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.

Comments

[MJW]

I hope I'm wrong, but I suspect Hardin Smith may be right that the selection gives Fitz the advantage. If Libby loses the bond appeal, I think it may be because the court rules that the mistakes were harmless error (and therefore couldn't lead to reversal), given the supposed overwhelming evidence against him. Fitz had the opportunity to present a one-sided view of the case to this court in his original affidavit. I think in fairness, Libby's lawyers should have the opportunity to read the unredacted affidaivit, and Tatel's complete opinion.

[BarbaraS]

I have no faith in fairness in our judicial system. I lost that 35 years ago when I got my divorce and haven't changed my mind due to recent events. I don't think the egos of these three judges will allow them to appear foolish in their prior ruling.

This whole mess has been political from day one and continues to be to this day. As a non-lawyer, I was appalled by Reggie Walton's performance as a judge, by the Javert-like attitude of Fitzgerald and the stupidity of the DC jury all for a he said/he said nothing burger case. I thought during the trial it would ither be conviction or a hung jury. I never supposed there would be a not guilty verdict. I have no faith in the jury system. Our country is too divided along partisan lines for there to be open-minded and fair.

[Jeff Dobbs]

From the AP article linked by Tom above:

The three judges said Wednesday that Fitzgerald has until Friday to respond to the request. Their order was the first public glimpse at the panel that will consider the issue.

Let's go to REWRITE!!!

The three judges said Wednesday that Fitzgerald has 24 business hours to respond to the request.

Happy JLSVS Anniversay!!!

[Other Tom]

My feeling is that if they rule Libby's way on the appointment issue, they won't hold that to be harmless error. And despite the NR Sun's relatively gloomy assessment, that seems to be one issue where the usual deference to the D.C. district court judges might not apply. But what do I know? Not a lot...

H&R, I'm headed your way. Godson getting married in Wimberley, Texas on Saturday. Headed out in an hour. Gonna find out if them Texans can hold their liquor.

Radio silence till Sunday night.

[Jeff Dobbs]

Yes, OT, that is in my direction. I am a Texan, but haven't lived in Texas since 1996.

I'm 17 hours east of Texas now, if you take I30 out of Dallas, then I40 out of Little Rock.

Enjoy Texas.

Oh and, I was supposed to come to a conference in your neck of the woods in a couple of months, but those plans have been scrapped -- instead, my boss and a younger, prettier colleague will be going. Oh and more competent, she's more competent, don't get the wrong idea...

And in a moment of confession, I will admit that I have never been in your neck of the woods, never further south in CA than Costa Mesa (where a former company had a office I visited fairly regularly). Seems impossible, but it's true.

[Tom Maguire]

My feeling is that if they rule Libby's way on the appointment issue, they won't hold that to be harmless error.

I agree. I can almost see them holding the Mitchell thing to be harmless. And *maybe* the memory expert / CIPA issue is harmless, although that seems like a stretch.

But I don't see how they can hold an appointments clause error as harmless, and someone noted that in the trial transcript, Walton agreed.

Well - if they deny bail and rule that these are not even close questions, I will be shocked (not for the first time). But I am Boldly Predicting that Libby gets his bail.

[tombowl]

The American Dreyfus gets another lousy break.

[SunnyDay]

off topic - McNulty testifies on C-Span3 at noon today. They won't quit.

[Jeff Dobbs]

Other Tom...

Well, I was admittedly unfamiliar with Wimberley, TX, so I found it on a map.

You are no doubt already gone but I will go ahead and leave the mention here.

You will be roughly 10 miles from mrs hit and run's parents, who live near Kyle. And roughly 30 miles from her sister, who lives near Spring Branch.

And, mrs hit and run and the little ones will be there in a month.

[Sue]

They won't quit.

Not until their approval numbers reach rock bottom. On the other hand, they already have and they haven't quit, so maybe you're right.

[Jeff Dobbs]

TM:
But I don't see how they can hold an appointments clause error as harmless, and someone noted that in the trial transcript, Walton agreed.

Elliott yesterday:

Having focused, along with Anduril, on the subject of Fitzgerald's appointment and harmless error, I feel obliged to note the following from the transcript of the bond pending appeal hearing included with the defense filing:

[ROBBINS:] WITH RESPECT TO THE APPOINTMENTS CLAUSE, THE SECOND INQUIRY -- THAT IS TO SAY: IS THIS THE KIND OF QUESTION WHICH, IF WE PREVAIL ON, WILL RESULT IN A NEW TRIAL OR DISMISSAL? THERE CAN BE NO FAIRLY DOUBTING THAT. IF WE ARE RIGHT, THAT IS TO SAY, ON THE APPOINTMENTS-CLAUSE ISSUE, IT WILL NOT BE SUBJECT TO HARMLESS ERROR.
THE COURT: I THINK I AGREE WITH THAT.

Note to attorneys who will be appearing before Judge Walton: Never put in a footnote an argument you are relying upon his honor to accept.

[StephenC]

So either Fitz was a "properly" supervised inferior officer who harmlessly used the powers of his to be named at a future time supervisor or the powers of a principal could be confered by an acting AG in a pair of vaguely worded letters and without Senate confirmation? These are the two mutually exclusive positions Fitz gets to defend?

[clarice]

Interesting point, Stephen.TM, I agree with you, but then I keep believing that good sense will prevail.

[cboldt]

In order for the Circuit Court to uphold Walton on the defective appointment argument, it has to either decide that the question of whether or not the appointment was defective is NOT a close question (and imply that Walton's side of that got it right), or, in the alternative, that even if the appointment is eventually found to be defective, that does not impose the remedy of reversal or a new trial.

Don't underestimate the creative power of Circuit Court judges. I've been making notes on what I think are the issues on their face, as well as the hidden issues, and the range of options to the Circuit Court is a fairly complex brew.

[anduril]

We seem to be off to a slow start today. I've been getting a lot of requests suggesting that, to deal with slow starting days, I should post a link to some web item that branches out from politics--especially in the direction of religion. While I count down the hours till I get out of Dodge, I thought I'd leave everyone with this offering from The Other Hitchens, which nicely combines Politics, Religion, Sociology and History. I can't guarantee that anyone will be able to find some reason to bash the Catholic Church in this article, but where there's a will there's a way.

[Tom Maguire]

Don't underestimate the creative power of Circuit Court judges.

In my fantasy world they exert their creative powers to undo some of the precedents established by Fitzgerald (and obviously with which they went along) by thumping his whole operation.

I don't see how that undoes their Miller opinion, but that is where I am relying on their vast creative powers. One of the judges was not keen to jail Miller (IIRC), so he might be keen to trash Fitzgerald.

[Cecil Turner]

Don't underestimate the creative power of Circuit Court judges.

Especially these, as they've already demonstrated a propensity for such in the Miller decision. Note both Sentelle and Tatel delineated the bounds of a common-law reporters' privilege (or lack thereof). Only Henderson resisted the temptation:

Because my colleagues and I agree that any federal common-law reporter’s privilege that may exist is not absolute and that the Special Counsel’s evidence defeats whatever privilege we may fashion, we need not, and therefore should not, decide anything more today . . .

And even she felt obligated to explain why her position on such a privilege differed from theirs.

Still, at least for the initial ruling, the only real issue is whether the Appointments Clause issue is a close one. That narrow subject doesn't seem to give a lot of maneuvering room, and I find the Amici brief persuasive.

[clarice]

Well, since it's a slow day ,Mickey Kaus has a fine one on McCain's double talk express. http://www.slate.com/id/2168675/&#motaxes

[cathyf]

I'm curious about Miller... By the time the trial was finished, it was very clear that by June 2005 Fitzgerald had long since stopped conducting a leak investigation. Does she have any recourse at all for spending 3 months in jail based upon Fitzgerald's misrepresentations?

[Rick Ballard]

The Circuit Court need only imagine Rockefeller in the dock for blabbing about the NSA with 'prosecutor unbound' on his heels in order to decide this.

If the Executive can create a hounds of hell prosecutor to go after its own people, what in the world could stop it from repeating the process to go after a legislator?

[JM Hanes]

Clarice:

If the Applets decide in Libby's favor, will they issue an opinion of any kind or just a reversal?

[anduril]

Cecil, there's really a big difference between this situation and what the Panel was presented with in Miller.  Fitz had a strong legal case for going after Miller--from a Constitutional standpoint, although not a public policy standpoint.  He cleverly buttressed his Constitutional arguments with adroit misrepresentation of the factual situation to defeat the public policy considerations.  In the circumstances I believe the Panel had little choice but to go along with him.  To me, this one should be like shooting fish in a barrel--a bit like criticizing John McCain for Double Talk.

MJW, Walton himself admits that the Appointments Clause would not be harmless error, and Team Libby has provided case authority to that effect, as well.

 Well, I'm off to get my pitchfork.

 No, not to wield against non-co-religionists--it's for my rosebed.  :-)



 

[Looking_For_a_Way_out]

"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."

TM,

I realize that Walton denied the defense's attempt to call Mitchell, but why didn't they call Gregory? Fitzgerald explained why he never called Gregory to the Grand Jury. It had to do with Ari's immunity deal making Gregory's testimony immaterial to the investigation. But that did not preclude the defense from calling him, did it? I'm pretty sure the defense could have called both Gregory and Dickerson but decided not to. I'd suspect that the reason neither were called is because nothing they could say would help Scooter defend himself. Remember, Dickerson denies Ari's story. What if Gregory denied it as well? Then that is one less thread to Russert. You should consider this as the most probable reason the defense chose to not call Gregory. Looking at it from this angle Fitzgerald did a pretty effective job using Fleisher's potentially factually challenged testimony. Fleisher made Libby look like he was pushing to get the Plame story out, and calling the only witnesses that could contradict him would actually hurt the defense's attempt to discredit Russert or require Libby to take the stand. Libby does look like the fall guy now with Fleisher the one knocking him over. Maybe this type of case building is why Christy likes Fitzgerald so much.

[Neo]

24 business hours

Shades of "Sealed vs Sealed" and all that rubbish from Jason L"oser".

[clarice]

JMH, It's the Court's option how to handle this, but I expect they will find it necessary at a minimum to explain their action-i.e., the appointments issue is a close one or none of the issues are close ones or one or more are close ones but are not the sort that would mandate reversal of the conviction .

cathyf, this is a oner and I have no idea what recourse Miller might have.I expect a civil suit against Comey and Fitz would be covered by immunity provisions and her claim would be fought by the govt. against whom she might recover if her claim was deemed justiciable. And there are real questions of statutes of limitation.
Supposing for argument's sake, the appointment were deemed unconstitutional--when does the statute run? From the date of that order? And does it matter that her counsel never argued the appointment issue or even filed an amicus brief when Libby argued it?

[cathyf]

Still, at least for the initial ruling, the only real issue is whether the Appointments Clause issue is a close one. That narrow subject doesn't seem to give a lot of maneuvering room, and I find the Amici brief persuasive.

Walton's bail decision basically just made him look childishly petulant. If the appeals court gives Libby bail but then rules against him in the appeal they look prudent and thoughtful -- they gave themselves the room to come to a serious decision. If they deny bail and then rule against him they look vindictive.

Granting bail when the issue is not close is essentially a harmless act of magnaminity -- it doesn't shorten the sentence, merely delays it. Putting somebody in jail when 13 very distinguished lawyers from across the political and philosophical spectrum have told you that the law says you must grant bail looks an awful lot like a tantrum. While judges have certainly done foolish things in the past and will do more in the future, it seems a pretty low-value thing to be spending your authority capital on.

[boris]

this as the most probable reason the defense chose to not call Gregory

If your going to post howlers like this you should change your handle to "Looking Like a Fool".

Even I know lawyers won't call a witness unless they know what the witness will testify. All Gregory has to do to keep from discrediting his boss and helping the neocon is tell the defense "the only way to find out what I'm going to say is to put me on the stand".

[clarice]

I think that's a very good point, cathyf--especially given that he is no flight risk, there is no harm to the community and the Probation Dept wrote a very favorable report on his character .

[clarice]

True, Boris. Not calling him leaves uncontested Ari's statement that he told Gregory and Russert's that what one of us knows all of us knows.

What could you get if you called him and took the risk:
(a) He confirms it--nothing gained.
(b)He denies it--while that may undercut Fleischer's testimony on a secondary point (his main purpose to Fitz was his tale that Libby told him) it doesn't directly contradict him on a principal point.
(c) He says he doesn't recall or something--you just lost the inference you got by not calling him and leaving Ari's claim uncontested on the record.

[Jane]

I'm not terribly optimistic these days about this case or our judicial system, but I do think that prosecutors and Judges are going to have to be a little careful these days about the idea of people getting "Nifonged". Judy Miller can certainly accuse Fitz of that, as can Libby - and the idea of that sort of charge might be a little bit persuasive to these Judges (who may value their self-interest above all things) to keep an open mind.

[Jeff Dobbs]

Boris:
All Gregory has to do to keep from discrediting his boss and helping the neocon is tell the defense "the only way to find out what I'm going to say is to put me on the stand".

And this made possible by Fitz never questioning Mr. Gregory.

Looking:
Fitzgerald explained why he never called Gregory to the Grand Jury. It had to do with Ari's immunity deal making Gregory's testimony immaterial to the investigation.

Well, in the "all potential exculpatory stones left unturned" theory of investigation, that makes complete sense.

[cathyf]

Somebody jog my memory... Back in summer of 2006, Fitzgerald filed a brief in discovery where he listed by name the reporters that he knew had received a leak of Plame's identity. Does anybody know what that list was? Were both reporters that Fleischer claimed to have leaked to on that list? Was Pincus (who claimed that Fleischer leaked to him)?

[clarice]

HitWell, in the "all potential exculpatory stones left unturned" theory of investigation, that makes complete sense. Ain't that the truth?

And when you consider it was impossible to get the media to talk voluntarily to the defense that was some good tactic.

[boris]

If a prosecutor is going to force reporter testimony, given that reporters are going to guard their sources, it seems only fair that facts relevant to defense are extracted for the record and not just facts helpful to the prosecution.

[clarice]

Boris--this is another prosecutor's trick..if they find excuplatory evidence they are obligated to turn that over...so they avoid looking for it. Given that the circumstancces--reporters who normally won't disclose--and the scope of his appointment, this lame investigation was itself an outrage. It was obvious from very early on that the SP was focused on making the "facts" fit the theory , not in a full bore effort to get to the truth.

[topsecretk9]

Cathyf

Does anybody know what that list was? Were both reporters that Fleischer claimed to have leaked to on that list? Was Pincus (who claimed that Fleischer leaked to him)?

I don't think so. And as a side note Fitz only mentioned Dickerson - based on Dickerson's writing- as having not received a leak which is weird in hindsight.

[Tom Maguire]

Fitzgerald explained why he never called Gregory to the Grand Jury. It had to do with Ari's immunity deal making Gregory's testimony immaterial to the investigation.

That was another Comedy Classic filed under "Hey, Dude, Where's My Leak Investigation?". Surely Fitzgerald ought to have probed whether Russert and or Fleischer were telling the truth? Apparently not, and stop calling him 'Shirley'.

I'm pretty sure the defense could have called both Gregory and Dickerson but decided not to. I'd suspect that the reason neither were called is because nothing they could say would help Scooter defend himself.

In a normal "Innocent Until Proven Guilty" trial, it is up to the prosecutor to prove the case, not the defense to disprove it. I actually said at the time that the defense should not call Gregory because he casts doubt on two prosecution witnesses, Fleischer and Russert - putting him on the stand ought to bolster one and hurt the other, but (normally) two weak witnesses should be better for the defense than one weak one and one strong one.

Somebody jog my memory... Back in summer of 2006, Fitzgerald filed a brief in discovery where he listed by name the reporters that he knew had received a leak of Plame's identity. Does anybody know what that list was?

I mentioned that in a tirade about Gregory and Fitzgerald a few weeks back (June 3) - it was the letter Fitzgerald wrote to the defense citing several reporters then adding that Dickerson may have been a leak recipient as well. The non-mention of Gregory in conjunction with Dickerson is not easily explained.

*MAYBE* Fleischer's grand jury testimony differed from his trial testimony but the defense missed it (Yeah) or chose to overlook it (why?).

Or maybe this omission was cut from the same cloth that had Fitzgerald conceal from the court Russert's cooperation with the FBI back when they tussled over his grand jury subpoena.

From the older post:

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.

Hmm, some of the links have gone sour. Here is the original Fitzgerald letter:

Exhibit C

Or an old">http://justoneminute.typepad.com/main/2006/02/is_cliff_may_a_.html">old post describing it.

[Jeff Dobbs]

Clarice:
Ain't that the truth

Speaking of Truth, there are the corollary theories of investigation:

"The Truth And Nothing But The Truth, But Not Necessarily The Whole Truth" theory

Or the "Avoiding An Inconvenient Truth" theory

Or the "You Want the Truth? I Can't Handle The Truth" theory

And others:

The "What You Don't Know Can't Hurt You If No One Else Has the Means, Authority or Ability To Find Out" theory

Or the "That's For My Witness To Know And Me To Never Find Out" theory

[Carol_Herman]

In the Age before the Internet, there used to be "slow weekends." And, as I remember happened on 9/11, reporters were told that "this was an opportunity to get stories out that you want buried."

So we're coming to the July 4th extravaganza; where Americans are supposed to shut down, and go away. Vacationing, that is.

This gives the 3-member tag team of appellate judges the chance to pick and choose when they want to "release" their opinion. To opinions. Because if it's not unanimous; it will fall 2 to 1.

Meanwhile, the Conrad Black trial is also on-going.

When the wrap ups come will Fitz be found out? It's sort'a like waiting to find out what happens to Harry Potter.

Anyway, if I had to guess, the 3 judge panel does make politically charged decisions based upon the benefits of their calendar.

Are they aware of the Internet, now?

[Tom Maguire]

What You Don't Know Can't Hurt You If No One Else Has the Means, Authority or Ability To Find Out"

All good but that was my fave.

And I have stricken the caveat noting the remote possibility that Fleischer's grand jury testimony did not mention Gregory - the defense noted the Gregory leak in their opening statement, before Fleischer testified. I don't know where that could have come from except his GJ testimony (which the defense got in discovery). (OK, they could have deposed him separately, but Fitzgerald could have noted the GJ discrepancy, and the defense should have noted the shifting stories.)

[cathyf]

I'm still confused... If Fitzgerald had Fleischer's testimony that he told Dickerson & Gregory, then either

a) the filing which left Gregory off the list was false (and since a sworn affidavit, perjurious); or

b) Fitzgerald knows somehow that Fleischer didn't tell Gregory, and so he suborned perjury at the trial.

[cboldt]

Walton opinion on his decision to deny bail pending appeal .. link via howappealing.law.com. OCR job, I may skip it.

http://howappealing.law.com/062107.html#026288

[topsecretk9]

Or maybe this omission was cut from the same cloth that had Fitzgerald conceal from the court Russert's cooperation with the FBI back when they tussled over his grand jury subpoena.

this is what I was thinking too.

[Bruce Hayden]

To maybe take a devil's advocate position, but...

I think that it would be fairly easy for a judge to reconcile the Miller decision and that Fitz was acting as a principal w/o confirmation.

The problem in Miller is that there just isn't anything in the Constitution that would have given her any sort of privilege to keep her out of jail, etc. and there was no national press shield law. It would have taken some creative judging to keep her out of jail, which this panel was unwilling to participate in.

But the appointment thing seems to me to cut the other way. The case law seems to be against Fitz, and there is a very clear distinction in the Constitution between the two types of officers, and how they are treated.

That said, I still remain unconvinced that it might not be considered harmless error, since it really involved the charging decision and not the actual trial itself. Except I guess on how classified information was handled.

[Jeff Dobbs]

TM:
All good but that was my fave.

Thanks -- and obiviously when you remind us of

Or maybe this omission was cut from the same cloth that had Fitzgerald conceal from the court Russert's cooperation with the FBI back when they tussled over his grand jury subpoena.

"The Truth And Nothing But The Truth, But Not Necessarily The Whole Truth" theory

becomes

"The Truth, Not Necessarily The Whole Truth, And Sometimes Everything But The Truth"

[JM Hanes]

BarbaraS:

"I have no faith in fairness in our judicial system. I lost that 35 years ago when I got my divorce and haven't changed my mind due to recent events."

Funny how that works isn't it? For the average citizen, divorce may be the most common experience folks have with the legal system, and it's almost never a good one. Ironically, seeking resolution in a courtroom is usually the last thing you want to do, because the real wild card in the system are the judges. When you're dealing with elected judges to boot, you never know which way the scales may be tilting.

Frankly, I'm not sure that the deference paid to trial court judges at the appellate level is good public policy at all. And while prosecutors do require a real measure of personal immunity, one of the things that has concerned me most about Plamegate is how limited the options for addressing potential professional abuses actually are. The Nifong case is a timely cautionary tale as well. If Libby had not been indicted or if he had been exonerated, does a practical, affordable, public venue even exist for challenging the constitutionality of Fitzgerald's appointment?

While I believe Libby should never have been charged, I've also found myself in the bizarre position of almost hoping for a conviction, and worrying about a potential pardon, because his case is the only available vehicle, and a highly circumscribed one at that, for addressing what are really systemic flaws. What recourse do even appellate judges themselves have, if, as here, unfolding events throw prosecutorial transgressions into high relief? How tempting it is to argue, just as Fitzgerald did, that an appellate finding in favor of Libby now would be the equivalent of punishing Fitzgerald for his depredations in the Miller case.

[clarice]

TM, I don't understand your post. In a criminal trial the defendant's right to depose witnesses is very circumscribed (death or illness or the likelihood the witness will otherwise be unavailable at trial). Libby had no right to depose anyone. And none of these people would willingly submit to an out of court questioning by his counsel.

If they did not testify before the gj, Libby had only two options-- either put them on the stand cold or pass.

[RichatUF]

I was looking over the Miller opinion and found this...

...Thirdly, appellants argue that their due process rights were violated by the Special Counsel's ex parte and in camera submission of evidence to the court to establish that the United States had overcome any qualified privilege. Finally, they argue that the Special Counsel failed to comply with Department of Justice guidelines for the issuance of subpoenas to journalists, and that the failure to comply is an independent ground for reversal of their contempt conviction...

more

...Given the nature of the guidelines themselves, and the function they govern, we conclude that the guidelines provide no enforceable rights to any individuals, but merely guide the discretion of the prosecutors. We therefore need not reach the question of the Special Counsel's compliance with the guidelines...

I know the issue is limited to the bail question for Libby, but I found this part interesting.

[topsecretk9]

here is an off the wall thought -

There is that reference Andrea made to have spoken to the FBI (and of course Russert did too immediately on that famous Sunday) -- maybe FBI had a chat with Gregory too?

All 3 NBCer's had immediate chats denying any leak and so Fitz chose not to involve Gregory for obvious reasons?

All 3 NBCer's have been awfully cagey and super Proxy Gregory pretty tight lipped.

Not articulating this well - but seems like it would explain just why the Super proxy is being so tight lipped.

[clarice]

The guidelines do say that they establish no enforceable rights to any individuals--that, however, is a far different question that the consitutionality of appointing a prosecutor w/o any supervision who is freed up from following the guidelines at all.

I think Miller had a right to challenge the appointment and failed to--her counsel just nibbled at relatively insubstantial edges of the issue.

[Jane]

Clarice,

Is it typical for a Judge to submit an brief to the Appeals Court on an issue like bail?

[JM Hanes]

Clarice:

"And when you consider it was impossible to get the media to talk voluntarily to the defense that was some good tactic."

*Irony Alert*

Fitzgerald then claims that Libby relied on reporter's discretion to avoid "discovery."

[RichatUF]

For as smart as Bennett is as an attorney those two highlighted arguments seem to go to the Appointment issue (CIPA and DOJ regulation) . Cooper and Miller were only arguing it in terms of press prilivage and the first amendment, but I'm curious why they woudn't have been more explicit in challenging the constitutionality of Fitzgerald.

RichatUF

[Tom Maguire]

In a criminal trial the defendant's right to depose witnesses is very circumscribed (death or illness or the likelihood the witness will otherwise be unavailable at trial). Libby had no right to depose anyone.

OK, then, now I know. A few days ago I read the article where Matt Cooper offered this snark:

Fitzgerald declined to talk with me for this piece, but I spent hours with him before my grand jury appearances and in preparation for testifying at the Libby trial. (I would have met with Libby’s team had they ever asked.)

I infer that their asking would not have been appropriate.

[clarice]

I don't believe it was Bennett who handled the appeal. I think it was Abrams, Richard, and Bennett entered the case later.

Jane, I am unaware of any instance where a lower court judge files a brief to the Ct of Appeals (except for the rare case where he is not the presiding judge but a party--say in an impeachment or disciplinary matter against himself).

[clarice]

TM, it would not have been inappropriate but whatever Cooper says now it would certainly have been futile. I seriously doubt that Time counsel would have permitted that (and there's no question mark at the end of that sentence.)

Cooper's a disingenuous fool.

[RichatUF]

tsk9...

There is that reference Andrea made to have spoken to the FBI (and of course Russert did too immediately on that famous Sunday) -- maybe FBI had a chat with Gregory too?

A blast from the past and here

RichatUF

[clarice]

Yes, I double checked--Abrams handled the Miller appeal.

[RichatUF]

Wow, just driving around google surprised that Miller had problems with her lawyers and NYT in regards to her jailing. I knew she got axed but this is an interesting part of the story. I think it was tsk9 in a thread a long tme ago that speculated that Kristof was working to toss Miller under the bus in the May-July 03 time frame.

RichatUF

[RichatUF]

clarice says

I think Miller had a right to challenge the appointment and failed to--her counsel just nibbled at relatively insubstantial edges of the issue.

Since her counsel was provided by the NYT for a while [note: if your company says they will provide counsel for you always secure your own] would she have cause. I'm not a journalist fan but I can see a point in time where the Miller decision could have some serious blowback effects.

RichatUF

[clarice]

I think Sanger and Pincus did agree to speak to Libby's counsel or they'd not have been called as defense witnesses,but I think anyone slated as a prosecution witness would not informally speak to Libby's counsel.

[clarice]

I was not impressed by Abrams handling of the case, but I don't see her having a shot at suing the NYT or Abrams for ineffective assistance of counsel.

[RichatUF]

claarice-
I was not impressed by Abrams handling of the case, but I don't see her having a shot at suing the NYT or Abrams for ineffective assistance of counsel.

Seems pretty crappy. The NYT's kept pushing her to fight the subpoena and it put her in a jail cell [and she got clawed by MoDo]. And what gets me is that when the defense wanted to quiz her on her other sources [Miller's admission that Plame uses her married name Mrs. Wilson] Fitzgerald objected to every other word out of Libby's counsel's mouth.

This whole operation stinks

RichatUF

[crazy]

You really have to give Comey and company credit for the prisoner's dilemma created by the way in which he appointed the SP and then expanded his jurisdiction. The result has been a Special Prosecutor who REMAINS with all the power of the AG until the SP chooses to shut himself down. In the meantime, operating as his own Justice Department he makes his own personnel decisions, renders his own legal opinions, waives whatever DOJ guidelines he chooses to, MANAGES HIS OWN BUDGET, does not testify to Congressional committees, NEVER REPORTS HIS FINDINGS TO ANYONE - EVER! No one else on the taxpayer's payroll has such a sweet gig.

While the legally gifted have made a number of compelling arguments about why the DAG's appointment of the SP was improper and unconstitutional the real problem from my perspective is how fundamentally unfair it was to those caught in the snare of a shadow Justice Department accountable only to Fitzgerald who in turn is accountable to no one.

Let's play make-believe and assume that it was Armitage or Fleischer or even Joe Wilson that was caught in the SP's snare rather than Libby. Would Comey's delegation of authority be any more constitutional or proper?

I think not. Equal treatment under law went out the window the minute DAG Comey CHOSE to ignore his statutory obligations and appointed Fitzgerald in an unprecedented, inappropriate, and probably unconstitutional manner. Even if the appellate panel misses this, it's hard to see the Supreme's missing this one.

[fortif]

Classified is classified. Millions of Americans are classified. Covert is deniability. Concealment of sponsor rather than the operation. Military. Maybe Plame didn't understand that means sponsor, not operator. http://en.wikipedia.org/wiki/Covert_operation

Comey is relevent only because he chose a criminal conspiracy investigator. Dems saw this as prosecution on Plame. Plame sued. Fitz's problem was not the unlimited authority because he didn't use it to prosecute Plame, so he went with the five year law for some reason we may understand at a later date, when someone does the clean up on Plame's operation.

[RichatUF]

from the Oct 29, 2003 "Tim Russert Show" by why of the JOM archives:

... RUSSERT: Scooter Libby.

WILLIAMS: Right.

RUSSERT: And I am Washington bureau chief, so I was a manager, in effect. He called me to complain about something that he had been watching on MSNBC, and he was rather agitated about it and wanted to make his views known, as a viewer, and I duly noted it and said, `You know, you should call the correspondent directly, or you could call Eric Sorenson'--who was then the head of MSNBC--`or Neal Shapiro'--then head of NBC News--`or I'd be glad to share this information.' I gave him some phone numbers, I believe. He then says that I shared with him the name of Valerie Plame and that she worked for the CIA. I didn't know who Valerie Plame was; I--therefore I didn't know that she could have worked for the CIA. I wish I had. I--Mr. Libby didn't share it with me, although he obviously had confirmed it with other reporters, and to this I wonder why.

MITCHELL: And this was before Novak's column, and it was after Wilson had come out the previous Sunday, four days earlier, on "Meet the Press" and The New York Times.

RUSSERT: Well, that's exactly right. "Meet"--Joe Wilson had been on "Meet the Press" on Sunday, which you moderated because I was on vacation.

MITCHELL: And...

RUSSERT: I came back after that interview, after The New York Times piece, and there was a discussion about Joe Wilson and I didn't know very much. And then when I read Novak's column the following Monday, I said, `Oh, my God, that's it. Now I see. It's his wife, Valerie Plame, CIA, sent him on the trip. Now I understand what everybody was trying to figure out.'

MITCHELL: But you'd already talked to Libby, and you couldn't possibly have shared that name with Libby 'cause you didn't know it.

You can almost see the NBC lawyers with the script in hand mouthing the words

RichatUF

[JM Hanes]

RichatUF:

As I recall, Bennett actually chose not to make the 1st Amendment argument in his challenge, but opted for due process grounds instead. I remember thinking that he made the wiser choice after reading the motions filed on behalf of other reporters. I didn't remember the ex parte submissions component though, which just goes to show that what once seemed unremarkable as a single instance may be thrown into a different light as pattern this time around, doesn't it? Of course, I may be thinking of a completely different pleading, perhaps his motion in Walton's court which, I believe, was denied in part and granted in part.

I suspect that there is a substantive difference between ignoring guidelines and abrogating regulations, but Fitzgerald, if he addresses the Special Counsel regs at all, will probably seek similar refuge in the explicit disclaimer on the creation of rights included there. It looks like a red herring in Libby's case, where the existing regulations point toward a defective appointment rather than abuse of a posited individual right, but I wonder if it's one TeamLibby may need to address.

On a tangentially related subject of "guidelines," I arrived at ScotusBlog via cboldt's earlier link to HowAppealing, where it seems that sentencing guidelines are what's for dinner these days:

The Supreme Court ruled on Thursday that a federal criminal sentence within the Guidelines may be presumed to be reasonable when the case is on appeal. However, it said that such a presumption is not binding.. Although the Court was divided in some respects, the vote on the result was 8-1 with only Justice David H. Souter dissenting in Rita v. U.S. (06-5754).

The decision dealt only with a standard for within-Guidelines range sentences. It did not address below-range sentencing -- an issue that it will be considering in its next Term, starting Oct.1 in the case of Gall v. U.S. (06-7949), granted review on June 11.

Haven't checked out the issue in Gall v US, but I'll be interested to see if Fitzgerald's bizarre sentencing calculations show up when Libby's official appeal finally appears before us fully fleshed.

[Rick Ballard]

Walton's 30 pager is a marvel of logical inconsistancy in the rebuttal to the CIPA argument. If I follow him correctly, he's presenting four arguments in the alternative:

1)Libby didn't catch it at the time, so phhbt - you lose Libby.

2) It was a mere legal procedural technicality, so phhbt - you lose Libby.

3) Just 'cause Fitz might have bent, spindled and mutilated a statute doesn't mean that he was unsupervised, so phhbt - you lose Libby.

4) (fn 22) It was a harmless error anyway, so phhbt - you lose Libby.

I'm sure that others will do a more thorugh job of dissection but it would be a kindness if someone broke Walton's word processor - "more" don't mean "better".

[Tom Maguire]

All 3 NBCer's had immediate chats denying any leak and so Fitz chose not to involve Gregory for obvious reasons?

Maybe, but...

Russert was dragged into the story by Libby in oct 2003.

Mitchell was dragged into the story by Joe Wilson and the WaPo in late September 2003 (what a very special time for me...)

But Fleischer only mentioned Gregory after he got immunity in Jan 2004.

So sure, maybe the FBI asked him in fall 2003 just to cover the bases, but they had no particular reason to.

[RichatUF]

correction to above:

from the Oct 29, 2003 "Tim Russert Show" by why of the JOM archives:

from the Oct 29 2005 "Tim Russert Show" by way of the JOM archivee:

also

RUSSERT: Well, ironically, when I was asked about this, I said, if I had known this, I would have told Andrea Mitchell. I would have told Pete Williams. [note: interesting he leaves out Gregory, who is sitting next to him]

MITCHELL: In fact, Tim, you would have called me and said, `You hosted "Meet the Press" and questioned Joe Wilson and covered the agency and you didn't know that the wife--what's going on with you?'

RUSSERT: And I did call Neal Shapiro, the head of NBC News, and say, `You know, we have this high-level viewer complaint about what's on cable,' and that--you know, that was the extent of my sharing information with Neal Shapiro.

GREGORY: Wait...

[...]

RUSSERT: ...when I read it in Novak, boom.

GREGORY: And it is interesting--it's also interesting, I should just point out, that nobody called me at any point, which is unfortunately...

RichatUF

[RichatUF]

a typo in my typo correction:

archivee...archives

RichatUF

[clarice]

On another website, Terriye whom I like very much was offended when I responded to the claim that we needed farm worker visas to pick the crops, that if we had no cheap labor we'd invent robots.

Well, they're here:
"As if the debate over immigration and guest worker programs wasn't complicated enough, now a couple of robots are rolling into the middle of it. Vision Robotics, a San Diego company, is working on a pair of robots that would trundle through orchards plucking oranges, apples or other fruit from the trees. In a few years, troops of these machines could perform the tedious and labor-intensive task of fruit picking that currently employs thousands of migrant workers each season. "

http://www.wired.com/science/discoveries/news/2007/06/robo_picker

[JM Hanes]

crazy;

"Let's play make-believe and assume that it was Armitage or Fleischer or even Joe Wilson that was caught in the SP's snare rather than Libby. Would Comey's delegation of authority be any more constitutional or proper?"

Funny you should ask, because in an earlier post in this very thread, I think my last paragaph makes the answer pretty clear. I certainly don't lack for company here, where so many have chosen to channel their outrage into crafting the compelling arguments you note.

I'd worry considerably more about the folks who are willing to give Comey & Fitzgerald a pass on the legalities because they don't like Libby, or even worse, because they don't like Cheney or Rove and are just making do with whatever they can get.

[RichatUF]

...Because leak cases typically require the government to investigate itself, if leaks reveal mistakes that high-level officials would have preferred to keep secret, the administration may pursue the source with excessive zeal, regardless of the leaked information's public value. Of course, in this case a special counsel was appointed to exercise independent judgment. Yet independent prosecutors, too, may skew their assessments of the public interests implicated when a reporter is subpoenaed. After all, special prosecutors, immune to political control and lacking a docket of other cases, face pressure to justify their appointments by bagging their prey. Cf. Morrison v. Olson, 487 U.S. 654, 727-28 (1988) (Scalia, J., dissenting) (noting "the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation" and observing that "the primary check against prosecutorial abuse is a political one"). To be clear: I do not impugn the motives of this special counsel.

Tatel concurring, "Scope of Privilege"

JM Hanes-

I clipped these from the Miller decision. I'm only scimming the opinion right now. There was a discussion here earlier if Fitz might have "shaded" the truth to get Miller [and Cooper's] testimony. I'm just curious if these issues can make a basis of an appeal on the judgement [not the bail question].

RichatUF

[JM Hanes]

Rick:

The phhbt phactor, I like it!

Hit:

"The Truth, The Whole Cloth, The Scissors"

[SlimGuy]

Even with all the specific issues regarding this trial, there is a much larger issue the I believe JMH spoke a bit to earlier.

The country has just gone through the whole issue of the Duke/Nifong issue and it is hard to believe that even with their most dedicated adherance to the issues of the law that the appelate court is not blind and dumb to all the issues related to the prosecution.

I look at it as a two edged sword.

Either the court will crack down and take the narrowist view to show a secure law and order aspect to restore faith with the system or secondarily they can lean toward giving the benefit of the doubt to remove the onus that courts and prosecutors are out of control and they will mend that fabric by showing compassion and latitude.

Even beyound the specifics of the issue, it is possible this bigger picture image could come into play and now the past history of the components of the judge panel would have to be examined in depth to see which side they will fall down on.

However I do believe that the Nifong issue can not be fully dismissed as to playing a part into the outcome here. 

 

 

[Looking_For_a_Way_out]

"the real problem from my perspective is how fundamentally unfair it was to those caught in the snare of a shadow Justice Department accountable only to Fitzgerald who in turn is accountable to no one."

Everybody seems really upset about how "unfair" Fitzgerald was, but how does his status of "Special Prosecutor" have anything to do with the "fairness" of his actions. So Fitzgerald didn't have to ask Comey, Gonzales and Ashcroft for approval for subpeonas, that was the whole intent of their recusals, they wanted the investigation to proceed without the cloud of Bush adminstration manipulation. All US Attorneys have immense power to make witnesses and accused absolutely miserable, and they frequently use this power to great effect. Where did Fitzgerald's actions cross the "fairness" line that differentiates this prosecution from others? From the arguments I've read here and elsewhere Fitzgerald might have signed something he shouldn't have. Is that all he did wrong? Is that the "fundamental unfairness" in his actions? Is there anything more here than grasping at straws for Scooter's appeal?

[Jeff Dobbs]

OK, scolling through the transcript in the Libby filing of the Walton hearing, the ending reads rather funny, Fitz has to remind Walton that Libby can appeal...given more time and attention than I have available right now, this exchange would be ripe for some VIWH (voice in Walton's head) editing...

MR. ROBBINS: YOUR HONOR, I WOULD RESPECTFULLY ASK THAT THE VOLUNTARY SURRENDER BE STAYED UNTIL THE DISPOSITION

...

THE COURT: I WILL DENY THAT REQUEST. THANK YOU.

MR, FITZGERALD: YOUR HONOR, I THINK TECHNICALLY WE NEED TO ADVISE THE DEFENDANT OF HIS RIGHT TO APPEAL.

THE COURT: I'M SORRY. YOU'RE RIGHT. MR. LIBBY, YOU DO HAVE THE RIGHT IN THIS CASE TO APPEAL YOUR CONVICTION TO THE COURT OF APPEALS. YOU HAVE TEN DAYS FROM TODAY'S DATE TO FILE THE APPROPRIATE PAPERS

[SlimGuy]

Looking

As a non lawyer and having the viewpoint many others only have, my perception from having looked at some past history of Fitz and his performance in the Libby trial and now in the Conrad Black trial, is that he works the system in all manners he can to get gotcha outcomes.

None of them seem to rise to the level of Perry Mason moments exploding justice in full bloom despite high odds.

For the general public the impression is that if you are caught up in the maws of the court then just bend over and kiss it and pray that you don't get slammed too bad, or if you are challenging something in the court, you feel like you are the ant climbing up the leg of the elephant with eros on it's mind.

Is that the kind of "Justice" system we want in either case?

[Bill in AZ]

clarice, grape harvesting machines were in use on massive operations like Gallo, and some of the large Australian operations many years ago. I was in the business during the 90's and they were in considerable use even then. The machines were a bit too hard on the fruit for the premium wines, but the premiums tend to grow on steeper hillsides that put them out of reach of the mechanical harvesters. But for the bazillion acres of grapes on flat land in CA and Australia, they would work fine.

[RichatUF]

Looking...

...the whole intent of their recusals, they wanted the investigation to proceed without the cloud...

I remember the Fitz closing as well.

...cross the "fairness" line that differentiates this prosecution from others? From the arguments I've read here and elsewhere Fitzgerald might have signed something he shouldn't have...

The signing is a symptom of a much large problem [never mind the left seeming to enjoy unaccountable prosecutors working in secret when they indict those of the proper political affiliation]...but then I suppose Team Wilson is getting their talking points out. One would think, one of those journalists caught up in this mess, might just be curious enough to ask why this story is so important to Joe and Val Wilson.

RichatUF

[Jane]

I'm still stuck on the fact that Walton submitted a brief. It simply blows my mind.

[vnjagvet]

Rick:

Any time a judge uses the phrasing "mere legal procedural technicality" [emphasis added] you don't need to go to the end to check his conclusion.

If you are the defendant, you are getting hosed.

[cathyf]

Well, looking, I see a coule of instances where Fitzgerald committed perjury, obstruction of justice, suborned perjury, committed conspiracy to obstruct justice and suborn perjury, and violated grand jury secrecy.

But you don't think any of that is important...

[RichatUF]

and OT food for thought...

Seems bribery and corruption run in the Jefferson family.

Culture of Corruption

RichatUF

[SlimGuy]

BillinAZ

Sensors of all kinds are jumping in capability as time goes by. 8bit sensors or less have been overridden by 16 and 24 and 32 bit resolution sensors.

Grasping manipulators can be reconstructed to adjust impact.

I have personally seen workers in mass replaced in the cabbage/lettuce picking industry and the pineapple sector.

After all labor consisted of going down a fixed row and cutting at ground or stalk level.

Not a hard to solve task.

[PaulV]

why would a judge file brief unless he knew that there are major problems with his actions?

[clarice]

He filed a brief? Isn't that simply his written opinion?

[Jane]

It just strikes me as a little odd to have enough of a stake in one's ruling to write a brief. I guess Walton isn't one of those Judges who welcome the guidance.

[Jane]

Hmmmm, you are right Clarice - and that's what has me so screwed up about this - but I'm wrong. It reads like a brief to me, like he is arguing for Fitz.

[clarice]

Yes--it's just a long (30pp) opinion.
http://www.esnips.com/doc/43a3c72f-dc68-4be4-8e44-a6b54238cac9/ScooterLibbyDistCtOrderDenyingReleasePendingAppeal>Walton on Walton

[Jane]

I'm sorry for my thick-headed confusion.

[clarice]

Hey--join the gang,Jane.

Let me guess, Jane..when even Richard Cohen isn't happy with the outcome he feels a need to justify what he's done..

[Jane]

Well I really should have known better...

[SlimGuy]

First off, I admire all of you well thought out and dispassionate logical fine commentors on the issues of the law no matter how obscure have examined this case.

But you are a limited community.

John Q Public still has the view that maybe Ralph Nader hit the wrong target in his book "Not Safe at any Speed".

[clarice]

I found amusing J Walton's argument that Libby asserted no harm from the 6(c) violation. How could he(he can't know what he can't see) except in the general terms that in so doing Fitz alone decided what he could see and use and that the reason in the Statute for having someone else sign was to make some superior officer accountable should it be found that the designation was improper and for tactical, not national security reasons?

[sylvia]

"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. "

Okay TM I'm glad you brought that up again. I was still a little confused on the issue from your earlier linked posts. So according to what some leftie bloggers replied to this when you wrote about this earlier, Fitz had access to all of Plames employment records (so they thought Fitz had to know enough to resolve this issue) even if we didn't get to know about them. So if Fitz had access to them, why wouldn't the rules of disclosure apply and the defense have access to them as well?

Now I briefly reread your old linked post, and the defense said something about that they did also have access to the same piece of information, and they saw that the term covertness just referred to the interal CIA meaning, so it didn't fly for them. So do we know whether Fitz had had access to MORE specific info than the defense had on this somewhere, and if so, why didn't the defense get it as well?

[BobS]

Tom/everyone:

Is there anyway we can STOP using the word, "leaked," as no such thing occurred. The word implies that someone knowingly did something wrong. Fliescher did not "leak" Plame's name to Gregory, et al. He mentioned her name in discourse. Even Fitzgerald didnt prosecute anyone for leaking-as none occurred. Libby got two years for remembering a conversation different than Tim Russert and was fouing guilty of lying. This is a far cry from leaking something.
Forgive the semantics, but the word "leak" is part of the public's discourse on this matter.

[alcibiades]

I'm like Clarice, I keep thinking good sense ought to prevail eventually. But at this point, I'm not at all sanguine that it will.

[RichatUF]

Wow...from Walton on Walton...

In its April 27, 2006 Memorandum Opinion addressing this issue, the Court undertook a thorough and painstaking, yet ultimately straightforward analysis of the role of the Special Counsel in the constitutional firmament, concluding easily that the scope of the Special Counsel's duties and authority fit "squarely into the mold of [Morrison v. Olsen, 487 US 654(1988)],[in which] the Supreme Court concluded that the independent prosecutor [in that case] was an inferior officer."

RichatUF