchell's notes could spell trouble for her testimony and Walton does his level best to keep her off the stand.

[anduril]

yes, danking, i found that to be an odd way of putting it, too. to say the least.

[Jeff Dobbs]

Bork is a verb from his confirmation, and what the left is doing can probably be considered similar this time.

They're trying to Bork los doce amigos.

[clarice]

danking that was in the pre trial period when the judge looked at her notes and said that after reading them he didn't see how he could block the defense from calling her to the stand. (Let me guess--I think those notes reflect a contact with Armitage or Harlow or Wilson.)

[anduril]

begs the question of who is to determine whether he followed guidelines "to the extent possible" and what remedy was available when he didn't.

Posted by: Rick Ballard | June 12, 2007 at 10:25 AM

Rick, seems logical that "the functional equivalent of the AG" in charge of the Libby question would be the one to decide whether the guidelines were followed or not. If you aren't satisfied with his response, you go to court. It's a very expedited process, the downside being that in court "the functional equivalent of the AG" files heavily redacted affidavits that leave one guessing about the basis for the eventual ruling.

[qquirl]

Mueller's jet is off to Afghanistan with Fitz.

Plame's 'fair Game' book is out in October.

I hope Joe can save Val and Fitz can save Sarah!

'Fair Game' 1995
http://www.imdb.com/title/tt0113010/

[Jeff Dobbs]

From: hit and run
Sent: Monday, June 12, 1987 11:40 AM
To: hoosierhoops
Subject: Hot Stock Tip!

Dude, buy Microsoft! It's sooo boss, homie.

Totally gnarly!

[cathyf]

I keep thinking Don Amechi

Except that the correct pronunciation of "amechi" is ah - may - key

I suppose it is possible that Don had an ancestor whose name was "Amici" who decided that if he wanted it pronounced correctly then he needed to mangle the spelling...

[RichatUF]

BobS...

is it accurate to say that Walton's refusal to allow Andrea Mitchell's testimony kept Libby's defense from access to exculpatory evidence/testimony?

I would say that Walton's refusal was an error because there was no other way to confront Russert. Its ridiculous in a way, Russert was on vacation and Mitchell was the host of Meet the Press for July 6 2003

from the archive:

...Our guests, just back from a three- day fact-finding trip to Iraq, the chairman and ranking member of the Armed Services Committee, Senator John Warner of Virginia and Senator Carl Levin of Michigan....Insights and analysis from William Safire and Elisabeth Bumiller of The New York Times, David Broder of The Washington Post and Robert Novak of the Chicago Sun-Times....

It unbelievable that Russert would have something important to add if the "first leak" was of Wilson's wife's name and it was "fist published" by Robert Novak. Mitchell would have the goods in her notebooks (unless she uses the Miller-Cooper school of filing and notetaking).

Also, I don't quite undertstand the NBC angle. Does it revolve around that first appearance by Wilson on MTP?

Others have written at length on this point and I would not want to mis-represent their views. The thing that bothers me is the word games [incantations] that NBC lawyers and NBC staff have used to hide what they know and when they knew it. During Russert's questioning at trial, he said that "he did not name her". Well, we can drive a "Did you here Wilson's wife is in the CIA and she sent him?" and Libby could have said "I heard that too".

I dislike the: "Plame¬=Wilson's wife¬=Ms. Wilson" game and NBC should have stepped up to the plate a long time ago to clear this matter up.

RichatUF

[RichatUF]

yikes...

"fist published"..."fiRST published"

RichatUF

[cathyf]

a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that a the opposite of what a witness says is true.

I'm puzzled, Judge Walton. Isn't the sum total of this case that the "factfinders" (judge and jury) were supposed to decide, from demeanor evidence alone, that the opposite of what Libby said is true? Libby's "demeanor" as Dick Cheney's employee, in this case...

[Other Tom]

It's Don Ameche, isn't it? As in Alan "The Horse" Ameche? Both of them pronounced it in the Americanized way, Ah-MEE-chee. From my night-school Italian lessons (we're going next month) I think the Italian pronunciation is as Cathyf says.

[Charlie (Colorado)]

What I want to know is what was I doing on the day an Amicus brief became "the amici"?

I'm sure we picked it up from some lawyer.

I keep thinking Don Amechi, and what the hell did he have to do with this miscarriage of justice.

He did it right after he invented the telephone.

[Charlie (Colorado)]

There are alot of articles. I don't have the time to put them all up and don't want any problems. Chayes is just Plame 2, Canada didn't ask who. The answer is to call the President, who defers to Dick because of his CIA past. Maybe this is just because someone may have and the Plame thing started. Plame and Chayes have one thing in common. If they are agents, they're known and bad.

What?

[clarice]

Silly, Charlie. The guy who invented the phone was Mr. Macaroni.

[Charlie (Colorado)]

Buy Microsoft and morgage the house when you hear of Yahoo.com just do it!

And sell everything when the NASDAQ crosses 5000.

[Charlie (Colorado)]

What does Yankee Doodle have to do with it?

[clarice]

Something about feathering your cap IIRC.

[qquirl]

Sorry Charlie(Marx?),

CSIS would be calling CIA or the President right here.

The time things are okay, but if you open a bank account, the judge siezes it and pockets the cash.

[Jeff Dobbs]

Charlie:
What does Yankee Doodle have to do with it?

Play a recording of Yankee Doodle Dandy, performed by James Cagney backwards.

While stoned.

In complete darkness.

With oatmeal rasin cookies baking in the oven.

And your left foot submerged in 82 degree water.

Wearing an indian headdress.

[RichatUF]

damn I had a great comment and it vanished into the typepad unknown...it might have been the smartest thing I've ever written

I blame Bush

RichatUF

[qquirl]

NPR play something backwards?

Marconi and Marx.

[Jeff Dobbs]

Rich:
it might have been the smartest thing I've ever written

Bummer.

I blame Bush

Well, for now, this will have to hold that honor.

[anduril]

From my night-school Italian lessons (we're going next month) ...

Posted by: Other Tom | June 12, 2007 at 12:20 PM

Great idea. Here's another pronuciation tip:

Martini = Mahr=TEE-nee,

just like English. :-)

[Sue]

On July 8, 2003, Andrea Mitchell said the following:

MITCHELL: Well, people at the CIA say that it's not going to be George Tenet; and, in fact, that high-level people at the CIA did not really know that it was false, never even looked at Joe Wilson's verbal report or notes from that report, didn't even know that it was he who had made this report, because he was sent over by some of the covert operatives in the CIA at a very low level, not, in fact, tasked by the vice president.

http://justoneminute.typepad.com/main/2005/11/circle_the_wago.html#comment-10851500>Source

She should have been on the stand on this point alone. Someone at the CIA was talking to her. Someone told her low level operatives. How much more did they tell her? We'll never know because the judge said it wasn't relevant. Even though she used the same term Novak did..."operatives".

[clarice]

It certainly should have, Sue. I didn't recall that at all.And the date could not have been more relevant.

[Elliott]

Footnote 12 of the Government's response:

Because this Court concluded that the delegation of authority to the Special Counsel was in conformity with the Appointments Clause, this court had no occasion to address the remedy for failure to conform with the Clause. The government submits that if the delegation to the Special Counsel was in any way defective – a point the government in no way concedes – that under the circumstances of this case the defendant in this case was not prejudiced and that any error was harmless.

Ah, another Flimsy Fitzgerald Footnote: assert something that, if true, would be tremendously helpful your position without presenting compelling evidence of the claim's veracity.

[Sue]

Clarice,

I said someone at CIA was talking to her, but it could have also been Armitage talking to her, since she says, in essence, the same thing Novak does without naming names.

[anduril]

I have to say, in light of Mitchell's comments, why didn't the WH come out and demand an investigation to get to the bottom of this nonsense, publicly? Why screw around discrediting Wilson by talking to journos? Had the SSCI debunked Wilson by this point? If so, all the more reason to publicly say: we want to know who sent this lying sack, who's behind this, because it looks like a dirty trick op.

[clarice]

Yup--Give us that old soft shoe....

[RichatUF]

page 40, Mitchell agrument...

...As was the case in Johnson, the only favorable evidence that could be introduced through the witness was her prior out-of-court statement, which was inadmissible.

Since the Michell matter was closed to defense her notes and other work product was also closed. It seems a bit disingenuous on Fitz's part that the only statement the defense was interested in was the Oct 2003 Capitol Report statement. Also returning to the Walton pre-trial ruling, if Mitchell was allowed to testify he stated that the notes were in. Would he have re-visited that issue as well and said "upon further reflection" she can testify but her notes are out?

RichatUF

[RichatUF]

Sue...

MITCHELL: Well, people at the CIA say that it's not going to be George Tenet; and, in fact, that high-level people at the CIA did not really know that it was false, never even looked at Joe Wilson's verbal report...

Forgot about that. July 8th is interesting because that was when the language on the Tenet mea culpa was being worked out. On the Armitage calanders, did anyone peek for his contacts with Mitchell? Also during the Martin testimony, Martin said Harlow told her other journalists were pestering him about the Wilson matter and I think Mitchell was mentioned...

RichatUF

[qquirl]

Italian lessons from NJ? Don't give up or something. Think that guy will make the intelligence committee?

Anwyay, Joe went over on his own before the paid trip. Lower levels may have arranged it. He couldhave been working something new and itmay very well have had something to with with State or PC. When alot of these show up, although friendlies, it generally means 'your gonna die.' He may have been going back from a previus trip that went bad.

Anyhow, the crack lady is going nuts and the prison guy who uses heads is getting pissed. Bye.

[Jane]

"amechi" is ah - may - key

Yikes, I've only heard it the Ah-meech-ee way as OT points out. But at this point you could tell me it's pronounced "Brownbetty" and I'd probably believe you.

With oatmeal rasin cookies baking in the oven.

Uh, H&R I'm pretty sure those were chocolate chip.

Hey Charlie, did you get your CU magazine today, and did you notice that alumni highlights start a decade after we graduated? How's that for a kick in the teeth.

[anduril]

Elliott, that's the line I've been saying Fitz would take--and it's not a bad argument if Fitz had acted as a normal prosecutor. The problem comes when the Defense argues that Fitz, in actual fact, made decisions and took actions that only the AG can authorize without any consultation or supervision from the Department. Some of these were extraordinary measures (locking up Miller, for example). What would really help Libby--and I have no idea if this would be possible--would be to combine this argument with a showing that Fitz pursued a highly prejudicial line of investigation--ignoring all exculpatory evidence and witnesses, shielding such witnesses from all scrutiny, prejudicing the jury pool at the press conference. This would show real harm to the defendant as a direct result of Fitz's unconstitutional exercise of "all the powers of the AG." And contrary to my lighthearted post above, Libby had no opportunity to get such decisions reviewed by a court prior to trial.

[Jeff Dobbs]

Jane:
Uh, H&R I'm pretty sure those were chocolate chip.

Oh, I'm open to correction, my memory of the last time I did this exercise is pretty foggy.

[Other Tom]

Anduril, your recent pronunciation tip was the most vitally important post of the day. Grazie.

[clarice]

In his initial appointments clause argument, Libby noted the departures from Dept policy in Fitz' presser, argued that if he had been acting as a normal US Atty they could have protested to the AG and gotten relief, but as there was no one supervising Fitz there was no one to protest to.

[Other Tom]

Brother--if I was ever aware of that July 8 Mitchell statement, I'd completely forgotten it. It really drives home how thoroughly the White House buggered this thing up from the get-go.

Anybody have a clue as to what an appellate court will consider in deciding the harmless error question? One can think of all sorts of arguments, such as "a supervised prosecutor would have concluded the investigation upon determining the source of the Novak leak," but I'm not sure that's an argument they'll even hear.

[Other Tom]

We cross-posted, Clarice. I would assume that the point you raise would be considered by the Circuit--but I really don't know...

[anduril]

Well, as I said, Libby could always have protested to the guy who was "the functional equivalent of the AG" for that case. Which is not a bad argument to make--no possibility of review prior to trial does begin to smack of a due process problem, since everyone else can at least protest to the AG. It's true that the Guidelines wouldn't have the force of law, but the prior provisions for Special Counsels did put a lot of emphasis on them for fairness purposes--that departures from the Guidelines would require approval from the AG, a separate and higher authority.

[anduril]

OT, that's the big question I have right now--exactly what factual situations will Libby be able to raise on appeal. I would hope that the Appeals Court would be liberal about allowing him to make the sorts of arguments that you suggest, given that the whole issue is the unconstitutional nature of the appointment and its possible consequences ("disparate impact?") on the investigation of this unique defendant. The previous provisions, which Comey totally ignored, obviously foresaw the possibilities for abusive investigation/prosecution, for unfairness in general, and sought to institute safeguards. Comey swept all that aside with a brief letter, but it would seem only fair in this case for Libby to be allowed to raise those issues.

[RichatUF]

anduril...

...why didn't the WH come out and demand an investigation to get to the bottom of this nonsense, publicly?

The WH wanted to steer clear cause it looked to be a pissing contest between State and CIA and OVP wanted to get their name off the Wilson trip-hence the inadequate Tenet mea culpa on July 11th (or 12th), think it was released on Friday night...

Why screw around discrediting Wilson by talking to journos?

Most of the WH was in the dark about the whose's and what's about the Wilson matter. Don't forget Joe Wilson launched his trifecta stink bomb the day before the WH was going on its Africa trip and key people were going on vacation. Wilson had been shopping his tail for a while.

Had the SSCI debunked Wilson by this point?

That didn't come around for another year and the Senate has been revisiting it with the democrats in charge. Think how much Senate Democrats are pushing for Feith's head because of the memo his team wrote (Hayes of the Weekly Standard has written a great deal about this).

RichatUF

[anduril]

To be perfectly clear:

What I'm suggesting is that the appeals court may, should IMO, require Fitz to justify why his delegation did not track previous statutory and regulatory provisions and instead rested total discretion in him and him alone.

[anduril]

Rich, I'm just not buying it. Rather than steering clear of inter departmental or agency squabbles, the WH should have jumped in and DEMANDED a full accounting. My attitude is that by this point they had more than enough experience to understand the kind of backstabbing they could expect. It seems terribly naive.

BTW, that's an interesting Freudian slip:

"Wilson had been shopping his tail for a while."

I totally agree that he has the personality of a whore.

[clarice]

Partially because of the trip and partially because no one in the CIA was forthcoming about the trip they'd classified but let Wilson talk about the WH was utterly at sea at that point. OTOH Fleischer falsely said the 16 words were based on a forgery and Hadley idiotically withdrew those words which fueled the firestorm. It was a total three stooges response.

[RichatUF]

more Fitz word games...

...Tim Russert testified that he did not tell defendant that Mr. Wilson’s wife worked at the CIA when he spoke with defendant late during the week of July 6, 2003. Tr. February 7, 2007 PM at 11, 26. Mr. Russert indicated that he was certain of this, and that he could not have spoken with defendant regarding Ms. Wilson because, at the time of their conversation, he knew nothing about her...

Well that sort of mischaracterizes Russert's testimony. Russert's answer to Well's question "W: Did you tell the FBI that you could not rule out absolutely that you talked about Wilson's wife?" was "I did not name her" and fdl has sent that down the memory hole.

And this is the question and answer for the impossible remark...W: Do you have a present recollection of not discussing Wilson's wife, are you just reasoning backwards from the fact that you did not know about her until Novak's column.

T: I have no recollection, but it would have been impossible.

Which leaves out email, calanders, notes, phone calls and staff discussions. The only thing he claims is impossible are his recollections not anyone else on his staff.

RichatUF

[cathyf]

In his initial appointments clause argument, Libby noted the departures from Dept policy in Fitz' presser, argued that if he had been acting as a normal US Atty they could have protested to the AG and gotten relief, but as there was no one supervising Fitz there was no one to protest to.

One of the departures didn't get discussed in that context because it happened 3 months later. Which would be the whole public release of the NIE declassification documentation. As I understand things, the whole purpose of grand jury secrecy is so that witnesses can come and tell grand juries things which assist the gj in their investigation, and then the gj and prosecutors are obliged to keep it all secret unless it is directly applicable to charges that they actually bring. This encourages witnesses to volunteer information which might be embarrassing if it got out. (Like somebody's alibi is that he was in bed with a woman he was not married to.) Given that a major part of the logic is about embarrassment, and that the victim of a breach of GJ secrecy can only be more embarrassed by objecting to the breach and drawing attention to it, the notion that the victim's lack of objection can be interpreted as acquiecence is risible. Also, the notion that as long as Libby didn't object there was nothing wrong is risible as well, since Libby was no longer a government employee at this point, and his interests diverge from that of the other victims of the GJ secrecy breach.

So the VP and the OVP apparently were quite open with giving information about the NIE declassification to prosecutors and the GJ. Given that the charges that Fitzgerald brought were not even remotely connected to the NIE or the declassification, it was outrageously improper for Fitzgerald to publicize the circumstances of the NIE declassification. Did Fitzgerald violate the law in breaching GJ secrecy, or "merely" violate DoJ guidelines?

The decision to play all 8 hours of Libby's GJ testimony comes into this, too. The testimony discusses all sorts of things unrelated or tangentially related to the charges brought. If Fitzgerald had a supervisor, then it would be the supervisor's responsibility to protect the integrity of the grand jury system, and it is highly doubtful that the supervisor would have allowed playing the entire 8 hours. Again, it's not Libby's job to object to this -- since Libby is the defendent it's his job to defend himself; it is the government's job to protect the integrity of the grand jury system.

So, again, this isn't about Libby objecting to Fitzgerald breaching GJ secrecy -- because, after all, Libby may not care. It's about Libby using this as an example of Fitzgerald being unsupervised.

[clarice]

Off topic--Any doubt that Wilson/Plame are Dem stooges? From Byron York's review of the Van Natta and Gerth book on Hillay:
Fast forward several years, and Gerth and Van Natta tell us about an organization called CREW, which stands for Citizens for Responsibility and Ethics in Washington. It’s a well-known group, a supposedly non-partisan watchdog organization that in fact spends most of its time attacking Republicans (just ask Tom DeLay). The news is that Hillary’s fingerprints are all over it. As described by Gerth and Van Natta, a Hillary operative named Jodi Sakol played a key role in setting up CREW. Sakol told the authors that Hillary was “proactive” and wanted to “beat the GOP at their own game” by setting up a group modeled on Judicial Watch, which had filed lawsuits against the Clintons in the 1990s. (Hillary seems to have forgotten that Judicial Watch did a turnaround and began attacking the Bush administration after the 2000 election.) Hillary helped line up donors for CREW, volunteered ideas, okayed the involvement of her top pollster, Mark Penn, and looked on as her “watchdogs” went out after DeLay and other GOP leaders. Somehow she managed to keep her name out of all this.

http://article.nationalreview.com/?q=ZDI1M2RhYjQ5MThmYmViYjA3MzYwMmNkMWY1Nzk4MmI=>CREW=HRC

[Elliott]

Anduril and Other Tom:

Like you, I've been wondering about what is reviewed to determine whether an error was harmless. In particular, I am curious to know whether Mr. Armitage's treatment at the hands of the Special Counsel would become relevant.

[JM Hanes]

Clarice:

In his initial appointments clause argument, Libby noted the departures from Dept policy in Fitz' presser, argued that if he had been acting as a normal US Atty they could have protested to the AG and gotten relief, but as there was no one supervising Fitz there was no one to protest to."

Yes, you are a Goddess! I've been trying to dig up that specific complaint for nearly a week, because I think it's incredibly significant.

[clarice]

Very good, cathyf..now contrast that with his objection to releasing the still redacted portions of the Miller affidavit and opinion on the grounds of gj secrecy considerations.

Soft shoe..tap..tap..turn and dip.

[RichatUF]

andruil...

It seems terribly naive.

Complete agreement. That was my take-the WH didn't to get in the middle of a flame war between elements of the bureaucracy. Add a dash of Fleischer and Hadley incompetence, bake in the Africa sun for a week...Yellowcake Souffle a la Plame...best served with a side of duplicity

RichatUF

[JM Hanes]

RichatUF:

In re: As was the case in Johnson, the only favorable evidence that could be introduced through the witness was her prior out-of-court statement, which was inadmissible.

This has really bothered me since the original discsussion of Mitchell in court, because I couldn't figure out where (and, indeed, if) her prior statement had been deemed inadmissible itself. Can anyone point me to that determination, and/or to the supposed basis for it?

[JM Hanes]

Elliott:

"Ah, another Flimsy Fitzgerald Footnote..."

Actually, I think the Fitzniks put all the really important stuff in the footnotes. That's where you find out what they're really arguing. My personal fav this time around though, is Footnote #4, p. 6:

Defendant contends that it can be inferred from the length of this Court’s written opinion that the legal issues presented constitute substantial issues for appeal. Def. Mot. at 5. It is a strange sort of logic that infers that the likelihood of reversal increases with the thoroughness of a written opinion.

Sucking up much? I've said it before, Fitzgerald's real forte may be reading his judge.

[Garth]

I thought Fitzgerald's response obliterated their claims of constitutionality.

The AG had the authority to investigate this matter.

The AG had authority to recuse himself and designate his authority to investigate.

Fitzgerald was delegated the task and power of investigating this matter.

Although not directly argued by Fitzgerald, his confirmation for the position included the possibility that the AG would delegate power to him.

Why shouldn't the AG be able to recuse himself from sensitive investigations and delegate sufficient power to accomplish the task?

A very persuasive case exists on a simple reading of the concerned policies/guidelines.

That's what Scooter pointedly ignores.

[Charlie (Colorado)]

Play a recording of Yankee Doodle Dandy, performed by James Cagney backwards.
While stoned.
In complete darkness.
With oatmeal rasin cookies baking in the oven.
And your left foot submerged in 82 degree water.
Wearing an indian headdress.

Where in hell am I going to find oatmeal raisin cookies?

[Charlie (Colorado)]

Hey Charlie, did you get your CU magazine today, and did you notice that alumni highlights start a decade after we graduated? How's that for a kick in the teeth.

Perhaps luckily, I never actually graduated from CU and thereby dont get the alumni magazine.

The Faculty Association has lost me too. (Which is fine --- would you want to belong to a club in which Ward Churchill is a senior member?)

[Charlie (Colorado)]

Oh, I'm open to correction, my memory of the last time I did this exercise is pretty foggy.

I can dig it.

[cathyf]

It seems terribly naive.

I think that's unfair -- the dangers are only clear in retrospect. The press simply refuses to publish what doesn't fit whatever lying meme they are pushing, and so it's hard to argue that some other imagined scenario would have worked better.

I mean look at the facts. Joe Wilson told multiple bald-faced lies about what was and was not contained in the NIE, starting with his leaks of classified information to Pincus and Kristof, the EPIC dinner speech, the NYT op-ed, the MTP appearence. The Administration responded by declassifying the NIE. The press wasn't interested. The Administration anticipated that the press wouldn't be interested, so they disguised the declassification as a "leak" hoping to generate interest that way. We saw how well that worked.

One of the things that is fascinating about the case (and illustrates perfectly how the press has hoodwinked the American public on this case) is that the occasional non-troll will stumble by here and proclaim that we are all idiots to defend Libby, that the WH didn't need to bring up Wilson's wife, the president could have just declassified the stuff in response. Having no clue at all that their "the WH coulda" scenario is more or less what the WH did.

[Charlie (Colorado)]

Just by the way, JOM seems to work rather a lot better with Safari 3 beta 1 (on Mac) than it does with Firefox.

[Tom Maguire]

I suggest that we can the amici stuff and go with "the twelve amigos."

Consider it stolen.

And could someone remind me of a good link to the Cboldt Collection of documents? The permalink I have is straight to the website and not helpful.

[cathyf]

Why shouldn't the AG be able to recuse himself from sensitive investigations and delegate sufficient power to accomplish the task?

Well, because the founding fathers wrote it in the constitution in 1791, and the constitution has never been amended to change it.

Of course it's true that Fitzgerald hasn't dragged anybody down Pennsylvania Ave behind a wagon, put him in stocks on the Supreme Court lawn, all for the "crime" of refusing to sign a guilty plea written in a language that the dragee didn't understand. But, ya know, the founding fathers wanted to put a stop to the whole idea before it ever came to that.

[Charlie (Colorado)]

Oh, on "amici" ... what sources I have seem to think that nom pl for "amicus" is "amicitia", not "amici", which is actually "friendship".

[Tom Maguire]

I suggest that we can the amici stuff and go with "the twelve amigos."

Consider it stolen.

And could someone remind me of a good link to the Cboldt Collection of documents? The permalink I have is straight to the website and not helpful.

[Jane]

would you want to belong to a club in which Ward Churchill is a senior member?

DIdn't they finally ditch Ward Churchill? Since the original scandal I've refused to give money to the school as long as he is employed there. At least that is what I say when they find my phone number. I was thinking I might have to make good on my implied promise to send a check since I thought they finally fired him.

[Jeff Dobbs]

Where in hell am I going to find oatmeal raisin cookies?

Montreal. From Chayes.

[cathyf]

Charlie, forget safari and firefox, opera is the way to go.

(spoken with the zeal of a convert!)

[Garth]

It is obvious to nearly everyone that OVP intended to leak Valerie Plame's name in order to counter Joe Wilson's Op-Ed.

I think most people believe Joe Wilson's Op-Ed and as we learn more about the "yellow-cake" it looks more and more like a man-made twinkie. The Administration refused to let this go despite doubts as to its validity. Willfully and deliberately.

Libby was convicted of obstructing justice and perjury. We still don't know the facts but the implications are malice on the part of Cheney.

There is no doubt in my mind or the minds of most Americans that he committed perjury and obstructed justice. He had a trial with a jury of his peers. He deserves to be punished.

That's why Scooter apologists are, rightly, condemned as "idiots."

[cathyf]

Typepad really sucks. Even TM gets double posts!

[Charlie (Colorado)]

... but the plural form of amicus as an adjective is "amici", thus "amicus curiæ" plural "amici curiæ".

[Elliott]

JM Hanes:

I don't I disagree with you at all that Fitzgerald makes very critical statements in his footnotes. However, given their importance one might expect greater care in validating his insinuations or assertions, either in the footnotes themselves or elsewhere.

I'd cite #12 in his latest filing, his footnote in, IIRC, the Miller affadavit about Libby possibly violationg the IIPA and the Espionage Act, and the unclassified summary of Plame's employment (not a footnote technically, but I needed one more for the Kaus trend) as prominent examples of flimsiness.

[clarice]

Jane, the Committee recommended something less than firing, the President has indicated he wants him fired, but ASAIK there's been no final decision on Ward.Though frankly the record evidence of his academic deficiencies and his intemperate language is ore than enough to have warranted his firing on the spot. In the meantime, I understand he's getting full pay and counsel fees. Sometimes for the integriy of an institution you just have to lock the lawyers in a closet and do what is right.

[RichatUF]

Fast forward several years, and Gerth and Van Natta tell us about an organization called CREW, which stands for Citizens for Responsibility and Ethics in Washington.

CREW weren't they behind Foley and his paige and aren't they representing Plame-Wilson regarding the civil suit and her book. Maybe the same group involved in getting Weldon knocked off as well [the search of his daughter's office in Jacksonville].
Lawfare at its finest

JM Hanes...

Clarice had some thoughts at AT a while back

from the JOM archive here as well

The Walton order is here and the Memorandum opinion is doc 310 and I can't seem to find it. I think Walton reasons that her Oct 2003 statement would be inadmissible under federal rules; however, he doesn't go beyond the her Oct 2003 statement and her attornies proffer that she "misspoke" and would testify consistent with Russert. I can't belive that I can't find the opinion itself. I thought you and clarice had some thought full commentary about bootstrapping the federal rules which preclude the Oct 2003 statement into precluding Mitchell testifying.

This is interesting I didn't know that Walton made an appearence in the Edmonds and FBI mess

RichatUF