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

[RichatUF]

I'm watching CNN (why am I doing this), some HRW Sorosbot is claiming that it is somehow good that Marasi was given another shot of getting into the US courts system...

Quote of the day...

HRWbot: "...there my very well be dangerous people but they should be tried by a civilian court..."

Another point that HRW always seems to miss:

1. the reason it has taken so long to get the tribunals up and running is that every step of the way some circuit here on the US makes them stop.

2. there are quite a few prisoners that the DOD wants to release but if they release them to their home countries they will be executed ( the Chinese Uhgirs come to mind, but there are others) and HRW is trying to keep the ones DOD wants to release at Gitmo...

Lawfare and Turtle-strategy response, a meditaion on the archeology of Gitmo confinement

RichatUF

[Walter]

FWIW, two of the professors have responded to J. Walton's assertion that their amicus brief was “not something I would expect from a first-year law student.”

Also, I know Vik Amar. The suggestion that he is affiliated with or supportive in general of neocons is risible. That he'd succumb to pressure from that quarter to sign on to the brief is beyond laughable. (OTOH, his brother teaches at Yale LS, so I wouldn't disagree with the proposition that he appreaciated the opportunity for others to recognize his scholarship. All the more reason, though, for him to write a persuasive brief accurately reflecting his views.)

From personal experience, I can say that he is thoughtful and respectful of dissenting views--a trait not shared by all of his colleagues teaching Con Law at UCD or Hastings.

I've only just returned, and barely read this thread, so I apologize if this link showed up on one of the other Libby threads.

Thanks to all who wished me well on my trip. Perhaps by mid-week I'll be caught up enough for a useful comment.

[boris]

Welcome back.

[clarice]

Everyone steals from Rick--help yourself..Frankenprosecutor is right up there with Ambassador Munchausen--

Soylent has eaten all the brownies already with a little help from some friends. He says:"Move into Senior Phase tomorrow. Much studying and testing this week and into next. Then a two week field exercise culminating in a four day pass. Once I get through that it's all downhill."

Love that darling--almost as much as I love H & R..maybe more..but he's not here now and hit is. "When you're not with the one you love....."

[Walter]

It's good to be back.

Completely off-topic, but I'll take this slow period to continue my series of military museum oddities.

It should come as no surprise that, if the Army displays its 1960's era submarine and the Navy showcases airplanes, that the Air Force would highlight its own armored personnel carrier.

But it dispels few sterotypes about the relative difficulty faced by enlisted men in the various services to note that Cadillac manufactures the Air Force's APC.

[RichatUF]

Nice cut-and-past from-it was difficult to figure out where your commentary began and that stellar progressive Moyer's began.

And allow me to retort:

...the mindset of Washington's ruling clique of neoconservative elites...

Scooter Libby deliberately poured poison into the drinking water...

...Paul Wolfowitz...Douglas Feith, who ran the Pentagon factory of disinformation...Richard Perle...William Kristol, who had primed the pump of the propaganda machine...

"This is an open and shut case of perjury and obstruction of justice," said Pat Buchanan....

I wonder why Libby might have just believed that he wouldn't get a fair trial...

RichatUF

[Cecil Turner]

Not a word in the entire article about the real fallen soldiers. The honest-to-God dead, and dying, and wounded. Not a word about the chaos or the cost. Even as the calamity they created worsens, all they can muster is a cry for leniency for one of their own who lied to cover their tracks.

This sort of crap sells well in liberal circles. The "lie" is at best unproven, and can't possibly be construed as an attempt to cover tracks. Moyer, and apparently the jury as well, want to hold somebody accountable for the war, and the "lies" told by the Administration leading up to it. There is an approved Constitutional path for such . . . but there's little chance of success there. Unable to win on the merits, the anti-war types rely on disinformation from lefty CIA types and their spouses, and an out-of-control unsupervised prosecutor laying a perjury trap. And, as with any miscarriage of justice, it calls for corrective action.

[Cecil Turner]

the lies are a fact, res judicata, if you will.

Horse-puckey. It's a bad verdict from a biased jury, who were fed insufficient and biased data. Hopefully it'll be overturned on appeal, and then I'll be able to claim it's a "fact" that he's innocent (since he hasn't been proven guilty), and folks like you will claim he got off on a technicality. All good.

the jury said there was no doubt and that the evidence was overwhelming that scooter lied.

They also said things like :

"It was just very hard to believe how he could remember it on a Tuesday and forget it on a Thursday

And:

"It was said a number of times, 'What are we doing with this guy here? Where's [Karl] Rove … where are these other guys?'

If we're supposed to believe they're infallible, they really ought to stop spouting nonsense.

[willem]

This "Joseph Vazquez III" (Cuban?) situation is really curious, especially after reviewing the executive bios at the Egpi Firecreek website linked above. They make no sense to me. It's a odd amalgam of resumes. For some reason it caused me to think of Brewster & Jennings.

Perhaps that's because I remember hearing rogue stories like the Air America smuggling rumors or other rumors of CIA front companies "going bad." I wonder what keeps them from "going good" and privatizing the considerable federal investment needed to create the networks that make for viable CIA front company operations? Curiouser and curiouser.

[RichatUF]

Garth/Jason...

...the evidence was overwhelming that scooter lied...

I find Fitz's "theory as practice" style of law somewhat less than 'overwhelming'

...the merits have been settled...

Really, do you have a time travel device and already have the ruling of the DC circuit on the appeals

...scooter is looking for a loophole...

So progressive: loophole-> US Constitution

Jason, do Joe and Larry pay you well...

RichatUF

[RichatUF]

Good job there Garth-how about learning how to turn your tags off

[Cecil Turner]

. . . and then remember it two days later," emphasis mine.

All irrelevant. They first asked him three months later. So the only logical question was, could he have forgotten/misremembered it by then. (And the only logical answer was . . . well, yeah.) If their answer was in fact based on that reasoning, it's faulty nonsense.

because of scooter's obstruction, certain avenues of inquiry were closed.

Risible.

[RichatUF]

tsk9...

re: EGPI/Firecreek, I went to the website and had second thoughts. I saw that the counter only had about 1300 hits. Not sure how much they would keep taps on traffic but a couple of referrals from here, ip addresses and all that. The site also seemed sort of like a honey pot, and I found it odd that the investor relations link was password protected.

I don't want to get a nasty email or cryptic phone calls so I stopped poking around there after a quick peek.

You also say......I can't find anything on "Joseph M. Vazquez" the third doing much business beyond his 98ish to 01 burst- including the telecommunication bit too...

What was the bust for? I suppose someone more brave than me could email the address posted on the whois? entry and sniff out the relationship...

Where's Rocco, he's got to have some good stuff

RichatUF

[RichatUF]

Garth/Jason...

...though they were sympathetic to scooter personally, they felt there was no question he lied and his "memory defense" was a lie...

As opposed to all the other witnesses whose memories aged like fine wine. And a key to the "memory defense" was the memory expert-oops, Fitz got that excluded. Or my fav...inference upon inference works for Fitz re: newspaper articles "not for there truth-value", but Mitchell wasn't allowed re: Russert after it was shown that he cooperated with the FBI before his dog-and-pony show subponea fight

RichatUF

[RichatUF]

Gart/Jason

...is the idea that after preparing, intensely, for giving sworn testimony...

What actually is risible is that you believe this? His first FBI interview was after he was rushed (after a VP trip) and he did not prepare; moreover, the FBI forgot to memorialize this in their 302, but it was in their notes. He was closed off from his papers. He was not allowed to speak to staff members.

RichatUF

[Cecil Turner]

what's risible is the idea that after preparing, intensely, for giving sworn testimony as to his knowledge of what happened he could make this type of mistake.

Heh. Well, I'm laughing. Try to find one witness in this mess who didn't make precisely that type of mistake. If a man's freedom weren't at stake, it'd all be quite humorous.

[clarice]

Yes, Cecil, and most of the prosecutions' witnesses even changed their stories while on the stand--see Martin, i.e.--

Moyers was LBJ's buttboy who's cleaned up on PBS' dime. See http://www.frontpagemag.com/Articles/ReadArticle.asp?ID=28623

Buchanan is an anti-semitic,nativist idiot who fortunately has as much political clout as Kucinich.

[lurker9876]

The only facts in this trial are the newspapers...written word and the reporters' word, whom almost all have been discredited. How can this be proven beyond reasonable doubt?

[Other Tom]

Sounds like Moyers, who lied about his DUI but was found guilty anyway, has been into the sauce again. Those of a certain age will recall that he was the craftsman of what is widely regarded as the lowest, most dishonest political commercial in history (1964: the little girl counting the flower petals as the voice of doom counted down to the nuclear flash).

And of course we now know the relish with which he sought out gays in the Johnson administration with the express goal of getting rid of them. And he lied about that too, until confronted with the indisputable facts, whereupon he was suddenly seized with remorse, acknowledged his guilt, and begged forgiveness.

Yeah, that guy is a moral compass for the ages.

[cboldt]

A thorough analysis of the constitutionality of the DOJ appointment of Fitzgerald as an investigator/prosecutor should address the difference between the Morrison and Edmond cases from a balance of powers point of view.

Morrison (IC) v. Olson, 487 U.S. 654 (1988) probes the limits of Congressional and Judicial authority to force the executive to undertake investigation and prosecution of violations of law. That is, the power of Congress to demand investigation and prosecution, and the limits of power of Congress to deny the executive the power to fire an investigator/prosecutor. "Is the prosecutor qualified?"

Edmond v. United States, 520 U.S. 651 (1997) probes the limits of the executive authority to effectuate judicial appointment, where Congress had granted some JUDICIAL appointment power to the executive (Justice Scalia found the particular judicial appointments valid) "Is the judge qualified?"

[cboldt]

Libby v. United States seems to probe the limits of executive authority to investigate and prosecute. In this area, the simple wisdom is "investigation and prosecution are the executive's prerogative." But should the executive be constitutionally circumscribed by Congress when it comes to self-investigation? To what extent, and in what forms, should Congress have power over prosecutorial discretion?

[clarice]

I'm afraid I am not getting your argument, cboldt. I see it as whether the Constitution prohibits a principal officer from conveying to an inferior officer all of his powers and duties in a criminal investigation/prosecution. (I don't see the Congressional nexus.)

[Other Tom]

"But should the executive be constitutionally circumscribed by Congress when it comes to self-investigation?"

It isn't self-investigation. Check Fitzgerald's own words for that--he didn't understand himself to be limited in any way to investigating the executive. If his investigative trail had led to, say, Joe Wilson, he would not have felt constrained not to indict the man.

[cboldt]

-- I'm afraid I am not getting your argument --

At this point I am looking at the constitutional principles being protected in the three cases (Morrison, Edmond, and Libby), and haven't developed any argument for the fact pattern in hand. Congress has been known to try to limit executive power, e.g., press shield, NSA wiretapping authority, etc.

I've generally seen the objection to Libby prosecution as a difference of opinion as to prosecutorial discretion, rather than a violation of constitutional principle.

[cboldt]

But should the executive be constitutionally circumscribed by Congress when it comes to self-investigation?

[Other Tom]

Here is what I was referring to. This seems to be Fitzgerald's understanding of his charter:

"So let me tell you a little bit about how an investigation works.

"Investigators do not set out to investigate the statute, they set out to gather the facts.

"It's critical that when an investigation is conducted by prosecutors, agents and a grand jury they learn who, what, when, where and why. And then they decide, based upon accurate facts, whether a crime has been committed, who has committed the crime, whether you can prove the crime and whether the crime should be charged.

"Agent Eckenrode doesn't send people out when $1 million is missing from a bank and tell them, 'Just come back if you find wire fraud.' If the agent finds embezzlement, they follow through on that.

"That's the way this investigation was conducted."

It was a bit tendentious of me (and a diversion) to suggest that the investigation might have led to Joe Wilson. But suppose it had led to an agent of a foreign government--or a terrorist organization, or a computer-hacking teenager--who had discerned Valerie Wilson's role in the Wilson assignment? Would Fitzgerald have said, "no, I can't go there--I'm only investigating the executive?"

[cboldt]

Typepad doesn't respect <del> tags ... But should the executive be constitutionally circumscribed by Congress when it comes to investigation> (delete the "self-" limitation)

[Walter]

cboldt,

I like your analysis--the Supremes addressed different issues in each case. I agree that neither Morrison nor Edmond is on all fours with this case.

I'd rephrase the Libby issue, though. I see it as determining whether strictures imposed by Congress on the operation of an Executive agency invalidate the actions of that agency when (statutory issue) those actions may have been authorized by a statute (constitutional issue) whose broadest construction may conflict with the appointments clause.

The truthful statement that some combination of federal prosecutor and deputy AG could have done exactly what Fitzgerald did without conflict with either the Constitution, statutes, or regulations does not mean that Fitzgerald could do so without conflict.

Perhaps you can help me with a question that's been bothering me of late.

Comey didn't appoint Fitzgerald under 28 CFR 600 et seq. Ordinarily, I'd see that as a problem. But I've been looking for the statutory authority for those regs and have been drawing a blank. It's probably because I'm used to the tax code, where the regs are numbered by the code section they interpret. As there is no 28 USC 600, I'm just having trouble understanding what code section they define. A session law, uncodified, perhaps?

I'm glad to see your commentary here again.

[cboldt]

This PDF link -> 28 CFR 600 contains cites to statutory authority. 5 USC 301, 28 USC 509, 510, 515-519

[Walter]

Thanks! I had no idea those were available online now.

Supercool.

In a law-geeky way.

[Walter]

Ok, cboldt, can you aid me with another silly question?

As I understand it, Fitzgerald points to 28 USC 510 as a basis for his authority. Why wouldn't the regs be mandatory?

I understand why Libby doesn't raise the issue--he can't:

§ 600.10 No creation of rights.
The regulations in this part are not
intended to, do not, and may not be relied
upon to create any rights, substantive
or procedural, enforceable at
law or equity, by any person or entity,
in any matter, civil, criminal, or administrative.

But is there no sanction for Comey explicitly disregarding applicable regulations? And shouldn't Fitzgerald at least explain why the regs are irrelevant in interpreting section 510 when asking a judge to interpret that section?

[Walter]

Or, to put it another way, how can an agency issue regulations with which bind neither the agency nor any other party.

Yes, I'll go read 5 USC 301.

And feel free to remind me that it was a mistake to take a fun elective over Administrative law. I've got a hornbook somewhere in the attic--I should be reading that rather than bothering you.

[clarice]

As I understood Libby's argument originally it was that the appointment was unconstitutional. Had the appointment been within the regulatory framework there might be some reason to consider it presumptively (albeit rebuttably valid), but it wasn't.
Walter that is an interesting question though my recollection of the arcania of administrative law is dim, it does seem that the law abjures pointless exercise and if the AG or his delegate is not bound by the regs , why bother enactine them?

[anduril]

cboldt, I see some of where you're coming from, but I believe there is a common appointments clause thread running through Morrison, Edmond and now Libby.

In Morrison, Scalia was at pains to maintain, as you note, that the Legislative Branch had created an executive office (the IC) basically with the intent to force the Executive to initiate an investigation, quite possibly against its will. In his analysis he emphasizes the role of politics by which Congress could foreseeably bring pressure to bear on the Executive, and he also discusses the considerations that the framers had in mind in constructing checks and balances--especially that the Executive is inherently weaker than Congress. However, Scalia maintains that Congress had actually gone beyond merely exerting pressure but had, in fact, set up what he calls a "mini-Executive," independent of the only Executive provided for in the Constitution: the President. Thus, this ends up being an appointments clause issue, after all: the IC would have been OK, according to Scalia, if it were subject to Executive control in the manner provided for in the Constitution as an "inferior officer." To have set the IC up as a "principal officer," of course, would have required Presidential nomination, something Congress didn't want.

Edmond, too, is quite explicitly an appointments clause case. In this case Congress created a type of judge who would be an "inferior officer." As I read Edmond, the issue is as follows. While the President nominates principal officers who must be confirmed by the Senate, Congress must provide enabling or authorizing legislation before the President can do so--Scalia instances the very first Executive department, the Department of Foreign Affairs as an example. Congress also has broad discretion under Article III to construct a judicial system. The question then becomes, if the judges at issue in Edmond are principal officers is it constitutional for Congress to simply, for the sake of convenience, tell the Executive Branch to go ahead and appoint principal officers (the judges at issue in Edmond) without the Senate's confirmation? The answer is, no, that is not constitutional, but since these particular judges are inferior officers that issue doesn't arise in this case.

I see your point with regard to Libby as drawing a parallel especially to Scalia's discussion in Morrison, in which he emphasizes the practical effect of political pressure in removing real discretion from the Executive, in a situation in which Congress has established a statutory framework designed to pressure the Executive. There can be no doubt that, absent great pressure from the minority in Congress, there would have been not SC investigating Libby. On the other hand, my contention is that 510 clearly does not authorize the appointment of a principal officer without Senate confirmatin. In light of Edmond, we see that Congress can not delegate such authority to the Executive alone--the Constitution forces the confirmation responsibility upon the Senate. The only alternative for Congress, if it wishes to unburden itself of this chore, is to authorize the appointment of inferior officers. That, I submit, is what 510 envisions, and nothing else.

Therefore, as other posters have noted, the Executive has no real beef against the Legislative Branch in the Libby case. Ultimately the Executive is to blame for caving to political pressure. The fact is, the Legislative Branch should have a beef against the Executive, for this reason: if Fitz, as I and others maintain, is in actuality a principal officer, then he was appointed without undergoing the confirmation process--an unconstitutional end run around Congress' watchdog function over appointments.

And that's the reason I've been dropping broad hints that I wish someone would research Schumer's reaction to the Fitz appointment. Theoretically, Schumer should have been enraged at this patent violation of the Senate's prerogative, nay, their duty to confirm principal officers. If he did not react in that way, I suggest it was because, for political reasons, this was the result he wanted to see. Shame on him, of course, but that also means that Republicans, who controlled both houses of Congress as well as the Executive, were too stupid or too craven to object to the appointment on Constitutional grounds. However, as OT points out, their stupidity and cravenness doesn't prevent citizen Libby from raising the issue now.

[JM Hanes]

Over at TalkLeft, Big Tent Dem pointed to the discussion of Weiss v US in the Morrison decision. Although I disagreed with his assertion that the amici should have paid more attention to Weiss, Rehnquist does include an interesting passage on Shoemaker. Although we've got multiple degrees (and decades) of separation here, it still relates rather directly to the issues, if not the specific circumstances, you're discussing here -- both with regard to an underlying Congressional interest in office creation, and to departmental tranfers of authority which constitute the de facto creation of new offices. I decided to err on the side of including too much rather than too little context in the following excerpt. From Weiss (empahsis mine):

Petitioners' alternative contention is that even if Congress did not intend to require a separate appointment for a military judge, the Appointments Clause requires such an appointment by its own force. They urge upon us in support of this contention our decisions in Buckley, supra, Freytag, supra, and Morrison v. Olson, 487 U.S. 654 (1988). These decisions undoubtedly establish the analytical framework upon which to base the conclusion that a military judge is an "officer of the United States" --a proposition to which both parties agree. But the decisions simply do not speak to the issue of whether, and when, the Appointments Clause may require a second appointment.

The lead and dissenting opinions in the Court of Military Appeals devoted considerable attention to, and the parties before us have extensively briefed, the significance of our opinion in Shoemaker v. United States, 147 U.S. 282 (1893). There Congress had enacted a statute establishing a commission to supervise the development of Rock Creek Park in the District of Columbia. Three of the members were appointed by the President with the advice and consent of the Senate, but the remaining two members were the Chief of Engineersof the Army and the Engineer Commissioner of the District of Columbia. Both of the latter were already commissioned as military officers, but it was contended that the Appointments Clause required that they again be appointed to their new positions. The Court rejected the argument, saying:

"[T]he argument is, that while Congress may create an office, it cannot appoint the officer; that the officer can only be appointed by the President with the approval of the Senate. . . . As, however, the two persons whose eligibility is questioned were at the time of the passage of the act . . . officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed." Id., at 300-301.

The present case before us differs from Shoemaker in several respects, at least one of which is significant for purposes of Appointments Clause analysis. In Shoemaker, Congress assigned new duties to two existing offices, each of which was held by a single officer. This no doubt prompted the Court's description of the argument as being that "while Congress may create an office, it cannot appoint the officer." By looking to whether the additional duties assigned to the offices were "germane," the Court sought to ensure that Congress was not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office. But here the statute authorized an indefinite number of military judges, who could be designated from among hundreds or perhaps thousands of qualified commissioned officers. In short, there is no ground for suspicion here that Congress was trying to both create an office and also select a particular individual to fill the office. Nor has Congress effected a "diffusion of the appointment power," about which this Court expressed concern in Freytag, 501 U.S., at ___.

Even if we assume, arguendo, that the principle of "germaneness" applies to the present situation, we think that principle is satisfied here. By enacting the Uniform Code of Military Justice in 1950, and through subsequent statutory changes, Congress has gradually changed the system of military justice so that it has come to more closely resemble the civilian system. But the military in important respects remains a "specialized society separate from civilian society," Parker v. Levy, 417 U.S. 733, 743 (1974). Although military judges obviously perform certain unique and important functions, all military officers, consistent with a long tradition, play a role in the operation of the military justice system.

Actually we're talking over a century ago for Shoemaker, not mere decades, but as noted over at TalkLeft, it's not like precedents come with expiration dates.

This post, OTOH, may be decades past due itself, by the time I come out on the other side of the TypeKey gaunlet.

[anduril]

I apologize for some of the convoluted language in my last post and hope that the main points are apparent. It's too late to fix it tonight. So one last, quick point. These cases, in addition to the appointments clause, also involve the fundamental underlying principle of separation of powers. If, Scalia maintains, the Court allows these types of irregularities in appointments to go on--whether the Legislative encroaches on the Executive or vice versa--the end result is that the separation of powers and our system of checks and balances is eroded. It is the Court's duty to defend those principles, and that is what is at stake in the Libby case as well. The irony in Libby, of course, is that the Executive--by encroaching upon the Legislative in giving Fitz principal officer powers but not submitting him to the Senate for confirmation--has only harmed itself. This is a good example of what has happened in American politics as a result of Congress' ascendancy over the Executive, which it has accomplished by binding the interests of Executive departments and agencies to good relations with those who control the purse strings. The Executive is harmed in this way because the Chief Executive and his principal officers failed to control their subordinates who were colluding with Congress, or even may have colluded with Congress themselves in some instances (Powell?).

[JM Hanes]

Forgot to fill in the URL for the TalkLeft thread.

[anduril]

JM Hanes, I won't descend into the swamp, so I'm guessing that the lefties are arguing that Fitz was already a USA who had been confirmed by the Senate and that his prosecutorial duties as USA were "germane" to his new duties as SC. The problem with that argument is that confirmation by the Senate doesn't ipso fact make one a principal officer. A USA is not a principal officer. The reductio ad absurdam of their argument would be as follows: if Ashcroft had died, could Bush have told Fitz to come to Washington and be the AG without undergoing another confirmation by the Senate. I think, in fact I know, not. The problem with Fitz's appointment is that it attempted to move him from the position of an inferior officer to that of a principal officer (the functional equivalent of the AG) without a confirmation. The wusses in the WH and the Reps in the Senate should have blown the whistle on this scam, a result of collusion between Comey and Schumer.

[clarice]

Two excellent posts..I can go to sleep earlier tonight knowing the board is in good hands. (Niters.)

[anduril]

Oh, hell, one more clarification and then to bed!

I wrote:

The problem with Fitz's appointment is that it attempted to move him from the position of an inferior officer to that of a principal officer (the functional equivalent of the AG) without a confirmation.

There's a further problem, obvious to one and all: if Fitz really is/was a principal officer he had to be nominated by the president before undergoing a confirmation by the Senate. The 510 sleight of hand was just that: a shabby subterfuge which tried to insert a principal officer into the political mix under the guise of an inferior officer.

[clarice]

For fun--here's our initial discussion when Libby filed his motion to dismiss on the appointment ground:
http://justoneminute.typepad.com/main/2006/02/special_counsel.html

I can't find Schumer's initial reaction to his appointment but believe he expressed support for it.
I did find in the transcript of Comey's drama queen testimony that Schumer asked if Fitz had been removed from his post as US Atty whether he could have continued on as s p. Comey answered he didn't think so because he was appointed to do this work IN HIS CAPACITY AS a US Atty.http://64.233.167.104/search?q=cache:OwoBtyG-NskJ:leahy.senate.gov/press/200705/052507ComeyResponse.pdf+schumer+response+to+Fitzgerald+nominated+by+Comey&hl=en&ct=clnk&cd=4&gl=us>Comey Keeps His Story Straight

[clarice]

Correction: That was Comey's written response to questions Schumer presented to him..not transcribed Senate Judiciary testimony.

[JM Hanes]

Here's something that TM and FDL can agree on.

On today’s edition of Meet The Press, Tim Russert had some questions for his roundtable panel (E. J. Dionne, Gene Robinson, Byron York and Kate O’Beirne) about the Libby case. And the questions? Well, they consisted of whether O’Beirne agreed with the Novak article on the political efficacy of pardoning Libby and cutting AG Gonzales loose. What O’Beirne thought the political advantages of such a pardon for Libby might be for the Bush Administration’s poll numbers. And whether York felt that a pardon would be forthcoming.

.....[Rant on “partisan hackery"].....

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

Enjoy the moment.

[Pal2Pal (Sara)]

White House pressure mounts for Libby clemency...

[clarice]

JMH, what do you expect:(a) for the most part the media are under-informed or misinformed and most do not understand NBC (and Russert's) role ;and if they do they cover for him,(b) you expect more from a lawyer who claimed he didn't know witnesses can't bring their counsel into the grand jury?

[JM Hanes]

Clarice, I'm afraid I can only imagine self-interested reasons for reticence on Byron York's part -- unless Russert set some conditions in advance.

[fortif]

Fire creek reminds me of Fire Dog Lake, maybe it's a way to pay off FDL.

Energy Producers, Inc. Plame didn't do much to Montreal, but now there's Chayes. This article ties Plame to Turkey and they're tied closely to Pakistan for nukes. Pakistan has a way out of it's problems as long as it works with Turkey on Northern Iraq. Maybe Plame met Dr. WMD?

http://www.antiwar.com/deliso/?articleid=8091

Plame was working with the FBI, DoJ, on all her Turkey stuff, so I wonder if that's why the DEA(DoJ) NOC went there too or was he just getting there before Clinton and the Stans. Anyway, if Plame was working this close with FBI, DoJ, on all the overseas stuff, it's possible FBI(DoJ) was biased and Fitz may have worked with her directly on the five year law or her identity.

[fortif]

Cool dates.

Ames and Howard's trainer worked with this Nichols trainer and Plame?

Plame culd have been leaked here too. Operatons Officers usually go back to HQ to do some training.

http://www.saukvalley.com/articles/2007/06/05/features/lifestyles/115428382098491.txt

[clarice]

Hitchens--this case is all about a testimonial variance between Russert and Libby; the Judge's comments demonstrate bias; Libby has a good shot at overturning the conviction and the President should pardon him.

http://www.slate.com/id/2168642/

[Jeff Dobbs]

Clarice:
Love that darling [Soylent]--almost as much as I love H & R..maybe more..but he's not here now and hit is. "When you're not with the one you love....."

First, that's more of a compliment than I am willing to accept.

I love Soylent more than hit and run.

Second, you have made an interesting phrase...he's not here now and hit is.

Hmmm, "here".....and "is"......

Literally speaking, you have the tense wrong.

[clarice]

Love is poetry, hit. There's nothing literal about it.

[Jeff Dobbs]

heh, sorry, I was trying a play on the words to get to:

"literally here"(1)

... and indicate that "is" (present tense) is wrong but

"will be"(2)

...(future tense) might not be.

To make the point that you could say,

"hit and run (2) (1)"

...and not be incorrect.

Or perhaps it would sound more poetic as:

"(1) hit and run (2)"

[Pal2Pal (Sara)]

Paul Potts has won the Got Talent talent contest and says he will spend his prize money on paying off debts and getting his teeth fixed.

[fortif]

Meant to put this up last week:

Legislation for a covert operative is not what CIA is saying. They are saying the covert person must be at CIA. This is false. The 5 year law can apply to any agency. The five year law can apply to anyone in the Intelligence Community. The law can be interpreted so that one doesn't even have to be a federal employee in the Intelligence Community. Ames worked for CIA. The answer would be that no one at CIA could be involved in the investigation and arrest and CIA would not be allowed to investigate who or how and access their files. A CIA employee would be the last thing wanted and they would have to be avoided.

Plame and Fitz apparently wanted this addressed. Fitz didn't prosecute Plame, but decided to address this issue for CIA and Plame. The answer is that DIA (DoD) has similar laws, but, of course, all the CIA analysts hired by Tenet have now moved to DIA/NSA/DoD as linguists. So, the law is not that important anymore. Fitz prosecutes based on what he considers irrelevant to prosecuting Plame or the CIA and the move to DoD by CIA seems to follow the same pattern. The law is now not relevant to those employees, but they are covered by the new laws over at DoD.

Plame is following a pattern and in the beginning with Ames may have been the laws over at DoD(DIA). Plame is doing what CIA always does. It is covering its tracks and outing what came before it. For example, Morocco and work there by an agency is followed up by CIA. It is illegal and was agreed to by the other agency for political positions on the intelligence committee, jobs at the agency as an operative mirroring CIA and State. The person involved is now in Afghanistan and hated by NATO. S/he is probably performing an intelligence function and, now we find out that Fitz is a pal from Harvard. She's probably covered under the laws, but those have been changed while she is covert. So, she ends up working closely with the Taliban elders and the US and other countries have in the past. Now, it's a mistake and it's more obvious that s/he is involved changing the politics of Afghanistan. The attempted assassination of Karzai is allot like the one on the VP. 'Don't take us too seriously.' It's just evidence that they work with the operative. The answer is for the person to stay in place. This is always the answer and, if they would like to make it out okay, the smart answer is break this rule and get out. Allot like Plame's visit to New York the person made visits to other places and the response is the same. So, without the protection of the laws and agencies and DoD the person is in trouble, but the actions of the agencies and DoD seem to indicate that the person is no longer wanted and might be traded out for something like a Congressmen from New Jersey(where all the terrorists go)getting on the intelligence committee. Allot like the London bombing, the public pays for the the move. Most intelligence agencies are aware of this and are wondering who to out. Hopefully those involved with Ames would have made their peace in the IC.

Powell was Plame's first victim of the Niger document. He tried to avoid her and got in trouble with his CIA briefer who went to the media and explained he is an idiot. Powell was the victim of actionable intelligence?