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.

Comments

[Charlie (Colorado)]

I can't think of another time I more wanted to be mistaken.

[Jeff Dobbs]

Title of Post:

Libby To Jail, Soon

Concluding Sentence:

A greater surprise will be if an appeals court does not grant Libby relief pending a full review of his appeal.

[vnjagvet]

I agree with you, Tom. Had Walton ruled in Libby's favor, it would have been a huge surprise. As it is, I am reasonably sure the Libby team was prepared for this development and will merely fill in the blanks it left in its already prepared appeal on the "rulings of the court below".

Walton's snarky footnote to the Order granting leave to file the Amicus Brief will, IMHO, not serve him (or Fitz) well before the DC Circuit.

I predict GWB will not have to exercise any of his executive options to keep the Scooter out of the clink.

The Judicial Branch will do the heavy lifting here.

[Pal2Pal (Sara)]

OT - via Sweetness and Light and al-Jazeera:

The United Nations has extended its mandate for US-led forces in Iraq after the country’s foreign minister said they were “vitally necessary” for security and regional stability.

Hoshyar Zebari called the UN security council’s move “very positive for Iraq”.

He said all Security Council members understood “what the Iraqi government is facing”, illustrated by the bombing of Samarra’s Askariya shrine on Wednesday by “terrorists … seek to destroy the fabric of Iraqi society”.

The resolution adopted by the Security Council last year, which extended the mandate of the multinational force for one year starting on December 31, authorised a review of the mandate by June 15.

At an open council meeting, Zebari said that despite Iraq’s daily violence, “the government has made tremendous strides toward the day when security will be provided by a self-sufficient, Iraqi national security force”.

He said: “While Iraqis will always be grateful for their liberation from an absolute despot, no Iraqi government official - indeed, no Iraqi citizen - wants the presence of foreign troops on Iraqi soil one day longer than is vitally necessary.

“But today, and for the foreseeable months at least, the presence of [foreign] troops is vitally necessary not only for Iraq but also to safeguard regional security and stability.” …

And for our educationally challenged trolls who I'm sure have forgotten -- yes, we are there under UN mandate.

[cathyf]

Walton's explanation of his Mitchell ruling is comedy gold (punchline emphasized): ... Hint to judges everywhere - the American system of jurisprudence is not predicated on the notion that defendants and prosecutors get absolutely equal treatment.

Hon, consider this the most gentle of criticism, but you missed the punchline. The punchline is that Walton conducted a trial which was, in its entirety, "asking the jury to draw inference upon inference upon inference that [was] rank speculation absent evidence." And the secondary punchline is "If the government had tried to make this kind of case it clearly would be reversible" in a hearing where Walton ruled it wasn't close to reversible!

[MJW]

When the supposedly limited nature of Fitz's mandate was argued, Libby's side should have brought up the extensive investigation of the NIE disclosure. As cathyf pointed out recently, the NIE didn't contain the identities of any covert agents. Though it was arguably "related" to the Plame investigation, since it occurred at least in part in response to Wilson's op-ed, I think there's almost no doubt that under the old independent prosecutor law, the prosecutor would be required to seek approval to expand the investigation (and might well be denied). Many on the left side hoped Fitz would investigate the whole subject of pre-war intelligence, and under the broad interpretation or relatedness that allowed the NIE inquiry, he could have. (I recall that there was information that Fitz also looked into the yellowcake memo forgery -- if so, thats more evidence of the expansiveness of his mandate.)

[vnjagvet]

Reading the additional excerpts of Judge Walton's rulings today, I am struck by his loose reasoning.

This is even more grist for the appellate mill to grind when it frees Scooter.

There will be wailing and gnashing of trollteeth.

[Pal2Pal (Sara)]

Is it my imagination or did I miss an article? It seems NRO/The Corner people have been deafening in their silence since the defense response was filed.

[Pal2Pal (Sara)]

Jeralyn says that from her own appeals experience, Libby will be in jail before the DC Court rules on the appeal. Will they really act that slowly?

[Cycloptichorn]

There will be wailing and gnashing of trollteeth.

Strangely enough, this has been predicted for some time, and has failed to come to pass as of yet.

Maybe by the next deadline. But I doubt it.

[clarice]

vnjagvet, I so hope you are right. I remember many times being in despair about what I thought were unjust rulings and just girding up, going back into the fray and eventually prevailing, but the toll on the innocnets of bad decisions is harder to bear as I get older.

[MJW]

As much as I hope the appeals court will overrule Walton on the bond issue, and as much as I think they should, I'm not particularly hopeful. A few days ago, cboldt linked to some articles on the issue, which suggested that, due to the nebulous nature of the "substantial" question requirement, the appeals courts tend to rubber-stamp the trial court's decision.

At least the brief should be entertaining to read; unlike in a pleading submitted to Walton, there will be little reason not to openly disparage Walton's reasoning.

[cathyf]

Reading the additional excerpts of Judge Walton's rulings today, I am struck by his loose reasoning.

This is even more grist for the appellate mill to grind when it frees Scooter.

If the appellate court rules Fitzgerald's appointment unconstitutional, then all of that other nonsense becomes moot and will never see the wrath of appellate scorn.

If anything, a significant possibility is something like this: the appeal of this decision today will cause the appellate court to examine the question of whether the stated appeal bases are close questions. They will decide that the appointments clause question is very serious, and, after granting Libby bond, will request that the two sides brief on that question first. Then they will dismiss the indictment and vacate the conviction and sentence, without anybody even getting to the point of briefing on Fitzgerald's and Walton's misconduct at trial.

I might believe that Walton even planned it this way, but I can't imagine such a sophisticated thought being managed by such a witless bully.

[Tom Maguire]

Re "Concluding Sentence: " - how often are we told that the headline writers don't always talk to the guy who did the story?

Of course, this case has me talking to myself...

[TexasToast]

Actually, Tom, I have a suspicicion that, as is often the case, your first reaction is the "answer", so the headline is probably closer to the truth .....

[fortif]

UN. They just made a move in Afghanistan after the Karzai asassination. The insurgents were arrested. Some Afghan police got shot too. Iraq and Afghanistan have a connection since the US started talking to the Taliban and Iraq insurgents at the same time; then there were the coordinated attacks. It seems to be a mistake to talk to both, but Pakistan isn't an option.

The NIE is not a response to Joe or Val. While they may have been allowed to make some big deals that will damage the US, espceially after the attacks, the NIE is not a response to them.

Why hasn't Plame been served for lying? It can't be any clearer she was, so what is the reason for the stall?

[Jeff Dobbs]

TM:
Of course, this case has me talking to myself...

Well hey, you have yourself much better positioned than say if you made a 70% prediction one way or the other.

[anduril]

(I recall that there was information that Fitz also looked into the yellowcake memo forgery -- if so, thats more evidence of the expansiveness of his mandate.)

Posted by: MJW | June 14, 2007 at 04:07 PM

Slight correction, MJW (and I appreciate your posts): it's more evidence that he was the one who ultimately defined his own mandate--as "the functional equivalent of the AG." Any glimmer of "related" and it was his if he wanted it. Read Scalia in Morrison on that "related" business.

[anduril]

Hint to judges everywhere - the American system of jurisprudence is not predicated on the notion that defendants and prosecutors get absolutely equal treatment. This is a trial that might send a man to prison, not a basketball game; defendants routinely get treatment that would not be allowed a prosecutor, starting with "innocent until proven guilty", running past "the right to confront witnesses", and including the right to imply the prosecution witnesses are hiding something even if the incurious prosecutor has not bestirred himself to examine that possibility.

Oh, Tom, that's, like, sooooo old school! Are you, like, Atticus Finch?

Hey, if you don't laugh...

[clarice]

That's true, MJW--absolutely so. He traveled to Rome to look into it. Very good catch.

[cathyf]

But of course the yellowcake memos were inside the constraints of Ashcroft's recusal. 'Cause, ya' know, Karl Rove must have created the forgeries, right?

[Pal2Pal (Sara)]

Repeating my question from 4:16:

Jeralyn says that from her own appeals experience, Libby will be in jail before the DC Court rules on the appeal. Will they really act that slowly?

[Other Tom]

At each and every step, the Left seems to think it's over. It's not: wake me when Libby's in jail.

[RalphL]

"That's true, MJW--absolutely so. He traveled to Rome to look into it. Very good catch."

Well, who wouldn't, when someone else is paying?

IANAL, but it sounds like Waltoon is confusing judicial impartiality with neutrality in the law, perhaps because he thinks he is the law.

Looks like honest, criminal-coddling liberals would be all over that.

[RalphL]

70% don't know who Libby is.

"honest, criminal-coddling liberals"
sorry, that's an oxymoron.

[clarice]

Really digging about in the old files bin or is that the best Jason can do at the moment? 7 days to countdown on one year anniversary of his promise to reveal all about the Rove sealed indictments! I cn't wait.

In the meantime, though it's wayyyyyyy off topic, I love this.
http://www.reason.com/blog/show/120785.html

Once again the global waming nutters propose solutions to impoverish the poor and waste resources, including energy.

[RichatUF]

MJW says...

I recall that there was information that Fitz also looked into the yellowcake memo forgery -- if so, thats more evidence of the expansiveness of his mandate...

Whoa...I'm stunned, and that is saying something in this trial. Fitz [per Clarice] traveled to Rome to investigate the Niger forgeries. I thought Rockefeller and Levin had the FBI investigate them in March and April 03 and the FBI investigation of the matter determined that it was that doc forger Rocco for profit. I didn't think Fitz's mandate was so expansive that it included the forged documents-now I'm sort of creeped out.

RichatUF

[Other Tom]

Buck up, folks--our main main Paul Potts made the papers in Oz, and he may perform for the Queen. I love this story, even without Martinis. (I almost fear to watch after the cocktail hour begins. Hanky time.)

http://www.news.com.au/story/0,23599,21904047-2,00.html

[Pal2Pal (Sara)]

SCOTUS Rules Against Union Election Spending

States may force public sector labor unions to get consent from workers before using their fees for political activities, the Supreme Court said Thursday.

[Pal2Pal (Sara)]

RE: Paul Potts

I have seen about 5 minutes of the talent show and landed there by fate or accident while surfing the channels. I too reacted to him with leaky eyes.

[fortif]

Fitz travelled to Rome. The document was from the Niger embassy there. Forged documents are a FBI specialty with currency, etc. coming under Secret Service. Rumor is the CIA came out with the forgeries.

FBI moved overseas and has gone downhill ever since. I wonder if Fitz went to see his pal Chayes from Harvard in Afghanistan.

Maybe Potts should bet Knighted. OZ?

[CH]

"Nearly 70 percent of Americans oppose a presidential pardon for former White House aide Lewis "Scooter" Libby after his conviction on perjury and other charges related to a CIA agent's exposure, according to a CNN poll out Monday."

Yea, but if President Bush orders that Libby's jail sentence be suspended awaiting an appeal, I believe that a majority of the people would agree with that.

[Other Tom]

CH: Doesn't matter whether they agree or not. How many agreed with the pardon of Marc Rich?

[Jane]

So here is what I want to know:

Who sits on the Appeals Court?

Is this initial emergency appeal heard by 1 Judge, 3 Judges or the whole panel? Has it been filed? How soon after filing will it be heard? If it is denied at the first Appeal - the emergency stay not the whole appeal, what if anything are the options?

[Jeff Dobbs]

Other Tom:
I almost fear to watch after the cocktail hour begins. Hanky time.)

Yeah, I can't watch videos at work, so I just now got to it.

Two beers in and now my wife and neighbor are making fun of me for tearing up.

[Pal2Pal (Sara)]

Ruth Graham, wife of Billy Graham died at 5:05 today. I cannot imagine what it would be like to lose your spouse of 65 years.

[RalphL]

"Huffingtong Post"

I like it.
Clarice has been giving typoing lessons.

[Other Tom]

"Senate Majority Leader Harry Reid today refused to say whether he called outgoing Joint Chiefs of Staff chair Gen. Peter Pace incompetent, but he did say he thought Gen. Pace 'had not done a very good job.'

"John McCain called Reid's comments 'highly inappropriate and regrettable.'"

--Real Clear Politics, June 14

Reid was at 19% approval before this story broke.

[clarice]

h & r, can we put you in charge of organizing the Jason Leopold anniversary next week? And if we do, can you promise not to spend all the party fund on booze--I mean this time throw in a couple of pretzels or something...?

[fortif]

Mr. Moore. Roger. You know Clinton is Irish too and there is that Oxford company.

Better novel: Plame was using Joe to get him to go bad like Howard and Ames CIA trainer. Use him as a bad agent. Plame later joins PC as a retired teacher and goes to Joe's country.

[Jane]

OT, that latest clip from the AU is longer and even more fun. I can't get enough of Mr. Potts, that's about my 10th go thru.

[Jeff Dobbs]

And if we do, can you promise not to spend all the party fund on booze--I mean this time throw in a couple of pretzels or something...?

How about goldfish? We've lots of goldfish. And some of those cheese-n-crackers...school's out now so we don't need those for lunches...

[Jane]

I'll bring the pretzel's Clarice - spend it on the booze!

[Jeff Dobbs]

I can't get enough of Mr. Potts, that's about my 10th go thru.

Good -- mrs hit and run and the neighbor just hopped in the car to get more beer. And pizza*. So I can get more Potts without the ridicule.

-----------
*Hey, if you want we can have the Jason party tonight. We'll have plenty of beer and pizza....

[Jeff Dobbs]

Jane:
spend it on the booze!

I'm picking up pinot grigio for you.

Or is there something else you would rather?

[RalphL]

Is someone channeling Carol Herman?

[Other Tom]

I'm pretty sure the emergency appeal, as well as the ultimate appeal, will be heard by a three-judge panel. They will be selected randomly from the twelve-to-fifteen judges on the circuit court.

Sometimes (at least in the Ninth) a district court judge will be picked as one of the three. Don't know how that works.

[PatrickR]

'TO THE BORDER OF SMART-ASSERY'

Which was the only proper response to the trip deep into the heart of DUMB-ASSERY of Walton; i.e., that Scalia's Morrisson dissent supported him.

Of all the stupid--not worthy of a first year law student--things Walton has said in this case; the jury didn't need a memory expert, Andrea Mitchell didn't really tell Gloria Borger that she knew about Wilson's wife (when she admitted to Imus that WAS what she'd said), that the prosecution was protected by the V and VI Amendments and deserved a fair trial, that Libby would be crazy not to testify, the; 'Yo, Antonin's my main man.' was the perfect cherry for this parfait.

[clarice]

OT: That's how it worked here the last time I had to do that.

I can't tell from the Court's website who is on the rota now. Here is a list of the judges and their bios. (I do hope Judge Brown is on the panel. Like cathyf she is a staunch federalist with a good grasp of the Constitution.)

http://www.cadc.uscourts.gov/internet/internet.nsf/Content/Stub+-+Biographical+Sketches+of+the+Judges+of+U.S.+Court+of+Appeals+for+the+DC+Circuit>Court

[listener]

Can anyone help me understand what sort of precedent would be set if the appointment of a prosecutor - with the powers of the attorney general - were upheld?

If I were a swampie I'd stop and think about that but then I'm guessing foresight is not on their resumes

[clarice]

h & r--How long have those goldfish been sitting around the Run house?

[fortif]

I thought Carol Herman donated to NPR.

Picture of Hillary with a Plame clone. Looks like Hillary went back in time to see Plame graduate. There is a posibility it is someone's Chef's daughter. Notice the large forehead. I think she called it a Valice.

http://www.pr-inside.com/u-s-judge-will-not-delay-libby-s-r153753.htm

[Jeff Dobbs]

Clarice:
How long have those goldfish been sitting around the Run house?

Well about half of them are on the floorboards of the car.

But they're still good. Not old at all.

[vnjagvet]

From the AP report (hattip, Eugene Volokh)

[U.S. District Judge Reggie B. Walton] never appeared to waver from his opinion that a delay was unwarranted. After 12 prominent law professors filed documents supporting Libby's request, the judge waved it off as "not something I would expect from a first-year in law school.

Those guys really got to Walton. He was not amused that they would call it a close question, even though that is the test for substantial chance of reversal under DC Cir. precedent.

You wonder why he would telegraph his sensitivity so obviously.

[Paul]

Walton on the Dershowitz, Bork, and others submission: "They're very bright people, no question, but the submission is not something I would expect from a first-year law student."

Perhaps Walton should quit his day job and be a stand-up comedian?

[Jeff Dobbs]

Will any or all of the 12 follow up with an amicus brief to the appellate court.

Will any of them, in writings outside of the courts confront Walton on his asshattery.

[clarice]

Well, I suppose we should be grateful that he's a slight improvement on the D.C. administrative judge who's suing the mom and pop dry cleaners for $54 million because they couldn't find his pants for a couple of days.

[clarice]

I think Dersh responded out of court that 505 of his time is taken up with pro bono work and another said that he's lucky when he does his pro bono work-Paris Hilton's in his district.

I wouldn't count on them following up on the merits, but can't see why they wouldn't file a similar brief respecting the bond issue in the Ct of Appeals.

[clarice]

50%

[Jane]

I'm picking up pinot grigio for you.

Well I'm onto Pinot blanc but it's harder to find - and of course grey goose - anytime is a good time for grey goose.

Isn't Harry Reid a moron? He's got the same approval rating as Libby which is a huge insult to Libby.

[Jeff Dobbs]

Can we entice one of the amigos and offer him space here to respond to Walton?

[Rick Ballard]

vnjagvet,

He's a hanging judge in DC who has put a lot of grist through the mill (and, boy, is there a lot of grist in DC). As a Republican appointee and a hardass in a town with citizenry that reelected Marion Berry to the city council and just found him not guilty of flagrant drunk driving, where does he hear an encouraging word?

He's applying the law to Libby in the same manner that he applies it every day to the grist. The same way that Fitz does prosecutorial gymnastics every damn day to ensure that the people he considers guilty of something get their just desserts.

They just apply situational ethics and moral relativity in a manner that assures the outcome, in the same way that the jury which found Berry innocent applied the very same ""principle"".

[Looking_For_a_Way_out]

"Fitzgerald did not earn his reputation as an Irish alligator by going after the little guy."

Yeah, Libby's best bet for avoiding jail at this time is to bring Fitz something he can use against somebody further up the food chain. I don't think that person is Rove, however. I think its probably Dick. Libby could have been the man behind the leak without Dick, but EW has done a pretty good job sniffing out a trail of evidence back to Dick. Well in all honesty, those notes don't require a great deal of inference.

Rove's a political guy. Cheney's already made something like $50million off the war, he had a financial interest in it. Bush liked the idea of war in Iraq, but it was Cheney that did the dirty work to make sure the intelligence was fixed to support it. For Bush maintain "plausible deniability" Cheney had to get the dirt on his hands. Cheney was the one going out to CIA and working with OSP. How'd those 16 words get into that SOTU after they'd been pulled from a speech three months earlier? Did Bush put them in himself? Why did Powell omit the entire Uranium from Africa issue from his embarassing performance at the UN? Somebody was pushing that story at the President but others weren't buying it. I'd sure love to see the revision history of that SOTU. I bet it tells quite a story.

[Charlie (Colorado)]

Can we entice one of the amigos and offer him space here to respond to Walton?

I tried asking Randy Barnett what he thought of the footnote. no reply.

[Looking_For_a_Way_out]

Walton on the Dershowitz, Bork, and others submission: "They're very bright people, no question, but the submission is not something I would expect from a first-year law student."

Perhaps Walton should quit his day job and be a stand-up comedian?

Posted by: Paul

It was a killer line. Along the lines of a Rickles, a real needler.

[Pal2Pal (Sara)]

I did not know until I read it here today that Fitz had traveled on the gov't dole to Italy ostensibly to investigate the Niger Forgeries. This seems way way way out of bounds and I think it needs broader coverage. How could the forgeries even conceivably tie into his original charge to investigate the leak? Who was supervising this Italy trip?

[clarice]

http://www.americanthinker.com/blog/2007/06/post_49.html

I vote for grey goose.

[sylvia]

" If she did, it’s conceivable she would have told Russert. Therefore Russert could have heard as your client supposed. If that’s the chain of inferences then we may as well throw out rules of evidence."

Well Walton has a peculiar view of a trial in my opinion. In a trial, the jury is supposed to evaluate the credibility of witnesses, especially if it comes down to a "he said he said" like it did judging what words were spoken in the conversation between Libby and Russert.

Providing background information on what was possible for Russert to have known at the time of the conversation is not "inference", it is called "evidence". I think it's a little better to have as much background information on possible knowledge than to merely guess on who's telling the truth just by their likablity or attitude on the stand. Now THAT is an inference!

[cathyf]

Looking at the list, there are some dubious characters. Certainly a crapshoot as far as whether Libby draws a panel with cranio-recto inversion -- there are certainly judges who could supply that viewpoint.

I wouldn't be so sure that Tatel would be a disaster. If he ever figures out that Fitzgerald played him for a fool, he could turn quite viciously on him.

Well, anyway, we'll see how the dice roll -- there's always the Supremes. You can fault one or the other of the Supremes for a lot of things, but dimwitted bully doesn't work for any of them.

[anduril]

Since the question of Morrison as compared to Edmond loomed fairly large in the oral arguments:

TO THE BORDER OF SMART-ASSERY: Libby's newest counsel, Lawrence S. Robbins, was pushing it here, as he and Walton discussed the constitutionality of the Fitzgerald appointment:

Walton: But the law will require review of individual factors of each case and situation, and in the context of each case, Edmond versus Morrison, which fact situation is most applicable to this case. Edmond related to military and is not as clearly applicable. Also, re: Scalia, if we had a situation where the special counsel could be removed at will, this would have changed his position regarding Morrison.

Robbins: Well I doubt that since I was there when Scalia read his opinion.

Perhaps we can shed some light on the discussion by quoting Scalia's opinion in Edmond. Not surprisingly, Robbins seems to know what he's talking about and Walton seems to have his head...

Well, read it yourself--Scalia in Edmond commenting on Morrison:

Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointment Clause purposes. ... Most recently, in Morrison v. Olson, 487 U.S. 654 (1988), we held that the independent counsel created by provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 591-599, was an inferior officer. In reaching that conclusion, we relied on several factors: that the independent counsel was subject to removal by a higher officer (the Attorney General), that she performed only limited duties, that her jurisdiction was narrow, and that her tenure was limited. Id., at 671-672.

... However, Morrison did not purport to set forth a definitive test for whether an office is "inferior" under the Appointments Clause. To the contrary, it explicitly stated: "We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view [the independent counsel] clearly falls on the `inferior officer' side of the line." 487 U. S., at 671.

...

Generally speaking, the term "inferior officer" connotes a relationship with some higher ranking officer or officers below the President: whether one is an "inferior" officer depends on whether he has a superior. It is not enough that other officers may be identified who formally maintain a higher rank, or possess responsibilities of a greater magnitude. If that were the intention, the Constitution might have used the phrase "lesser officer." Rather, in the context of a clause designed to preserve political accountability relative to important government assignments, we think it evident that "inferior officers" are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.

It bears repeating and emphasis: Scalia says an inferior officer must be supervised by by others who were appointed by presidential nomination--not by the President himself.

Robbins knows whereof he speaks, and Fitz will have big problems arguing his case to a court of review that pays attention to either Morrison or Edmond. Being removable at will by the President doesn't cut it, and there are other considerations anyway--especially that of supervision by someone another officer who was appointed by presidential nomination.

[Jeff Dobbs]

I vote for grey goose.

Motion passed.

Any chance Scalia's ears are burning? Does this register on his radar?

[Jane]

Tom,

Potts is on Britt Hume - How cool is that!

[clarice]

Per Apuzzo:
"Libby's newly formed appellate team — Lawrence S. Robbins and Mark Stancil — will seek an emergency order delaying the sentence. The U.S. Court of Appeals for the District of Columbia Circuit is not sitting right now, however, and attorneys worried about how fast the request would be heard. "

http://news.yahoo.com/s/ap/20070614/ap_on_go_pr_wh/cia_leak_trial

[vnjagvet]

It appears Walton is indeed a quintessential "hanging judge", Rick. He is also probably quite irked that those who are usually "law and order" types are giving him hell for treating Libby the same way he treats other convicted crooks.

It is interesting how both cheering sections in this case are forced to go somewhat against form in their positions.

[cathyf]

"They're very bright people, no question, but the submission is not something I would expect from a first-year law student."

Well, sure, I mean there are some really brilliant 1Ls out there, but they are all still a little green, so I wouldn't expect that even the smartest 1L could match the output of 12 distinguished lawyers with decades of experience thinking about the law. Right Reggie? That's what you meant, huh?

[clarice]

anduril, you don't have to persuade me, I thought this was a winner the minute Libby filed his Motion to Dismiss.
The CIPA signature is just the cherry on top..And I'd expect the defense to mention the Rome trip and the NIE examination (runs thru/out the Libby gj deposition heard by the jury) in their brief to contradict the whooha Fitz played in court today about the restrictions on his delegation.

[Pal2Pal (Sara)]

Jane you beat me to it. I was composing a message about Britt's show and Potts and the phone rang. By the time I was ready to hit send, you had already posted. I think it no longer matters if he wins the Talent contest, he has made his mark and someone is already working to get his signature on a contract.

[clarice]

Jane, I never turned the sound on my pc so the Hume showing was the first I heard Potts--he is magnificant.

[anduril]

Hey, clarice, what do you think Scalia is saying right now? Does anyone suppose he was amused by Waltoon's mind reading act?

[Pal2Pal (Sara)]

Clarice - are you familiar with either Lawrence S. Robbins or Mark Stancil? Robbins seemed to know his stuff today.

[Maybeex]

Walton: Jury based on their deliberations were clear on defendant’s guilt. So even if I did make error re: Mitchell, given the jury deliberations and leaps of inference it required, it would be harmless error given the view of Russert’s testimony by jury

translation: The jury found Libby guilty, so I think I let exactly the right evidence in.

cathyf, I was amused by the inference upon inference portion of his commentary as well.

[Tom Maguire]

The punchline is that Walton conducted a trial which was, in its entirety, "asking the jury to draw inference upon inference upon inference that [was] rank speculation absent evidence."

Good point - I gave a minute's thought for a pithy way to mock the layers of inference and innuendo surrounding the prosecution's depiction of Libby's motive to lie and abandoned the effort.

Actually, Tom, I have a suspicicion that, as is often the case, your first reaction is the "answer", so the headline is probably closer to the truth .....

With rationalizations and squirming to follow. Another good point.

I recall that there was information that Fitz also looked into the yellowcake memo forgery -- if so, thats more evidence of the expansiveness of his mandate.

If someone could rustle up a link for that, it will be posted. And maybe the defense team that missed our unearthing of the CIPA problem last December will catch this.

...wake me when Libby's in jail.

I plan to be passing out about then, so maybe I can manage to fall near you and waken you with a 'thump'.

Nearly 70 percent of Americans oppose a presidential pardon for former White House aide Lewis "Scooter" Libby after his conviction on perjury and other charges related to a CIA agent's exposure, according to a CNN poll out Monday.

That low? Why would a casual observer or consumer of the evening news favor a pardon?

"They're very bright people, no question, but the submission is not something I would expect from a first-year law student."

That is not the reaction I would expect from a first year judge. At a 4-H pie bake-off.

[Enlightened]

Out of respect to the regulars I won't say what I think about Walton. He rates about as high as the trollers which is somewhere south of zero....

That said - completely off thread -

Has anyone been following the Nifong hearing?
If not, you really should go see the defense exhibit prepared by Evans attorney Bannon re the DNA found on Little Miss Innocent.

The exhibit represents only HALF of the samples submitted. BTW - Bannon studied up on DNA himself to find the smoking gun.

9 - count 'em - NINE different male samples.

Not one a Duke player.

Wendy Murphy must be so proud.

Nifong is a despicable scum bag. This case is so reprehensible it boggles the mind.

With apologies to all the attorney's on JOM, our legal system is broken seemingly beyond repair.

[Enlightened]

Sorry - KC Johnson has the exhibit mentioned above -

[Jane]

Potts is clearly the brightest light in an otherwise gray day. Potts and the thought of grey goose, which I might just have to dip into.

[Enlightened]

One last Duke OT:

Read the last paragraph of the exhibit - You get an idea of how many samples were in the vagina, anus, on her panties and in or around the pubic region.

Take away the 5 samples on her panties which theoretically could have been "dirty-as in not washed for some time" and you have four unidentified men in addition to her boyfriend she had recent sex with.

Ok, I'm gonna throw it out there - I wonder if she WAS raped or had group sex - at another party. And blamed it on the Duke guys - money etc.

That's a lot of DNA swimming around her nether regions.

[Pal2Pal (Sara)]

Potts is clearly the brightest light in an otherwise gray day. Potts and the thought of grey goose, which I might just have to dip into.

Well it was cooler here today, 102 degrees down from 104. Potts helped to calm my hot temper and soaring bloodpressure after reading more of Walton's childish snark. It must be hard for a judge to come to terms with the fact that he is the dimmest bulb in the courtroom including the defendant.

[lurker9876]

Huh? This is the first time I read about Fitz' trip to Rome. When did this surface...in Walton's court today? or what?

[lurker9876]

Walton's ruling is what I expected. Probably all of us. Let's hope conclusion for Libby will be the same as Oliver North's and Espy.

So Libby no longer has Wells and Jeffress or Robbins and Stancil have been added to the team?

Guess those two were added (or replaced) in anticipation of defending against Fitz on the authority of a SP before the Appellate Court.

Walton made several unwarranted comments today as well.

Remember Walton's compliment towards Fitz during the trial. I thought that was also unwarranted.

An emergency appeal can be held before Libby's first day?

[lurker9876]

****Libby's first day in jail****

[lurker9876]

It was obvious that Walton made up his mind before today's meeting and found excuses to justify his decision, which made no sense at all.

[Sue]

I am wondering when the left is going to wake up and see the threat posed by Iran? Before or after a nuke is set off somewhere?

[ordi]

I wish FNC would play the Potts video more instead of the "I've got a crush on Obama".

[Pal2Pal (Sara)]

Gotta love this question from Sweetness and Light regarding one of the Libby convictions:

So what was obstructed? The Democrat agenda to get Karl Rove and Dick Cheney?

Link

[Jeff Dobbs]

TM:
If someone could rustle up a link for that, it will be posted.

uh, well, first link that pops up is an antiwar.com article

a upi link

The second is that NATO sources have confirmed to United Press International that Fitzgerald's team of investigators has sought and obtained documentation on the forgeries from the Italian government.

Fitzgerald's team has been given the full, and as yet unpublished report of the Italian parliamentary inquiry into the affair, which started when an Italian journalist obtained documents that appeared to show officials of the government of Niger helping to supply the Iraqi regime of Saddam Hussein with Yellowcake uranium. This claim, which made its way into President Bush's State of the Union address in January, 2003, was based on falsified documents from Niger and was later withdrawn by the White House.

an old FDL link

A paragraph in the fdl link whose links ain't in operation any longer...

Update Mark Kleiman: "If you're holding your breath anticipating that Fitzgerald is going to walk down the Yellowcake Road, exhale. He's going to charge people with exposing Valerie Plame Wilson's connection to the CIA and with trying to cover up that act of exposure, or he's going to charge the coverup but not the original act, or (least likely in my view) he's going to fold up his tent and go home. "

war and piece link

There’s just one problem: Not only has Fitzgerald not received such a report or even indicated he has any interest in one. There is no Italian parliamentary report, published or unpublished, on the Niger forgeries. In fact, until today, there has been no Italian parliamentary investigation of the Niger forgeries, or the claim promoted by the Italian military intelligence organization Sismi to the CIA and other western intelligence agencies that Iraq was seeking vast quantities of yellowcake uranium in Niger.

that points to a TNR link throwing some cold water on the idea?

(my tnr login expired? well, i never!)

[topsecretk9]

Fitzgerald - Niger forgery -- I found a UPI link that is dead via AJ

http://strata-sphere.com/blog/index.php/archives/823

The CIA leak inquiry that threatens senior White House aides has now widened to include the forgery of documents on African uranium that started the investigation, according to NAT0 intelligence sources.

The second is that NATO sources have confirmed to United Press International that Fitzgerald’s team of investigators has sought and obtained documentation on the forgeries from the Italian government.

Also, did anyone else find it odd to see all these pictures of Hillary (with a Valerie look alike) on a story about Libby - from cryptic commenters link above?)

[topsecretk9]

Damage - hit is fast!

[Rick Ballard]

"our legal system is broken seemingly beyond repair."

A bit too far for me. The failure rate is probably the lowest in the world. Sure, there are a few EarleNifongFitzpatricks on the prowl but we're outraged because they really are the exception rather than the rule.

The trick is to catch 'em and slap 'em around 'til they quit.

[Jeff Dobbs]

Damage - hit is fast!

Fast fingers.

Quick wit.

Brain? That's another matter.

[sylvia]

"That's a lot of DNA swimming around her nether regions. "

Not to get into this again but... just one more possibility here to throw out. How do we know that only LAX members were at the party? Of course Duke members told us that, but I believe not many details of the night we're given by them to begin with, and the ones they did give left a lot to be desired.

No matter where I have lived or went to school, practically every younger guy I have known has been close with their highschool friends and hung out with them regularly. Is it beyond all possiblity that some other buddies of the lax players were at the party? Not even one or two? Just a thought. After all, the stripper wasn't retarded, she was a college student- she had to have known that the DNA tests would come up negative otherwise. If there were several unidentified members at party, that would mesh with all the unknown DNA.