JustOneMinute

More Of The Miller Subpoena Decision Unsealed

Matt Apuzzo of the AP:

WASHINGTON (AP) — A federal appeals court said Friday it would release some of the documents it reviewed when deciding to force journalists to testify in the CIA leak investigation.

The ruling followed a request by The Associated Press and Dow Jones, which asked for the release of the sworn statements Special Prosecutor Patrick Fitzgerald gave to justify subpoenas for New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper in 2005.

I am blogging from an insecure remote location but if I can find my PACER account info (cleverly concealed even from myself) I will find the newly less-redacted opinion as well as the less-redacted Fitzgerald affidavits.

FWIW,the Tatel opinion unredactions appear at pages 32-35 and 38-9.

MORE:  Jeralyn Merritt has the links and some thoughts.

Interesting - from one of her excerpts (not newly released, BTW) it does appear that the judges understood they were ordering Ms. Miller to jail in pursuit of a perjury case.

Rough Riders

The NY Times website is just slightly behind the times with their coverage of the immigration debacle:

A “rough ride” was predicted Wednesday for a complex and contentious immigration overhaul as Senate backers sought to speed through amendments using an unusual procedural tactic.

"Rough ride"?  More like a morning inside a washing machine - needing 60 votes to invoke cloture, supporters of the immigration bill mustered 46.  Yikes.

Since we are all ex post geniuses, I will declare it obvious that supporters would get either 60 votes or be swamped - evidently, plenty of fence-sitters had no desire to provide the 59th vote in a losing cause.

OK, I need to turn on the talk radio and let Rush get back to running the country.

Leadership That's Working!

Jeff Goldstein on John Edwards' leadership:

This country needs leadership. And nothing says leadership more than having your wife run interference for your campaign in order to butch it up a bit.

Follows here and here.

Libby's Reply

Libby replies (1 or 2; original Libby appeal; amicus brief) to Judge Walton and the prosecution arguments on Libby's bail appeal.  Keep in mind, the current appeal is simply on the issue of whether Libby's appeal points are close enough that he should be allowed to remain free pending a final resolution of his appeal; the judges are *not* being asked to reach a final ruling on the underlying issues of his appeal.

Similar arguments were presented to Judge Walton when he ruled that these were not close questions - links are here.

This part of the reply is comedy gold:

III. The Special Counsel's defense of the Andrea Mitchell ruling is especially anemic. True, Mitchell's attorney apprised the district court that, if called to the stand, his client would disavow her previous exculpatory statement. But that's why lawyers get to do cross-examination.9 In the face of questioning under oath, Mitchell may have gone back to her first story – and if she didn't, the jury might have credited her first version anyway. As we explained in our opening brief (and as the Special Counsel fails to dispute), there was abundant corroboration for Mitchell's prior statement.'

Only under a truly extravagant reading of United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986), could such routine but crucial cross-examination be precluded. But precluded it was. Because Mitchell's testimony cut right to the quick of Russert's contradiction of Libby – a proposition that the Special Counsel does not dispute – the preclusion of this vital witness is yet another close question on appeal.

And the associated footnote:

The fact that defense counsel declined the district court's offer to permit them to examine Mitchell outside the presence of the, jury is scarcely a "waive[r]" (Opp. 18 n.21) of their right to establish that Mitchell's prior story was the truth. We are unaware of any rule of criminal practice requiring defense counsel, on pains of waiver, to do a dry run of their cross-examination outside the presence of the jury.
          
'° The Special Counsel cites Judge Walton's description of Mitchell's prior statement as "ambiguous." Opp. 17. We implore the Court to view the Mitchell statement for itself, together with her subsequent efforts at retraction. They are attached to our application and speak loudly for themselves.

I had mocked the "dry run" notion that Ms. Mitchell was entitled to a dress rehearsal at the time.

And since we are on the topic of what did NBC News know and when did they know it about a Plame leak, let's put Brian Williams back in the mix.  Here is Mr. Williams from Oct 1, 2003, speaking to Joseph Wilson:

WILLIAMS: Certain reporters have made it known that they were among the leaked-to, which means they know the leaker. Do they bear any responsibility? Is it incumbent upon them right now to stop what could be a long and costly investigation, come forward and say who gave you this stuff?

And a bit later, talking to Jimmy Carter's press secretary Jody Powell:

WILLIAMS: Let me put it this way. Journalists known to both you and me know who the leaker is. Are they under any responsibility to stop a monster from starting to roll in Washington that could hurt lives and reputations and cost millions of dollars?

So, to what reporters might Mr. Williams be referring?  As of Oct 1, 2003, only Bob Novak and the TIME trio with their byline on the "War On Wilson?" were know to the public as leak recipients.  Was Mr. Williams obliquely referring to them?

Or perhaps Walter Pincus, Bob Woodward or Judy Miller had gossiped about their status as leak recipients and word had gotten back to Mr. Williams.

Or closer to home, perhaps David Gregory or Andrea Mitchell really did know something.  A few days after Mr. Williams mysterious offering, Ms. Mitchell delivered her famous "widely known" comment - that, and her subsequent backtracking, appear here.

Yet, with all that said, there is also an NBC denial of Ms. Mitchell's involvement, offered by Tom Brokaw on Sept 28:

TOM BROKAW: NBC News correspondent Andrea Mitchell has been identified by some as one of the recipients of a leak about the undercover agent.  But tonight, Mitchell said that was not the case, that her first discussion with an administration official about the matter was after the Robert Novak column was published. And that discussion, she said, was off the record.

Pretty slim stuff - what in the world is "the matter"?.

It Was Ever Thus

The NY Times front pages the "news" that America's youth tilts left relative to the general population.  On a better day the Times would also tell us who said "If a man is not a socialist in his youth, he has no heart. If he is not a conservative by the time he is 30 he has no head".

The Times lead:

New Poll Finds That Young Americans Are Leaning Left
By ADAM NAGOURNEY and MEGAN THEE

Young Americans are more likely than the general public to favor a government-run universal health care insurance system, an open-door policy on immigration and the legalization of gay marriage, according to a New York Times/CBS News/MTV poll. The poll also found that they are more likely to say the war in Iraq is heading to a successful conclusion.

Hmm - the WSJ editorial page has favored open borders on immigration for decades, so I am not so sure that is exclusively a lefty position.  And I am quite sure that optimism on the war is not a the favored lefty view.

Late in the story the Times does attempt to put this latest poll in some historical context:

Over the last half century, the youth vote has more often than not gone with the Democratic candidate for president, though with some notable exceptions. In 1984, Ronald Reagan won his second term as president by capturing 59 percent of the youth vote, according to exit polls, and the first President George Bush won in 1988 with 52 percent of that vote. This age group, however, has supported Democratic presidential candidates in every election since.

The percentage of young voters who identified themselves as Republican grew steadily during the Reagan administration, and reached a high of 37 percent in 1989. That number has declined ever since, and is now at 25 percent.

In 2004, Kerry beat Bush amongst youngsters by 54-45.

The survey is here; question 64 suggests that the 17-29 crowd is as indifferent to more gun control as the general public.

OK, my PC is crashing...

Stare Decisis

Linda Greenhouse and David Kirkpatrick of the NY Times cover the latest Supreme Court ruling overturning part of the McCain-Feingold campaign finance reform.  They aren't sure who won, but they know who lost:

It is not clear which candidate or party is more likely to benefit from the ruling in 2008. But Senator John McCain, the Arizona Republican seeking his party’s presidential nomination, may suffer the most in the short term. His sponsorship of the law, formally called the Bipartisan Campaign Reform Act, is unpopular with conservatives and Republican primary voters, and the Supreme Court’s decision is a reminder of his role.

That Was Easy!

The NY Sun discusses Judge Walton's thirty page opinion in which he explains, with no apparent irony, that Libby's points of appeal are not even close or complicated questions.

On a related front, some commentators on the left cannot fathom the notion that Fitzgerald's prosecution of Libby may have been politically motivated - surely, they note, Ashcroft and Comey were good Republicans, as was Judge Walton?

Hmm.  That would be especially cogent if all politics was partisan politics.  Folks able to embrace the concept of factional disputes within an Administration will find these tidbits from the WaPo series on the Cheney Vice-Presidency to be interesting.

First, from Nov 2001:

To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6, 2001, declaring that Bush did not need approval from Congress or federal courts. Yoo said in an interview that he saw no need to inform the State Department, which hosts the archives of the Geneva Conventions and the government's leading experts on the law of war. "The issue we dealt with was: Can the president do it constitutionally?" Yoo said. "State -- they wouldn't have views on that."

Attorney General John D. Ashcroft, was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House.

The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president's senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise -- as part of a strategy to deny jurisdiction to U.S. courts.

Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. "The thing I remember about it is how rude, there's no other word for it, the attorney general was to the vice president," said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: "I'm just not prepared to comment on that."

According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush. Bolten, in an October 2006 interview after becoming Bush's chief of staff, did not deny that account. He signaled an intention to operate differently in the second term.

This next vignette is from July 2004 [corrected from 2005] well after the Fitzgerald appointment in Dec 2003 but reflective of ongoing trouble in paradise:

Ashcroft, with support from Gonzales, proposed a lawyer named Patrick Philbin for deputy solicitor general. Philbin was among the authors of the post-Sept. 11 legal revolution, devising arguments to defend Cheney's military commissions and the denial of habeas corpus rights at Guantanamo Bay. But he had tangled with the vice president's office now and then, objecting to the private legal channel between Addington and Yoo and raising questions about domestic surveillance by the National Security Agency.

Cheney's lawyer passed word that Philbin was an unsatisfactory choice. The attorney general and White House counsel abandoned their candidate.

"OVP plays hardball," said a high-ranking former official who followed the episode, referring to the office of the vice president. "No one would defend Philbin."

And of course the March 2004 story about Comey heading off Gonzales' attempted meeting with Ashcroft at the hospital is well-known.  Cheney and Libby had been advocates of the  contentious NSA around which this incident centered.

So one might infer that there had been little love lost between Ashcroft and Cheney for quite some time.

Read Closely!

Christy Hardin Smith of firedoglake decides that to respond to Dorothy Rabinowitz's criticisms of the Fitzgerald investigation and prosecution, she will simply trash Ms. Rabinowitz.  But turnabout is fair play! [And see "TURN AGAIN", below]

I have stalled near the top of her post - I made it past the distracting mis-spelling of "Juanita Broderick" but was overcome with laughter at this:

– She gives none other than Ann Coulter glowing reviews as the “Maureen Dowd” of conservative outrage branded commentary, and manages to try and link her with McCarthy as two positive peas in a marketing pod.  In what twisted world does this woman live where McCarthy and Coulter are positive additions to the public political scene under any circumstances?

Geez - I am pretty sure this is true for libs as well but believe me - amongst righties, being compared to Maureen Dowd is not a compliment.  And following the link (presumably, her readers do not), I see that Ms. Rabinowitz is panning Ms. Coulter, not praising her.  The criticism is subtle enough that firedog readers and (evidently) writers may miss it, but let me highlight a few clue-laden passages:

[Ms. Coulter] also thanks her publisher for his bravery--a suggestion that it took courage to publish this work. Here we are, only up to the acknowledgments page, and already enjoying a laugh. True, at one point a book representing the Democrats as the party of treason, and Sen. McCarthy as one of the greatest heroes of the age, might have given some publishers pause. Not today--the era that has put its money on outrage merchants and shock jocks.

Praise, or criticism?  Tricky!  Here is another headscratcher:

Ms. Coulter has not just set about rehabilitating McCarthy as a martyr destroyed by anti-American leftists--she has also set about rehabilitating the most notorious of his cases, the kind dramatized in famous film clips of the period. Cases like that of Annie Lee Moss, a black code clerk who had lost her job at the Pentagon when she was hauled before McCarthy's committee as a security risk and Communist Party member. She had been confused with a different Annie Lee Moss, the witness explained--and who Karl Marx was she could not even say. So evident was Ms. Moss's confusion at what she was doing there that applause erupted in the hearing room when Democratic Sen. Stuart Symington declared he believed her.

But the evidence against Ms. Moss was not insignificant, the author of "Treason" now maintains. The code clerk had said there were two other people called Annie Lee Moss listed in the Washington phone book--whereas the two others were actually Anna Lee Moss and Annie Moss. Dynamite evidence, as far as Ms. Coulter is concerned--case closed. After all, an FBI report had identified her as a Communist.

Praise, or criticism?  Stumped?  Try one more:

Yes, a book with everything--and we don't forget the classy prose. "Needless to say, the scrawny pinko was also a failure as a soldier," writes Ms. Coulter, about Peress.

We make the tough calls here at JOM, and I will plant the flag - "scrawny pinko" is not being offered as a serious example of classy prose.

Oh, well, Ms. Rabinowitz is a bit too subtle for some, I guess.  Ms. Hardin Smith does link to a Rabinowitz bio and summarizes it thusly:

– Apparently, her real job for the WSJ is as a television and media critic, as well as penning conservative mash notes for its op-ed page.

I will assume her readers did not follow that link either, so let me round that out a bit:   

Ms. Rabinowitz has been named a Pulitzer Prize finalist three times. She was a finalist in the criticism category in 1998 and 1995 for her television critiques and in the commentary category in 1996 for her editorial page features on false sexual abuse charges. She received the 1997 Champion of Justice Award from the National Association of Criminal Defense Lawyers in recognition of her journalistic achievements and commending her in particular for her writing on false sexual abuse charges. In 1993, she won the Distinguished Writing Award from the American Society of Newspaper Editors in the commentary category.

Ms. Rabinowitz is familiar with out of control prosecutors generically, although she has probably overlooked Ms. Hardin Smith.

MORE:  For the utterly tone-deaf, Ms. Rabinowitz drops the veil in her conclusion:

Ms. Coulter's work includes an admiring if brief biography of McCarthy's political career. One that for some reason excludes the senator's remarkable efforts on behalf of the members of the SS battle group who executed 86 American POWs in the Ardennes campaign in December 1944; otherwise known as the Malmedy Massacre. In his impassioned efforts on behalf of the accused--one never to be repeated in his investigative career--the senator charged that the U.S. Army had cruelly mistreated the former SS men.

All things considered, Sen. McCarthy's reputation would be hard to refurbish, but give Ms. Coulter credit for an all-out effort. The senator--who knew something about the art of outrage merchandising--would have understood the latest of his public advocates.

C'mon.

FULL DISCLOSURE and/or HELPFUL CLUE:  This post should be read as a criticism of Christy Hardin Smith and the firelapdog readers who failed to comment on this laughable error.

FULLER DISCLOSURE:  Yes, I am just passing time waiting for the Fitzgerald filing, which was due at 4:00.  'Que pasta?', as we say (while contemplating the dinner hour).

TURN AGAIN:  Beldar rises in defense of Special Counsel Fitzgerald:

No one has been a harsher critic of Amb. & Mrs. Bozo & Bozo-ette Joseph Wilson than me, and I am keenly aware of the dangers of "politics as usual" being "criminalized." Maybe the CIA shouldn't have referred this matter to the DoJ (although I think it should tend to err on the side of referring if it's at all a close case; but maybe this one wasn't). Maybe Attorney General John Ashcroft ought not have recused himself (although I think he was right to do so, given his past personal ties with then-reported chief suspect Karl Rove), and maybe his deputy, James B. Comey, ought not have appointed a special counsel (although I think he was right to do that, too, for reasons having to do with public confidence in the justice system and avoiding appearances of favoritism, and I said so at the time).

But when Mr. Fitzgerald got this case, it was already necessarily a false statement/perjury/obstruction investigation because what Mr. Libby had already repeatedly told the FBI agents simply couldn't be squared with the other written evidence and witness statements they had in hand.

*******

...

So in the exercise of his prosecutorial discretion, Mr. Fitzgerald did the responsible, prudent thing: What Ms. Rabinowitz paints as grand jury prolongation for purposes of "entrapment" ought instead be viewed as Mr. Fitzgerald throwing Mr. Libby the proverbial life-line by which Mr. Libby could have, and should have, extracted himself from the considerable hole he'd dug himself into before Mr. Fitzgerald was ever in the case.

Specifically, Mr. Fitzgerald used the formal and stately process of the grand jury proceedings to make further, much more detailed inquiries of Mr. Libby — under oath and with full stenographic and audio tape records. Mr. Fitzgerald asked sufficient questions to make absolutely sure that this wasn't just a mix-up, a slip of the tongue, a misunderstanding by the FBI agents. He ensured that Mr. Libby was represented by counsel standing by just outside the room. He expressly, repeatedly, and gravely warned Mr. Libby and his counsel that that Scooter Libby was the specific subject of an investigation that included making false statements and obstruction of justice in connection with his prior statements to the FBI. If ever there was a time to search one's memory, or even to express some doubts about one's previous recollection, then surely — obviously — this was that time! Mr. Fitzgerald might just as well have handed Mr. Libby an engraved invitation  reading "Just clean up your act, buddy, so I can cut you some slack on the FBI interviews, shut down this circus, and get back to Chicago to prosecute some genuine terrorists."

OK.  I am firmly on both sides of this - I have some serious issues with the way Fitzgerald conducted himself in this "investigation" (geez, he never even asked Armitage for his June calendar - what else did he miss?), but my official editorial position is this:

Fitzgerald as much as admitted after the trial (link to WaPo video) that he was brought in to investigate the very odd story being told by Libby (Rove's "I heard that, too" account of his exchange with Novak also raised eyebrows, until the journalism critics at the FBI got a load of Matt Cooper's sourcing from Libby).

My view is that prosecutors prosecute and special prosecutors especially so; the real blame should be directed at Ashcroft, who lacked the courage to shut the investigation down in December 2003.

Prosecutors prosecute.

 

Alzheimer's Vaccine

A phatmaceutical company (cue the booing and hissing from Stage Left) is actually engaging in safety testing of a vaccine that would stop the progression of Alzheimer's disease.  Breakthrough stuff, and just in time for the current crop of baby-boomers.

A revolutionary drug that stops Alzheimer's disease in its tracks could be available within a few years.

It could prevent people from reaching the devastating final stages of the illness, in which sufferers lose the ability to walk, talk and even swallow, and end up totally dependent on others.

The jab, which is now being tested on patients, could be in widespread use in as little as six years.

...

Known as CAD106, it is the brainchild of scientists at Zurich-based biotechnology firm Cytos, which is also developing anti-smoking, obesity and flu vaccines.

Cytos chief executive Dr Wolfgang Renner said: "If it could prevent the progression of Alzheimer's, it would be fantastic."

Early tests showed the vaccine is highly effective at breaking up the sticky protein that clogs the brain in Alzheimer's, destroying vital connections between brain cells.

When the jab was given to mice suffering from a disease similar to Alzheimer's, 80 per cent of the patches of amyloid protein were broken up.

The vaccine is now being tried out on 60 elderly Swedish patients in the early and middle stages of Alzheimer's. Half of the men and women are being given the vaccine while half are being given dummy jabs.

Although the year-long trial is designed to show that the treatment is safe, the researchers will also look at its effect on the patients' symptoms.

While the results are not due until early next year, the initial findings are promising. Dr Renner told a Zurich conference earlier this week: "I am glad to report that the vaccine is very well tolerated."

If the trial is successful, larger-scale trials will follow, in which researchers will work out the best dose to give and how often it should be given. The finished product is six to eight years from the market.

The vaccine uses a tiny section of the amyloid protein attached to an empty virus shell to trick the immune system into attacking and breaking up deposits of protein clogging the brain.

Scientists at Cytos, who have sold the rights to the vaccine to Swiss pharmaceutical giant Novartis, say the vaccine is likely to be given to those in the early stages of Alzheimer's, to stop the disease from progressing.

Here is an abstract of a recent Cytos presentation.  And FWIW, it appears to be a second anniversary for this drug:

June 19, 2005 - Cytos Biotechnology AG (CYTN) announced that its collaboration partner Novartis Pharma AG has obtained approval from the Swedish health authority to initiate a phase I clinical trial with the Immunodrug candidate CAD106, an immunotherapeutic product for the treatment of Alzheimer disease.

Good luck.

Three Years Ago?

Sen. Inhofe created huge buzz when he told a talk-radio host that he had overheard Senators Boxer and CLinton chatting about the need for a legislative fix to the talk radio problem.

However, this AFTERNOON UPDATE is absurd - Inhofe now claims he overheard the chat about three years ago:

AFTERNOON UPDATE:  Even though Inhofe prefaced this story by saying "I was going over to vote the other day," the Oklahoman this afternoon told Fox News' Neil Cavuto that this alleged conversation took place "about three years ago."

That's kind of weak.

Maybe the fix is still in committee.  Or maybe Inhofe's tale is the greatest hoax ever perpetrated on the American people.  This week.

Live From Iraq

Here is a milblogger - "your favorite NCO on the go" - with a story from Iraq.

MORE:  "NCO on the go"?  How about "The non-com with the dot.com"?

Libby Draws The Miller Court

The three appeals judges who heard the Judy Miller appeal will hear Libby's appeal of  Judge Walton's decision to deny bail pending a full appeal of the case.  Here are the AP and the NY Sun with coverage which omits the Judy Miller connection.

ABC News describes the Libby appeal and actually mentions Andrea Mitchell (but not David Gregory, who gains prominence in this iteration of defense filings).

Christy Hardin Smith of firedoglake has lots of useful links to the previous efforts by these judges on the Plame case, including the opinion sending Judy to jail.  Ms. Hardin Smith thinks this panel is a win for Fitzgerald; I am not so sure.  The judges may be revisiting the wisdom of jailing Judy Miller and wondering just what happened to the grand national security case her subpoena was ostensibly about, in which case they may also be a bit less sympathetic to Fitzgerald than formerly. 

Just for example, one point made in the Libby appeal is that neither Andrea Mitchell nor David Gregory were asked to testify to the grand jury although both may have received Plame leaks.  The filing especially notes that Ari Fleischer, a prosecution witness, was never contradicted in his trial testimony in which he claimed to have leaked to Gregory.  Might the judges wonder why Ms. Miller's testimony was so urgent yet Mitchell and Gregory got a pass?

Here is a link to a redacted version of the affidavit filed by Fitzgerald when he urged the Miller Court to toss her in the hoosegow if she did not comply with her subpoena.  The Russert-Libby interaction features prominently in that affidavit but there is no *apparent* mention of the fact that Ari Fleischer had testified to the grand jury that he had leaked information about Valerie Plame to David Gregory.  Instead, Russert's assurance that he did not discuss Plame with other reporters prior to the Novak column is presented seemingly without qualification.

Is that a problem for Fitzgerald, since the judges know now what Fitzgerald knew then?  Surely it occurred to Fitzgerald that Russert  might be mischaracterizing his conversation with Libby in order to conceal his own sources, possibly including David Gregory, Andrea Mitchell, or others.   Why not investigate that?  Why not mention it to the judges?  Let's see if they have these questions now.

NON-CAVEAT: Ari Fleischer testified at the trial that he leaked to John Dickerson and David Gregory.  *IF* his still-unpublicized grand jury had been different, one would have expected the defense to seize on the discrepancy as evidence of Fleischer's faltering memory, as they did with other witnesses.  Beyond that, the defense noted in their opening statement that Fleischer leaked to David Gregory; presumably that was based on thier discovery of Fleischer's grand jury testimony. 

STILL COVERT AFTER ALL THESE YEARS?  Judge Tatel seemed to rely on Fitzgerald's obscure affidavit to infer that Ms. Plame did in fact have covert status as defined by the IIPA (rather than as defined by common CIA parlance, where "classified" and "covert" are interchangeable).

With the passage of time we now know that Fitzgerald did not have an opinion from CIA Counsel as to Ms. Plame's coverage under the IIPA; he did not include any analysis from DoJ as to her IIPA status in his classified employment summary; and he chose not to present the formal CIA personnel record of the last date for which she received credit for service abroad.

I wonder if the judges will smile on this.

Hold The Onion Rings

In what I expect will be gloomy news for at least one of them, Ann Althouse and Maureen Dowd make some of the same points about the new Hillary Sopranos video.  From Ms. Dowd:

Whether Bill and Hill actually had a formal 20-year pact entailing two terms for president for her after two terms for him, as some suggested in “Her Way,” the Hillary bio by Don Van Natta Jr. and Jeff Gerth, they certainly had an understanding.

The Clintons’ “don’t ask, don’t tell” policy seems so similar to that of the Sopranos, that it could be a bit risky to play the mob couple, even for a gag.

Like Carmela, who was rewarded with jewels, watches and building permits for her husband’s infidelities with his goomahs, Hillary, too, found a way to profit from her husband’s failings and flaws.

At a lunch Carmela had with her girlfriends at Vesuvio, the women spoke admiringly of Hillary as a role model, someone who was able to turn a sow’s ear of a marriage into a silk purse.

And like Tony, Hillary is so power-hungry that she can justify any thuggish means to get the prize.

And from Ms. Althouse:

2. Do we really want to think of Bill and Hillary sitting in for Tony and Carmela? Tony is a monstrous criminal and Carmela willfully blinds herself to his horrible flaws so that she can keep living in a highly desirable house. Are these good associations for Hillary?

Ms. Althouse got even more Freudian than Ms. Dowd with this one:

4. Bill says "No onion rings?" and Hillary responds "I'm looking out for ya." Now, the script says onion rings, because that's what the Sopranos were eating in that final scene, but I doubt if any blogger will disagree with my assertion that, coming from Bill Clinton, the "O" of an onion ring is a vagina symbol. Hillary says no to that, driving the symbolism home. She's "looking out" all right, vigilant over her husband, denying him the sustenance he craves. What does she have for him? Carrot sticks! The one closest to the camera has a rather disgusting greasy sheen to it. Here, Bill, in retaliation for all of your excessive "O" consumption, you may have a large bowl of phallic symbols! When we hear him say "No onion rings?," the camera is on her, and Bill is off-screen, but at the bottom of the screen we see the carrot/phallus he's holding toward her. Oh, yes, I know that Hillary supplying carrots is supposed to remind that Hillary will provide us with health care, that she's "looking out for" us, but come on, they're carrots! Everyone knows carrots are phallic symbols. But they're cut up into little carrot sticks, you say? Just listen to yourself! I'm not going to point out everything.

Who knew?  (And there is more on onion rings here and here).  But I'll admit that Hillary as the controller who won't let America eat onion rings and ordered for the table because she knows what's best for us may not be the image that lures and reassures the undecided.

For myself, I am not undecided.  Intellectually I am aware of her impressive resume as the boss's wife, and I understand that resistance is futile, but please  - can't you Dems stop her somehow?

MAYBE YOU NEED TO PLAY THE TAPE:  This from MoDo is classic:

Maya Angelou, the poet of the first Clinton inaugural, is back as well. With the campaign trying to shore up support among affluent, educated, over-35 women — women like Hillary — Ms. Angelou offers a taped testimonial to Hillary on the campaign Web site, saying that people “have profound affection for you, ever since you stood up as a woman and said: Yes, I’m a woman. Phenomenal woman. That’s my mother and all your mothers and my grandmothers and all your grandmothers. And my great-grandmothers and yours. And great-greats and great-greats and all you women here, along with Hillary Rodham Clinton and me!”

Smoke and share, gal.  And who among us can not enjoy "...ever since you stood up as a woman and said: Yes, I’m a woman", evoking as it does the classic bit from Love and Death:

Napoleon: Do you find me attractive as a man?
Sonja: Yes, I think that's your best bet.

Memories.

A Nice Friendly Hate Crime

Points over which you have not previously puzzled:

To Commit a Hate Crime, Must the Criminal Truly Hate the Victim?

By MICHAEL BRICK

In her courtroom on the 21st floor of State Supreme Court in Brooklyn yesterday, Justice Jill Konviser-Levine sat and pondered the question of hate.

“Bottom line,” Justice Konviser-Levine ruminated aloud, “is animus an element of the crime?” 

Apparently that is an easy question in some states, where the underlying statute
is clear.  But nothing is simple in New York:

The crime in question was the killing of Michael J. Sandy, 29, a gay man who was lured to a parking area in Sheepshead Bay last October, beaten and chased into traffic. He later died in the hospital.

Prosecutors have said a group of young men contacted Mr. Sandy through an online gay chat room, selecting him as a robbery victim in the belief that a gay man would be unwilling or unable to put up a fight and unlikely to report the crime.

The defendants — John Fox, 20; Ilya Shurov, 21; and Anthony Fortunato, 21 — have been charged not just with murder, but with murder under the state Hate Crimes Act of 2000, which provides longer prison sentences for crimes motivated “in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person.”

So you don't have to hate a member of a group believed (rightly or wrongly) to have particular characteristics; arguably, it is enough to believe that those characteristics make the target victim appealing.  Hmm.

In court documents, a defense lawyer has asked Justice Konviser-Levine to dismiss the enhanced murder charges against all three defendants because “the crimes alleged are not crimes of hate but rather crimes of opportunity.”

That lawyer, Gerald J. Di Chiara, filed a motion in which he argued that lawmakers responsible for the Hate Crimes Act had written a statute applicable only to defendants who truly hate their victims. He quoted from a State Senate memorandum in support of a law “designed to ensure that only those who truly are motivated by invidious hatred are prosecuted for committing hate crimes.”

To allow prosecutors to pursue hate crime charges without demonstrating such hatred, Mr. Di Chiara argued, would render the law unconstitutionally vague and arbitrary.

For example, he wrote, the authorities could then ascribe hate crimes to “a mugger who selects an elderly or disabled person because he believes that such a victim will be unable to resist effectively, a pocketbook snatcher who targets women, or a burglar who selects a victim from an ethnic minority group because the victim does not speak English.”

Good point - next we can institute quotas for criminals.  But don't call them quotas!  Affirmative action it is!  In any case, if a particular criminal does not select victims in proportion to prevailing neighborhood demographics, this will be judged a hate crime offense.  Cool.  But hold on...

In addition, [Lieberman for the prosecution] argued, if lawmakers had intended to make prosecutors prove defendants hated their victims, the Legislature would have said so in the law’s final language.

“By contrast with New York State,” Mr. Lieberman wrote, “other states have hate crime statutes that require evidence of bias, animus or prejudice.”

Citing legal scholars, he suggested that hate crime prosecutions without evidence of hatred could benefit society. As in the era of racially motivated lynching, he noted, prosecutors could alter perceptions of vulnerability among certain groups and impunity among others.

Ahh!  So old folks, for example, who don't feel sufficiently protected by the knowledge that mugging is a crime, will feel an extra bit of security with the news that mugging a frail and elderly type is a hate crime, even if no one hates them at all.

I love New York.

The Libby Appeal

Per a new court filing we can add Mark T. Stancil to the roster of the Libby defense team.  The honorable Mr. Stancil got his law degree in 1999, so we will peg him as a toiler rather than a star on this.

And I have been advised that the Libby appeal of Walton's decision to deny bail pending Libby's appeal, a 122 page .pdf, has been filed. [Here we go: (Libby Appeal, 122 page .pdf)] [html version].  However, I cannot find it on PACER at either the Criminal or Appellate level.  If some legal eagle wants to provide me with a clue or two, that would be lovely.

Thanks to Clarice, and I still want to know how she did that.

UNSOLVED MYSTERIES:  At the PACER site for appeals courts I did find this utterly mysterious order (1 page .pdf)  dismissing the Libby case as of Dec 27, 2006.  Uhh, Happy New Year, Scooter, but why did we go through the charade of a trial?

If I had to guess (and it appears that I do), I would say it is either an early April Fool's gag from the court or, with slightly higher probability, a dismissal of a particular aspect of some CIPA appeal.

Gee, I would hate to think Libby's defense team missed this.

SKIMMING THE APPEAL:  The defense cites three major questions they consider to be close - (1) the constitutionality of the Fitzgerald appointment; (2) the denial of a memory expert; (3) and the inability of the defense to call Andrea Mitchell.  The appeals occupy about 20 pages; the balance is exhibits, including a transcript of the June 14 2007 bail hearing.

Re the Fitzgerald appointment, they make several points but do emphasize the CIPA issue discussed here.  However, let me toss a bone to the prosecution - in footnote 2, page 9 the defense explains that they only learned after the trial that Fitzgerald had signed off on a CIPA affidavit.  However, as noted previously, JustOneMinute readers had noticed an oddity  in the signings last December 2006.  Now, maybe the oddity we noticed is not quite the oddity being mooted by the defense, but the prosecutor might want to nail this down - its something to watch for in the prosecution response, anyway.  [OR EVEN BETTER _ Fitzgerald noted that 6(A) filing was on PACER during oral arguments - p. 58/122 of .pdf)].

No Dead Horse Left Behind

Let me toss out a Plame-related thought which may be relevant for the Libby appeal - did Andrea Mitchell actually talk to the FBI or not, and was that made clear to the defense and to Judge Walton in the trial?  I ask because Ms. Mitchell's status is one likely element of the Libby appeal, and here is the puzzle:

Tim Russert's cooperation with the FBI investigation of the Plame leak in the fall of 2003 was famously concealed until his dramatic courtroom testimony.  In fact, both Russert and Fitzgerald, in court filings tussling over his grand jury subpoena, concealed his cooperation with the FBI.

So, might Fitzgerald have been similarly accommodating with Ms. Mitchell?  Who knows?  But there is this cryptic comment from Ms. Mitchell's television appearance in October 2005 on the Tim Russert Show, following the Libby indictment:

MITCHELL: You know, I should have spoke--'cause there's been a lot blogged about all of this--I was called by the CIA because it was erroneously reported in The Washington Post that I was the recipient of the leak before Novak's column came out, and I had not been. So I was never questioned because I simply told the FBI--and, you know, NBC put out a statement that night--that I had not been a recipient of the leak; in fact, I had learned about it from Novak's column like everyone else. Then after the fact, a lot of us had gotten calls and conversations with people, you know, `Hey, how about the Novak column?' But that was after the fact.

"I was called by the CIA" almost surely should have been "FBI".  And she is presumably referring to an early WaPo story that suggested  she was a leak recipient; here is the NBC denial reprised on the PBS NewsHour on Sept 30, 2003:

TOM BROKAW: NBC News correspondent Andrea Mitchell has been identified by some as one of the recipients of a leak about the undercover agent. But tonight, Mitchell said that was not the case, that her first discussion with an administration official about the matter was after the Robert Novak column was published. And that discussion, she said, was off the record.

Geez, another Swiss-cheese denial.  What's "the matter"?  I don't know, what's the matter with you?  Ms. Mitchell certainly had discussions about the Niger uranium story prior to the Novak column.

Well, while we are here let's cite the WaPo story that I believe dragged her into this and the Newsweek follow up.  WaPo, Sept 29 2003:

[Ambassador Joseph ] Wilson said that in the week after the Novak column appeared, several journalists told him that the White House was trying to call attention to his wife, apparently hoping to undermine his credibility by implying he had received the Niger assignment only because his wife had suggested the mission and recommended him for the job.

"Each of the reporters quoted the White House official as using some variation on, 'The real story isn't the 16 words. The real story is Wilson and his wife,' " Wilson said. "The time frame led me to deduce that the White House was continuing to try to push this story."

Wilson identified one of the reporters as Andrea Mitchell of NBC News. Mitchell did not respond to requests for comment.

Or let's put Howard Kurtz in the mix - this report, also from Monday Sept 29 2003, also suggests that Ms. Mitchell knew something, perhaps before the Novak column:

A senior administration official told The Post on Saturday that two top government officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife, Valerie Plame. Wilson said yesterday that journalists for the three major broadcast networks told him they had been contacted by someone in the White House. He named only one, Andrea Mitchell, NBC's chief foreign affairs correspondent, who interviewed Wilson and reported on July 22 that he said the administration was "leaking his wife's covert job at the CIA to reporters." Mitchell could not be reached for comment yesterday.

Some follow up from Newsweek, Oct 5:

NEW YORK, Oct. 5 /PRNewswire/ -- Former ambassador Joseph Wilson IV tells Newsweek that in the days after Robert Novak's column appeared, in which Novak identified the ambassador's wife as a CIA operative, Wilson got calls from several well-connected Washington reporters. One was NBC correspondent Andrea Mitchell. She tells Newsweek in the October 13 issue (on newsstands Monday, October 6) that she said to Wilson: "I heard in the White House that people were touting the Novak column and that that was the real story."

(Photo: http://www.newscom.com/cgi-bin/prnh/20031005/NYSU003) The next day, Wilson got a call from Chris Matthews, host of the MSNBC cable show "Hardball." According to a source close to Wilson, Matthews said, "I just got off the phone with Karl Rove, who said your wife was fair game." Matthews told Newsweek: "I'm not going to talk about off-the-record conversations."

Interesting.  It would not have been unreasonable for the FBI to chat with Ms. Mitchell, and she certainly seems to say that they did.  Yet at the trial, when the defense wanted to talk about her Oct 3, 2003 public admission that Ms. Plame's CIA affiliation was "widely known" among reporters working the Niger story, we never heard from the prosecution about her contemporaneous denial in her FBI interview - instead, the prosecution went on about her public denials on Imus (in 2005) and her proposed affidavit from the same legal team that provided Russert's misleading affidavit.

If I were preparing a defense brief, I would certainly give some thought to whether and how to address this.  We have good evidence that the prosecutor helped Russert keep his FBI interview secret as long as possible; we have a statement from Ms. Mitchell that she spoke with the "CIA" (presumably FBI); but we do not have any prosecution evidence confirming or denying that.  Dare we say "hmmm"?

RANDOM HITS:

1.  Richard Cohen of the WaPo normally attacks from the left flank, but:

As Fitzgerald worked his wonders, threatening jail and going after government gossips with splendid pluck, many opponents of the Iraq war cheered. They thought -- if "thought" can be used in this context -- that if the thread was pulled on who had leaked the identity of Valerie Plame to Robert D. Novak, the effort to snooker an entire nation into war would unravel and this would show . . . who knows? Something. For some odd reason, the same people who were so appalled about government snooping, the USA Patriot Act and other such threats to civil liberties cheered as the special prosecutor weed-whacked the press, jailed a reporter and now will send a previously obscure government official to prison for 30 months.

...I have come to hate the war and I cannot approve of lying under oath -- not by Scooter, not by Bill Clinton, not by anybody. But the underlying crime is absent, the sentence is excessive and the investigation should not have been conducted in the first place. This is a mess. Should Libby be pardoned? Maybe. Should his sentence be commuted? Definitely.

Do keep in mind that the official editorial position of the Times and many other media groups (back when they sponsored an amicus brief by Victoria Toensing opposing the Judy Miller subpoena) was that there was no underlying crime.  To watch the same papers bray about Libby's sentence being commuted will be fun.

2.  The de facto CIA General Counsel will endure a confirmation hearing today.  Per the Times, Dems will grill him on his efforts to keep enhanced interrogation withing the law, but... might an enterprising Rep ask him about the CIA criminal referral in the Plame case?  And might they ask whether the CIA Counsel has yet ascertained whether Ms. Plame is covert as defined by the IIPA statute, not just as defined by the CIA handbook?  When last we looked in on the CIA, Novak had reported this:

On March 21, Hoekstra [Ranking Republican on the House Intel Committee] again requested the CIA to define Mrs. Wilson's status. A written reply April 5 from Christopher J. Walker, the CIA's director of congressional affairs, said only that "it is taking longer than expected" to reply because of "the considerable legal complexity required for this tasking."

3.  If I were inclined to express some support for Patrick Fitzgerald (am I sufficiently deeply buried in this post to do that?) I would note that he resisted manfully the opportunity to expand his jurisdiction when Rove's missing emails turned out to be part of a larger story about White House employees using and probably abusing the RNC email system.

4.  It's going to come back to me...

Adam Nagourney - Clueless *AND* Humorless?

OK, the notion that political reporter Adam Nagourney is utterly clueless does not really merit a headline.  But with this coverage of the Mrs. Edwards and Spouse campaign swing through Iowa, Mr. Nagourney reaches a new pinnacle of absurdity:

TIPTON, Iowa, June 16 — Elizabeth Edwards was holding court in the sweltering basement at the Cedar County Courthouse in Tipton, where local Democrats fanned themselves under fluorescent light. Her husband, John Edwards, making his second run for the presidency, watched and winced as she quizzed her audience about what they knew of his biography.

“How many know how many members of his family went to college before he did?” Mrs. Edwards inquired. The correct response emerged in murmured guesses from a few listeners: none.

Mrs. Edwards nodded approvingly, and went on to Question 2. “How many people know what his father did?” Again, the correct response could be heard from a few people, who recalled a stock line from Mr. Edwards’s 2004 campaign speech: worked in a mill.

Mrs. Edwards nodded proudly, so she moved in for the final question.

“How many people know the price of his most expensive haircut?”

A roar of laughter filled the room. Mr. Edwards grinned, gamely if barely, at the reference to the $400 haircut that had made him a subject of some derision. “She’s been doing this joke all day,” he said.

Mrs. Edwards was laughing at her husband with her audience. “I’m having fun,” she said. “How about you guys?”

...But her swing through Iowa also produced moments that broke the mold of political spouses’ customary manner. Typically she introduced her husband with the joke about the haircut, reflecting her own keen political instincts. How better to deal with the mockery over it than to force-feed Mr. Edwards a little humble pie and make a few jokes at his expense? And who better to do so than his wife, who presumably felt she could do it without undermining him?

Uhh, is that joke exclusively, or even primarily, directed at John Edwards?  If I were not a major media figure, I might have recognized the ever-so-subtle possibility that Ms. Edwards is also mocking the proclivity of our national media to obsess over nothing.

Access Punditry

Tim Russert and Byron York chatted on Meet The Press (transcript, see p. 3) about the Scooter Libby situation and managed to irk Christy Hardin Smith and me.  From Ms. Hardin Smith:

But, putting that aside, irritating though it is, it was the Russert (a) failure to once again detail his own personal involvement in the Libby case but instead act like there was nothing there whatsoever that could possibly compromise both his reporting and his need to steer us away from asking questions about it, and (b) failure to ask any meaningful questions about what this case means in terms of the rule of law being upheld; the application of the law being done fairly, across the board by the judge regardless of Libby’s status; or even ask any question on the subject at all from Dionne or Robinson during that topic.

This is a teaching moment for the American public - the highest ranking government official to be convicted of multiple felonies in years, is treated to the same consideration as any other criminal defendant at a time when our justice system is under susbtantial scrutiny for political skewing by the Bush Administration…and Russert completely blows it.  Again.

Well, yes, but - as she subtly suggests with her "Meet The Compromised" title, Russert is hardly in a position to rattle on about the importance of equal treatment under the law.  Just for starters, this is a guy who submitted a deliberately misleading affidavit to the court while resisting his grand jury subpoena - he assured the judge that he could not testify without chilling sources, but sort of failed to note that he had already given evidence to the FBI.  And would a straight-arrow prosecutor countenance such shenanigans.  In this case, yes.  Equal treatment indeed.  (My detailed *speculation* about Russert's *possible* role in this case is here).

But what of Mr. York?  Here is a fellow whose knowledge of the Libby case is unsurpassed.  So why does he give Russert a pass?  Mr. York has been on the Russert show on other occasions discussing the Libby case, and has consistently declined to drop the gloves.  It is possible that he is overcome by politesse at critical junctures.  It is also possible that he has calculated (probably correctly) that the first time he asks Russert the tough questions will be the last time he is invited on the show.

However - rather than carry on a discussion of a Libby pardon as though it were simply a matter of approval ratings and placating the Republican base, Mr. York ought to have presented a few of the substantive reasons that people question Libby's treatment.  Let's start with his Q&A and then send it to rewrite:

MR. RUSSERT: Byron York, bottom line on a pardon for Scooter Libby? What happens?

MR. YORK: Well, the fact is, the White House has shown no inclination at all to pardon Libby. They were hoping that all of this would come later in the president’s term, that he could essentially do it on the way out the door. The thing that has triggered all of this is Judge Reggie Walton, the judge in the case, deciding that Libby had to go, go to jail now, rather than stay free pending his appeal. That’s what has caused this problem, and I think that we’re likely to see Libby go to jail within six weeks or so.

I prefer this revised answer:

MR. YORK: Well, the fact is, the White House has shown no inclination at all to pardon Libby. They were hoping that all of this would come later in the president’s term, that he could essentially do it on the way out the door. The thing that has triggered all of this is Judge Reggie Walton, the judge in the case, deciding that Libby had to go, go to jail now, rather than stay free pending his appeal.  Conservatives didn't like the whole special counsel concept following the Lawrence Walsh / Iran-Contra debacle, and they think that Libby has solid ground for appeal on the constitutionality of Fitzgerald's appointment.  They also think Fitzgerald focused his investigation on Libby's possible perjury rather than the actual question of who leaked what to whom - for example, Ari Fleischer testified that he leaked to David Gregory, but Fitzgerald never pinned that down.  Nor was Libby allowed to call Andrea Mitchell, who may have had an interesting and helpful story to tell.  So Libby arguably got caught up in an unconstitutional non-leak investigation, and maybe sending him to jail is a bit harsh.

The Politco has more on the background maneuvering to keep Libby out of jail.  I still think Libby has a good argument that he should stay out pending appeal because he has close questions on Walton's rulings on the constitutionality of Fitzgerald's appointment and the exclusion of Andra Mitchell.  If he wins an expedited appeal on Walton's bail ruling he will stay out pending a full appeal, and the pardon/commutation question will be deferred to another day.

But if my expectations are quashed (again!) and Libby loses the bail appeal, I expect Bush will commute the sentence (eliminating the jail time but preserving the fine) or reprise respite it, which would amount to a stay pending a full appeal.  Either option keeps the case alive and gives the appeals court a chance to toss this case, thereby letting Bush keep his hands clean.  (Possible Bonus Harmonic Convergence - on the final day of the Bush Presidency, Scalia at al toss the Libby conviction - it ends as it began...)

MORE:  Christopher Hitchens has been advised that a reversal in Libby's favor is likely:

I know of a senior lawyer in Washington who is betting very good money that if the case is heard again on appeal, the conviction will be reversed. This is for three further reasons, which I call to your attention.

Those three reasons are the constitutional question noted above, the denial of a memory expert (Jeralyn Merritt's favorite) and the animus of Judge Walton towards Libby as exemplified by his snarky and inappropriate response to the amicus brief.

Let me nitpick these two from the Hitch column:

Nobody was ever charged with breaking that law, designed to shield the names of covert agents. Indeed, the prosecutor, Patrick Fitzgerald, determined that the law had not been broken in the first place.

Hmm.  I am deeply skeptical that a charge could ever have been filed (Can't prove intent, and Ms. Plame may not have qualified as covert), but I also doubt that anyone can prove that Fitzgerald did not have it in mind at various points.

And this:

The call [from Libby to Russert] was made after Robert Novak had put his fateful column (generated by Richard Armitage) on the wire, and after he had mentioned Plame's identity to Karl Rove.

Tricky - the call was made either the afternoon of the tenth or the morning of the eleventh (incredibly, neither side pinned that down in the trial - what, the NSA monitors every call in the world but no one can check the NBC phone bill?); the Novak column hit the wires late on the morning of the eleventh.  So this may be true, or it may not be.

And as I note from time to time, even if Libby is telling God's truth when he says Russert mentioned something to him about Wilson's wife, Libby may still have been lying when he says the Russert news surprised him.

HOWEVER!  If the FBI and/or Fitzgerald had seriously probed the possibility that Russert was, ahh, equivocating in his FBI and grand jury testimony in order to protect his sources (or David Gregory's, or Andrea Mitchell's), the momentum for a perjury investigation of Libby may have been re-directed.

And a re-directed investigation might have noted that over at State, Armitage had Bob Woodward in his calendar for June 13; combine that with the news that, having ducked interview requests for two years, Armitage contacted Novak for an interview in June, and one might infer that State felt they had a story to tell.

Add a bit more?  Although he did not emphasize the specific Niger/uranium piece, Colin Powell was the public face of the Administration in presenting the WMD case against Saddam to the United Nations; the charge that "the Administration twisted the intelligence" should have cut Powell as deeply as Cheney, so a State Dept push-back would not be utterly unreasonable.  Add in that Andrea Mitchell covered State, had Colin Powell as a guest at her wedding, and claimed to have known about Ms. Plame prior to the publication of the Novak column, and it should not have been too hard for diligent investigators to wonder whether folks at State had blabbed about Ms. Plame and then covered it up.

And why wouldn't they blab?  The INR memo which circulated at State made it clear (rightly or wrongly, probably rightly) that Ms. Plame was involved in sending her hubby on the trip and gave no hint that her CIA role was classified.

In Which I Provide The Petty Vindictiveness

Glenn Reynolds links to a "Now He Tells Us" article about Nutroots darling Sen. James Webb:

Sen. James Webb (D-Va.) said he owns the gun that an aide was arrested for carrying into the U.S. Capitol complex in March.

"It's my gun," Webb told the Richmond Times-Dispatch last week.

Webb previously had refused to say whether the gun was his....

...

Webb said little about the incident in March.

"It was a matter under legal consideration, and I was precluded from saying anything," Webb told the Richmond newspaper. "And I hope you'll understand that in matters of self-defense up here, it doesn't do anybody's safety a lot of good by talking about this stuff. We're pretty vulnerable up here."

Safety issues?  Wait a second!  Wasn't it only last May that this topic was being kicked around the blogosphere?  Let's see, someone wrote "If gun rights are civil rights, why would anyone feel the need to hide the fact that they own one?"

Safety issues were identified and mocked (e.g.), and away we went.   FWIW, Mr. Sullivan did back down a bit eventually.  But it is interesting to see Sen. Webb on the same side as Glenn.

More Obscure Plame Trivia You Will Not Find

Way back when, a major mystery of the Fitzgerald was, "What Did Rove Know And When Did He Know It?"  And a minor mystery that may have shed light on the major mystery was, just who, if anyone was named in the second subpoena to Matt Cooper, then of TIME?

Very briefly - Libby testified that he leaked info about Ms. Plame to Matt Cooper and others.  Cooper then agreed to testify to Fitzgerald about his talk with Libby and delivered a surprise - Cooper had actually broached the topic with Libby, and had an earlier source for the Plame news. 

Eventually we all learned that Cooper's earlier source was Karl Rove, but it was not clear just when Fitzgerald learned that.  Now, Cooper did receive a second subpoena to answer questions about that source and DoJ guidelines require subpoenas to the press to be for conversations with specific people unless all alternatives have been exhausted.  So the prevailing guess was that Fitzgerald suspected that Cooper's source was Rove, based either on Rove's testimony or e-mails, and that the subpoena to Cooper named Rove.

But Wait!  I actually had a bit of a brainwave in the fall of 2005 and persuaded myself (if no one else) that the subpoena to Cooper had been on a no-name basis (or see the comments here).  This was significant at the time because it suggested that Fitzgerald did not have direct evidence that Rove had leaked to Cooper.  (Let's also note that in the fullness of time we have learned that a lot of Rove's emails were not on the White House server at all, but may have been kept/lost at the RNC server.)

Such a point about Fitzgerald's willingness to issue a broad subpoena is also resonant today since it suggests that Fitzgerald issued a subpoena to a reporter on an exceptional basis under DoJ guidelines, with no supervision.  That ties in nicely to the appeal issue regarding his independence.

Well.  Confirmation that I was on to something emerged last April in an article by Matt Cooper describing the legal maneuverings behind his testimony:

Why did Kelly (in concert with Pearl­stine) press me to keep fighting in court and not ask Rove for permission to talk? Pearlstine told me he saw no reason to give up the fight so soon. We might, after all, prevail on appeal. I didn’t think so. When I checked in recently with Kelly, now the No. 2 on the editorial side of Time Inc., he told me that he took umbrage at complying with a subpoena that, unlike my first one—which was focused on Libby specifically—was a “fishing expedition.” Kelly still thinks it was the right call but told me, “It was easy for me to say some of this stuff because I was never heading for jail, but I thought the threat of jail was less real than you did.”

Interesting.

Nifong Disbarred

Mike Nifong was disbarred.  Absurd quote du jour:

David B. Freedman, one of Mr. Nifong’s lawyers, said in an interview, “He wants this over. He wanted the process to play out and to receive a fair hearing, and he believes he has received a fair hearing and accepts the findings of the commission.”

He wants it over?  This is far from over:

Days after his disbarment for dishonesty and fraud, Nifong faces possible sanctions for lying in court and a potential criminal investigation.

Attorneys for the three accused athletes say they plan to ask Durham County Superior Court Judge Osmond Smith to issue sanctions against Nifong for lying in court about DNA evidence that later cleared the players.

The attorneys have also called for an independent agency to investigate what went wrong in the case. State Attorney General Roy Cooper has said he would decide whether to pursue a criminal probe after the state bar proceeding concluded.

I think there are three mothers who are wiling to spend at least as much time pursuing Nifong as he spent pursuing their sons.

That said, Jeralyn Merritt makes an important point made previously by one of the Duke lacrosse players (Colin Finnerty, IIRC) - this sort of thing happens all too often, and normally defendants lack the resources and publicity to fight it.

Stand Tall, America

Paul Krugman guilt trips America's working moms:

Traveling through Europe recently, I’ve been able to confirm through personal experience what statistical surveys tell us: the perceived stature of Americans is not what it was. Europeans used to look up to us; now, many of them look down on us instead.

No, I’m not talking metaphorically about our loss of moral authority in the wake of Guantánamo and Abu Ghraib. I’m literally talking about feet and inches.

To the casual observer, Europeans — who often seemed short, even to me (I’m 5-foot-7), when I first began traveling a lot in the 1970s — now often seem tall by American standards. And that casual observation matches what careful researchers have found.

The data show that Americans, who in the words of a recent paper by the economic historian John Komlos and Benjamin Lauderdale in Social Science Quarterly, were “tallest in the world between colonial times and the middle of the 20th century,” have now “become shorter (and fatter) than Western and Northern Europeans. In fact, the U.S. population is currently at the bottom end of the height distribution in advanced industrial countries.”

This is not a trivial matter. As the paper says, “height is indicative of how well the human organism thrives in its socioeconomic environment.” There’s a whole discipline of “anthropometric history” that uses evidence on heights to assess changes in social conditions.

...

There is normally a strong association between per capita income and a country’s average height. By that standard, Americans should be taller than Europeans: U.S. per capita G.D.P. is higher than that of any other major economy. But since the middle of the 20th century, something has caused Americans to grow richer without growing significantly taller.

It’s not the population’s changing ethnic mix due to immigration: the stagnation of American heights is clear even if you restrict the comparison to non-Hispanic, native-born whites.

And although the Komlos-Lauderdale paper suggests that growing income and social inequality in America might be one culprit, the remarkable thing is that, as the authors themselves point out, even high-status Americans are falling short: “rich Americans are shorter than rich Western Europeans and poor white Americans are shorter than poor Western Europeans.”

We seem to be left with two main possible explanations of the height gap.

One is that America really has turned into “Fast Food Nation.”

“U.S. children,” write Mr. Komlos and Mr. Lauderdale, “consume more meals prepared outside the home, more fast food rich in fat, high in energy density and low in essential micronutrients, than do European children.” Our reliance on fast food, in turn, may reflect lack of family time because we work too much: U.S. G.D.P. per capita is high partly because employed Americans work many more hours than their European counterparts.

A broader explanation would be that contemporary America is a society that, in a variety of ways, doesn’t take very good care of its children. Recently, Unicef issued a report comparing a number of measures of child well-being in 21 rich countries, including health and safety, family and peer relationships and such things as whether children eat fruit and are physically active. The report put the Netherlands at the top; sure enough, the Dutch are now the world’s tallest people, almost 3 inches taller, on average, than non-Hispanic American whites. The U.S. ended up in 20th place, below Poland, Portugal and Hungary, but ahead of Britain.

Whatever the full explanation for America’s stature deficit, our relative shortness, like our low life expectancy, suggests that something is amiss with our way of life. A critical European might say that America is a land of harried parents and neglected children, of expensive health care that misses those who need it most, a society that for all its wealth somehow manages to be nasty, brutish — and short.

OK, props for the closing line.  However, without actually rallying myself to track down the paper in question I can think of two problems and an alternative explanation.

Problems first - what's the baseline?  Europe was racked by two world wars in the last century, both of which created near-famine conditions.  Presumably, this caused Euro-heights to lag that of Americans, an effect that probably skews data until we get to Europeans born after, say, 1955.  In other words, when Paul Krugman saw eye-to-eye with Europeans in the early 1970's, he was looking at a lot of war-deprived shorties. 

However, regardless of the absolute wealth of Europe versus the United States, from about 1955 onwards (or, in terms of measuring adults, form about 1975 onwards), one would expect Europe to increase more quickly than the US, simply because they  are moving up from a war-depressed baseline.

Second problem - what is the ethnic mix of Europe relative to the United States?  I would hazard a guess that healthy, well-fed Swedes are taller than healthy, well-fed Irish or Italians.  The United States has descendants from all three countries, but I would hardly be surprised to learn that Sweden has surpassed the US in height.  But are the Irish in Ireland taller than their US counterparts?  Are the Scandinavians in this country lagging the Scandinavians who stayed behind?  Who knows?

And an alternative explanation - rather than blaming America's work ethic, let's idly speculate that the cause is the general European welfare state.  Here we go - imagine Subsidy Society where hard work is heavily taxed and unemployment is heavily subsidized.  Women will have a reduced incentive to assess prospective breeding partners in terms of their earning potential and will be more able to afford picking a mate on the basis of other qualities, such as charm, good looks, or (dare we say it?) height.  In such a society, the height of the population would drift upwards due to selective breeding.  In fact, we might look to the day when such a society was predominantly populated by tall, handsome, charming lay-abouts who looked as good pouring a glass of wine as they did cashing an unemployment check.  Some day!

Now picture a second society in which hard work can result in economic success regardless of a person's charm or physical stature.  In such a society shorter men will be more likely than their counterparts in Subsidy Society to emerge as economically attractive mates and the evolving height of the population may be flat, as it were.

C'mon - we all know that in Old Europe, the diminutive Prof. Krugman would have become one more angry old man smoking cigarettes on the (Far) Left Bank, watching the pretty girls go by on the arms of taller men.  In Enterprising America he made a Somebody of himself and was able to score a hot chick (but we have no word on whether he has been blessed with the pitter-patter of little Krugmans, so we will hold off on wishing him a Happy Father's Day.)

Well, its a theory, although I can't guess how to test it - survey the heights of the fathers of newborns relative to the general population of the same age and check for trans-Atlantic differences?  Good luck finding data. 

Things To Do - track down the study in question; dig up a link to some photos of Krugman and Spouse that circulated a few years ago to general acclaim; ruminate that Bush II is shorter than his dad; and wonder why I am the same height as my dad even though I grew up in a wealthier household and nation (post-war America versus Depression America.)

Quite a Friday ahead of me.

MORE:  If folks can't take any more of height-ism, I would love to reflect on streaks and hot hands in baseball.  I see their is a blog devoted to the general topic; my interest is sparked by the impending collision of the unstoppable force with the utterly movable object.

BREAKTHROUGH STUFF:  If Europeans look taller to Krugman today, it may simply be that he is stooped from carrying the weight of the world on his shoulder lo these many years.

Here is a link to the study in question, and thanks to RichatUF.

Nifong On The Stand - Gonna Walk Before They Make Me Run

The AP covers Duke DA Mike Nifong's appearance.

KC Johnson has been live-blogging the hearing.  Here is a starting point, but check the "Previous Posts" highlighted on the right.

UPDATE: Duke DA Says He Will Resign.

Disbar him anyway.

KC Johnson has lots - start here and check previous post.

Libby Ordered To Jail, Soon

Judge Walton ruled that Libby is unlikely to prevail on appeal.  From Reuters:

Former vice presidential aide Lewis "Scooter" Libby must begin serving his 2 1/2-year prison sentence while he appeals his perjury conviction, a U.S. judge ruled on Thursday.

...

Libby will have to report to prison in six to eight weeks, unless his lawyers convince an appeals court to let him remain free.

Libby's lawyers said they would base the appeal on the contention that the special prosecutor, Patrick Fitzgerald, was improperly appointed.

They also plan to argue that U.S. District Judge Reggie Walton was wrong to exclude witnesses and classified material Libby had hoped to use in his defense.

Walton, however, said they were unlikely to prevail.

"I would have to conclude that although he doesn't pose a danger to the community and he doesn't pose a risk of flight ... there is not a likelihood of success," Walton said.

Firedoglake had liveblogging: 1, 2, 3, commentary.  This account of the CIPA issue (discussed yesterday)  is cryptic yet amusing:

Robbins (for Libby): ...The question here is whether these are close questions. I don’t think it can be debated that these are close, and I think we’ll win.

When someone does not have to report to anyone, does not have to follow DOJ procedures, sometimes things go wrong. Under section 6c2 under ______ the AG is allowed to object to disclosure of classified information, if disclosure would damage national security. Fitzgerald did submit such a report because he assumed plenary authority.

Walton: but the CIPA issues did not arise until later when Libby asked for material.

Robbins: But this is an example of how things go wrong when authority is too broadly delegated. [Reads the language of the act, congressional statute]. Authority to AG, DAG, AAG. These are the ones who can make these disclosures, and no one else.

Walton: Be that as it may, your client through his counsel did not submit his request to Mr. Fitzgerald, their CIPA request, not to others. This issue was not raised at the time. Was this issue waived?

Robbins: My understanding is this document was declassified and made public after the case. I was not part of the history of this case. But Lawrence Walsh was denied this authority in the past.

Walton: I think your co-counsel did not address this.

Jeffress: This affidavit was submitted in camera. It has recently under seal, and we obtained it pursuant to your ruling, we received it in May.

Walton: Your time is up.

So Fitzgerald signed an affidavit for which he lacked authority, suggesting he was either inadequately supervised or improperly appointed. 

The judge wonders why the defense didn't appeal this issue at the time.  To which the defense responds, well, it was filed exclusively with the judge under seal, so we only saw it in May.  And then time is up!

My question - which May do they mean?  JOM commenters were ruminating about this issue in December 2006.  OTOH, the motion to dismiss the indictment based on improper appointment was filed back in Feb 2006, so maybe the defense got this in May 2006.

OK, we have more CIPA discussion a bit later; here is a bit of it:

Walton: Do you think you were in full compline with what was envisioned by CIPA.

Fitzz: If someone had objected would could have gotten a second signature or could have made an application to close the courtroom. We are picking on the most minor violation.

Walton: There was a violation, so what is remedy.

Fitz: It was not a classified document and it would have been waived or we could have had any number of other signatures.

Walton: I assume suggestion by defendant is that you were given the authority by inference to handle CIPA matters even though it was not clear at the time that CIPA would be in play.

Fitz: They are misdescribing 6a as if it was 6c.

Fitz: AUSA’s handle CIPA material, so this notion that the alleged technical violation of CIPA was an issue of whether courtroom should be closed. These were issues that AUSA’a could have argued.

Walton: But if you signed something that you may arguably not have had the authorityto sign, does this go to you being a superior officer? One could infer you presumed such authority.

Fitz: If the defense thought this was an obvious error we could have dealt with it then. If there was a violation that I signed under one authority versus another authority, this is waiver and harmless error if it is error. We can’t turn around for filing on 6a and go through a whole trial and bring this out later.

The Times has this on Obama?  Although Drudge is hawking it as "NYT: INDICTED BUSINESSMAN WAS FRIEND AND PATRON OF OBAMA... DEVELOPING...", this is a recycled nothing-burger.

And their motivation is?  Maybe when people are actually paying attention and the Times is shoveling dirt on Giuliani, McCain et al, their editors will point to this article as proof that they are evenhanded.  But no worries - based on their coveraige of Kerry in 2004, no Democrat will be scathed by the Times at crunch time.

Fred Thompson, the next President of the United States, has a blog.

SINCE YOU ASKED:  Thompson defeats Gore in the general election (Gimme a "T" for Tennessee!).  Thompson, the Republican Mirror of Desire, overcame some interesting but flawed opponents for the Republican nomination; despite his strengths, Giuliani could not overcome his past positions on abortion and gun owner rights.

Gore entered the race after concluding that the extraordinary fundraising success of the Democratic Mirror of Desire, Barack Obama, signaled an irresistible "Stop Hillary" sentiment.  Since Gore had an even more impressive resume than a 46 year old Chicago politician with two years in the Senate, had been anti-war in 2002, had led on global warming, and could argue to loyalist Dems that he had already been elected once - Go with a proven winner! - he was able to scoop up the nomination as a late entrant.

And Hillary?  She can't be bargained with. She can't be reasoned with. She doesn't feel pity, or remorse, or fear.  But she was blown up when Barack Obama agreed to become Al Gore's VP.  This was not a deal Hillary could offer - with Bill and Barack overshadowing her she feared that she would become the answer to a trivia question, to wit, "Who the heck is actually President right now?"

The charismatically challenged Al Gore made light of his odd-couple ticket, clutching his Academy Award and telling crowds that Barack had charisma but he had Oscar.  And for a time polls suggested that Al Gore would be forever linked with Richard Nixon as a VP who lost a controversial race only to emerge victorious eight years later.

But it was not to be.  Whew.  More later...

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.

Here is Libby's reply on the bail question (23 page .pdf) [or copy/paste version at Cboldt].  And as noted in an earlier update, in another filing we learn that Lawrence Robbins will be appearing on Libby's behalf in court to bring his special expertise.  Oh, here we go!

Here is some AP coverage with this tidbit:

If Libby's request to remain free is denied, defense attorneys will rush to an appeals court and ask judges there to put the sentence on hold.

So Libby can try for a quick appeal on the bail decision - interesting.  Normally he would have 45-60 days to report to jail; whether a bail appeal would be heard in that time frame I don't know.

As to the political background, presumably folks who want to see Libby punished want him to go to jail ASAP.  Their concern is that if Libby is left out during lengthy appeals Bush can pardon him on Jan 20, 2009 without paying any political price.  On the other hand, if Libby is sentenced immediately, Bush cannot pardon him without risking a backlash - for example, the Senate may hold a No Confidence vote on the Attorney General, or Bush's prized immigration reform may collapse.  Hmm.

Of course, their are other beneficiaries to a quick pardon - neither Judge Walton nor Special Counsel Fitzgerald need to worry about reversals on appeal if Bush ends this case with a prompt pardon.

And the middle ground idea floated by an adviser to Bush I still strikes me as a likely scenario - Bush can commute Libby's jail sentence but preserve the $250,000 fine and the felony conviction, thereby allowing Libby to fight for vindication on appeal while remaining on the streets.  I'll guess that Bush and plenty of conservatives would prefer to see the process play out, with the hope that the courts will be on Libby's side; commuting the sentence kicks the pardon question down the road.  I am quite sure that commuting now and pardoning later is an option, but I welcome legal advice on this point.

WELCOME TO THE CLUB:  From a footnote in the reply:

David Safavian, who was convicted of obstruction and false statements, was recently held to be entitled to release pending appeal by a court in this
district. Likewise, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynn Stewart, Bernie Ebbers, 7ohn and Timothy Rigas, and Solomon Kaplan (among others) were also convicted of non-violent crimes, and were also afforded the same relief Mr. Libby seeks here.

A BRIEF RESPITE:  David Frum promotes another alternative for Bush propounded by Professor PS Ruckman:

As interpreted by the Supreme Court, the Constitution allows the president to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, reprieves and amnesties.

A respite delays the imposition of a sentence. It in no way addresses issues related to due process or guilt of innocence. Nor does it change the nature (severity) of the sentence. It only delays the execution of the sentence.

Interesting - a pardon is far from the only menu option.  I do hope that if Bush commutes, respites, or whatever, that he also move to declassify enough of Ms. Plame's background that we can reach a consensus on her covert status.  And wouldn't it be great if he could jolly along the CIA Counsel on that very question?

FROM THE FILING:

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 o_cial." (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.  Interesting point.  OK, maybe it is simply evidence of a procedural faux pas, but one does wonder - if Fitzgearld's supervision was achieved by a daily perusal of the newspapers by the seniors at DoJ, how did they miss the fact that all these CIPA hearings were underway?  Or, if they were aware of the CIPA hearing (I was!), why did they not exert a bit of supervision and handle the relevant affidavits properly?  Hmm.

EVERYTHING NEW IS OLD AGAIN:  My goodness, the JustOneMinute legal eagles swooped down on this CIPA point last December.  Here are cboldt noting Fitzgerald's inappropriate signature and a cathyf response:

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.

and:

Why isn't this immediate grounds for an appeal of the Appointments Clause ruling? Doesn't this mean that Fitzgerald is exercising specific authority that the Attorney General has no authority to delegate?

Hmm.  Evidently it is grounds for a delayed 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)]

I absolutely adore this from the Gallup Poll article puzzling over the apparent fact that a majortiy of Americans have doubts about the theory of evolution:

Those who attend church frequently are much less likely to believe in evolution than are those who seldom or never attend. That Republicans tend to be frequent churchgoers helps explain their doubts about evolution.

Hmm, let me propose an alternative hypothesis: That Republicans tend to have doubts about evolution tends to explain their frequent churchgoing.

Well, they may both be wrong - correlation is not causality.  But "I couldn't believe humans grew up from bacteria so I turned to religion for an explanation of the seeming miracle of life" seems at least as plausible an explanation of people's attitudes as "Well, I sit in church once a week and they tell me God created man, so I guess evolution is out."

Let me continue the discussion of the recent amicus brief filed in the Libby case that commenced over the weekend.

We had discussion of the original defense filing here and here.

As additional background the original defense filings are at the Scooter Libby Defense Org site, subject to an amusing caveat - the Scooter people have archive links to a "ScooterLibby.ORG", which is now an adult website (but seemingly safe for work!).  The correct archive links should be to to the same URL but substituting ".COM".  Here are the original defense filing.; Ex. A-D; Ex. E; Ex. F; and Ex. G-I.

Here are Fitzgerald's response; the Libby reply; and Judge Walton's ruling.

I have not noticed the lawyers at Volokh or PrawfsBlog chiming in on the constitutional question at hand but if anyone can find helpful links to one of the many Con-Law bloggers, please drop them in the comments.

That said, Prof. Volokh did opine on Judge Walton's odd and snarky footnote in which Walton ungraciously accepted the amicus brief.  Here comes the judge:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

It was snark directed against Evil BushCo, so the left gave it huzzas, but...

(1) I daresay neither Judge Walton nor his lefty cheerleaders have any idea how much (or little) pro bono work these professors do;

(2) the notion that experts in Constitutional law should keep quiet about the once-in-a-lifetime Fitzgerald appointment (which, per the experts, has no precise precedent in American jurisprudence) unless they also opine on every buy-and-bust that goes through Walton's courtroom is silly and contrary to the entire point of the amicus concept.  If the experts are out there, a court ought to want to hear them; certainly Planned Parenthood, the Brady Campaign, and plenty of other lefty groups file amicus briefs within their area of interest.

(3) Judge Walton could have said with equal logic that because bloggers are not covering every case he hears he is not interested in seeing them cover the Libby case.  Would the left have cheered that?

Whatever.  Maybe Walton is trying to provoke a quick pardon and spare himself embarrassment on appeal; it's a theory, anyway.  I saw the best reaction reported at the WSJ Law Blog:

The WaPo asked Professor Kmiec of Pepperdine about the judge’s order. “Judge Walton is right; we should be prepared to ’step up to the plate’ to help criminal defendants nationwide,” he told the Post. “Boy, am I lucky to live in the same town as Paris Hilton.”

Ahh, from Paris back to reality,  As to the constitutional question of Fitzgerald's appointment, how would I know?  But I will say this - following the lapse of the Independent Counsel law in 1999 the Department of Justice reflected and came up with some hefty guidelines for appointing a special counsel.  Presumably their objective was to steer past the various obstacles and issues identified in various court rulings on earlier independent counsels.

So, will these guidelines survive a constitutional challenge?  Who knows?  Comey, who appointed Fitzgerald after the Ashcroft recusal, did not even invoke or apply them.  Instead, he invoked four clauses of the laws empowering the Attorney General and solved the whole special counsel puzzle in a one paragraph letter.

Was it really that easy?  Hey, maybe the DoJ guidelines were the product of excessive bureaucratic caution and Comey was able to slice cleanly through the legal thicket with a few well-chosen sentences.  But I bet a reasonable court will rule that whether Comey succeeded is a close question and allow Libby his freedom pending appeal.  (Comey's process was discussed back in the day.)

So, why might Comey risk such a blunder?  Let me advance a theory so silly that I expect some lefty to embrace it - Comey, as a loyal Republican, deliberately appointed Fitzgerald as the Incredible Disappearing Special Counsel, secure in the knowledge that the appointment would placate the press but that any convictions would be tossed on appeal.  Crazy like a fox!

Slightly more seriously, maybe Comey figured that the new guidelines had been created by a bunch of Clintonoids who could not be relied upon to organize a beer bash for thirsty sailors, and that the new Administration and the new broom knew how to sweep clean.  Hey, somebody ought to ask him.

So what will an appeals court finally decide?  And what will the Roberts Court decide when they finally get this?  You tell me.  But on the related question of whether Fitzgerald was subject to adequate supervision, this response from the prosecution is still a laugh-track classic:

Furthermore, as a practical matter, much information about the investigation of the Special Counsel is in the public domain and therefore available to the Acting Attorney General in exercising the power to remove the Special Counsel.

Anyone supervising Fitzgerald just needs to check the newspapers!  Oh, golly.  Just for an example of how silly this is, how was such a well-briefed "supervisor" supposed to deal with the Russert situation?  In the tussling over Russert's grand jury subpoena both Russert and Fitzgerald concealed from the court the seemingly topical tidbit that, despite his protestations about a journalistic chill on sources, Russert had already cooperated with the FBI.

And how was Fitzgerald's "supervisor" suppose to notice these shenanigans from the press coverage?  In part becasue of Fitzgerald's complicity with his publicly filed document there was no contemporaneous press coverage of Russert's cooperation with the FBI; this only came out at trial. 

What was Fitzgerald up to, anyway?  He let Russert's attorneys file a misleading affidavit, he didn't call David Gregory or Andrea Mitchell to chat with the grand jury; Fitzgerald really went easy on NBC News.  Maybe his supervisor could ask him about that, well after the fact, and despite the limited news coverage.

Just to repeat - comments are open for thoughts and great links as the days unfold.

Carol D. Leonnig of the WaPo takes it upon herself to debunk five "myths" about the Scooter Libby case.  I will say she scores four out of five; however, I also see that her fifth point has caused a bit of confusion, since Big Tent Dem at TalkLeft is claiming that she supports the left, not the right.  I disagree and consider her to be on my side on that one, but we will come to that in a bit.

Her first point is this:

1. Valerie Plame wasn't a covert operative.

Wrong. She was.

...But a CIA "unclassified summary" of Plame's career, released in court filings before Libby's June 5 sentencing, puts this one to rest: The CIA considered her covert at the time her identity was leaked to the media. The CIA report said that Plame had worked overseas in the previous five years and that the agency had been taking "affirmative measures" to conceal her CIA employment. That echoes the language used in the Intelligence Identities Protection Act, which makes it a crime to reveal the identities of covert CIA officers.

...The CIA isn't famous for its clarity, but it's being pretty blunt on this issue: Langley says she was covert. Which other spook bureaucracy do you need to ask?

Here we go again.  A subsequent defense response clarified the Fitzgerald release (my emphasis):

The summary described above was provided to the defense along with a companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently.

Or of asking the CIA is the preferred path, let's reprise happened when Congressman Peter Hoekstra of the House Intel Committee did just that:

On March 21, Hoekstra [Ranking Republican on the House Intel Committee] again requested the CIA to define Mrs. Wilson's status. A written reply April 5 from Christopher J. Walker, the CIA's director of congressional affairs, said only that "it is taking longer than expected" to reply because of "the considerable legal complexity required for this tasking."

Look, the CIA prepared a memo to prop up Fitzgerald's case and their own criminal referral, but they have not opined on Ms. Plame's status under the IIPA.  I made the same point about the Waxman hearing.

But if Ms. Leonnig would like a trial to pursue, my pension idea could benefit from a bit of WaPo-powered reporting.  Per the Times and the Congressional Record we know that the CIA tracked Ms. Plame's service abroad for purposes of calculating her pension.  So what is the most recent date for which she received credit for service abroad?  Seems like an easy question, although for some reason Fitzgerald chose not to present the answer.

As to Myth Five, Ms. Leonnig wrote this:

5. The White House would fire any administration official who leaked classified information about Plame.

In each of the first four cases Ms. Leonnig presents a statement she believes to be false, i.e., a "myth", and then presents her version of reality.  Here is her follow-up to Myth 5:

When the investigation began, the president said he hated leaks and would hold leakers of classified information accountable. But he has not sacked anyone over the case.

Libby resigned the day he was indicted in October 2005. Two other officials who gave reporters information about Plame, former deputy secretary of state Richard L. Armitage and former White House press secretary Ari Fleischer, left government before Fitzgerald's inquiry concluded. And Rove, who first told Time magazine reporter Matt Cooper about Plame's CIA identity, remains in the White House.

Big Tent's interpretation:

And Leonnig reminds us that the Bush Administration lied when it said it would fire anyone who leaked classified information...

Interesting - I would have interpreted this as Ms. Leonnig agreeing that Bush never actually said he would fire anyone, as I argued in "Don't Play 'Gotcha' With The President".

HOWLER ALERT:

This from Ms. Leonnig is absurd:

When Libby was convicted, some conservative pundits complained that Fitzgerald had presented no compelling evidence at trial that Plame was covert. But that wasn't for lack of evidence; it was because Libby's lawyers convinced the court to bar any mention of her status during the trial, arguing that evidence suggesting that her job was classified would have been "unfairly prejudicial" to their client.

Oh, please - Libby asked for discovery on Ms. Plame's classified status; Fitzgerald argued that this was a perjury trial and her status was none of the defense's business; the defense fretted that Fitzgerald would inflame the jury with references to her status that the defense was not in a position to knowledgeably contest; so the judge barred all discussion of her status.

To blame the defense for the ongoing mystery of her actual status turns the case upside down.

Some links, please?  Byron York discussed Fitzgerald's refusal to document Ms. Plame's status, or check this Feb 24 2006 hearing excerpt (p. 39):

MR: WELLS:  ...
04 Maybe if he [Fitzgerald] would give me the discovery showing
05 whether she [Ms. Plame] was classified, whether she was covert, I would be
06 in a position to make some educated judgments about how to try
07 this case. Ms. Wilson may be a witness.
08 THE COURT: Wouldn't it only become, as far as actual
09 damage, wouldn't it only become relevant if he actually knew
10 what her status was?
11 MR. WELLS: It might in terms of a actual damage. I
12 don't know. See, I might call Ms. Wilson. One of the
13 questions is, the indictment also says that outside of the
14 intelligence agency or community no one knew about her. I may
15 decide to call her. I may call her husband. There are going
16 to be CIA employees, operatives who are witnesses in this
17 trial. They may have a bias against Mr. Libby because they
18 think he outted somebody.
19 I need to understand is she covert or not. If she's
20 classified, is she really classified or is just classified
21 because some bureaucracy didn't unclassify her five years ago
22 when they should have. I just want to know the facts.

Byron York also summarized Walton's final ruling, which led to the cursury CIA summary released in Fitzgerald's sentencing memorandum.

Oddly, Ms. Leonning reported on that very hearing.  Memory does play tricks.

As an example of media criticism, Kevin Drum's attack on Charles Gibson and George Stepanpoulos falls short:

EXTREMISTS....I just heard Charles Gibson and George Stephanopoulos chatting on the ABC Evening News about the collapse of the immigration bill. Their conclusion? It was killed by extremists on both sides: liberal Democrats and conservative Republicans overwhelmed the centrists. It just goes to show that partisan polarization has made America ungovernable.

This is ridiculous. Look at the numbers. This was a bipartisan bill sponsored by Ted Kennedy and John McCain and supported by George Bush. Democrats voted 37-11 in favor of moving forward to a final vote.  Republicans voted 38-7 against it.  In the end, the Democratic leadership delivered nearly 80% of its votes.  Bush couldn't even get 20% of his party to go along.

All I can say is: if it was extremists that killed this bill, then 80% of the Republican Party is made up of extremists. For some reason, though, that wasn't quite the impression Charlie and George left us with tonight. Jeebus.

For heaven's sake.  Simply by reasoning backwards from the very defensible position that George Stepanpooulos has been a canny student of Congressional politics for decades I could deduce an explanation for his view.

Just suppose, hypothetically, that extremists in the Democratic Party persuaded their own caucus to "improve" the grand bipartisan compromise.  The net impact might be a bill that Dems generally prefer and Reps generally oppose, as in the voting cited above.  However, it would be perfectly reasonable to say that it was extremists in the two parties that shattered the compromise.

And the Dorgan amendment lets me make the leap from theory to fact.  From the WaPo (via Mickey):

Sen. Byron L. Dorgan (D-N.D.) does not like the immigration bill, either, but for entirely different reasons. Echoing the concerns of labor unions, he argues that the guest-worker program would depress wages and lead to foreigners taking good jobs that would otherwise go to U.S. citizens.

When the debate started late last month, Dorgan offered two amendments: one to kill the guest-worker program, and a second to water down the program to make it more acceptable to unions, by ending it after five years. The first failed by a large margin. But the second measure was defeated 49 to 48.

To close the gap, Dorgan and a GOP  ally, Sen. Bob Corker (Tenn.), looked to Republicans who had voted against the sunset amendment two weeks ago but who were known to have qualms about the bill itself. The target list included five senators from states with illegal-immigration problems, or where the issue had a particular potency with conservative voters.

And that is how the bill died - Dorgan "improved" the bill from the perspective of the left (maybe he would be viewed by Gibson/Stepanopoulos as a lefty extremist, since he did not support the bill) then enlisted righties opposed to the bill to support his killer amendment.

Democrats had an opportunity to show their solidarity with labor by voting for the "improved" bill; Reps can showed their solidarity with business by opposing it; and the bill died at the hands of "extremists" in both parties.

I hope that is not too confusing.

My life as a defender of Carlos Gibson and Jorge Stepanopoulos.  Merde!

YouTube provides a little Belmont warm-up.  Here is Secretariat in 1973; and the Affirmed-Alydar showdown in 1978 is a classic.

An amicus brief (9 page .pdf) supporting the Libby's team contention that Fitzgerald's appointment may have been unconstitutional has been filed by a cadre of law professors led by Messrs. Dershowitz and Bork.

Josh Gerstein of the Sun has coverage, as does the AP.  From the Sun:

A dozen legal scholars, including a noted civil libertarian, Alan Dershowitz, are coming to the aid of a convicted White House aide facing a 2 1/2-year prison sentence. The scholars submitted an amicus brief Thursday to Judge Reggie Walton arguing that that there are serious constitutional questions about the legal authority of the special prosecutor who pursued Libby on obstruction of justice, perjury and false statement charges, Patrick Fitzgerald.

"With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed ‘superiors' politically accountable for his actions and it is at the very least a close question whether the mere power of removal does anything to solve the problem," the scholars argued.

The issue is one of those which the defense contends could lead to Libby convictions being overturned on appeal.

We have earlier thoughts, as well as the defense motion.

As noted, the defense cited their inability to call Andrea Mitchell as one basis for appeal.  As predicted, that tidbit has achieved a near-total news blackout, although Matt Apuzzo of the AP notes it in this concluding paragraph:

Defense attorneys argued in their filing Thursday that Special Prosecutor Patrick Fitzgerald lacked the constitutional authority to bring charges against Libby, the former chief of staff to Vice President Dick Cheney. They also said they were unfairly prohibited from questioning NBC reporter Andrea Mitchell about why she said lots of journalists knew Plame's identity. AP

MORE:

Others will recognize the signatories to the amicus brief, I have no doubt.  But here we go:

Douglas Kmiec: bio, recent writing.

Beyond the university setting, Kmiec served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).

Viet D. Dinh: bio

Professor Dinh was Assistant Attorney General for Legal Policy at the U.S. Department of Justice from 2001 to 2003. As the official responsible for federal legal policy, he conducted a comprehensive review of Department of Justice priorities, policies and practices after 9/11 and played a key role in developing the USA Patriot Act and revising the Attorney General's Guidelines.

Gary S. Lawson, Boston University School of Law:

Earl M. Maltz, Rutgers School of Law:

Thomas W. Merrill, Columbia Law School:

Robert F. Nagel, U of Colorado: Law School

Richard D. Parker, Harvard Law School:

Robert J. Pushaw, Pepperdine University Schol of Law:

Randy E. Barnett, Georgetown University Law Center:

Vikram Amar, University of California Hastings College of the Law:

Robert Bork:

Alan Dershowitz:

MORE:  We had discussion of the original defense filing here and here.

The original defense filings are at the Scooter Libby Defense Org site, subject to an amusing caveat - the Scooter people haev archive links to a "ScooterLibby.ORG", which is now an adult website (but safe for work!).  The correct archive links should be to to the same URL but substituting ".COM".  Here. for example, is the orignal defense filing.

Here is Fitzgerald's response; the Libby reply; and Judge Walton's ruling.

The amicus brief notes that Morrison is not controlling here, so my To-Do list is to re-read Walton's opinion with that in mind. 

After all the Democratic speeches deploring hedge fund billionaires and all of Paul Krugman's columns decrying same, we finally get a trial balloon tax hike:

The debate [on AMT reform] has focused attention on a different surtax proposed by the Tax Policy Center, a joint project of the Urban Institute and the Brookings Institution. That plan would eliminate the AMT and replace it with a 4 percent surcharge on income over $200,000 for families and $100,000 for singles, cutting taxes for 22 million households and raising them for more than 3 million.

"Our plan is as simple as can be. And only 2 percent of the whole population would have to pay it," said Leonard E. Burman, director of the Tax Policy Center. The plan has the added benefit of abolishing the complicated AMT at all income levels, Burman said, an approach some lawmakers find attractive.

Just as Clinton's "millionaire's tax" fell on folks earning over $115,000, so too will a lot of non-billionaires be swept up in the next Dem net.

LATER:  Eventually we will be informed that estate tax reform is necessary to prevent fabulously wealthy dynasties; this will be done by taxing every estate over $5 million.  Not to belittle 5 mil, but we are not talking private jets and weekends in Monaco here.

Byron York wonders why Judge Walton can't let Libby stalk the streets pending his appeals.

Frequent commenter (and attorney) Cathyf had an interesting guess - her gist is that Judge Walton, in the highest profile case of his career, would prefer not to be reversed on appeal.  So, Walton delivers a sentence at the high end, hustles Libby off to the hoosegow, and hopes Bush pardons him, rendering all appeals moot.

OK, that makes sense. 

But Other Tom, another frequent commenter and attorney disputes the notion that the trial judges have such outsized and tender egos:

I very seriously doubt that Walton is concerend at all about what the D.C. Circuit might do, and I also doubt that the D.C. Circuit judges will atttempt to read any signals, or be influenced by any signals they do detect, concerning whether Bush is likely to pardon Libby or not. Every federal judge I have ever known becomes entirely indifferent, very early on, to possible reversals by the appeals courts. Ditto the appeals judges (perhaps because I practiced in the Ninth Circuit).

OK, that makes sense too.

Well - this trial was not most trials.  Given its high profile, I'll back the idea that Walton would prefer to avoid being reversed. 

Here are links to Libby's argument to remain free pending appeal (22 page .pdf), and associated exhibits (5 page .pdf).

Dig in.

MORE:  The defense is citing:

(1) the constitutionality of Fitzgerald's appointment;

(2) the memory defense and the denial of an expert witness;

(3) the substitutions under CIPA for classified info - unsurprisingly, the defense objected to some of the substitutions and preserved their right to appeal.

(4) "The court's exclusion of the government's statement admitting relevant facts and the CIA briefers' testimony following Mr. Libby's decision not to testify presents another substantial question on appeal."  Check your notes on that one - I remember Judge Walton went into a snit when Libby decided not to testify, and struck some of the proposed summaries.

(5) Andrea Mitchell and the court's decision not to allow her to be called.  My personal fave.  Let me poke around for something on the ruling being appealed - OK, I was furious:

Or, if Mitchell does not appear, I can offer a prediction - righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon.

Here is one more oldie on Andrea - did you know that Colin Powell was a guest at her wedding to Alan Greenspan?  Gee, think about her sources and whether she might have, hmm, misremembered in order to protect them.

Interesting old post here - given the detailed coverage of this case, outside observers knew more than the jury, so there is no special reason to hold the verdict sacrosanct.

And that is it.  The filings gives a good summary of the possible significance of Ms. Mitchell's possible testimony - let's see how the media bury this.

BUSH'S GAME:  The consistently insightful cathyf analyzes Bush's situation:

Well, Bush is a notorious poker player who doesn't tip his hand unless he needs to. If he were going to do what I want him to do, I would think, first, wait until we see if Walton denies the appeal bond. If he doesn't, then Bush should just keep his mouth shut. If he does, then the next step will be to appeal that decision -- and I think that appeal has an excellent chance of succeeding. Only if the appeals court denies the appeal bond should Bush commute the sentence.

I think that Walton is playing a dangerous game here. He is afraid that if Libby is allowed to appeal, then the appeals court is going to spank him very badly. So I think he is trying to force Bush to pardon Libby so as to moot the appeal and make it all go away. (Because, you see, a side effect of pardoning Libby is that it also "pardons" Walton and Fitzgerald and Russert by making any punishment for them dead letter.)

...If the appeals court decides that Walton is trying to screw with them, they will overrule him and grant the appeal bond so fast that Walton's head will be spinning for a week.

On that same line of reasoning, what Bush should want (as the guy who stood up twice and swore to defend and protect the constitution) is for the judicial branch to fix Walton's mess. The most effective way to do that is to give them enough room to do it -- anything which a prickly judge (and prickliness is a notorious aspect of judical character) would interpret as interference should be avoided unless absolutely necessary. What Bush should avoid at pretty much all costs is setting up a situation where the appeals court believes that Bush is going to pardon Libby anyway, because that would just piss them off, and who knows what sort of disaster they will cause if they decide to get revenge.

Very interesting.  That could argue for a commuted sentence if Libby is sentenced to immediate jail - Libby can still appeal in a fight for his fine and law license.

Or let Libby stay out on appeal - the appeals won't be done before Bush leaves office, so we can judge Bush's sincerity as he heads out the door with/without pardoning Libby.

Conservatives who think this case was a mess (me!) should still be wiling to support a temperate judicial review of the process.  *IF* the judges are willing to provide it.

No Mitchell No Peace.  Not quite "Mitchell Delenda Est", but keeping her out of the trial was a joke and if Walton now rules that it was not even a close or substantial question, he is deluded.

MY CURRENT FANTASY:  Walton rules that yes, the Mitchell issue is close and substantial, so Libby can stay out.  Let's see NBC News report on that.  Maybe Chris Matthews and Keith Olbermann can delve into the question of what Gregory, Mitchell and Russert knew, and when they knew it.  Hey, maybe CM and KO can stage a palace coup!

FROM THE ARCHIVES:  I wrote this while the jury deliberated:

However, the cooler heads at NBC (i.e., everyone else) are probably crossing their fingers and hoping for acquittals all around, most especially on the counts involving Tim Russert.  Otherwise, the defense will appeal, Judge Walton's decision to keep Andrea Mitchell out of the trial will be a basis for the appeal, and NBC News will have to "report" on the Tim Russert situation for months to come.  This will be especially difficult for David Gregory, erstwhile "newsman", who has been duct-taped by the NBC lawyers and not allowed to comment on whether Ari Fleischer, a key witness against Libby, lacks credibility.

OK.

SUSAN ESTRICH:

The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame's name in their effort to discredit her husband's criticism of the administration's war policy — was no. No one violated what we used to call the "Agents Law." Dick Armitage, the guy who admits he gave out her name in the first place, isn't facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn't hesitate to disclose her identity.

Libby is in trouble not for what he did, but because he wasn't as careful as the others during his interviews and grand jury testimony.

If he'd just said, "I don't recall" a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn't be bankrupt, ruined, disgraced and heading to prison.

There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven't committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it's not entrapment, but it's still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn't solve the crime; it creates it.

William Otis, writing in the WaPo, argues that Libby's sentence is too harsh and suggests something less than a pardon:

Scooter Libby should not be pardoned. But his punishment -- 30 months in prison, two years' probation and a $250,000 fine -- is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.

Interesting - as a convicted felon Libby would lose his license to practice law, but that would put him very close to even with Sandy Berger.

The PowerGuys have more, including background on Mr. Otis:

Bill Otis is a career prosecutor, and served as member of the Attorney General's Advisory Committee on the Sentencing Guidelines under both parties. As a special counsel to the first President Bush, Bill worked on issues relating to the pardon of Caspar Weinberger.

Well, he knows from controversial pardons, then.

Writing in USA Today,Victoria Toensing joins in; no prize for guessing her view:

Patrick Fitzgerald abused his prosecutorial powers when he indicted Scooter Libby for a faulty memory. The only remedy is a presidential pardon.

Surprised?

I have several quibbles with Ms. Toensing.  Here we go:

From the day he took office as the unsupervised special counsel, Fitzgerald knew that Richard Armitage had first revealed to Robert Novak the fact that the spouse of administration critic Joe Wilson worked at the CIA. He also knew that Libby had never spoken to Novak about Valerie Plame.

Any non-obsessed prosecutor would have closed the investigation at that moment.

I don't know.  Fitzgerald as much as admitted after the trial (link to WaPo video) that he was brought in to investigate the very odd story being told by Libby (Rove's "I heard that, too" account of his exchange with Novak also raised eyebrows, until the journalism critics at the FBI got a load of Matt Cooper's sourcing from Libby).

My view is that prosecutors prosecute and special prosecutors especially so; the real blame should be directed at Ashcroft, who lacked the courage to shut the investigation down in December 2003.

More from Ms. Toensing:

Fitzgerald excused others whose sworn-to memories were as bad, if not worse, than Libby's. Ari Fleischer, former White House spokesman, testified he had not told Washington Post reporter Walter Pincus that Wilson's wife worked at the CIA.  Pincus swore he did and had his notes to prove it. Fleischer had immunity, but not from false testimony.

Let's pile on!  If Ms. Toensing wants to make the case that Fitzgerald was strangely incurious about the truth, and seemed more intent on preserving his perjury case against Libby than figuring out what happened, she should certainly cite the odd treatment of John Dickerson and David Gregory in the context of the Pincus story.  As she noted, Fleischer testified that he did not leak to Walter Pincus; that was contradicted by Pincus' testimony to the grand jury (we presume) and the court.

But Fleischer also told the trial court that he leaked to David Gregory and John Dickerson while on the Presidential trip to Africa.  Presumably, he told the grand jury something similar, or the defense would have mocked his inconsistent memory.  But Fitzgerald never even subpoenaed Dickerson or Gregory in an attempt to establish the facts.   My guess?  Fitzgerald did not want to further discredit Fleischer, who had a helpful story about a weird lunch with Libby.  It was Fleischer's last week on the job, he was about to spend multiple sleepless days and nights on a Presidential trip to Africa, and his memory may have been utterly muddled - Fitzgerald did not want to know.

John Dickerson published a denial that is not exactly table-pounding:

My recollection is that during a presidential trip to Africa in July 2003, Ari and another senior administration official had given me only hints. They told me to go inquire about who sent Wilson to Niger. As far as I can remember—and I am pretty sure I would remember it—neither of them ever told me that Wilson's wife worked at the CIA.

He's "pretty sure"!  Strong stuff.  But stronger than David Gregory, who as best I know has not been heard from.  Oh, lest we forget - Gregory is a colleague of Tim Russert, who insisted that he could not have learned about Ms. Plame prior to July 14, but also admitted his NBC colleagues shared info with him.  Gee, maybe Fitzgerald didn't want to discredit Russert, also a key prosecution witness.

Well - Ms. Toensing may have been limited by space, but it is not hard to call into question the seriousness of Fitzgerald's investigation (1, 2).  Assuming, of course, one accepts Fitzgerald's occasional explanation that he was investigating a leak; as an investigation of Libby's perjury, it was quite focused.

CONTINUING:  Fred Thompson writes in Town Hall, and I will get to it.

UPDATE:  The Anchoress wants to let the process play out and let Libby exhaust his appeals; the Captain thinks that will be Bush's preferred course.

My take - that would be fine *if* Judge Walton lets Libby stay free pending his appeals.  Otherwise, Libby may sit in jail and complete his 30 month sentence while the appeals play out.  Not a big deal if he loses, but where does he get the time back if he wins?

I stand by my earlier temporizing - Bush ought to declassify enough material that the rest of us can judge whether Ms. Plame really was covered by the IIPA, and whether Fitzgerald really had credible grounds to think so when he took the appointment.

Jon Henke is back to blogging and backing Fred Thompson.  Very impressive.

Jeralyn Merritt explains the background to Libby's attempt for an appeal bond.  And since she was never happy with the ruling denying Libby a memory expert, she thinks he has a useful appeal there.

Here is the debate transcript and Times coverage.  I say a guy who can survive a lightning strike from God has to be the winner.

Let's note that, per the Times coverage, Rudy had yet another "I paid for this microphone" moment, bossing Wolf Blitzer around rather than meekly accepting instruction:

The Republican candidates were also asked if they would support pardoning I. Lewis Libby Jr. and while none of the top candidates said, outright, that they would take such a course if president, they also voiced dismay at his sentence of 30 months in prison. Mr. Giuliani was the most outspoken of the lead candidates, calling the sentence “way out of line.” Citing his experience both as a prosecutor and recommending pardons while working in the Justice Department under President Ronald Reagan, he said he would seriously consider it, especially in light of the harsh sentence.

When Mr. Blitzer tried to cut him off, Mr. Giuliani stopped him, saying, “A man’s life is at stake.” He said that it was an “incomprehensible” situation made all the more disturbing because there was no underlying crime, and that he had a real problem with the sentence.

In the last debate, it was Giuliani that jumped in to criticize Ron Paul's history of the 9/11 attacks.

With the grand finale of the Harry Potter series due out on July 21 the London bettors have spoken - Harry is history:

All bets are off on the fate of Harry Potter.

London bookies are so convinced that the boy wizard will be a goner when the seventh and final novel of J.K. Rowling's series hits stores next month that they've stopped taking wagers on his fate.

"Every penny was on Harry dying, and it became untenable," sighed Rupert Adams, spokesman for London bookmaker William Hill.

So now Hill has shifted betting to possible killers. The villainous Lord Voldemort is the favorite at 2-1. Professor Snape comes in at 5-2.

"Harry Potter and the Deathly Hallows" goes on sale July 21. Its American publisher, Scholastic Corp., is retailing the book for $34.99.

Rowling has said two characters will die in the final installment, but didn't say which two.

More coverage here.

First, a bit of history - London bookies had a similar experience roughly six weeks prior to the publication of book six, when the betting on Dumbledore's demise became one-way:

A spokesperson for the internet betting told the Sun, "We have taken nearly £6,000 worth of bets on Dumbledore in the past seven days. All have been played in Bungay or nearby Beccles. A lot of punters have opened new accounts and placed a maximum bet of £50 each on what is an obscure market. That made us sit up and take note."

The site last week cut the odds on Dumbledore from 2:1 to 4:6, while Ladbroke's are now refusing to take bets any more bets on the death of Dumbledore, on the basis that some people have obviously read the book.

So the current timing is right, and let me add this - I have the reigning Harry Potter trivia champions of not one but *two* schools currently in residence, and they both predict Harry's demise, so the markets may be right.  However, let me toss out the possibility of a head-fake - if I were working at Bloomsbury, the British publisher, and I thought I could close the betting market by having a cadre of loyal employees push five or ten thousand pounds across the betting window, I would put that in my promotional budget quicker than you could say "Voldemort's a goner".  C'mon, we are talking about a book that will gross over a hundred million in its first weekend; this sort of Surprise! market manipulation would be money well spent.

That said, I can easily grasp the case for Harry being a goner.  The case for his survival has two pillars - grandchildren and libraries.  Ms, Rowling surely hopes to have grandkids visiting her at the Rowling Estate one day; such visits may be a bit chillier if the grandkids are unhappy spending time with the World Infamous Woman Who Killed Harry Potter.

And Ms. Rowling must have contemplated her legacy - will the Harry Potter series be taking up space on library shelves fifty years from now as a beloved children's classic if Harry gets whacked?  How many parents will want to start their children on that particular journey with that particular destination?

Oh, well - maybe Ms. Rowling can make it work.  Certainly Harry's death was foreshadowed in Book One when he and Ron Weasely looked in the Mirror of Desire.  Ron saw personal glory for himself, but all Harry saw was being with his family.  Hard luck - Harry's family is dead, so there is only one way to join them.

Not that there is anything wrong with that!  As Ms. Rowling made clear with the deaths of Sirius Black and Albus Dumbledore, death is only a transition, and should not be feared (that is a very Christian message, BTW; Islamic, too).  And note this - the foundation of Voldemort's evil is his fear of death. 

My Bold Prediction is that in the final showdown between Harry and He Who Must Not Be Named it will be Dick Cheney's Voldemort's fear of death that proves to be his fatal weakness.  Seriously - do you really think Harry is going to out-spell or out-magic Voldemort?  No way - something more elemental will bail Harry out, as it has in his other showdowns with Voldemort.  But will Harry die?  Geez, I still think Dumbledore is coming back.  I understand the argument for Harry dying, but I just don't feel it.  OK, Keep Hope and Harry alive!  And Dumbledore too!  That's it, Harry - live free or die hard.

Enough for now, but do ask me about Hagrid (gone) and Snape (Harry's protector and Lily's avenger).

MORE:  Dave Kopel on Severus Snape.  Let me note two things: "RAB" is Regulus Arcturus  Black" - I especially like the foreign language clue at Wikipedia.

And secondly, Snape's motivation is not so complicated - Lily Potter is the unrequited love of his life.  Snape protects Harry because he is Lily's son, and hates him because he is James' son.  And when Voldemort killed Lily, he signed his own death warrant; Snapes efforts within the DeathEaters are all oriented to gaining vengeance (and Dumbledore knows all of this).

Snape and Lily bonded as the two best potioners in the history of Hogwarts.  And the worst day of Snapes life (from the pensive scene with Harry in Book 5) was not because he was bullied by James Potter (a commonplace) but because he spurned Lily's help and called her a muggle, thereby severing their relationship.

I am so right about this...

Libby is sentenced to thirty months but will be free pending a resolution of whether he should be allowed to remain free on appeal - the defense and prosecution will file briefs and next week Judge Walton will rule on whether Libby's grounds appeals are sufficiently novel and substantial that he should be allowed to remain free while the appeals percolate through the system.  Per Marcy Wheeler's liveblog, the judge is not being asked to rule on the likelihood that Libby's appeals will be successful:

Mr. Libby’s status. Only issue is whether appeal would raise substantial questions of law or fact.

Wells: Our position that based on number of extensive opinions your honor could rule form bench that there are substantial issues.

Walton: I think all those opinions are correct. [And who does not respect a judge with self-confidence?  TM]

Wells:  ...We don’t have to establish with caselaw there is a probability, we only have to prove there are substantial questions, wrt to those alone, the court recognizes that the court was going into uncharted territory.

My guess - next week Judge Walton will send Libby to the slammer, which seems to mean he would report in 45-60 days.

Assuming that to be the case, what does Bush do next?  Does Dick Cheney still have any sway in this Administration, and how hard will he push for a Libby pardon?  Will a Libby pardon be offered as an olive branch to the righties who are furious with Bush over immigration?  Would such an olive branch be accepted by a newly-reconciled right, or would it be used to smack Bush forcefully about the head and shoulders?  After all, immigration reform will have a much greater impact on people's lives than the question of whether Libby does or does not go to jail.

If Bush wants to mend fences with the right, he better start mending the border fence.

And if Bush wants his comprehensive bill, maybe a Libby pardon that alienates the media and a big chunk of the public in a futile attempt to placate the right will not be seen as the best way to get it.  (Hmm, am I saying a Libby pardon would be stupid and ineffectual?  Call it a lock, then!)

Last wrinkle - Fred Thompson has been a big Libby backer.  He laid out his objections to the process that led us to Fitzgerald last winter.  And he makes similar points here - his main theme is that there was no IIPA violation because Ms. Plame was not covered by the statute:

The only problem with this little scenario was that there was no violation of the law, by anyone, and everybody — the CIA, the Justice Department and the Special Counsel knew it. Ms. Plame was not a “covered person” under the statute and it was obvious from the outset.

He may be right about that.  A bit more:

I have called for a pardon for Scooter Libby. When you rectify an injustice using the provisions of the law, just as when you reverse an erroneous court decision, you are not disregarding the rule of law, you are enforcing and protecting it.

OK - does a Libby pardon become a hot potato for the other Republican Presidential aspirants?

ADD THIS:

Thursday, May 03, 2007
Pardon Scooter Libby?
WASHINGTON (CNN) -- Of the GOP presidential field, only Reps. Duncan Hunter of California and Tom Tancredo of Colorado raised their hands to indicate they would pardon Lewis "Scooter" Libby, Vice President Cheney's former chief of staff.

Libby was convicted in March of lying and obstructing an investigation in the Valerie Plame leak case.

-- CNN Political Researcher Xuan Thai

But wait - last May, "let the case play out" was the dodge.  What now, assuming Libby is sent to jail?

If Judge Walton, President Bush, and Citizen Libby can agree, would Libby take this: no jail pending appeals in exchange for no pardon now or ever?

MORE: 

ROSTOCK, Germany (AP) - President Bush feels "terrible" for the family of I. Lewis Libby but does not intend to intervene now in the case of the former top aide to Vice President Dick Cheney who was sentenced to prison Tuesday, the White House said.

Bush was informed by aides of Libby's sentencing in Washington two 2 1/2 years in prison after he got on Air Force One Tuesday to fly from the Czech Republic to Germany for the G-8 summit of industrialized nations.

They can kick this down the road at least until the judge rules next week.

EQUAL JUSTICE:  Jeff Goldstein is vivid on the gap between the Libby and Berger coverage:

For months and months now we’ve been hearing that the Libby trial was about the dangers of the “powerful” covering up their secrets—that Plame’s “outing” could actually jeopardize national security, and other self-righteous, hyperbolic, and patently absurd justifications for pushing forward in the hope of grabbing a Republican scalp.

Meanwhile, right here in front of us, we have a case where Sandy Berger, a former National Security Advisor, has voluntarily surrendered his law license rather than come clean about what documents he destroyed, why he destroyed them, and who he was trying to protect in doing so.

When I begin to hear the same people who’ve been braying for Libby’s blood take similar aim at Berger—and by all rights, their animus should be even more concentrated, given Berger’s position and power, and given the nature of his crime, which involved the pilfering and destruction of classified documents. 

No reason to think of this as Berger protecting a former President; think of it as Berger protecting a future First Spouse.

Well, Berger can become an issue as Hilary runs.  And her supporters can claim she is being swift-boated, and the media will continue to ignore Berger, and the right (yes, me, dammit!) will seethe... Barack, anyone?

WHILE MY GUITAR KEYBOARD GENTLY WEEPS: On the off chance that someone is wondering just what in the world my official editorial position is on any of this (and because having an official editorial positions seems so very tidy and responsible), let me reprise some of my commentary following the Libby verdict last March.

On the underlying validity of the Fitzgerald investigation - this relates to Fred Thompson's point that the DoJ should have shut this down:

From Mar 6, 2007:

Obviously in some cases, there is no argument that obstruction can obstruct an investigation.  However, in this specific case Mr. York could have been more emphatic - Libby's alleged lies did not, for example, obstruct an investigation into murder, because there was no dead body anywhere in evidence.  Similarly, it can be argued (as by York or Toensing) that Libby's testimony did not obstruct an investigation into the outing of a covert agent because Ms. Plame was not "covert" as defined by the Intelligence Identities Protection Act.  Similarly, the Espionage Act has hurdles that no reasonable prosecutor could have hoped to overcome, beginning with the intent clause of the first sentence:

Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States...

In this view, Fitzgerald spent two years investigating whether the Administration attempted to manipulate the media and avoid embarrassment while rebutting a critic.  Since those activities are not crimes, Libby's testimony could not have obstructed a criminal investigation.

Of course, the Department of Justice could have made this determination before appointing Fitzgerald as Special Counsel, so the real failure of leadership was elsewhere.

I think Fitzgerald was handed a perjury/obstruction case and ran with it, which is fine as far it goes, since those are crimes, too.  However, Fitzgerald's pretense that he was engaged in a search for "the truth" is not sustained by his own record:

In Jan 2004 Fitzgerald learned from Ari Fleischer that David Gregory had received a leak on the morning of July 11, which certainly gave Russert time to chat with Gregory and then with Libby.

Did Fitzgerald call Gregory to verify Fleischer's testimony?  No. Why not?  Ask Fitzgerald.  But my guess is that he figured that Gregory would only undermine the case he was constructing against Libby, and building that case was more important than learning the truth.

Let's note that I am using the word "learned" loosely there - John Dickerson denied (in print, not under oath) receiving that leak from Ari Fleischer; Fleischer's story was that he leaked to both Dickerson and Gregory while chatting in Africa.

But as of Jan 2004, as best Fitzgerald knew Russert's colleague had received a leak on July 11.  Where was the follow up?  And when will NBC News follow up on this loose end?  (NBC's timetable revealed!)

My position on Ms. Plame's covertiness is that it is a subtle legal point that has never been fully briefed or litigated, and we still don't know enough to know.  I also have an original thought about a place to look for non-definitive guidance that I think the Libby defense overlooked, to wit, Ms. Plame's  pension calculation; by law, she receives additional credit for service abroad, a key point of dispute in the applicability of the Intelligence Identities Protection Act.  (A religious question - since I think Ms. Plame's covert status is knowable but currently unknown, I am rejecting the label of "agnostic".  Am I right on the usage?)

On the broad question of Libby's guilt, I am not chasing him with a noose or pitchfork but I am not pretending he is an angel, either: (or Raw Story)

Maguire doesn't completely buy Libby's "I forgot" story, and believes that it's possible that the former vice president aide was just trying to keep his boss's involvement hidden.

"Personally, I think the single most probable scenario is that Libby uhh, shaded his testimony to keep Cheney out of the story," Maguire says.

And on the pardon question, my temporizing suggestion was that Bush ought to declassify some of the underlying material so that We the People can see for ourselves the seriousness of the crime and the Fitzgerald investigation - my goodness, the judge just sentenced Libby for obstructing an investigation into whether Ms. Plame was covert, and the judge still does not know if she is covert (He does know that the CIA says she is covert under their definition, and that their definition does not mirror the IIPA - quite a difference.)  Time to find out.

FEEL THE LOVE:  Scooter's letter, mostly positive, at The Smoking Gun.

NRO Editors - Pardon Libby.

Marcy Wheeler is liveblogging the Libby sentencing hearing (1, 2, 3, 4, 5, 6, 7, 8).

I am particularly intrigued by the cross-referencing issue - in short, even though neither Libby nor anyone else was charged with violating the Intelligence Identities Protection Act, the prosecution has argued that Libby's sentence should be adjusted upwards for obstructing an investigation into whether a violation occurred.

Neither Judge Walton nor Libby's attorney Jeffress impressed me here:

Walton: Your position would seem to promote someone engaging in obstruction and therefore impeding govt's ability to prove, [Reggie's not buying this]

Jeffress: that's not the case. [Jeffress emphasizes the "for an offense" language in all the cases] The problem with taking the cases to the extreme that the govt wants to take them is that a defendant who is tried for plain obstruction, is to be sentenced based simply on what he was told when he came before GJ. Then a defendant who is found to commit perjury if a murder was suicide.

Walton: What if you can never establish whether there was a murder or not, and the person impeded the ability to make that assessment. There's a suggestion that at some point Plame was in a position where her job was classified.

Skip and:

Jeffress: [continuing on IIPA] If there had been a violation of IIPA, I'm sure the govt would have charged it.

Walton: I always hear lawyers say indictment doesn't matter.  The fact that someone is indicted, I tell people not to take that seriously. The fact that someone isn't found guilty, that's stronger than the fact that they weren't charged.

Jeffress: Govt has never shown that the offense was committed.

Walton: The objective behind cross-referencing as it relates to obtstruction is that it's envisioned when law enforcement officials start an investigation and they go to citizenry to find out whether an offense has been committed, it is the obligation of the citizenry to cooperate, when a person is put on notice of what the govt is investigating. I think that's what this cross-referencing provision is designed to reach. You only look at whether a legitimate investigation was taking place, it's my view the x-referencing does apply, as it relates to the obstruction. I may not reach wrt the perjury conviction, I have questions whether it would apply.

Groan - Jeffress is arguing that an IIPA violation was never charged; the obvious retort is that intent is a part of the crime, and Libby's lies made an evaluation of intent impossible - ergo, the obstruction succeeded!

What Jeffress ought to have been arguing is that no IIPA charge was possible regardless of Libby's lies or intent because the government never demonstrated that she was qualified as a covert agent under the statute.

To be fair, Jeffress does head in the right direction in the bit below.  Judge Walton, on the other hand, seems to be blowing smoke (or smoking something, anyway):

Jeffress: what IIPA requires is that agent has to have served abroad in past five years. We were given no discovery other than statement prepared by CIA stating she had traveled abroad on temporary duty, TDY, there's never been a case, any discussion whether that 

Walton: [Getting animated] I think here they have a legitimate concern about this info being disclosed. CIA contacts justice. Justice goes about to seek to investigate that. They make inquiries of high govt official and he prevents them from investigating that case. You seem to be suggesting that cross-referencing doesn't apply. [He's pissed]

Jeffress; they need to establish there was an offense.

...We're still in the position where we don't know if she was covert. It is fundamentally unfair when we try a case, we don't get discovery, we exclude it.

Walton: I don't think we can equate relevance of my ruling wrt culpability if you felt that info was important for your client to obtain fair sentencing. I would have entertained that, but I got no request as it relates to sentencing.

9:53

Jeffress: if you honor concludes that factual finding on that matter needs to be done, certainly we'd like to see that, it never occurred to me CIA would be willing to disclose that, and the govt would be willing to share it.

So, Walton's current position is that if the defense had insisted they needed this material, not to prepare for the trial, but to prepare for the possible sentencing, he might have granted it?  Given the latitude allowed to prosecutors in preparing sentencing memorandums, the defense could argue that almost anything is relevant on that basis. 

Well - presumably that is why we have laws, procedures, precedents, and appeals courts.  If Walton is right in suggesting that even though the defense was denied the relevant material at trial they should have asked for it again, surely there will be precedent to support him.  Life is full of surprises.

UPDATE:  30 months.  Whoa - that is near the maximum urged by Fitzgerald.  CNN does not mention whether Libby can stay free pending his appeals (I'll guess not, unless Judge Walton has devised some weird mixed-message sentence).  Sandy Berger is laughing out loud.

HERE WE GO: From Ms. Wheeler (8):

As to bond pending appeal, Walton basically said no, but Defense can submit a memo. That is due on Thrsday, and then the govt's is due on Tuesday, with Libby's response due on Wednesday. If Walton decides against bond pending appeal after reading those motions, then it all goes to the prison system and Libby goes to jail in normal schedule, which would be about 45-60 days.

The basis defense argued for appeal is twofold: that Walton rejected the memory defense, and Fitz' appointment in general. Walton basically said, "If you could introduce a memory expert on the basis of that hearing, we'd have to let in any thing, because there was no basis for applicability in this." As to Fitz' appointment, Walton said that, although no one oversaw Fitz' actions WRT this case, he was subject to normal discipline if he did anything bad. The fact that Sampson considered firing Fitzgerald is evidence of this in this case.

Reggie said something very important WRT this issue. He said that if Fitz' appointment were improper, then it would mean no one high in government, and no one in the justice system, could be held accountable for the things they did unless there were a way to appoint a prosecutor free of DOJ oversight in the particular case.

Oh, please - We the People let the Special Prosecutor law lapse for a reason.  if Judge Walton thinks it is his role to provide a replacement, he ought to re-read the Constitution.

That said, and re-reading (6), the defense is not limiting their appeal to the memory issue and Fitzgerald's appointment; those were just two issues that were cited:

Those by themselves would justify bail pending appeal. Other opinions your honor recognizes novelty. To the extent your honor would briefing, we could have briefing by eod Thursday. On those two issues alone, we meet the standard. We don’t have to establish with caselaw there is a probability, we only have to prove there are substantial questions, wrt to those alone, the court recognizes that the court was going into uncharted territory.

The Ace drops the gloves and almost lets Jimmah off the hook.  The 20th century hook, natch.

Groan!  Now we are going to hear about Valerie Plame's pension?  Tedium, thy name is... Just One Minute - this is important stuff!  The issue of whether Ms. Plame was actually a "covert agent" as defined by the Intelligence Identities Protection Act was identified as a key issue in her case by the eerily prescient James Taranto back in October 2003 when the case first made headlines.  And it appears that Mr. Libby may be the victim of either CIA chicanery or malfeasance by Fitzgerald; either way, the impact of the information presented below could affect Libby's sentencing, his hopes for a successful appeal or a Presidential pardon, and the reputation of the Fitzgerald investigation.  So tough it out, and on with the pension story!

One key issue from the statutory definition of "covert agent" is whether Ms. Plame met the requirement for service abroad.  From Mr. Taranto:

Left unanswered is the question of when Plame has her last overseas assignment; if it was before July 1998, then by July 2003, when her identity was revealed, she would no longer have been a "covert agent" for the purposes of   the Intelligence Identities Protection Act.

Victoria Toensing noted the same "service abroad" issue in 2005.

So, did Ms. Plame perform service abroad for the CIA after July 1998?  One place to look would be her CIA personnel files - by statute (Title 50, Section 403r, "Section 403r.  Special annuity computation rules for certain employees' service abroad"), CIA officers are entitled to an upward adjustment in their pension benefits for service abroad.  This is from the Friday NY Times, describing Ms. Plame's legal issue with her proposed book:

The letter [from the CIA human resources are to Ms. Plame], from February 2006, was entered into the Congressional Record by Representative Jay Inslee, Democrat of Washington, in January 2007. Mr. Inslee was introducing legislation to allow Ms. Wilson to qualify for a government annuity.

The letter said that Ms. Wilson had worked for the government since Nov. 9, 1985, for a total of “20 years, 7 days,” including “six years, one month and 29 days of overseas service.”

More background and the full text of the letter are in this post.

So by law we should have guessed that Ms. Plame's service abroad was tracked in her personnel file (OK, I did guess exactly that last February), and in fact it was.

And the rest should fall into place nicely, yes?  In response to questions about Ms. Plame's service abroad, CIA lawyers or Patrick Fitzgerald and his Department of Justice investigators will cite her personnel file, which presumably has been maintained in accordance with standard CIA practice.  Her file will document the most recent period for which she received credit for service abroad, thereby resolving the point about her qualification as a covert agent under the IIPA, right?

Not so fast.

Patrick Fitzgerald filed documents related to Libby's sentencing last week [Sentencing memo,  Sentencing calculation, Plame employment history] which resolved the issue to the satisfaction of, well, the easily satisfied - that includes Messrs. Isikoff and Hosenball of Newsweek.  And was any mention made of her service abroad as tracked by the CIA personnel department under long established CIA rules?  Uhh, no.  The judge and the defense were offered a summary employment history which touched on her service abroad as follows (and I am quoting the Newsweek paraphrase, until I can get a copy/paste version of the government filing):

“She traveled at least seven times to more than 10 countries,” the document states. “When traveling overseas, Ms. Wilson always traveled under a cover identity … At the time of the initial unauthorized disclosure in the media of Ms. Wilson’s employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.”

Huh?  This is the dog declining to bark in the night - her CIA personnel file has the dates for which she received credit for service abroad, so why not mention that?  Is it possible that the DoJ investigators did not have access to her file?  No, per footnote 2 on page 5 of the sentencing calculations, we are assured that "The investigators were given access to Ms. Wilson's classified file".  [Is it possible that national security censors struck an anodyne sentence such as "As per Title 50 Section 403r, Ms. Plame's most recent credit for service abroad occurred in 2002"?  Would that really give away more than "She traveled at least seven times to more than 10 countries"?  Please.]

So, both the CIA and the DoJ had access to Ms. Plame's file detailing her dates of service abroad, yet chose not to present that information to the defense.  Why might they do that?  A suspicious mind would wonder whether they would omit that data if it were helpful to their case, or only gloss past it if her most recent date of service abroad were say, 1997, when she was recalled to the United States (as per this Vanity Fair profile).

This is not right - our legal system has discovery rules for a reason.  IF Ms. Plame's formal dates for service abroad buttress the prosecution position, that should be disclosed to the defense so that they will not waste time pursuing a false trail, or so that the prosecution can prepare arguments that the CIA formal procedures do not comport with the language and intent of the IIPA.  On the other hand, if her formal dates for service abroad support the defense position, that should be disclosed so that the defense can argue that this represents the best established practice and settles the issue.

But it is simply not appropriate for Fitzgerald to unilaterally conceal this from the defense, especially when it is a reasonable guess that it was concealed because it would aid the defense.

As background, Byron York has a number of pieces describing the legal maneuvering that led to this cursory summary.  The defense requested discovery on a lot of classified info including Ms. Plame's employment history and classified status; Fitzgerald insisted the case was limited to perjury and that Ms. Plame's status was not at issue; and eventually Judge Walton ordered [link] this summary as a compromise.  Let's note that Judge Walton reviewed the material before endorsing the summary.  Let's also note that he had a tremendous volume of material to review, so Ms. Plame's dates of service may have been overlooked (hidden in a file dump, as it were).  Or, since his final rulings restricted the trial issues to perjury rather than Ms. Plame's status, Judge Walton may have believed the IIPA issue was irrelevant.

In any case, it is safe to say that Fitzgerald was not eager to present Ms. Plame's employment background - maybe an embarrassment with her dates of service was part of the reason.  If so, it strikes at the heart of the prosecution's case - for example, in his affidavit to the Miller court weighing her subpoena, Fitzgerald clearly convinced Judge Tatel that his investigation was contemplating violations of the IIPA.  Did Fitzgerald also explain that there were serious problems with such a prosecution, such as an issue as to whether Ms. Plame was covered by the statute?  That affidavit has not yet been made public, but if the judges had ruled against Fitzgerald the case against Libby would have been much weaker.

Fitzgerald also resurrected the IIPA issue in his sentencing memorandum - the defense noted in their response that they were denied a chance to fully engage this issue in the trial phase; if that was compounded by the concealment of key information from the defense, there is a problem here.

It may be that Judge Walton will probe these issues at Libby's sentencing.  Or an appeals court may take some interest in how it came to be that Fitzgerald never disclosed Ms. Plame's formal dates of service to either the court hearing the Judy Miller subpoena or to the Libby defense.

And from another direction, Rep. Peter Hoekstra has tried to get the CIA Counsel to opine on Ms. Plame's covert status.  Per Robert Novak, as of April 2007 they were still mystified:

On March 21, Hoekstra again requested the CIA to define Mrs. Wilson's status. A written reply April 5 from Christopher J. Walker, the CIA's director of congressional affairs, said only that "it is taking longer than expected" to reply because of "the considerable legal complexity required for this tasking."

I have a suggestion for Mr. Hoekstra - perhaps he can ask the CIA Counsel some simpler questions, to wit, what is the last date on which Ms. Plame received credit on her pension (under Title 50, Section 403r) for service abroad, and what is the CIA definition of "service abroad" in that context.  That should be easy enough for the CIA Counsel to address in this lifetime. [As protection against after-the-fact revisions, Mr. Hoekstra should also inquire as to the most recent date of service abroad reported in Ms. Plame's file as of July 2003, whether any revisions have been made since then, and the circumstances that led to those revisions.]

There may be an innocent explanation for all of this.  But in light of Fitzgerald's determination to conceal Ms. Plame's employment history and in light of the fact that a "service abroad" date which should have been readily available and clearly relevant was not disclosed, some questions for Fitzgerald ought to be addressed. 

Unfortunately, it is not as if Fitzgerald would never, uhh, shade his disclosures and filings - in the course of the Libby trial at least two transgressions were revealed: he had disclosed to the defense that John Dickerson of Slate may have received a Plame leak (from Ari Fleischer) but concealed the information that David Gregory of NBC News would have received the same leak at the same time.  And in the course of his legal maneuvering with Tim Russert, Fitzgerald failed to inform the court that Tim Russert (who was resisting a subpoena to testify) had already given evidence to DoJ investigators. 

Or for a more recent example of Fitzgerald's tactics, consider his recent sentencing memorandum.  Isikoff and Hosenball make much of the fact that "Patrick Fitzgerald has finally resolved one of the most disputed issues at the core of the long-running CIA leak controversy: Valerie Plame Wilson, he asserts, was a “covert” CIA officer".

But the defense response provided a bit of clarification which Fitzgerald had overlooked, or forgotten, or something:

The summary described above was provided to the defense along with a
companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently.

Indeed it does.

Why was Fitzgerald dancing with the NBC stars?  Who knows?  Why did he overlook or conceal the information about Ms. Plame's formal dates of service abroad?  Let's hope someone asks him.

UPDATE:  Writing at firedoglake, Jeff Lomonaco, one of the brightest bulbs on the Plame Christmas tree, takes up the debate.  I take specific issue with this:

Now, it may well be useful to consider whether the CIA's standard way of proceeding would be to include the kind of covert work abroad that Plame did in the five years before the Bush administration blew her cover in its pension calculations, though it's far from clear that this should be controlling in the interpretation of the IIPA, as Maguire seems to suggest (and I'll come back to this).

[Big Skip]

But now Tom is telling us that Valerie Plame's pension benefits track her service abroad.

Well, yes, the CIA clearly "tracks" it in the sense of monitoring it.  I plainly am not arguing that the CIA handbook is dispositive on the issue, since I make the point that the defense would want an opportunity to examine and rebut the information if it went against them.  However it is a sufficiently relevant data point that it should have been disclosed to the defense.

Patterico exchanges emails with an air marshall who strongly suspects that Flight 327 was a terrorist dry run:

Do I personally believe flight 327 was a terrorist probe or dry run? 

In my opinion, and based upon my experience flying hundreds of missions since 9/11, my answer is, yes it was. Do I know 100% for sure? No, of course not. Short of obtaining signed confessions from all 13 Syrian “musicians” involved, only they know for sure what their true intentions were for acting so “suspicious” during the flight. And this is exactly why the Inspector General’s report doesn’t conclude, without a doubt, that their actions were positively construed as a probe or dry run. The only people who know this for sure were allowed to freely leave the country and fly back to Syria without ever being thoroughly interrogated. And remember, a third of the Inspector General’s report is still highly redacted.

Nevertheless, many air marshal collegues I have spoken with concur with my conclusion, but don’t expect them to go public any time soon.

Citizen journalism.

Ms. Plame has filed suit against the CIA - apparently, even though her dates of service are in the public record, they are still classified.  Somewhere, Libby is thinking that no one told him Ms. Plame had classified status, but his ignorance did not lead to bliss.

But let's cut to the cool bit:

The C.I.A. acknowledged that the dates of Ms. Wilson’s employment had mistakenly been disclosed, although a spokesman said that did not mean the information was no longer classified.

“Frankly,” said the spokesman, Mark Mansfield, the release of the information in 2006, in response to a query from Ms. Wilson about retirement benefits, was “an honest-to-goodness administrative error.”

“The letter contained classified information and should not have been mailed to her,” Mr. Mansfield said, referring to Ms. Wilson. “As soon as it was discovered, we took steps to rectify the error, including notifying the clerk of the House of Representatives.”

The letter, from February 2006, was entered into the Congressional Record by Representative Jay Inslee, Democrat of Washington, in January 2007. Mr. Inslee was introducing legislation to allow Ms. Wilson to qualify for a government annuity.

The letter said that Ms. Wilson had worked for the government since Nov. 9, 1985, for a total of “20 years, 7 days,” including “six years, one month and 29 days of overseas service.”

Christine Hanson, a spokeswoman for Mr. Inslee, said the congressman had assured himself that the document was not classified before disclosing it.

The bill in question was "H.R. 501: For the relief of Valerie Plame Wilson"; Ms. Plame had done her twenty years of government service but was a bit young to actually begin to collect.  And here is the full text of the letter:

Washington, DC, February 10, 2006.

Mrs. VALERIE WILSON

DEAR MRS. WILSON, This letter is in response to your recent telephone conversation with regarding when you would be eligible to receive your deferred annuity. Per federal statute, employees participating under the Federal Employees Retirement System (FERS) Special Category, who have acquired a minimum of 20 years of service, are eligible to receive their deferred annuity at their Minimum Retirement Age (MRA). Your MRA is age 56, at which time you'll be eligible to receive a deferred annuity.

Your deferred annuity will be based on the regular FERS computation rate, one percent for every year of service vice the FERS Special rate of 1.7% for every year of service. You will receive 1.7% for each year of overseas service, prorated on a monthly basis, after January 1, 1987 in the calculation of your annuity. Our records show that since January 1, 1987, you have acquired 6 years, 1 month and 29 days of overseas service.

Following is a list of your federal service:

Dates of Service: CIA, CIA (LWOP), CIA Ð(P/T 40), from 11/9/1985 to 1/9/2006--total 20 years, 7 days.

Based on the above service and your resignation on January 9, 2006, your estimated deferred annuity is $21,541.00 per year, or $1795 per month, beginning at age 56.

The above figures are estimates for your planning purposes. The Office of Personnel Management, as the final adjudicator of creditable service and annuity computations, determines final annuity amounts. Please let me know if I can be of any further assistance.

Sincerely,

And why do we care?  Well, as I said last February and last Wednesday (scroll down to "CHALLENGE ROUND"), Ms. Plame's pension calculation would hold a key to whether the CIA thought she had performed service abroad in the five years before her identity was disclosed to various reporters, which is a key requirement of the IIPA.  Of course the in-house CIA rules would not be binding on a judge, who would also be expected to consider the plain language of the statute and the legislative history.  However, a judge might certainly take a bit of guidance from the CIA rules, which presumably have some basis in law or established practice.

Beyond that, if a mere blogger could infer that the CIA has a record of Ms. Plame's overseas service it surely dawned on Patrick Fitzgerald to ask for this.  So - did he ask for this info (obviously, she would not have yet retired, but personnel records are personnel records)?  Did the CIA give it to him?  Did he fail to disclose to the defense the specific information that Ms. Plame did (or did not) get credit for overseas service for dates after June 1998?  Either Fitzgerald didn't think to ask (hmm...) or he chose not to disclose it to the defense (ethically dubious).  But if he did think to ask for the pension info, who thinks it would have been omitted if it was helpful to Fitzgerald's case?

Lots of questions.  Probably too late to help Libby in his sentencing, but still.

Based on the information available, about all I can say is that I expected to see more time overseas credited to Ms. Plame - from this Vanity Fair profile I would have guessed she was overseas more or less continuously from 1989 through 1997, for about eight years of service.

Well - some lefty blogger with whom Joe and Val are chatty might want to follow up on this.  Unless the answer is not what they want, of course.

MY, MY:  The Libby response on the Government's proposed sentencing fires a torpedo at Jeff's argument that Fitzgerald had made a good-faith determination in 2003/04 that Ms. Plame was covert under the IIPA - emphasis added:

Second, the government relies on a terse two-and-a-half page summary of Valerie Wilson’s employment history that was generated by the CIA, which purports to establish that “Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.”3 We have never been granted an opportunity to challenge this conclusory assertions or any of the other unsubstantiated claims in this document, nor permitted to investigate how it was created. If nothing else, the fact that the CIA’s spokesperson confirmed Ms. Wilson’s CIA employment to Mr. Novak calls into question whether the government was taking affirmative measures to conceal her identity.

The summary described above was provided to the defense along with a
companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently. It states: “The term ‘covert agent’ means— (A) a present or retired officer or employee of an intelligence agency . . . (i) whose identity as such an officer, employee, or member is classified information, and (ii) who is serving outside the United States or has within the last five years served outside the United States.” 50 U.S.C. § 426. The CIA summary of Ms. Wilson’s employment history claims that she “engaged in temporary duty (TDY) travel overseas on official business,” though it does not say whether such travel in fact occurred within the last five years.  Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible
for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States” in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record.

So, the summary provided by Fitzgerald was quite clearly relying on a different definition of "covert" than the IIPA.  Hmm, the fair-haired wonder omitted that tidbit from his filing, and now the press has moved on.  So when did the DoJ make a good-faith determination that the IIPA was applicable?  I don't believe they ever did the research.  My thoughts from last Wednesday were here.

 

Bring Better Hit Pieces

The Times has this on Obama?  Although Drudge is hawking it as "NYT: INDICTED BUSINESSMAN WAS FRIEND AND PATRON OF OBAMA... DEVELOPING...", this is a recycled nothing-burger.

And their motivation is?  Maybe when people are actually paying attention and the Times is shoveling dirt on Giuliani, McCain et al, their editors will point to this article as proof that they are evenhanded.  But no worries - based on their coveraige of Kerry in 2004, no Democrat will be scathed by the Times at crunch time.

I'm With Fred

Fred Thompson, the next President of the United States, has a blog.

SINCE YOU ASKED:  Thompson defeats Gore in the general election (Gimme a "T" for Tennessee!).  Thompson, the Republican Mirror of Desire, overcame some interesting but flawed opponents for the Republican nomination; despite his strengths, Giuliani could not overcome his past positions on abortion and gun owner rights.

Gore entered the race after concluding that the extraordinary fundraising success of the Democratic Mirror of Desire, Barack Obama, signaled an irresistible "Stop Hillary" sentiment.  Since Gore had an even more impressive resume than a 46 year old Chicago politician with two years in the Senate, had been anti-war in 2002, had led on global warming, and could argue to loyalist Dems that he had already been elected once - Go with a proven winner! - he was able to scoop up the nomination as a late entrant.

And Hillary?  She can't be bargained with. She can't be reasoned with. She doesn't feel pity, or remorse, or fear.  But she was blown up when Barack Obama agreed to become Al Gore's VP.  This was not a deal Hillary could offer - with Bill and Barack overshadowing her she feared that she would become the answer to a trivia question, to wit, "Who the heck is actually President right now?"

The charismatically challenged Al Gore made light of his odd-couple ticket, clutching his Academy Award and telling crowds that Barack had charisma but he had Oscar.  And for a time polls suggested that Al Gore would be forever linked with Richard Nixon as a VP who lost a controversial race only to emerge victorious eight years later.

But it was not to be.  Whew.  More later...

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.

Libby's Reply On Bail Pending Appeal

Here is Libby's reply on the bail question (23 page .pdf) [or copy/paste version at Cboldt].  And as noted in an earlier update, in another filing we learn that Lawrence Robbins will be appearing on Libby's behalf in court to bring his special expertise.  Oh, here we go!

Here is some AP coverage with this tidbit:

If Libby's request to remain free is denied, defense attorneys will rush to an appeals court and ask judges there to put the sentence on hold.

So Libby can try for a quick appeal on the bail decision - interesting.  Normally he would have 45-60 days to report to jail; whether a bail appeal would be heard in that time frame I don't know.

As to the political background, presumably folks who want to see Libby punished want him to go to jail ASAP.  Their concern is that if Libby is left out during lengthy appeals Bush can pardon him on Jan 20, 2009 without paying any political price.  On the other hand, if Libby is sentenced immediately, Bush cannot pardon him without risking a backlash - for example, the Senate may hold a No Confidence vote on the Attorney General, or Bush's prized immigration reform may collapse.  Hmm.

Of course, their are other beneficiaries to a quick pardon - neither Judge Walton nor Special Counsel Fitzgerald need to worry about reversals on appeal if Bush ends this case with a prompt pardon.

And the middle ground idea floated by an adviser to Bush I still strikes me as a likely scenario - Bush can commute Libby's jail sentence but preserve the $250,000 fine and the felony conviction, thereby allowing Libby to fight for vindication on appeal while remaining on the streets.  I'll guess that Bush and plenty of conservatives would prefer to see the process play out, with the hope that the courts will be on Libby's side; commuting the sentence kicks the pardon question down the road.  I am quite sure that commuting now and pardoning later is an option, but I welcome legal advice on this point.

WELCOME TO THE CLUB:  From a footnote in the reply:

David Safavian, who was convicted of obstruction and false statements, was recently held to be entitled to release pending appeal by a court in this
district. Likewise, Frank Quattrone, Kirk Shelton, Martha Stewart, Lynn Stewart, Bernie Ebbers, 7ohn and Timothy Rigas, and Solomon Kaplan (among others) were also convicted of non-violent crimes, and were also afforded the same relief Mr. Libby seeks here.

A BRIEF RESPITE:  David Frum promotes another alternative for Bush propounded by Professor PS Ruckman:

As interpreted by the Supreme Court, the Constitution allows the president to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, reprieves and amnesties.

A respite delays the imposition of a sentence. It in no way addresses issues related to due process or guilt of innocence. Nor does it change the nature (severity) of the sentence. It only delays the execution of the sentence.

Interesting - a pardon is far from the only menu option.  I do hope that if Bush commutes, respites, or whatever, that he also move to declassify enough of Ms. Plame's background that we can reach a consensus on her covert status.  And wouldn't it be great if he could jolly along the CIA Counsel on that very question?

FROM THE FILING:

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 o_cial." (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.  Interesting point.  OK, maybe it is simply evidence of a procedural faux pas, but one does wonder - if Fitzgearld's supervision was achieved by a daily perusal of the newspapers by the seniors at DoJ, how did they miss the fact that all these CIPA hearings were underway?  Or, if they were aware of the CIPA hearing (I was!), why did they not exert a bit of supervision and handle the relevant affidavits properly?  Hmm.

EVERYTHING NEW IS OLD AGAIN:  My goodness, the JustOneMinute legal eagles swooped down on this CIPA point last December.  Here are cboldt noting Fitzgerald's inappropriate signature and a cathyf response:

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.

and:

Why isn't this immediate grounds for an appeal of the Appointments Clause ruling? Doesn't this mean that Fitzgerald is exercising specific authority that the Attorney General has no authority to delegate?

Hmm.  Evidently it is grounds for a delayed appeal.

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)]

So Clueless This Can't Possibly Help

I absolutely adore this from the Gallup Poll article puzzling over the apparent fact that a majortiy of Americans have doubts about the theory of evolution:

Those who attend church frequently are much less likely to believe in evolution than are those who seldom or never attend. That Republicans tend to be frequent churchgoers helps explain their doubts about evolution.

Hmm, let me propose an alternative hypothesis: That Republicans tend to have doubts about evolution tends to explain their frequent churchgoing.

Well, they may both be wrong - correlation is not causality.  But "I couldn't believe humans grew up from bacteria so I turned to religion for an explanation of the seeming miracle of life" seems at least as plausible an explanation of people's attitudes as "Well, I sit in church once a week and they tell me God created man, so I guess evolution is out."

Was Ftizgerald's Appointment Constitutional?

Let me continue the discussion of the recent amicus brief filed in the Libby case that commenced over the weekend.

We had discussion of the original defense filing here and here.

As additional background the original defense filings are at the Scooter Libby Defense Org site, subject to an amusing caveat - the Scooter people have archive links to a "ScooterLibby.ORG", which is now an adult website (but seemingly safe for work!).  The correct archive links should be to to the same URL but substituting ".COM".  Here are the original defense filing.; Ex. A-D; Ex. E; Ex. F; and Ex. G-I.

Here are Fitzgerald's response; the Libby reply; and Judge Walton's ruling.

I have not noticed the lawyers at Volokh or PrawfsBlog chiming in on the constitutional question at hand but if anyone can find helpful links to one of the many Con-Law bloggers, please drop them in the comments.

That said, Prof. Volokh did opine on Judge Walton's odd and snarky footnote in which Walton ungraciously accepted the amicus brief.  Here comes the judge:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

It was snark directed against Evil BushCo, so the left gave it huzzas, but...

(1) I daresay neither Judge Walton nor his lefty cheerleaders have any idea how much (or little) pro bono work these professors do;

(2) the notion that experts in Constitutional law should keep quiet about the once-in-a-lifetime Fitzgerald appointment (which, per the experts, has no precise precedent in American jurisprudence) unless they also opine on every buy-and-bust that goes through Walton's courtroom is silly and contrary to the entire point of the amicus concept.  If the experts are out there, a court ought to want to hear them; certainly Planned Parenthood, the Brady Campaign, and plenty of other lefty groups file amicus briefs within their area of interest.

(3) Judge Walton could have said with equal logic that because bloggers are not covering every case he hears he is not interested in seeing them cover the Libby case.  Would the left have cheered that?

Whatever.  Maybe Walton is trying to provoke a quick pardon and spare himself embarrassment on appeal; it's a theory, anyway.  I saw the best reaction reported at the WSJ Law Blog:

The WaPo asked Professor Kmiec of Pepperdine about the judge’s order. “Judge Walton is right; we should be prepared to ’step up to the plate’ to help criminal defendants nationwide,” he told the Post. “Boy, am I lucky to live in the same town as Paris Hilton.”

Ahh, from Paris back to reality,  As to the constitutional question of Fitzgerald's appointment, how would I know?  But I will say this - following the lapse of the Independent Counsel law in 1999 the Department of Justice reflected and came up with some hefty guidelines for appointing a special counsel.  Presumably their objective was to steer past the various obstacles and issues identified in various court rulings on earlier independent counsels.

So, will these guidelines survive a constitutional challenge?  Who knows?  Comey, who appointed Fitzgerald after the Ashcroft recusal, did not even invoke or apply them.  Instead, he invoked four clauses of the laws empowering the Attorney General and solved the whole special counsel puzzle in a one paragraph letter.

Was it really that easy?  Hey, maybe the DoJ guidelines were the product of excessive bureaucratic caution and Comey was able to slice cleanly through the legal thicket with a few well-chosen sentences.  But I bet a reasonable court will rule that whether Comey succeeded is a close question and allow Libby his freedom pending appeal.  (Comey's process was discussed back in the day.)

So, why might Comey risk such a blunder?  Let me advance a theory so silly that I expect some lefty to embrace it - Comey, as a loyal Republican, deliberately appointed Fitzgerald as the Incredible Disappearing Special Counsel, secure in the knowledge that the appointment would placate the press but that any convictions would be tossed on appeal.  Crazy like a fox!

Slightly more seriously, maybe Comey figured that the new guidelines had been created by a bunch of Clintonoids who could not be relied upon to organize a beer bash for thirsty sailors, and that the new Administration and the new broom knew how to sweep clean.  Hey, somebody ought to ask him.

So what will an appeals court finally decide?  And what will the Roberts Court decide when they finally get this?  You tell me.  But on the related question of whether Fitzgerald was subject to adequate supervision, this response from the prosecution is still a laugh-track classic:

Furthermore, as a practical matter, much information about the investigation of the Special Counsel is in the public domain and therefore available to the Acting Attorney General in exercising the power to remove the Special Counsel.

Anyone supervising Fitzgerald just needs to check the newspapers!  Oh, golly.  Just for an example of how silly this is, how was such a well-briefed "supervisor" supposed to deal with the Russert situation?  In the tussling over Russert's grand jury subpoena both Russert and Fitzgerald concealed from the court the seemingly topical tidbit that, despite his protestations about a journalistic chill on sources, Russert had already cooperated with the FBI.

And how was Fitzgerald's "supervisor" suppose to notice these shenanigans from the press coverage?  In part becasue of Fitzgerald's complicity with his publicly filed document there was no contemporaneous press coverage of Russert's cooperation with the FBI; this only came out at trial. 

What was Fitzgerald up to, anyway?  He let Russert's attorneys file a misleading affidavit, he didn't call David Gregory or Andrea Mitchell to chat with the grand jury; Fitzgerald really went easy on NBC News.  Maybe his supervisor could ask him about that, well after the fact, and despite the limited news coverage.

Just to repeat - comments are open for thoughts and great links as the days unfold.

Plame Mythbusters

Carol D. Leonnig of the WaPo takes it upon herself to debunk five "myths" about the Scooter Libby case.  I will say she scores four out of five; however, I also see that her fifth point has caused a bit of confusion, since Big Tent Dem at TalkLeft is claiming that she supports the left, not the right.  I disagree and consider her to be on my side on that one, but we will come to that in a bit.

Her first point is this:

1. Valerie Plame wasn't a covert operative.

Wrong. She was.

...But a CIA "unclassified summary" of Plame's career, released in court filings before Libby's June 5 sentencing, puts this one to rest: The CIA considered her covert at the time her identity was leaked to the media. The CIA report said that Plame had worked overseas in the previous five years and that the agency had been taking "affirmative measures" to conceal her CIA employment. That echoes the language used in the Intelligence Identities Protection Act, which makes it a crime to reveal the identities of covert CIA officers.

...The CIA isn't famous for its clarity, but it's being pretty blunt on this issue: Langley says she was covert. Which other spook bureaucracy do you need to ask?

Here we go again.  A subsequent defense response clarified the Fitzgerald release (my emphasis):

The summary described above was provided to the defense along with a companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently.

Or of asking the CIA is the preferred path, let's reprise happened when Congressman Peter Hoekstra of the House Intel Committee did just that:

On March 21, Hoekstra [Ranking Republican on the House Intel Committee] again requested the CIA to define Mrs. Wilson's status. A written reply April 5 from Christopher J. Walker, the CIA's director of congressional affairs, said only that "it is taking longer than expected" to reply because of "the considerable legal complexity required for this tasking."

Look, the CIA prepared a memo to prop up Fitzgerald's case and their own criminal referral, but they have not opined on Ms. Plame's status under the IIPA.  I made the same point about the Waxman hearing.

But if Ms. Leonnig would like a trial to pursue, my pension idea could benefit from a bit of WaPo-powered reporting.  Per the Times and the Congressional Record we know that the CIA tracked Ms. Plame's service abroad for purposes of calculating her pension.  So what is the most recent date for which she received credit for service abroad?  Seems like an easy question, although for some reason Fitzgerald chose not to present the answer.

As to Myth Five, Ms. Leonnig wrote this:

5. The White House would fire any administration official who leaked classified information about Plame.

In each of the first four cases Ms. Leonnig presents a statement she believes to be false, i.e., a "myth", and then presents her version of reality.  Here is her follow-up to Myth 5:

When the investigation began, the president said he hated leaks and would hold leakers of classified information accountable. But he has not sacked anyone over the case.

Libby resigned the day he was indicted in October 2005. Two other officials who gave reporters information about Plame, former deputy secretary of state Richard L. Armitage and former White House press secretary Ari Fleischer, left government before Fitzgerald's inquiry concluded. And Rove, who first told Time magazine reporter Matt Cooper about Plame's CIA identity, remains in the White House.

Big Tent's interpretation:

And Leonnig reminds us that the Bush Administration lied when it said it would fire anyone who leaked classified information...

Interesting - I would have interpreted this as Ms. Leonnig agreeing that Bush never actually said he would fire anyone, as I argued in "Don't Play 'Gotcha' With The President".

HOWLER ALERT:

This from Ms. Leonnig is absurd:

When Libby was convicted, some conservative pundits complained that Fitzgerald had presented no compelling evidence at trial that Plame was covert. But that wasn't for lack of evidence; it was because Libby's lawyers convinced the court to bar any mention of her status during the trial, arguing that evidence suggesting that her job was classified would have been "unfairly prejudicial" to their client.

Oh, please - Libby asked for discovery on Ms. Plame's classified status; Fitzgerald argued that this was a perjury trial and her status was none of the defense's business; the defense fretted that Fitzgerald would inflame the jury with references to her status that the defense was not in a position to knowledgeably contest; so the judge barred all discussion of her status.

To blame the defense for the ongoing mystery of her actual status turns the case upside down.

Some links, please?  Byron York discussed Fitzgerald's refusal to document Ms. Plame's status, or check this Feb 24 2006 hearing excerpt (p. 39):

MR: WELLS:  ...
04 Maybe if he [Fitzgerald] would give me the discovery showing
05 whether she [Ms. Plame] was classified, whether she was covert, I would be
06 in a position to make some educated judgments about how to try
07 this case. Ms. Wilson may be a witness.
08 THE COURT: Wouldn't it only become, as far as actual
09 damage, wouldn't it only become relevant if he actually knew
10 what her status was?
11 MR. WELLS: It might in terms of a actual damage. I
12 don't know. See, I might call Ms. Wilson. One of the
13 questions is, the indictment also says that outside of the
14 intelligence agency or community no one knew about her. I may
15 decide to call her. I may call her husband. There are going
16 to be CIA employees, operatives who are witnesses in this
17 trial. They may have a bias against Mr. Libby because they
18 think he outted somebody.
19 I need to understand is she covert or not. If she's
20 classified, is she really classified or is just classified
21 because some bureaucracy didn't unclassify her five years ago
22 when they should have. I just want to know the facts.

Byron York also summarized Walton's final ruling, which led to the cursury CIA summary released in Fitzgerald's sentencing memorandum.

Oddly, Ms. Leonning reported on that very hearing.  Memory does play tricks.

Extremists? Kevin Drum Mails One In

As an example of media criticism, Kevin Drum's attack on Charles Gibson and George Stepanpoulos falls short:

EXTREMISTS....I just heard Charles Gibson and George Stephanopoulos chatting on the ABC Evening News about the collapse of the immigration bill. Their conclusion? It was killed by extremists on both sides: liberal Democrats and conservative Republicans overwhelmed the centrists. It just goes to show that partisan polarization has made America ungovernable.

This is ridiculous. Look at the numbers. This was a bipartisan bill sponsored by Ted Kennedy and John McCain and supported by George Bush. Democrats voted 37-11 in favor of moving forward to a final vote.  Republicans voted 38-7 against it.  In the end, the Democratic leadership delivered nearly 80% of its votes.  Bush couldn't even get 20% of his party to go along.

All I can say is: if it was extremists that killed this bill, then 80% of the Republican Party is made up of extremists. For some reason, though, that wasn't quite the impression Charlie and George left us with tonight. Jeebus.

For heaven's sake.  Simply by reasoning backwards from the very defensible position that George Stepanpooulos has been a canny student of Congressional politics for decades I could deduce an explanation for his view.

Just suppose, hypothetically, that extremists in the Democratic Party persuaded their own caucus to "improve" the grand bipartisan compromise.  The net impact might be a bill that Dems generally prefer and Reps generally oppose, as in the voting cited above.  However, it would be perfectly reasonable to say that it was extremists in the two parties that shattered the compromise.

And the Dorgan amendment lets me make the leap from theory to fact.  From the WaPo (via Mickey):

Sen. Byron L. Dorgan (D-N.D.) does not like the immigration bill, either, but for entirely different reasons. Echoing the concerns of labor unions, he argues that the guest-worker program would depress wages and lead to foreigners taking good jobs that would otherwise go to U.S. citizens.

When the debate started late last month, Dorgan offered two amendments: one to kill the guest-worker program, and a second to water down the program to make it more acceptable to unions, by ending it after five years. The first failed by a large margin. But the second measure was defeated 49 to 48.

To close the gap, Dorgan and a GOP  ally, Sen. Bob Corker (Tenn.), looked to Republicans who had voted against the sunset amendment two weeks ago but who were known to have qualms about the bill itself. The target list included five senators from states with illegal-immigration problems, or where the issue had a particular potency with conservative voters.

And that is how the bill died - Dorgan "improved" the bill from the perspective of the left (maybe he would be viewed by Gibson/Stepanopoulos as a lefty extremist, since he did not support the bill) then enlisted righties opposed to the bill to support his killer amendment.

Democrats had an opportunity to show their solidarity with labor by voting for the "improved" bill; Reps can showed their solidarity with business by opposing it; and the bill died at the hands of "extremists" in both parties.

I hope that is not too confusing.

My life as a defender of Carlos Gibson and Jorge Stepanopoulos.  Merde!

The Belmont!

YouTube provides a little Belmont warm-up.  Here is Secretariat in 1973; and the Affirmed-Alydar showdown in 1978 is a classic.

Amicus Brief In Libby Case

An amicus brief (9 page .pdf) supporting the Libby's team contention that Fitzgerald's appointment may have been unconstitutional has been filed by a cadre of law professors led by Messrs. Dershowitz and Bork.

Josh Gerstein of the Sun has coverage, as does the AP.  From the Sun:

A dozen legal scholars, including a noted civil libertarian, Alan Dershowitz, are coming to the aid of a convicted White House aide facing a 2 1/2-year prison sentence. The scholars submitted an amicus brief Thursday to Judge Reggie Walton arguing that that there are serious constitutional questions about the legal authority of the special prosecutor who pursued Libby on obstruction of justice, perjury and false statement charges, Patrick Fitzgerald.

"With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed ‘superiors' politically accountable for his actions and it is at the very least a close question whether the mere power of removal does anything to solve the problem," the scholars argued.

The issue is one of those which the defense contends could lead to Libby convictions being overturned on appeal.

We have earlier thoughts, as well as the defense motion.

As noted, the defense cited their inability to call Andrea Mitchell as one basis for appeal.  As predicted, that tidbit has achieved a near-total news blackout, although Matt Apuzzo of the AP notes it in this concluding paragraph:

Defense attorneys argued in their filing Thursday that Special Prosecutor Patrick Fitzgerald lacked the constitutional authority to bring charges against Libby, the former chief of staff to Vice President Dick Cheney. They also said they were unfairly prohibited from questioning NBC reporter Andrea Mitchell about why she said lots of journalists knew Plame's identity. AP

MORE:

Others will recognize the signatories to the amicus brief, I have no doubt.  But here we go:

Douglas Kmiec: bio, recent writing.

Beyond the university setting, Kmiec served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).

Viet D. Dinh: bio

Professor Dinh was Assistant Attorney General for Legal Policy at the U.S. Department of Justice from 2001 to 2003. As the official responsible for federal legal policy, he conducted a comprehensive review of Department of Justice priorities, policies and practices after 9/11 and played a key role in developing the USA Patriot Act and revising the Attorney General's Guidelines.

Gary S. Lawson, Boston University School of Law:

Earl M. Maltz, Rutgers School of Law:

Thomas W. Merrill, Columbia Law School:

Robert F. Nagel, U of Colorado: Law School

Richard D. Parker, Harvard Law School:

Robert J. Pushaw, Pepperdine University Schol of Law:

Randy E. Barnett, Georgetown University Law Center:

Vikram Amar, University of California Hastings College of the Law:

Robert Bork:

Alan Dershowitz:

MORE:  We had discussion of the original defense filing here and here.

The original defense filings are at the Scooter Libby Defense Org site, subject to an amusing caveat - the Scooter people haev archive links to a "ScooterLibby.ORG", which is now an adult website (but safe for work!).  The correct archive links should be to to the same URL but substituting ".COM".  Here. for example, is the orignal defense filing.

Here is Fitzgerald's response; the Libby reply; and Judge Walton's ruling.

The amicus brief notes that Morrison is not controlling here, so my To-Do list is to re-read Walton's opinion with that in mind. 

The Rhetoric - Policy Mismatch

After all the Democratic speeches deploring hedge fund billionaires and all of Paul Krugman's columns decrying same, we finally get a trial balloon tax hike:

The debate [on AMT reform] has focused attention on a different surtax proposed by the Tax Policy Center, a joint project of the Urban Institute and the Brookings Institution. That plan would eliminate the AMT and replace it with a 4 percent surcharge on income over $200,000 for families and $100,000 for singles, cutting taxes for 22 million households and raising them for more than 3 million.

"Our plan is as simple as can be. And only 2 percent of the whole population would have to pay it," said Leonard E. Burman, director of the Tax Policy Center. The plan has the added benefit of abolishing the complicated AMT at all income levels, Burman said, an approach some lawmakers find attractive.

Just as Clinton's "millionaire's tax" fell on folks earning over $115,000, so too will a lot of non-billionaires be swept up in the next Dem net.

LATER:  Eventually we will be informed that estate tax reform is necessary to prevent fabulously wealthy dynasties; this will be done by taxing every estate over $5 million.  Not to belittle 5 mil, but we are not talking private jets and weekends in Monaco here.

Byron York On Libby - What's The Rush?

Byron York wonders why Judge Walton can't let Libby stalk the streets pending his appeals.

Frequent commenter (and attorney) Cathyf had an interesting guess - her gist is that Judge Walton, in the highest profile case of his career, would prefer not to be reversed on appeal.  So, Walton delivers a sentence at the high end, hustles Libby off to the hoosegow, and hopes Bush pardons him, rendering all appeals moot.

OK, that makes sense. 

But Other Tom, another frequent commenter and attorney disputes the notion that the trial judges have such outsized and tender egos:

I very seriously doubt that Walton is concerend at all about what the D.C. Circuit might do, and I also doubt that the D.C. Circuit judges will atttempt to read any signals, or be influenced by any signals they do detect, concerning whether Bush is likely to pardon Libby or not. Every federal judge I have ever known becomes entirely indifferent, very early on, to possible reversals by the appeals courts. Ditto the appeals judges (perhaps because I practiced in the Ninth Circuit).

OK, that makes sense too.

Well - this trial was not most trials.  Given its high profile, I'll back the idea that Walton would prefer to avoid being reversed. 

Libby's Plea For Relief Cites Andrea Mitchell

Here are links to Libby's argument to remain free pending appeal (22 page .pdf), and associated exhibits (5 page .pdf).

Dig in.

MORE:  The defense is citing:

(1) the constitutionality of Fitzgerald's appointment;

(2) the memory defense and the denial of an expert witness;

(3) the substitutions under CIPA for classified info - unsurprisingly, the defense objected to some of the substitutions and preserved their right to appeal.

(4) "The court's exclusion of the government's statement admitting relevant facts and the CIA briefers' testimony following Mr. Libby's decision not to testify presents another substantial question on appeal."  Check your notes on that one - I remember Judge Walton went into a snit when Libby decided not to testify, and struck some of the proposed summaries.

(5) Andrea Mitchell and the court's decision not to allow her to be called.  My personal fave.  Let me poke around for something on the ruling being appealed - OK, I was furious:

Or, if Mitchell does not appear, I can offer a prediction - righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon.

Here is one more oldie on Andrea - did you know that Colin Powell was a guest at her wedding to Alan Greenspan?  Gee, think about her sources and whether she might have, hmm, misremembered in order to protect them.

Interesting old post here - given the detailed coverage of this case, outside observers knew more than the jury, so there is no special reason to hold the verdict sacrosanct.

And that is it.  The filings gives a good summary of the possible significance of Ms. Mitchell's possible testimony - let's see how the media bury this.

BUSH'S GAME:  The consistently insightful cathyf analyzes Bush's situation:

Well, Bush is a notorious poker player who doesn't tip his hand unless he needs to. If he were going to do what I want him to do, I would think, first, wait until we see if Walton denies the appeal bond. If he doesn't, then Bush should just keep his mouth shut. If he does, then the next step will be to appeal that decision -- and I think that appeal has an excellent chance of succeeding. Only if the appeals court denies the appeal bond should Bush commute the sentence.

I think that Walton is playing a dangerous game here. He is afraid that if Libby is allowed to appeal, then the appeals court is going to spank him very badly. So I think he is trying to force Bush to pardon Libby so as to moot the appeal and make it all go away. (Because, you see, a side effect of pardoning Libby is that it also "pardons" Walton and Fitzgerald and Russert by making any punishment for them dead letter.)

...If the appeals court decides that Walton is trying to screw with them, they will overrule him and grant the appeal bond so fast that Walton's head will be spinning for a week.

On that same line of reasoning, what Bush should want (as the guy who stood up twice and swore to defend and protect the constitution) is for the judicial branch to fix Walton's mess. The most effective way to do that is to give them enough room to do it -- anything which a prickly judge (and prickliness is a notorious aspect of judical character) would interpret as interference should be avoided unless absolutely necessary. What Bush should avoid at pretty much all costs is setting up a situation where the appeals court believes that Bush is going to pardon Libby anyway, because that would just piss them off, and who knows what sort of disaster they will cause if they decide to get revenge.

Very interesting.  That could argue for a commuted sentence if Libby is sentenced to immediate jail - Libby can still appeal in a fight for his fine and law license.

Or let Libby stay out on appeal - the appeals won't be done before Bush leaves office, so we can judge Bush's sincerity as he heads out the door with/without pardoning Libby.

Conservatives who think this case was a mess (me!) should still be wiling to support a temperate judicial review of the process.  *IF* the judges are willing to provide it.

No Mitchell No Peace.  Not quite "Mitchell Delenda Est", but keeping her out of the trial was a joke and if Walton now rules that it was not even a close or substantial question, he is deluded.

MY CURRENT FANTASY:  Walton rules that yes, the Mitchell issue is close and substantial, so Libby can stay out.  Let's see NBC News report on that.  Maybe Chris Matthews and Keith Olbermann can delve into the question of what Gregory, Mitchell and Russert knew, and when they knew it.  Hey, maybe CM and KO can stage a palace coup!

FROM THE ARCHIVES:  I wrote this while the jury deliberated:

However, the cooler heads at NBC (i.e., everyone else) are probably crossing their fingers and hoping for acquittals all around, most especially on the counts involving Tim Russert.  Otherwise, the defense will appeal, Judge Walton's decision to keep Andrea Mitchell out of the trial will be a basis for the appeal, and NBC News will have to "report" on the Tim Russert situation for months to come.  This will be especially difficult for David Gregory, erstwhile "newsman", who has been duct-taped by the NBC lawyers and not allowed to comment on whether Ari Fleischer, a key witness against Libby, lacks credibility.

OK.

SUSAN ESTRICH:

The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame's name in their effort to discredit her husband's criticism of the administration's war policy — was no. No one violated what we used to call the "Agents Law." Dick Armitage, the guy who admits he gave out her name in the first place, isn't facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn't hesitate to disclose her identity.

Libby is in trouble not for what he did, but because he wasn't as careful as the others during his interviews and grand jury testimony.

If he'd just said, "I don't recall" a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn't be bankrupt, ruined, disgraced and heading to prison.

There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven't committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it's not entrapment, but it's still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn't solve the crime; it creates it.

Justice For Libby

William Otis, writing in the WaPo, argues that Libby's sentence is too harsh and suggests something less than a pardon:

Scooter Libby should not be pardoned. But his punishment -- 30 months in prison, two years' probation and a $250,000 fine -- is excessive. President Bush should commute the sentence by eliminating the jail term while preserving the fine.

Interesting - as a convicted felon Libby would lose his license to practice law, but that would put him very close to even with Sandy Berger.

The PowerGuys have more, including background on Mr. Otis:

Bill Otis is a career prosecutor, and served as member of the Attorney General's Advisory Committee on the Sentencing Guidelines under both parties. As a special counsel to the first President Bush, Bill worked on issues relating to the pardon of Caspar Weinberger.

Well, he knows from controversial pardons, then.

Writing in USA Today,Victoria Toensing joins in; no prize for guessing her view:

Patrick Fitzgerald abused his prosecutorial powers when he indicted Scooter Libby for a faulty memory. The only remedy is a presidential pardon.

Surprised?

I have several quibbles with Ms. Toensing.  Here we go:

From the day he took office as the unsupervised special counsel, Fitzgerald knew that Richard Armitage had first revealed to Robert Novak the fact that the spouse of administration critic Joe Wilson worked at the CIA. He also knew that Libby had never spoken to Novak about Valerie Plame.

Any non-obsessed prosecutor would have closed the investigation at that moment.

I don't know.  Fitzgerald as much as admitted after the trial (link to WaPo video) that he was brought in to investigate the very odd story being told by Libby (Rove's "I heard that, too" account of his exchange with Novak also raised eyebrows, until the journalism critics at the FBI got a load of Matt Cooper's sourcing from Libby).

My view is that prosecutors prosecute and special prosecutors especially so; the real blame should be directed at Ashcroft, who lacked the courage to shut the investigation down in December 2003.

More from Ms. Toensing:

Fitzgerald excused others whose sworn-to memories were as bad, if not worse, than Libby's. Ari Fleischer, former White House spokesman, testified he had not told Washington Post reporter Walter Pincus that Wilson's wife worked at the CIA.  Pincus swore he did and had his notes to prove it. Fleischer had immunity, but not from false testimony.

Let's pile on!  If Ms. Toensing wants to make the case that Fitzgerald was strangely incurious about the truth, and seemed more intent on preserving his perjury case against Libby than figuring out what happened, she should certainly cite the odd treatment of John Dickerson and David Gregory in the context of the Pincus story.  As she noted, Fleischer testified that he did not leak to Walter Pincus; that was contradicted by Pincus' testimony to the grand jury (we presume) and the court.

But Fleischer also told the trial court that he leaked to David Gregory and John Dickerson while on the Presidential trip to Africa.  Presumably, he told the grand jury something similar, or the defense would have mocked his inconsistent memory.  But Fitzgerald never even subpoenaed Dickerson or Gregory in an attempt to establish the facts.   My guess?  Fitzgerald did not want to further discredit Fleischer, who had a helpful story about a weird lunch with Libby.  It was Fleischer's last week on the job, he was about to spend multiple sleepless days and nights on a Presidential trip to Africa, and his memory may have been utterly muddled - Fitzgerald did not want to know.

John Dickerson published a denial that is not exactly table-pounding:

My recollection is that during a presidential trip to Africa in July 2003, Ari and another senior administration official had given me only hints. They told me to go inquire about who sent Wilson to Niger. As far as I can remember—and I am pretty sure I would remember it—neither of them ever told me that Wilson's wife worked at the CIA.

He's "pretty sure"!  Strong stuff.  But stronger than David Gregory, who as best I know has not been heard from.  Oh, lest we forget - Gregory is a colleague of Tim Russert, who insisted that he could not have learned about Ms. Plame prior to July 14, but also admitted his NBC colleagues shared info with him.  Gee, maybe Fitzgerald didn't want to discredit Russert, also a key prosecution witness.

Well - Ms. Toensing may have been limited by space, but it is not hard to call into question the seriousness of Fitzgerald's investigation (1, 2).  Assuming, of course, one accepts Fitzgerald's occasional explanation that he was investigating a leak; as an investigation of Libby's perjury, it was quite focused.

CONTINUING:  Fred Thompson writes in Town Hall, and I will get to it.

UPDATE:  The Anchoress wants to let the process play out and let Libby exhaust his appeals; the Captain thinks that will be Bush's preferred course.

My take - that would be fine *if* Judge Walton lets Libby stay free pending his appeals.  Otherwise, Libby may sit in jail and complete his 30 month sentence while the appeals play out.  Not a big deal if he loses, but where does he get the time back if he wins?

I stand by my earlier temporizing - Bush ought to declassify enough material that the rest of us can judge whether Ms. Plame really was covered by the IIPA, and whether Fitzgerald really had credible grounds to think so when he took the appointment.

Henke's Back And Thompson's Got 'Im

Jon Henke is back to blogging and backing Fred Thompson.  Very impressive.

Libby's Appeal Bond

Jeralyn Merritt explains the background to Libby's attempt for an appeal bond.  And since she was never happy with the ruling denying Libby a memory expert, she thinks he has a useful appeal there.

Republican Debate Transcript

Here is the debate transcript and Times coverage.  I say a guy who can survive a lightning strike from God has to be the winner.

Let's note that, per the Times coverage, Rudy had yet another "I paid for this microphone" moment, bossing Wolf Blitzer around rather than meekly accepting instruction:

The Republican candidates were also asked if they would support pardoning I. Lewis Libby Jr. and while none of the top candidates said, outright, that they would take such a course if president, they also voiced dismay at his sentence of 30 months in prison. Mr. Giuliani was the most outspoken of the lead candidates, calling the sentence “way out of line.” Citing his experience both as a prosecutor and recommending pardons while working in the Justice Department under President Ronald Reagan, he said he would seriously consider it, especially in light of the harsh sentence.

When Mr. Blitzer tried to cut him off, Mr. Giuliani stopped him, saying, “A man’s life is at stake.” He said that it was an “incomprehensible” situation made all the more disturbing because there was no underlying crime, and that he had a real problem with the sentence.

In the last debate, it was Giuliani that jumped in to criticize Ron Paul's history of the 9/11 attacks.

Harry Potter Divination

With the grand finale of the Harry Potter series due out on July 21 the London bettors have spoken - Harry is history:

All bets are off on the fate of Harry Potter.

London bookies are so convinced that the boy wizard will be a goner when the seventh and final novel of J.K. Rowling's series hits stores next month that they've stopped taking wagers on his fate.

"Every penny was on Harry dying, and it became untenable," sighed Rupert Adams, spokesman for London bookmaker William Hill.

So now Hill has shifted betting to possible killers. The villainous Lord Voldemort is the favorite at 2-1. Professor Snape comes in at 5-2.

"Harry Potter and the Deathly Hallows" goes on sale July 21. Its American publisher, Scholastic Corp., is retailing the book for $34.99.

Rowling has said two characters will die in the final installment, but didn't say which two.

More coverage here.

First, a bit of history - London bookies had a similar experience roughly six weeks prior to the publication of book six, when the betting on Dumbledore's demise became one-way:

A spokesperson for the internet betting told the Sun, "We have taken nearly £6,000 worth of bets on Dumbledore in the past seven days. All have been played in Bungay or nearby Beccles. A lot of punters have opened new accounts and placed a maximum bet of £50 each on what is an obscure market. That made us sit up and take note."

The site last week cut the odds on Dumbledore from 2:1 to 4:6, while Ladbroke's are now refusing to take bets any more bets on the death of Dumbledore, on the basis that some people have obviously read the book.

So the current timing is right, and let me add this - I have the reigning Harry Potter trivia champions of not one but *two* schools currently in residence, and they both predict Harry's demise, so the markets may be right.  However, let me toss out the possibility of a head-fake - if I were working at Bloomsbury, the British publisher, and I thought I could close the betting market by having a cadre of loyal employees push five or ten thousand pounds across the betting window, I would put that in my promotional budget quicker than you could say "Voldemort's a goner".  C'mon, we are talking about a book that will gross over a hundred million in its first weekend; this sort of Surprise! market manipulation would be money well spent.

That said, I can easily grasp the case for Harry being a goner.  The case for his survival has two pillars - grandchildren and libraries.  Ms, Rowling surely hopes to have grandkids visiting her at the Rowling Estate one day; such visits may be a bit chillier if the grandkids are unhappy spending time with the World Infamous Woman Who Killed Harry Potter.

And Ms. Rowling must have contemplated her legacy - will the Harry Potter series be taking up space on library shelves fifty years from now as a beloved children's classic if Harry gets whacked?  How many parents will want to start their children on that particular journey with that particular destination?

Oh, well - maybe Ms. Rowling can make it work.  Certainly Harry's death was foreshadowed in Book One when he and Ron Weasely looked in the Mirror of Desire.  Ron saw personal glory for himself, but all Harry saw was being with his family.  Hard luck - Harry's family is dead, so there is only one way to join them.

Not that there is anything wrong with that!  As Ms. Rowling made clear with the deaths of Sirius Black and Albus Dumbledore, death is only a transition, and should not be feared (that is a very Christian message, BTW; Islamic, too).  And note this - the foundation of Voldemort's evil is his fear of death. 

My Bold Prediction is that in the final showdown between Harry and He Who Must Not Be Named it will be Dick Cheney's Voldemort's fear of death that proves to be his fatal weakness.  Seriously - do you really think Harry is going to out-spell or out-magic Voldemort?  No way - something more elemental will bail Harry out, as it has in his other showdowns with Voldemort.  But will Harry die?  Geez, I still think Dumbledore is coming back.  I understand the argument for Harry dying, but I just don't feel it.  OK, Keep Hope and Harry alive!  And Dumbledore too!  That's it, Harry - live free or die hard.

Enough for now, but do ask me about Hagrid (gone) and Snape (Harry's protector and Lily's avenger).

MORE:  Dave Kopel on Severus Snape.  Let me note two things: "RAB" is Regulus Arcturus  Black" - I especially like the foreign language clue at Wikipedia.

And secondly, Snape's motivation is not so complicated - Lily Potter is the unrequited love of his life.  Snape protects Harry because he is Lily's son, and hates him because he is James' son.  And when Voldemort killed Lily, he signed his own death warrant; Snapes efforts within the DeathEaters are all oriented to gaining vengeance (and Dumbledore knows all of this).

Snape and Lily bonded as the two best potioners in the history of Hogwarts.  And the worst day of Snapes life (from the pensive scene with Harry in Book 5) was not because he was bullied by James Potter (a commonplace) but because he spurned Lily's help and called her a muggle, thereby severing their relationship.

I am so right about this...

Libby's Sentence

Libby is sentenced to thirty months but will be free pending a resolution of whether he should be allowed to remain free on appeal - the defense and prosecution will file briefs and next week Judge Walton will rule on whether Libby's grounds appeals are sufficiently novel and substantial that he should be allowed to remain free while the appeals percolate through the system.  Per Marcy Wheeler's liveblog, the judge is not being asked to rule on the likelihood that Libby's appeals will be successful:

Mr. Libby’s status. Only issue is whether appeal would raise substantial questions of law or fact.

Wells: Our position that based on number of extensive opinions your honor could rule form bench that there are substantial issues.

Walton: I think all those opinions are correct. [And who does not respect a judge with self-confidence?  TM]

Wells:  ...We don’t have to establish with caselaw there is a probability, we only have to prove there are substantial questions, wrt to those alone, the court recognizes that the court was going into uncharted territory.

My guess - next week Judge Walton will send Libby to the slammer, which seems to mean he would report in 45-60 days.

Assuming that to be the case, what does Bush do next?  Does Dick Cheney still have any sway in this Administration, and how hard will he push for a Libby pardon?  Will a Libby pardon be offered as an olive branch to the righties who are furious with Bush over immigration?  Would such an olive branch be accepted by a newly-reconciled right, or would it be used to smack Bush forcefully about the head and shoulders?  After all, immigration reform will have a much greater impact on people's lives than the question of whether Libby does or does not go to jail.

If Bush wants to mend fences with the right, he better start mending the border fence.

And if Bush wants his comprehensive bill, maybe a Libby pardon that alienates the media and a big chunk of the public in a futile attempt to placate the right will not be seen as the best way to get it.  (Hmm, am I saying a Libby pardon would be stupid and ineffectual?  Call it a lock, then!)

Last wrinkle - Fred Thompson has been a big Libby backer.  He laid out his objections to the process that led us to Fitzgerald last winter.  And he makes similar points here - his main theme is that there was no IIPA violation because Ms. Plame was not covered by the statute:

The only problem with this little scenario was that there was no violation of the law, by anyone, and everybody — the CIA, the Justice Department and the Special Counsel knew it. Ms. Plame was not a “covered person” under the statute and it was obvious from the outset.

He may be right about that.  A bit more:

I have called for a pardon for Scooter Libby. When you rectify an injustice using the provisions of the law, just as when you reverse an erroneous court decision, you are not disregarding the rule of law, you are enforcing and protecting it.

OK - does a Libby pardon become a hot potato for the other Republican Presidential aspirants?

ADD THIS:

Thursday, May 03, 2007
Pardon Scooter Libby?
WASHINGTON (CNN) -- Of the GOP presidential field, only Reps. Duncan Hunter of California and Tom Tancredo of Colorado raised their hands to indicate they would pardon Lewis "Scooter" Libby, Vice President Cheney's former chief of staff.

Libby was convicted in March of lying and obstructing an investigation in the Valerie Plame leak case.

-- CNN Political Researcher Xuan Thai

But wait - last May, "let the case play out" was the dodge.  What now, assuming Libby is sent to jail?

If Judge Walton, President Bush, and Citizen Libby can agree, would Libby take this: no jail pending appeals in exchange for no pardon now or ever?

MORE: 

ROSTOCK, Germany (AP) - President Bush feels "terrible" for the family of I. Lewis Libby but does not intend to intervene now in the case of the former top aide to Vice President Dick Cheney who was sentenced to prison Tuesday, the White House said.

Bush was informed by aides of Libby's sentencing in Washington two 2 1/2 years in prison after he got on Air Force One Tuesday to fly from the Czech Republic to Germany for the G-8 summit of industrialized nations.

They can kick this down the road at least until the judge rules next week.

EQUAL JUSTICE:  Jeff Goldstein is vivid on the gap between the Libby and Berger coverage:

For months and months now we’ve been hearing that the Libby trial was about the dangers of the “powerful” covering up their secrets—that Plame’s “outing” could actually jeopardize national security, and other self-righteous, hyperbolic, and patently absurd justifications for pushing forward in the hope of grabbing a Republican scalp.

Meanwhile, right here in front of us, we have a case where Sandy Berger, a former National Security Advisor, has voluntarily surrendered his law license rather than come clean about what documents he destroyed, why he destroyed them, and who he was trying to protect in doing so.

When I begin to hear the same people who’ve been braying for Libby’s blood take similar aim at Berger—and by all rights, their animus should be even more concentrated, given Berger’s position and power, and given the nature of his crime, which involved the pilfering and destruction of classified documents. 

No reason to think of this as Berger protecting a former President; think of it as Berger protecting a future First Spouse.

Well, Berger can become an issue as Hilary runs.  And her supporters can claim she is being swift-boated, and the media will continue to ignore Berger, and the right (yes, me, dammit!) will seethe... Barack, anyone?

WHILE MY GUITAR KEYBOARD GENTLY WEEPS: On the off chance that someone is wondering just what in the world my official editorial position is on any of this (and because having an official editorial positions seems so very tidy and responsible), let me reprise some of my commentary following the Libby verdict last March.

On the underlying validity of the Fitzgerald investigation - this relates to Fred Thompson's point that the DoJ should have shut this down:

From Mar 6, 2007:

Obviously in some cases, there is no argument that obstruction can obstruct an investigation.  However, in this specific case Mr. York could have been more emphatic - Libby's alleged lies did not, for example, obstruct an investigation into murder, because there was no dead body anywhere in evidence.  Similarly, it can be argued (as by York or Toensing) that Libby's testimony did not obstruct an investigation into the outing of a covert agent because Ms. Plame was not "covert" as defined by the Intelligence Identities Protection Act.  Similarly, the Espionage Act has hurdles that no reasonable prosecutor could have hoped to overcome, beginning with the intent clause of the first sentence:

Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States...

In this view, Fitzgerald spent two years investigating whether the Administration attempted to manipulate the media and avoid embarrassment while rebutting a critic.  Since those activities are not crimes, Libby's testimony could not have obstructed a criminal investigation.

Of course, the Department of Justice could have made this determination before appointing Fitzgerald as Special Counsel, so the real failure of leadership was elsewhere.

I think Fitzgerald was handed a perjury/obstruction case and ran with it, which is fine as far it goes, since those are crimes, too.  However, Fitzgerald's pretense that he was engaged in a search for "the truth" is not sustained by his own record:

In Jan 2004 Fitzgerald learned from Ari Fleischer that David Gregory had received a leak on the morning of July 11, which certainly gave Russert time to chat with Gregory and then with Libby.

Did Fitzgerald call Gregory to verify Fleischer's testimony?  No. Why not?  Ask Fitzgerald.  But my guess is that he figured that Gregory would only undermine the case he was constructing against Libby, and building that case was more important than learning the truth.

Let's note that I am using the word "learned" loosely there - John Dickerson denied (in print, not under oath) receiving that leak from Ari Fleischer; Fleischer's story was that he leaked to both Dickerson and Gregory while chatting in Africa.

But as of Jan 2004, as best Fitzgerald knew Russert's colleague had received a leak on July 11.  Where was the follow up?  And when will NBC News follow up on this loose end?  (NBC's timetable revealed!)

My position on Ms. Plame's covertiness is that it is a subtle legal point that has never been fully briefed or litigated, and we still don't know enough to know.  I also have an original thought about a place to look for non-definitive guidance that I think the Libby defense overlooked, to wit, Ms. Plame's  pension calculation; by law, she receives additional credit for service abroad, a key point of dispute in the applicability of the Intelligence Identities Protection Act.  (A religious question - since I think Ms. Plame's covert status is knowable but currently unknown, I am rejecting the label of "agnostic".  Am I right on the usage?)

On the broad question of Libby's guilt, I am not chasing him with a noose or pitchfork but I am not pretending he is an angel, either: (or Raw Story)

Maguire doesn't completely buy Libby's "I forgot" story, and believes that it's possible that the former vice president aide was just trying to keep his boss's involvement hidden.

"Personally, I think the single most probable scenario is that Libby uhh, shaded his testimony to keep Cheney out of the story," Maguire says.

And on the pardon question, my temporizing suggestion was that Bush ought to declassify some of the underlying material so that We the People can see for ourselves the seriousness of the crime and the Fitzgerald investigation - my goodness, the judge just sentenced Libby for obstructing an investigation into whether Ms. Plame was covert, and the judge still does not know if she is covert (He does know that the CIA says she is covert under their definition, and that their definition does not mirror the IIPA - quite a difference.)  Time to find out.

FEEL THE LOVE:  Scooter's letter, mostly positive, at The Smoking Gun.

NRO Editors - Pardon Libby.

Libby Sentencing

Marcy Wheeler is liveblogging the Libby sentencing hearing (1, 2, 3, 4, 5, 6, 7, 8).

I am particularly intrigued by the cross-referencing issue - in short, even though neither Libby nor anyone else was charged with violating the Intelligence Identities Protection Act, the prosecution has argued that Libby's sentence should be adjusted upwards for obstructing an investigation into whether a violation occurred.

Neither Judge Walton nor Libby's attorney Jeffress impressed me here:

Walton: Your position would seem to promote someone engaging in obstruction and therefore impeding govt's ability to prove, [Reggie's not buying this]

Jeffress: that's not the case. [Jeffress emphasizes the "for an offense" language in all the cases] The problem with taking the cases to the extreme that the govt wants to take them is that a defendant who is tried for plain obstruction, is to be sentenced based simply on what he was told when he came before GJ. Then a defendant who is found to commit perjury if a murder was suicide.

Walton: What if you can never establish whether there was a murder or not, and the person impeded the ability to make that assessment. There's a suggestion that at some point Plame was in a position where her job was classified.

Skip and:

Jeffress: [continuing on IIPA] If there had been a violation of IIPA, I'm sure the govt would have charged it.

Walton: I always hear lawyers say indictment doesn't matter.  The fact that someone is indicted, I tell people not to take that seriously. The fact that someone isn't found guilty, that's stronger than the fact that they weren't charged.

Jeffress: Govt has never shown that the offense was committed.

Walton: The objective behind cross-referencing as it relates to obtstruction is that it's envisioned when law enforcement officials start an investigation and they go to citizenry to find out whether an offense has been committed, it is the obligation of the citizenry to cooperate, when a person is put on notice of what the govt is investigating. I think that's what this cross-referencing provision is designed to reach. You only look at whether a legitimate investigation was taking place, it's my view the x-referencing does apply, as it relates to the obstruction. I may not reach wrt the perjury conviction, I have questions whether it would apply.

Groan - Jeffress is arguing that an IIPA violation was never charged; the obvious retort is that intent is a part of the crime, and Libby's lies made an evaluation of intent impossible - ergo, the obstruction succeeded!

What Jeffress ought to have been arguing is that no IIPA charge was possible regardless of Libby's lies or intent because the government never demonstrated that she was qualified as a covert agent under the statute.

To be fair, Jeffress does head in the right direction in the bit below.  Judge Walton, on the other hand, seems to be blowing smoke (or smoking something, anyway):

Jeffress: what IIPA requires is that agent has to have served abroad in past five years. We were given no discovery other than statement prepared by CIA stating she had traveled abroad on temporary duty, TDY, there's never been a case, any discussion whether that 

Walton: [Getting animated] I think here they have a legitimate concern about this info being disclosed. CIA contacts justice. Justice goes about to seek to investigate that. They make inquiries of high govt official and he prevents them from investigating that case. You seem to be suggesting that cross-referencing doesn't apply. [He's pissed]

Jeffress; they need to establish there was an offense.

...We're still in the position where we don't know if she was covert. It is fundamentally unfair when we try a case, we don't get discovery, we exclude it.

Walton: I don't think we can equate relevance of my ruling wrt culpability if you felt that info was important for your client to obtain fair sentencing. I would have entertained that, but I got no request as it relates to sentencing.

9:53

Jeffress: if you honor concludes that factual finding on that matter needs to be done, certainly we'd like to see that, it never occurred to me CIA would be willing to disclose that, and the govt would be willing to share it.

So, Walton's current position is that if the defense had insisted they needed this material, not to prepare for the trial, but to prepare for the possible sentencing, he might have granted it?  Given the latitude allowed to prosecutors in preparing sentencing memorandums, the defense could argue that almost anything is relevant on that basis. 

Well - presumably that is why we have laws, procedures, precedents, and appeals courts.  If Walton is right in suggesting that even though the defense was denied the relevant material at trial they should have asked for it again, surely there will be precedent to support him.  Life is full of surprises.

UPDATE:  30 months.  Whoa - that is near the maximum urged by Fitzgerald.  CNN does not mention whether Libby can stay free pending his appeals (I'll guess not, unless Judge Walton has devised some weird mixed-message sentence).  Sandy Berger is laughing out loud.

HERE WE GO: From Ms. Wheeler (8):

As to bond pending appeal, Walton basically said no, but Defense can submit a memo. That is due on Thrsday, and then the govt's is due on Tuesday, with Libby's response due on Wednesday. If Walton decides against bond pending appeal after reading those motions, then it all goes to the prison system and Libby goes to jail in normal schedule, which would be about 45-60 days.

The basis defense argued for appeal is twofold: that Walton rejected the memory defense, and Fitz' appointment in general. Walton basically said, "If you could introduce a memory expert on the basis of that hearing, we'd have to let in any thing, because there was no basis for applicability in this." As to Fitz' appointment, Walton said that, although no one oversaw Fitz' actions WRT this case, he was subject to normal discipline if he did anything bad. The fact that Sampson considered firing Fitzgerald is evidence of this in this case.

Reggie said something very important WRT this issue. He said that if Fitz' appointment were improper, then it would mean no one high in government, and no one in the justice system, could be held accountable for the things they did unless there were a way to appoint a prosecutor free of DOJ oversight in the particular case.

Oh, please - We the People let the Special Prosecutor law lapse for a reason.  if Judge Walton thinks it is his role to provide a replacement, he ought to re-read the Constitution.

That said, and re-reading (6), the defense is not limiting their appeal to the memory issue and Fitzgerald's appointment; those were just two issues that were cited:

Those by themselves would justify bail pending appeal. Other opinions your honor recognizes novelty. To the extent your honor would briefing, we could have briefing by eod Thursday. On those two issues alone, we meet the standard. We don’t have to establish with caselaw there is a probability, we only have to prove there are substantial questions, wrt to those alone, the court recognizes that the court was going into uncharted territory.

Bush's Incompetence Bends Space And Time

The Ace drops the gloves and almost lets Jimmah off the hook.  The 20th century hook, natch.

Valerie Plame's Pension Benefits Track Her Service Abroad

Groan!  Now we are going to hear about Valerie Plame's pension?  Tedium, thy name is... Just One Minute - this is important stuff!  The issue of whether Ms. Plame was actually a "covert agent" as defined by the Intelligence Identities Protection Act was identified as a key issue in her case by the eerily prescient James Taranto back in October 2003 when the case first made headlines.  And it appears that Mr. Libby may be the victim of either CIA chicanery or malfeasance by Fitzgerald; either way, the impact of the information presented below could affect Libby's sentencing, his hopes for a successful appeal or a Presidential pardon, and the reputation of the Fitzgerald investigation.  So tough it out, and on with the pension story!

One key issue from the statutory definition of "covert agent" is whether Ms. Plame met the requirement for service abroad.  From Mr. Taranto:

Left unanswered is the question of when Plame has her last overseas assignment; if it was before July 1998, then by July 2003, when her identity was revealed, she would no longer have been a "covert agent" for the purposes of   the Intelligence Identities Protection Act.

Victoria Toensing noted the same "service abroad" issue in 2005.

So, did Ms. Plame perform service abroad for the CIA after July 1998?  One place to look would be her CIA personnel files - by statute (Title 50, Section 403r, "Section 403r.  Special annuity computation rules for certain employees' service abroad"), CIA officers are entitled to an upward adjustment in their pension benefits for service abroad.  This is from the Friday NY Times, describing Ms. Plame's legal issue with her proposed book:

The letter [from the CIA human resources are to Ms. Plame], from February 2006, was entered into the Congressional Record by Representative Jay Inslee, Democrat of Washington, in January 2007. Mr. Inslee was introducing legislation to allow Ms. Wilson to qualify for a government annuity.

The letter said that Ms. Wilson had worked for the government since Nov. 9, 1985, for a total of “20 years, 7 days,” including “six years, one month and 29 days of overseas service.”

More background and the full text of the letter are in this post.

So by law we should have guessed that Ms. Plame's service abroad was tracked in her personnel file (OK, I did guess exactly that last February), and in fact it was.

And the rest should fall into place nicely, yes?  In response to questions about Ms. Plame's service abroad, CIA lawyers or Patrick Fitzgerald and his Department of Justice investigators will cite her personnel file, which presumably has been maintained in accordance with standard CIA practice.  Her file will document the most recent period for which she received credit for service abroad, thereby resolving the point about her qualification as a covert agent under the IIPA, right?

Not so fast.

Patrick Fitzgerald filed documents related to Libby's sentencing last week [Sentencing memo,  Sentencing calculation, Plame employment history] which resolved the issue to the satisfaction of, well, the easily satisfied - that includes Messrs. Isikoff and Hosenball of Newsweek.  And was any mention made of her service abroad as tracked by the CIA personnel department under long established CIA rules?  Uhh, no.  The judge and the defense were offered a summary employment history which touched on her service abroad as follows (and I am quoting the Newsweek paraphrase, until I can get a copy/paste version of the government filing):

“She traveled at least seven times to more than 10 countries,” the document states. “When traveling overseas, Ms. Wilson always traveled under a cover identity … At the time of the initial unauthorized disclosure in the media of Ms. Wilson’s employment relationship with the CIA on 14 July 2003, Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.”

Huh?  This is the dog declining to bark in the night - her CIA personnel file has the dates for which she received credit for service abroad, so why not mention that?  Is it possible that the DoJ investigators did not have access to her file?  No, per footnote 2 on page 5 of the sentencing calculations, we are assured that "The investigators were given access to Ms. Wilson's classified file".  [Is it possible that national security censors struck an anodyne sentence such as "As per Title 50 Section 403r, Ms. Plame's most recent credit for service abroad occurred in 2002"?  Would that really give away more than "She traveled at least seven times to more than 10 countries"?  Please.]

So, both the CIA and the DoJ had access to Ms. Plame's file detailing her dates of service abroad, yet chose not to present that information to the defense.  Why might they do that?  A suspicious mind would wonder whether they would omit that data if it were helpful to their case, or only gloss past it if her most recent date of service abroad were say, 1997, when she was recalled to the United States (as per this Vanity Fair profile).

This is not right - our legal system has discovery rules for a reason.  IF Ms. Plame's formal dates for service abroad buttress the prosecution position, that should be disclosed to the defense so that they will not waste time pursuing a false trail, or so that the prosecution can prepare arguments that the CIA formal procedures do not comport with the language and intent of the IIPA.  On the other hand, if her formal dates for service abroad support the defense position, that should be disclosed so that the defense can argue that this represents the best established practice and settles the issue.

But it is simply not appropriate for Fitzgerald to unilaterally conceal this from the defense, especially when it is a reasonable guess that it was concealed because it would aid the defense.

As background, Byron York has a number of pieces describing the legal maneuvering that led to this cursory summary.  The defense requested discovery on a lot of classified info including Ms. Plame's employment history and classified status; Fitzgerald insisted the case was limited to perjury and that Ms. Plame's status was not at issue; and eventually Judge Walton ordered [link] this summary as a compromise.  Let's note that Judge Walton reviewed the material before endorsing the summary.  Let's also note that he had a tremendous volume of material to review, so Ms. Plame's dates of service may have been overlooked (hidden in a file dump, as it were).  Or, since his final rulings restricted the trial issues to perjury rather than Ms. Plame's status, Judge Walton may have believed the IIPA issue was irrelevant.

In any case, it is safe to say that Fitzgerald was not eager to present Ms. Plame's employment background - maybe an embarrassment with her dates of service was part of the reason.  If so, it strikes at the heart of the prosecution's case - for example, in his affidavit to the Miller court weighing her subpoena, Fitzgerald clearly convinced Judge Tatel that his investigation was contemplating violations of the IIPA.  Did Fitzgerald also explain that there were serious problems with such a prosecution, such as an issue as to whether Ms. Plame was covered by the statute?  That affidavit has not yet been made public, but if the judges had ruled against Fitzgerald the case against Libby would have been much weaker.

Fitzgerald also resurrected the IIPA issue in his sentencing memorandum - the defense noted in their response that they were denied a chance to fully engage this issue in the trial phase; if that was compounded by the concealment of key information from the defense, there is a problem here.

It may be that Judge Walton will probe these issues at Libby's sentencing.  Or an appeals court may take some interest in how it came to be that Fitzgerald never disclosed Ms. Plame's formal dates of service to either the court hearing the Judy Miller subpoena or to the Libby defense.

And from another direction, Rep. Peter Hoekstra has tried to get the CIA Counsel to opine on Ms. Plame's covert status.  Per Robert Novak, as of April 2007 they were still mystified:

On March 21, Hoekstra again requested the CIA to define Mrs. Wilson's status. A written reply April 5 from Christopher J. Walker, the CIA's director of congressional affairs, said only that "it is taking longer than expected" to reply because of "the considerable legal complexity required for this tasking."

I have a suggestion for Mr. Hoekstra - perhaps he can ask the CIA Counsel some simpler questions, to wit, what is the last date on which Ms. Plame received credit on her pension (under Title 50, Section 403r) for service abroad, and what is the CIA definition of "service abroad" in that context.  That should be easy enough for the CIA Counsel to address in this lifetime. [As protection against after-the-fact revisions, Mr. Hoekstra should also inquire as to the most recent date of service abroad reported in Ms. Plame's file as of July 2003, whether any revisions have been made since then, and the circumstances that led to those revisions.]

There may be an innocent explanation for all of this.  But in light of Fitzgerald's determination to conceal Ms. Plame's employment history and in light of the fact that a "service abroad" date which should have been readily available and clearly relevant was not disclosed, some questions for Fitzgerald ought to be addressed. 

Unfortunately, it is not as if Fitzgerald would never, uhh, shade his disclosures and filings - in the course of the Libby trial at least two transgressions were revealed: he had disclosed to the defense that John Dickerson of Slate may have received a Plame leak (from Ari Fleischer) but concealed the information that David Gregory of NBC News would have received the same leak at the same time.  And in the course of his legal maneuvering with Tim Russert, Fitzgerald failed to inform the court that Tim Russert (who was resisting a subpoena to testify) had already given evidence to DoJ investigators. 

Or for a more recent example of Fitzgerald's tactics, consider his recent sentencing memorandum.  Isikoff and Hosenball make much of the fact that "Patrick Fitzgerald has finally resolved one of the most disputed issues at the core of the long-running CIA leak controversy: Valerie Plame Wilson, he asserts, was a “covert” CIA officer".

But the defense response provided a bit of clarification which Fitzgerald had overlooked, or forgotten, or something:

The summary described above was provided to the defense along with a
companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently.

Indeed it does.

Why was Fitzgerald dancing with the NBC stars?  Who knows?  Why did he overlook or conceal the information about Ms. Plame's formal dates of service abroad?  Let's hope someone asks him.

UPDATE:  Writing at firedoglake, Jeff Lomonaco, one of the brightest bulbs on the Plame Christmas tree, takes up the debate.  I take specific issue with this:

Now, it may well be useful to consider whether the CIA's standard way of proceeding would be to include the kind of covert work abroad that Plame did in the five years before the Bush administration blew her cover in its pension calculations, though it's far from clear that this should be controlling in the interpretation of the IIPA, as Maguire seems to suggest (and I'll come back to this).

[Big Skip]

But now Tom is telling us that Valerie Plame's pension benefits track her service abroad.

Well, yes, the CIA clearly "tracks" it in the sense of monitoring it.  I plainly am not arguing that the CIA handbook is dispositive on the issue, since I make the point that the defense would want an opportunity to examine and rebut the information if it went against them.  However it is a sufficiently relevant data point that it should have been disclosed to the defense.

Patterico On The Flt 327 Dry Run

Patterico exchanges emails with an air marshall who strongly suspects that Flight 327 was a terrorist dry run:

Do I personally believe flight 327 was a terrorist probe or dry run? 

In my opinion, and based upon my experience flying hundreds of missions since 9/11, my answer is, yes it was. Do I know 100% for sure? No, of course not. Short of obtaining signed confessions from all 13 Syrian “musicians” involved, only they know for sure what their true intentions were for acting so “suspicious” during the flight. And this is exactly why the Inspector General’s report doesn’t conclude, without a doubt, that their actions were positively construed as a probe or dry run. The only people who know this for sure were allowed to freely leave the country and fly back to Syria without ever being thoroughly interrogated. And remember, a third of the Inspector General’s report is still highly redacted.

Nevertheless, many air marshal collegues I have spoken with concur with my conclusion, but don’t expect them to go public any time soon.

Citizen journalism.

Plame To Sue CIA - The Irony And The (Near) Ectasy

Ms. Plame has filed suit against the CIA - apparently, even though her dates of service are in the public record, they are still classified.  Somewhere, Libby is thinking that no one told him Ms. Plame had classified status, but his ignorance did not lead to bliss.

But let's cut to the cool bit:

The C.I.A. acknowledged that the dates of Ms. Wilson’s employment had mistakenly been disclosed, although a spokesman said that did not mean the information was no longer classified.

“Frankly,” said the spokesman, Mark Mansfield, the release of the information in 2006, in response to a query from Ms. Wilson about retirement benefits, was “an honest-to-goodness administrative error.”

“The letter contained classified information and should not have been mailed to her,” Mr. Mansfield said, referring to Ms. Wilson. “As soon as it was discovered, we took steps to rectify the error, including notifying the clerk of the House of Representatives.”

The letter, from February 2006, was entered into the Congressional Record by Representative Jay Inslee, Democrat of Washington, in January 2007. Mr. Inslee was introducing legislation to allow Ms. Wilson to qualify for a government annuity.

The letter said that Ms. Wilson had worked for the government since Nov. 9, 1985, for a total of “20 years, 7 days,” including “six years, one month and 29 days of overseas service.”

Christine Hanson, a spokeswoman for Mr. Inslee, said the congressman had assured himself that the document was not classified before disclosing it.

The bill in question was "H.R. 501: For the relief of Valerie Plame Wilson"; Ms. Plame had done her twenty years of government service but was a bit young to actually begin to collect.  And here is the full text of the letter:

Washington, DC, February 10, 2006.

Mrs. VALERIE WILSON

DEAR MRS. WILSON, This letter is in response to your recent telephone conversation with regarding when you would be eligible to receive your deferred annuity. Per federal statute, employees participating under the Federal Employees Retirement System (FERS) Special Category, who have acquired a minimum of 20 years of service, are eligible to receive their deferred annuity at their Minimum Retirement Age (MRA). Your MRA is age 56, at which time you'll be eligible to receive a deferred annuity.

Your deferred annuity will be based on the regular FERS computation rate, one percent for every year of service vice the FERS Special rate of 1.7% for every year of service. You will receive 1.7% for each year of overseas service, prorated on a monthly basis, after January 1, 1987 in the calculation of your annuity. Our records show that since January 1, 1987, you have acquired 6 years, 1 month and 29 days of overseas service.

Following is a list of your federal service:

Dates of Service: CIA, CIA (LWOP), CIA Ð(P/T 40), from 11/9/1985 to 1/9/2006--total 20 years, 7 days.

Based on the above service and your resignation on January 9, 2006, your estimated deferred annuity is $21,541.00 per year, or $1795 per month, beginning at age 56.

The above figures are estimates for your planning purposes. The Office of Personnel Management, as the final adjudicator of creditable service and annuity computations, determines final annuity amounts. Please let me know if I can be of any further assistance.

Sincerely,

And why do we care?  Well, as I said last February and last Wednesday (scroll down to "CHALLENGE ROUND"), Ms. Plame's pension calculation would hold a key to whether the CIA thought she had performed service abroad in the five years before her identity was disclosed to various reporters, which is a key requirement of the IIPA.  Of course the in-house CIA rules would not be binding on a judge, who would also be expected to consider the plain language of the statute and the legislative history.  However, a judge might certainly take a bit of guidance from the CIA rules, which presumably have some basis in law or established practice.

Beyond that, if a mere blogger could infer that the CIA has a record of Ms. Plame's overseas service it surely dawned on Patrick Fitzgerald to ask for this.  So - did he ask for this info (obviously, she would not have yet retired, but personnel records are personnel records)?  Did the CIA give it to him?  Did he fail to disclose to the defense the specific information that Ms. Plame did (or did not) get credit for overseas service for dates after June 1998?  Either Fitzgerald didn't think to ask (hmm...) or he chose not to disclose it to the defense (ethically dubious).  But if he did think to ask for the pension info, who thinks it would have been omitted if it was helpful to Fitzgerald's case?

Lots of questions.  Probably too late to help Libby in his sentencing, but still.

Based on the information available, about all I can say is that I expected to see more time overseas credited to Ms. Plame - from this Vanity Fair profile I would have guessed she was overseas more or less continuously from 1989 through 1997, for about eight years of service.

Well - some lefty blogger with whom Joe and Val are chatty might want to follow up on this.  Unless the answer is not what they want, of course.

MY, MY:  The Libby response on the Government's proposed sentencing fires a torpedo at Jeff's argument that Fitzgerald had made a good-faith determination in 2003/04 that Ms. Plame was covert under the IIPA - emphasis added:

Second, the government relies on a terse two-and-a-half page summary of Valerie Wilson’s employment history that was generated by the CIA, which purports to establish that “Ms. Wilson was a covert CIA employee for whom the CIA was taking affirmative measures to conceal her intelligence relationship to the United States.”3 We have never been granted an opportunity to challenge this conclusory assertions or any of the other unsubstantiated claims in this document, nor permitted to investigate how it was created. If nothing else, the fact that the CIA’s spokesperson confirmed Ms. Wilson’s CIA employment to Mr. Novak calls into question whether the government was taking affirmative measures to conceal her identity.

The summary described above was provided to the defense along with a
companion summary that defined a “covert” CIA employee as a “CIA employee whose employment is not publicly acknowledged by the CIA or the employee.”4 It is important to bear in mind that the IIPA defines “covert agent” differently. It states: “The term ‘covert agent’ means— (A) a present or retired officer or employee of an intelligence agency . . . (i) whose identity as such an officer, employee, or member is classified information, and (ii) who is serving outside the United States or has within the last five years served outside the United States.” 50 U.S.C. § 426. The CIA summary of Ms. Wilson’s employment history claims that she “engaged in temporary duty (TDY) travel overseas on official business,” though it does not say whether such travel in fact occurred within the last five years.  Further, it is not clear that engaging in temporary duty travel overseas would make a CIA employee who is based in Washington eligible
for protection under the IIPA. In fact, it seems more likely that the CIA employee would have to have been stationed outside the United States to trigger the protection of the statute. To our knowledge, the meaning of the phrase “served outside the United States” in the IIPA has never been litigated. Thus, whether Ms. Wilson was covered by the IIPA remains very much in doubt, especially given the sparse nature of the record.

So, the summary provided by Fitzgerald was quite clearly relying on a different definition of "covert" than the IIPA.  Hmm, the fair-haired wonder omitted that tidbit from his filing, and now the press has moved on.  So when did the DoJ make a good-faith determination that the IIPA was applicable?  I don't believe they ever did the research.  My thoughts from last Wednesday were here.