Here are links to Libby's argument to remain free pending appeal (22 page .pdf), and associated exhibits (5 page .pdf).
Dig in.
MORE: The defense is citing:
(1) the constitutionality of Fitzgerald's appointment;
(2) the memory defense and the denial of an expert witness;
(3) the substitutions under CIPA for classified info - unsurprisingly, the defense objected to some of the substitutions and preserved their right to appeal.
(4) "The court's exclusion of the government's statement admitting relevant facts and the CIA briefers' testimony following Mr. Libby's decision not to testify presents another substantial question on appeal." Check your notes on that one - I remember Judge Walton went into a snit when Libby decided not to testify, and struck some of the proposed summaries.
(5) Andrea Mitchell and the court's decision not to allow her to be called. My personal fave. Let me poke around for something on the ruling being appealed - OK, I was furious:
Or, if Mitchell does not appear, I can offer a prediction - righties (yes, starting with me!) will never accept a guilty verdict and will be begging The Decider for a pardon.
Here is one more oldie on Andrea - did you know that Colin Powell was a guest at her wedding to Alan Greenspan? Gee, think about her sources and whether she might have, hmm, misremembered in order to protect them.
Interesting old post here - given the detailed coverage of this case, outside observers knew more than the jury, so there is no special reason to hold the verdict sacrosanct.
And that is it. The filings gives a good summary of the possible significance of Ms. Mitchell's possible testimony - let's see how the media bury this.
BUSH'S GAME: The consistently insightful cathyf analyzes Bush's situation:
Well, Bush is a notorious poker player who doesn't tip his hand unless he needs to. If he were going to do what I want him to do, I would think, first, wait until we see if Walton denies the appeal bond. If he doesn't, then Bush should just keep his mouth shut. If he does, then the next step will be to appeal that decision -- and I think that appeal has an excellent chance of succeeding. Only if the appeals court denies the appeal bond should Bush commute the sentence.
I think that Walton is playing a dangerous game here. He is afraid that if Libby is allowed to appeal, then the appeals court is going to spank him very badly. So I think he is trying to force Bush to pardon Libby so as to moot the appeal and make it all go away. (Because, you see, a side effect of pardoning Libby is that it also "pardons" Walton and Fitzgerald and Russert by making any punishment for them dead letter.)
...If the appeals court decides that Walton is trying to screw with them, they will overrule him and grant the appeal bond so fast that Walton's head will be spinning for a week.
On that same line of reasoning, what Bush should want (as the guy who stood up twice and swore to defend and protect the constitution) is for the judicial branch to fix Walton's mess. The most effective way to do that is to give them enough room to do it -- anything which a prickly judge (and prickliness is a notorious aspect of judical character) would interpret as interference should be avoided unless absolutely necessary. What Bush should avoid at pretty much all costs is setting up a situation where the appeals court believes that Bush is going to pardon Libby anyway, because that would just piss them off, and who knows what sort of disaster they will cause if they decide to get revenge.
Very interesting. That could argue for a commuted sentence if Libby is sentenced to immediate jail - Libby can still appeal in a fight for his fine and law license.
Or let Libby stay out on appeal - the appeals won't be done before Bush leaves office, so we can judge Bush's sincerity as he heads out the door with/without pardoning Libby.
Conservatives who think this case was a mess (me!) should still be wiling to support a temperate judicial review of the process. *IF* the judges are willing to provide it.
No Mitchell No Peace. Not quite "Mitchell Delenda Est", but keeping her out of the trial was a joke and if Walton now rules that it was not even a close or substantial question, he is deluded.
MY CURRENT FANTASY: Walton rules that yes, the Mitchell issue is close and substantial, so Libby can stay out. Let's see NBC News report on that. Maybe Chris Matthews and Keith Olbermann can delve into the question of what Gregory, Mitchell and Russert knew, and when they knew it. Hey, maybe CM and KO can stage a palace coup!
FROM THE ARCHIVES: I wrote this while the jury deliberated:
However, the cooler heads at NBC (i.e., everyone else) are probably crossing their fingers and hoping for acquittals all around, most especially on the counts involving Tim Russert. Otherwise, the defense will appeal, Judge Walton's decision to keep Andrea Mitchell out of the trial will be a basis for the appeal, and NBC News will have to "report" on the Tim Russert situation for months to come. This will be especially difficult for David Gregory, erstwhile "newsman", who has been duct-taped by the NBC lawyers and not allowed to comment on whether Ari Fleischer, a key witness against Libby, lacks credibility.
OK.
The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame's name in their effort to discredit her husband's criticism of the administration's war policy — was no. No one violated what we used to call the "Agents Law." Dick Armitage, the guy who admits he gave out her name in the first place, isn't facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn't hesitate to disclose her identity.
Libby is in trouble not for what he did, but because he wasn't as careful as the others during his interviews and grand jury testimony.
If he'd just said, "I don't recall" a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn't be bankrupt, ruined, disgraced and heading to prison.
There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven't committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it's not entrapment, but it's still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn't solve the crime; it creates it.
If the failure of the “private” visit of president Bongo in the United States is not due, on the bottom, with its grinds American lobbyists, the guéguerre which they carry out between them did not really make it possible to assist a Gabonese presidential organization already confused.The “declared” American lobbyists at the end of 1998 counted Shandwick Public Affairs, Pierre Salinger and Jacqueline Wilson, woman of Joseph Wilson - former ambassador in Gabon and former Africa adviser of Bill Clinton - which was also very present in the demonstrations of this visit… With these three cabinets the intervention for the press of Jean-Marie Coulbary (United World Communications) was added.
Both articles seem to be about a failed visit by President Bongo, The first makes reference to Jaqueline, Joe's second wife as one of three American Lobbyists at the end of 98. I've never seen her referred to as an American lobbyist before.
The second article, if about the same failed visit, might be claiming Jefferson acted as intermediary for Bongo to meet Clinton.
If it doesn't link Wilson to Jefferson, it might link Wilson's ex to him? Oui ou non?
Posted by: Rocco | June 07, 2007 at 09:28 PM
Well, prosecutors don't like to poop in their dens - hence McCarthy and Patterico.
Not sure if Capt Ed fits that mold?
Posted by: Enlightened | June 07, 2007 at 09:28 PM
What Scooter needs is another letter from
Wolfowitz.
Posted by: Semanticleo | June 07, 2007 at 09:31 PM
"Et Tu Wolfie?"
Posted by: Semanticleo | June 07, 2007 at 09:32 PM
consistently made judgments about this case w/o knowing bupkis about the facts
Based on blog interactions I am convinced many expressing like opinions simply do not know that Libby told the investigation up front that he first learned about Wilson’s wife in June from Cheney or C Martin. That he admitted talking about her with Miller Cooper Russert and I think one other.
They seem to believe his “lie” was denial of those basic details rather than a memory glitch that provides no cover for risk.
So yeah, my first reaction to those judgments is “don’t know what you’re talking about” and I do resent them scolding those of us who do.
Posted by: boris | June 07, 2007 at 09:37 PM
I disagree with McCarthy, but not too strenuously. I do believe Libby lied (I still don't know what his motive might have been), and that's a bad thing. I part company with McCarthy in two respects: (1) The investigation should never have proceeded once the leaker was known; it surely would not have proceeded it weren't being conducted by a Special Counsel, with no limits on his time, money or other resources; and an investigation conducted under such circumstances can always--absolutely always--trip up a witness and subject him to prosecution (see Estrich). (2) The sentence is ridiculously disproportionate, and as Exhibit A I cite Sandy Berger and let it go at that.
Posted by: Other Tom | June 07, 2007 at 09:39 PM
JMHanes, here's 28 USC 508:
However Comey's letter states:
A person who performs a function of the AG is still subject to supervision and removal. However, when Comey testified on this matter he would not commit himself to saying that he could remove Fitz--after all, how could a DAG or even an Acting AG remove someone who has all the authority of the Attorney General?
The appellate court could, I suppose, say that "function" and "all the authority" mean the same thing, but Libby has several good arguments on his side to show that there is a very real distinction:
1. Plain language.
2. Comey's very coy testimony, in which he also suggested that he might supervise Fitz by reading about the case in the newspapers.
3. The matching ESP affidavits that Fitz and Comey did, and which are inherently non-credible.
4. The lack of any concrete evidence that supervision was ever exercised over a period of several years (someone on this forum did a very humorous parody on what supervision, had it been exercised, would have looked like).
Bottom line: we'll see.
Posted by: anduril | June 07, 2007 at 09:40 PM
Via Betsy's Page:
Offered for your amusement.
Posted by: Sara | June 07, 2007 at 09:40 PM
From Andy McCarthy-
-----
As to him [Libby] personally, all this passionate rhetoric about his heroic service to the United States, how the investigation should never have happened, and how he got unfairly singled out and screwed (all of which I agree with)
----
I agree with him.
If Libby got singled out and screwed, that speaks to Fitzgerald's discretion.
Now, I agree that the jury legitimately found Libby guilty under their understanding of perjury and obstruction.
It is the bringing the process crimes in front of the jury that is risible.
Posted by: Maybeex | June 07, 2007 at 09:42 PM
"Based on blog interactions I am convinced many expressing like opinions simply do not know that Libby told the investigation up front that he first learned about Wilson’s wife in June from Cheney or C Martin. That he admitted talking about her with Miller Cooper Russert and I think one other."
Correct. The investigators knew this and they thought they could get Cheney if the CIA could prove Mata Hari's covertiness.
CIA could not prove it, so alas Cheney was off the hook.
It took many months for the CIA to finally figure every angle to covertiness was a dead end so the SP sprung a process crime on someone not involved in any crimanl activity.
Voila' - I give you Fitzmas.
Posted by: Enlightened | June 07, 2007 at 09:44 PM
Berger pled to a misdemeanor (how many counts I'm not sure). The plea deal was so silly that the judge upped the sentence. Nevertheless, the Berger case is not a good comparison to the Libby case, since Libby was convicted on several felony counts--not a misdemeanor.
N.B. "Pled" is a, now, somewhat archaic variant of "pleaded." For some reason the weak form just doesn't sound right to me.
Posted by: anduril | June 07, 2007 at 09:46 PM
Beautiful, Lady Sara. We all know the Culture of Corruption when we see it.
Re-thinking what I just said above, I guess I disagree with McCarthy a bit more than my language might have suggested. The only thing he says with which I agree is that Libby lied, and that that shouldn't be done with impunity.
What would have me laughing out loud, if it weren't such a serious matter, is being lectured by the likes of Andrew McCarthy concerning what it is that "hurts the conservative movement."
Posted by: Other Tom | June 07, 2007 at 09:47 PM
Offered for your amusement.
Posted by: Lady Sara | June 07, 2007 at 09:40 PM
And amazement. Really. I guess I'm still an innocent.
Posted by: anduril | June 07, 2007 at 09:49 PM
Anduril, you can correct me if I'm wrong, but I believe that Berger pleaded (I'm an old-fashioned guy) to a misdemeanor simply because that was part of the plea deal. I believe he was very much exposed to being charged with felony counts. Pleading to a misdemeanor when faced with potential felonies is a pretty common occurrence.
Posted by: Other Tom | June 07, 2007 at 09:51 PM
Well, I'm sure Mrs. Clinton is praying for Mr. Hastings. She has faith in him not becoming a recidivist.
Wink.Wink.
Posted by: Enlightened | June 07, 2007 at 09:53 PM
The part of McCarthy's piece that really got me was his glib statements about witness memory problems. I don't believe that any perjury case should be brought that doesn't have some independent corroboration for which side is telling the truth. No one should go to jail because their story differs from someone else's story unless the prosecution can somehow offer evidence for what the true story is. That was not done, and in the nature of things couldn't be done, absent tape recordings. To me, that offends against basic justice.
Posted by: anduril | June 07, 2007 at 09:54 PM
To me, that offends against basic justice
As one who has expounded at great length on counter-intuitive limitations of perception and memory ...
... I SO agree with that !
Posted by: boris | June 07, 2007 at 10:01 PM
OT, "pled" is more old-fashioned--at least that's MY plea.
Anyway, yes, of course the misdemeanor was part of the deal. My point was simply that the disparity in sentences is a result of the disparity in the seriousness of the charges that Burglar pled to versus the seriousness of the charges that Libby was convicted of. The disparity is unavoidable.
On a moral plane of course I agree with you, as would any sane person. The sentencing judge in the Burglar case did, too. Not only did she increase the sentence, as far as was allowable, but she delivered an outraged statement to the prosecution. Unfortunately, the plea deal tied her hands--to her chagrin.
As for exposure to possible felony counts, that's an interesting question. Most people focus on the classified nature of the documents in these cases. That's a mistake, usually, because classification alone doesn't necessarily yield a felony. However, a simple destruction of government property charge would have been a felony, as you say, and if coupled with evidence as to the importance of the documents/property that was destroyed then, yes, I believe that judge would have thrown the book at him.
Posted by: anduril | June 07, 2007 at 10:03 PM
Anduril, you can correct me if I'm wrong, but I believe that Berger pleaded (I'm an old-fashioned guy) to a misdemeanor simply because that was part of the plea deal.
Isn't it also true that pleading to a misdemeanor was never on the table for Libby?
I remember the gossip that he was willing to plead guilty until he saw the harsh penalty being offered.
Posted by: Maybeex | June 07, 2007 at 10:09 PM
No one should go to jail because their story differs from someone else's story unless the prosecution can somehow offer evidence for what the true story is.
Oh, I so agree.
Posted by: Maybeex | June 07, 2007 at 10:11 PM
I can't believe that Fitz ever would have offered anything but a felony plea, and I can't believe that Libby would have pled to anything whatsoever.
Posted by: anduril | June 07, 2007 at 10:11 PM
Rocco...
It ABC for what its worth
Those article were refered to in Fedora's "Wilsongate" and "What Wilson didn't say about Africa" and clarice had some stuff at AT as well. I dug up this old link from Mac Ranger dealing with NK selling missiles to Nigeria.
More stuff with Nigeria and Jefferson
more info from above
Now Rocco has me spamming the thread...good grief, and typepad is giving me the finger
RichatUF
Posted by: RichatUF | June 07, 2007 at 10:11 PM
"Memory foibles" is somewhat disingenuous since the case was all about memory,not simply a component.In fact it was about value judgements about who's memory was accurate.
Posted by: PeterUK. | June 07, 2007 at 10:17 PM
"There is no crueler tyranny than that which is perpetrated under the shield of law and in the name of justice."
Boris,
Dorothy Rabinowitz outlined the 'recovered memory' deal in her book.
The Amirault case was another prosecutorial triumph adding luster to the majesty of the law.
Posted by: Rick Ballard | June 07, 2007 at 10:21 PM
Lar-Bear at Daily Kos today:
Valerie, Gary Schroen, Gary Berntsen, and other CIA officers, like Tyler Drumheller, were undercover, were covered by the IIPA and went to work every day at the CIA. When CIA officers who are undercover are inside the United States where do these right wing brain surgeons think they go to work? Maxwell Smart's phone booth elevator to C.O.N.T.R.O.L. Headquarters? Boys and girls, they go to an office building in Northern Virginia that bears the name of George Herbert Walker Bush.
Not one single person has pointed out that MANY MANY CIA people who are undercover inside the US go to work at places called law firms, universities, some fake tech companies, and newspapers.
Valerie, we are now told, traveled overseas seven times between January 2002 and July 2003. Each time she traveled under non-official cover. Sometimes she traveled as Valerie Wilson, Energy Consultant with Brewster Jennings. Other times she traveled using an alias--which means she had a different passport and name. Once she stepped foot outside of the United States to meet with foreign officials in the pursuit of knowledge about Saddams weapons of mass destruction, she was serving overseas. Only the most obtuse, dishonest idiots would try to argue that an undercover CIA officer working overseas, even for a week, is not deserving of having his or her identity protected. What is so difficult about this concept?
I would say an undercover CIA agent working overseas for a week deserves to have her identity protected.
I would further say that a CIA agent sitting in Langley letting her husband talk about CIA business while working on a political campaign and misrepresenting his knowledge does not deserve that protection. Her CIA superiors and co-workers obviously agreed, because they didn't protect her.
There is no law giving her the protection Larry wanted her to have.
Posted by: Maybeex | June 07, 2007 at 10:23 PM
The Freepers beat me to this one...a long time ago!
1998 : (FREEPER NOTES : GABON'S PRESIDENT OMAR BONGO TRAVELS TO THE US; GABON HIRED WILSON'S SECOND WIFE, THE FRENCH WOMAN JACQUELINE, AS A LOBBYIST. PIERRE SALINGER AND OTHER LOBHBYISTS WERE ALSO EMPLOYED) Here’s a French language article regarding a 1998 trip by Gabon President Omar Bongo to the United States. Apparently, the Gabonese hired Wilson’s second wife Jacqueline as a lobbyist in support of the trip. Another who worked with her was the famous Pierre Salinger, known for many things, eg he was JFK’s press secretary and for his TWA 800 theories. But even more lobbyists were engaged, they apparently had a “too many cooks in the kitchen” kind of conflict, and the trip didn’t come off well Joseph Wilson was “very present” at the events of the visit. -- Source: FreeRepublic's Shermy using this source
http://www.bdpgabon.org/ancien_site/bdp/revelationspol1.html
Salinger wrote a book on the first Gulf War, “Dossier.” In it are about ten pages of a recounting of conversations between Saddam and Wilson. I can only guess Wilson was the source.-- Source: FreeRepublic's Shermy , in 1 posted on 04/16/2004 1:01:47 PM PDT by Shermy[* My note: wonder what date Salinger's book was published?] see -- "Joseph Wilson, Niger, Uranium and Bush’s Famous Sixteen Words: Evolution of a Confused Story," FreeRepublic's Shermy, April 16, 2004, Posted on 04/16/2004 1:01:46 PM PDT by Shermy
But...this is new
From the first article and pertaining to the same presidential visit by Bongo
Ultimately, the Gabonese president could discuss only with two members the government: the Secretary of State to Bill Richardson energy and the secretary with Transport Rodney Slater. The “private” version of the visit was more laughing for president Bongo, in particular at the time of the meeting again with its “old accomplice” Maurice Tempelsman (Lazare Kaplan) and during other discussions with sponsors of the seminar “1999, Attracting Capital to Africa Summit” of Houston: Ocean Energy, Enron International, Boeing, General Motors, Eli Lilly Africa, GoodWorks International, HSBC Equator Bank… It did not remain any more that the “painful” meetings with Michel Camdessus of the IMF and Joseph Wolfenshon of the World Bank to try to find a door of exit to the financial crisis which strangles country (LC N°324).
GoodWorks International
Other thing is Mr. Masters and the Sullivan Foundation provided the platform to Congressman Jefferson Clinton's iGate scandal which was investigated by the FBI and the case currently pending in the US courts."
nite all
Posted by: Rocco | June 07, 2007 at 10:26 PM
more Rocco...
...The first makes reference to Jaqueline, Joe's second wife as one of three American Lobbyists at the end of 98...
Foreign Agents Registration Act
See also here pp.104-106 It's the June 30 1998 report I've narrowed down Gabon. Its a pretty big file 13.98 MB in .pdf I think that J Wilson was paid during a few reporting periods-don't remember exactly. Anyway, I think some confusion was started when Fedora dug up the WaPo real estate reference which showed the Wilsons bought there house from a Jacqueline Wilson [which would have been odd that the Wilson's would have bought a $700,000+ house from a foreign lobbyist and Joe's ex-wife because the house wasn't even built while Joe was still married to #2] And if memory serves in one of the companys in the William Jefferson orbit one of the persons involved is a Jackie Wilson [I don't remember which one, but there was this funny article that everyone in the papers was named Wilson and I don't think many were related]
RichatUF
Posted by: RichatUF | June 07, 2007 at 10:31 PM
"Advocates of a pardon can't deny that a jury found Libby guilty beyond a reasonable doubt."
GREAT point! So maybe we should argue that the trial process was flawed, and that Libby has substantive appeals. Gee, it's almost like a legal system - trial, rules, appeals courts...
The reality, though, is that the crimes for which Mr. Libby was convicted -- false statements, perjury and, yes, obstruction of justice -- impeded special prosecutor Patrick Fitzgerald's investigation of the leak that exposed Ms. Plame. . . .
OR so says Fitzgerald and his apologists. Oh, well - if only the left accepted so uncritically every pronouncement of the DoJ on the NSA eavesdropping, or the attorney dismissals.
My short answer is, Fitzgerald never had evidence that Libby had been apprised of Ms. Plame's status, so he was stuck on *at least* that point of the IIPA.
So Libby's "obstruction" really amounted to a failure to confess - there was no other way Fitzgerald was going to convict him.
Truth is the raw material of justice. Without it there's no way to reliably convict the guilty or exonerate the innocent.
So what is the "truth" of Fleischer's claim that he leaked to David Gregory? Why doesn't Fitzgerald even care to subpoena Gregory and ask him? Maybe Fitzgerald should indict himself for obstruction.
Some of those calling for a pardon are being hypocritical. The same people who believed it was right to impeach President Clinton over lies about sex now say it was wrong to prosecute a White House official for lies about irresponsibly leaking a CIA officer's name in a political fight."
Of course, all of Clinton's apologists who minimized the significance of sexual harrassment, perjury, and witness tampering are consistent in that they are also calling for clemency for Libby... NOT.
Posted by: Tom Maguire | June 07, 2007 at 10:36 PM
It's spreading could make a scandal yet.
Posted by: PeterUK. | June 07, 2007 at 10:37 PM
Was this simply a political trial? Was this trial rigged? well only like the OJ trial was rigged..there was no way OJ was going to be found guilty in LA and no way Libby was going to be found not-Guilty in DC.
Don't believe me?
Libby would have been given a suspended sentence if he was selling drugs within the beltway..DRUGS!
Hell, we had 400 arrested for drugs at the INDY 500 this year...ahem..nobody is in jail still..1 to 2 days and a fine..
Work for Cheeny and you are dead meat...
Call that fair, call that politics, call that payback for iraq...
all the lawyering here for the last couple days doesn't face the facts..this was a payback..pure and simple.
And one last thing..after every big trial in America the jury always comes out with statements and comments..all viewed to your delight..on youtube or the news...
please supply the links to these impartial jury members...
didn't think so....your average model citizens just doing thier duty...
Posted by: hoosierhoops | June 07, 2007 at 10:39 PM
From the comments of Rocco's link:
there's that IM-EX bank again.
Posted by: topsecretk9 | June 07, 2007 at 10:49 PM
anduril:
I understand the basis for the appeal on the appointment issue, which we discussed at length back when Libby's Motion to Dismiss was filed. In fact, I thought thought the motion itself was a superb piece of work.
Unfortunately, I do think that there is considerable wiggle room in the relevant citations, and that, so far, the courts seem inclined to a broader rather than a narrower interpretation of the applicable language -- as represented by (but not limited to!) terms like "function."
When it comes to supervision, I don't see an opinion depending on whether or not supervision was, in fact, excercised, but on whether or not it could have been excercised, and simply wasn't, political constraints notwithstanding.
As I recall, there was also reason to think that the courts have already expressed an inclination toward legislative, not judicial, remedies. In short, I think they would rather not decide this one, if they can avoid it, and really want Congress to step up to the plate. TeamLibby might conceivably manage to persuade them to tackle some small piece of it, but I suspect it will take seriously pulling judicial teeth to do it.
Could I be wrong? You bet!
Posted by: JM Hanes | June 07, 2007 at 10:50 PM
"Of course, all of Clinton's apologists who minimized the significance of sexual harrassment, perjury, and witness tampering are consistent in that they are also calling for clemency for Libby... NOT."
You could not successfully portray me as a Clinton Apologist.
How about the hypocrites re; Clinton, who are Libby apologists? That was, I believe, the question you propounded to yourself(?)
Posted by: Semanticleo | June 07, 2007 at 10:57 PM
JMH:When it comes to supervision, I don't see an opinion depending on whether or not supervision was, in fact, excercised, but on whether or not it could have been excercised, and simply wasn't, political constraints notwithstanding.
But that's the point of that idiotic Comey affidavit indicating he could supervise by reading the newspaper accounts. How can you supervise something when you get no reports and have no opportunity to know what is going on?
Remember the independent prosecutor statute which Congress let lapse because they felt the procedure led to abuse required the Independent prosecutor make regular reports to a three man judicial panel.
I think this appointment was a one off and the Court should have no problem dealing with it. I seriously doubt this will ever be done again. Assuming the special prosecutor statute and rules remain intact, any further appointments will follow the terms as written and not be a creative invention outside the law.
Posted by: clarice | June 07, 2007 at 11:02 PM
Rick:
I think we'll be hearing a lot more about the 5th amendment in TeamLibby's argument on the exclusion of the Prosecution's stipulation to the relevant facts -- although I suppose there's not really any way to work the Presidential instructions on that front into an appeal on the trial itself. I wish I knew how/where the constitutionality of such "orders" could be tackled.
Posted by: JM Hanes | June 07, 2007 at 11:05 PM
What Scooter needs is another letter from
Wolfowitz.
From the Brit column:
Darth Vader gets no respect.
Quoting the Kos poster:
Only the most obtuse, dishonest idiots would try to argue that an undercover CIA officer working overseas, even for a week, is not deserving of having his or her identity protected. What is so difficult about this concept?
Let me answer a question with a question - what is so difficult about the concept that the IIPA had certain provisions, which may or may not make sense for the way the CIA operates today?
If the law does not do what Ms. Kos thinks it ought, she should work to have the law amended rather than pretend it already has been.
What is so difficult about this concept?
Posted by: Tom Maguire | June 07, 2007 at 11:05 PM
Tsk, TM, Dontcha know the law is a living breathing thing, not some fuddy duddy thing where words matter. Geez.
Posted by: clarice | June 07, 2007 at 11:08 PM
--I seriously doubt this will ever be done again. Assuming the special prosecutor statute and rules remain intact, any further appointments will follow the terms as written and not be a creative invention outside the law.--
Oh...you think if a Democrat is elected this special appointment (akin to a secret police) will suddenly be looked down on?
Posted by: topsecretk9 | June 07, 2007 at 11:14 PM
I think if anyone is appointed it will be someone outside the Dept who is subject to the supervisory procedures set forth in the statute and rules.
Posted by: clarice | June 07, 2007 at 11:17 PM
The Kos poster was Larry Johnson. Sorry I got cutesy with the Lar-bear.
Posted by: Maybeex | June 07, 2007 at 11:23 PM
Yup. Yup. That is what that crafty guy is thinking. There is nothing more that he wants to do than tie his legacy to tricky dick.
Posted by: tryggth | June 07, 2007 at 11:28 PM
The graf immediately following Maguire's
paste seems to nominate someone for the
'Medal of Freedom'. But which one?
"It was a depressingly revealing moment. This grisly litany of the unsaintly was an unfortunate reminder of just how low the Republicans have sunk these days. By the time President Bush leaves office, anyone who has not been disgraced or convicted will surely be eligible for some sort of medal."
Posted by: Semanticleo | June 07, 2007 at 11:29 PM
Clarice:
"How can you supervise something when you get no reports and have no opportunity to know what is going on?"
The counter, of course, is that the President could have changed all that, at will, political constraints notwithstanding.
"I think this appointment was a one off and the Court should have no problem dealing with it. I seriously doubt this will ever be done again. Assuming the special prosecutor statute and rules remain intact, any further appointments will follow the terms as written and not be a creative invention outside the law."
Don't you think it's also possible that the court might be less, rather than more, inclined to tackle over arching, complex, constitutional issues on the basis of a one off? I'm not suggesting they won't even entertain such an appeal, but I suspect that any opinion they're likely to deliver will probably prove a disappointment, even if they don't reject TeamLibby's argument in full.
I, personally, think those larger issues need be addressed, because, in fact, there are no special prosecutor statutes! The fact that all we have are the DoJ's special prosecutor regulations is the fundmental problem. Those regulations remain susceptible to creative invention and alteration, where requirements instituted by law do not.
Posted by: JM Hanes | June 07, 2007 at 11:33 PM
Clarice:
Just to clarify: When I said the court may disappoint "even if they don't reject TeamLibby's argument in full" I was referring to the argument on the SP's authority alone, not to any of the other elements in his Appeal as a whole.
Posted by: JM Hanes | June 07, 2007 at 11:40 PM
I don't know the answer to your very good questions, JMH.
My recollection is that before the independent prosecutor statute was scrapped, the court was getting none too happy about it, but my recollection could be wrong. These things have devloped into odorific anomolies in our jurisprudence. As have the federal obstruction statutes which the SCOTUS is expressing some distaste for.
Posted by: clarice | June 07, 2007 at 11:48 PM
anduril:
Count me in with boris & Maybeex!
On a lesser plane than the fundamental injustice you point out, what makes McCarthy's glibness doubly offensive in this instance is that Libby never relied on the "I do not recall" ploy in the first place.
Posted by: JM Hanes | June 07, 2007 at 11:53 PM
So Libby's "obstruction" really amounted to a failure to confess - there was no other way Fitzgerald was going to convict him.
There it is! The Great White Whale that was the Libby investigation.
Only thing I want to add is that when all is said and done: I want to be able to prose like Murray Waas! Lessons? Does he give them? Or David Corn?
I apologize, I am being cynical. The next time a Democrat is indicted, I could be quoted. (Deep breath)
Posted by: JJ | June 07, 2007 at 11:58 PM
I think we'll be hearing a lot more about the 5th amendment in TeamLibby's argument on the exclusion of the Prosecution's stipulation to the relevant facts
I think we should. Call me naive, but I actually thought it was illegal/unconstitutional to penalize someone for exercising their Constitutional 5th Amendment rights. But then IANAL so what do I know.
Posted by: Sara | June 08, 2007 at 12:02 AM
unconstitutional to penalize someone for exercising their Constitutional 5th Amendment rights
Agree in principle. 5th seems like self defense to me, not granted but rather recognized.
When someone excercises a right to self defense they don't have to state for the record "I hereby excercise my right to self defense !" Blam!
Posted by: boris | June 08, 2007 at 12:06 AM
On a lesser plane than the fundamental injustice you point out, what makes McCarthy's glibness doubly offensive in this instance is that Libby never relied on the "I do not recall" ploy in the first place.
I wonder how "I do not recall" may have aided Fitzgerald in his investigation.
Is there an argument to be made that Fitzgerald would have had to use fewer resources and had a better chance at getting to the truth if Libby had repeatedly said, "I do not recall"?
Posted by: Maybeex | June 08, 2007 at 12:11 AM
Anduril, I think we are pretty much in agreement. My point is that in terms of moral culpability, it is very hard for me to find anything Libby did materially worse than what Berger did. Berger got a chance to plead to a lesser charge because he was in the run-of-the-mill everyday federal justice system. Libby didn't get that chance because he wasn't.
Imagine that Berger's theft had occurred while Clinton was still president. The way we operate today, it would have been a Special Counsel, not the Justice Department, that was investigating Berger. Would anyone seriously suggest than any Special Counsel who has ever lived would have offered him that plea deal?
(I'll accept your representation as to which term is the more archaic. I have been saying "pleaded" without being aware that I am siding with the Moderns. I may have to reconsider, on that ground alone.)
Posted by: Other Tom | June 08, 2007 at 12:24 AM
Clarice:
I'm mostly working from memory on the caselaw in Libby's original motion, but I'm pretty sure about the statutes vs. regulations status quo from when I was looking at the Comey/Fitz show. We may be making something of the same point, though, because it's my impression that it was the Supremes who came close to telling Congress to clean up its own mess.
"As have the federal obstruction statutes which the SCOTUS is expressing some distaste for."
Well there certainly should be fodder on that score here and I sure wish somebody could tease it out. Wouldn't it be ironic if Fitzgerald's own sentencing docs could be useful in that regard? Kind of ties in with the prosecution for obstruction = prosecution for an IIPA case they
knew theycouldn't make.I've always contended that the only thing Fitz ever really cared about was the obstruction charge, and that sole purpose of stringing out multiple counts was to bump Libby's putative offenses into the (fictional) obstruction ballpark.
[with apologies for tortured metaphors, or English, or whatever]
Posted by: JM Hanes | June 08, 2007 at 12:39 AM
Sara:
"But then IANAL so what do I know."
LOL! IANAL either, but I never let that get in the way. :)
Posted by: JM Hanes | June 08, 2007 at 12:48 AM
So you, Fitz and Walton are in agreement here... (well, I'm not sure Walton was that explicit...). But, as a conservative, surely you understand that power we cede the active government officials requires an expectation of conformance to the rules set out. If its OK to break those rules occasionally (and here I'm not saying Libby did or did not commit the crimes he has been convicted of), I'm just saying under our system of justice we have several - several - in prison because they have been convicted of various crimes and we need to apply the rules evenly. Until an appeal overturns the conviction Libby must be treated as a person who in a powerful position of goverment has been found to obstruct justice.
So you either play by the rules of the game or you just admit there are none.
Posted by: tryggth | June 08, 2007 at 01:03 AM
I, personally, think those larger issues need be addressed, because, in fact, there are no special prosecutor statutes! The fact that all we have are the DoJ's special prosecutor regulations is the fundamental problem. Those regulations remain susceptible to creative invention and alteration, where requirements instituted by law do not.
Does it matter? I mean look a the bastardization of the IIPA in the hands of opportunistic leftists?
Jane called it a while ago - it's unfortunate Clinton couldn't keep his pecker in his pants (and lord knows, I DO NOT blame him for heat seeking elsewhere) but the "depends on your what you definition "is" is" and excusing perjury - actual material perjury complete with false affidavits unleashed a torrent of perfidious lawyering and the same poo poohing of the "it's OKAY to lie and obstruct about sex" crew facilitated it - the ones scandalized have become ridiculously prudish on the meanings of the same law.
I do think it is always important to remember that when Linda Tripp came to Ken Starr she was being pressured by Lewinski to file a false affidavit in the PJ Civil suit and the situation wherein Vernon Jordan secured a juicy hush money Revlon job for Monica matched precisely the scheme that Web Hubbell (Associate Attorney General - architect of the WH 93 UAG massacre) went to the slammer for.
Of course Ken Starr should have ignored and passed on this blatant law breaking, but imagine if you plopped in Cheney, Libby and say cathy Martin in that scenario - Libby asking Martin to file a false affidavit about this, sex or where he buys his shoe-laces?
PANDEMONIUM in sorosphere - hell, they were all busting a gut because possibly a republican got a massage - talk about fascist!
But seriously...the left would be pissed if Libby lied about where he bought his shoe laces and in orbit if he'd asked/forced someone else to do the same and by golly can you understand the flurry if he secured the persona job at Wal Mart? Or egads, Halliburton?
Until a serious leftist admits it was a mistake to pretend Clinton's elitist, power abuse of the law was a grave mistake I am never going to be vexed that I. Lewis Libby's recollection was forthcoming but differed from a man who did not recall he'd written a letter to complain about not remembering something - or had freely spoken to the FBI and then filed an affidavit that indicated he like NOT to talk or testified being an educated lawyer he unaware of grand Jury rules and did not realize his special like meeting was elite like after he'd bitched that Clinton got a sweety depo instead of the treatment of you and me.
I think that was it? I can't remember for sure.
Posted by: topsecretk9 | June 08, 2007 at 01:05 AM
Also, wasn't there a case from the 80's, maybe it was a navy guy who was prosecuted, where the courts ruled that mere "right to fire" was not supervision according to the appointments clause, and some cases were thrown out because investigators were not supervised by anyone in the executive branch? Somebody refresh my memory here... Am I imagining that, or does somebody else remember the cite?
Posted by: cathyf | June 08, 2007 at 01:06 AM
I think your recollection is right cathy. I recall in reading those early pleadins which I found very persuasive, the right to fire was found by one court to be insufficient evidence of supervision. Surely, that applies in spades here where any firing would set off yet another media-political firestorm.
TS good summary of the Russert fandango. I'd already forgotten some of his two steps.
Posted by: clarice | June 08, 2007 at 01:20 AM
JMH -- I would add to my little mini manifesto - that the Clintoid finger pointing photo-op "I did NOT have sexual relation" was a by-product of the OJ standard and a studied lesson for Clinton cronies such as So Sidley Vicious Blumenthal (trading lies of a crazed stalker to reporters while pawning money from feminists - it takes some kind of soulless MOFO to push that BS - didn't he outright lie about his GJ testimony too?)- the new sort of fighting the law in the media in order to manipulate the public and the judge -- I think in addition to Jane's observation this kind of belying the statutes in favor of emotional, dramatic brouhaha kowtowing to perception we see now more prominent in judges and law enforcers (hello? Paris?) and in prosecutors an ego that needs the get them props so creative as to create criminals (hello, Nifong?) all spawned ala Clinton.
Posted by: topsecretk9 | June 08, 2007 at 01:23 AM
You've got it. And have finally answered the question: Why did Fitz quit bathing?
Once Comey was out of sight answering the higher calling of Lockmart, Fitz went all bohemian on everyone. Ask Rudy. Its true. Really... ask Rudy since he is the new great hope. He'll explain it.
So once our hero Comey was gone Fitz - who I'm pretty sure didn't hear from Comey about Gonzales going to a sick and incapacitated man's hospital room, at least not from Comey - just decided he was going to be a moonbat tool. Ain't that just like him?
Now... you might want to consider... what if Ashcroft wanted to move this investigation out of the way the WH? Not because of a conflict of interest, but because - well, he saw what was coming... hmmm.
Posted by: tryggth | June 08, 2007 at 01:30 AM
Trggyth: If it was your purpose to show that you didn't get my point, you succeeded. Perhaps it was my fault.
Yes, we have a system of laws that should be applied equally to every citizen. My point is precisely that it isn't.
That special class of persons who are subjected to investigation and prosecution by Special Counsels are treated far differently from the other 300-plus million Americans. They, and they alone, are confronted by prosecutors with unlimited time, money, discretion and resources, and the unavoidable human tendency to feel that they must convict someone or something or be considered failures. This strike me as a very, very far cry from equal justice.
I believe I can fairly claim consistency on this point. I have repeatedly lamented the unfair treatment afforded Hamilton Jordan, Mike Espy, Henry Cisneros and many others at the hands of these rogue creations. Each and every one of them who has ever been appointed has brought to bear a weight that would never have been brought by a sitting prosecutor tasked with weighing all of the potential crimes he might choose to prosecute. Instead, he has a "special" crime that is his, and his alone, and he will pursue it indefinitely and at whatever cost. No other defendant in America is subject to this sort of treatment.
Hence the great disparity between what happened to Berger and what is happening to Libby. If you want to argue that the latter's offenses are so much greater than the former's, go ahead. But you're wasting your breath with me, and you'll stretch mightily to find any coherent set of principles that support your position.
Posted by: Other Tom | June 08, 2007 at 01:38 AM
Surely, that applies in spades here where any firing would set off yet another media-political firestorm.
Amen. We've got a movement to impeach Gonzales for firing 8 unknown USAs, for heaven's sake.
"Right to Fire" is a pretty tough standard for supervision if impeachment is the reward.
Posted by: Maybeex | June 08, 2007 at 01:39 AM
Suppose Fitz had, indeed, heard of Gonzales going to Ashcroft's hospital room? What then? Is it your understanding that a crime was committed? What crime? Is it your understanding that Fitz had a roving warrant to prosecute it? Why?
Posted by: Other Tom | June 08, 2007 at 01:40 AM
I just read Trggyth's 1:30 a.m. post, and I wish he would restate it in English. And soon, because I've tivo'd Greta's broadcast featuring the latest on Ms. P. Hilton.
Posted by: Other Tom | June 08, 2007 at 01:44 AM
Beldar is intrigued by William Otis' suggestion that the President commute part of Libby's sentence if the judge will not allow him to remain out on bond pending appeal(and the Court of Appeals does not overrule that), noting that Libby would be free to pursue an appeal of the case in the interim and the president could revisit the pardon possibility after the Court of Appeals decides the case. He's even written what I think is a fine draft of the speech the Preisdent should give if he takes that course:
[quote]
We know that no one was ever charged, and never will be, with any substantive crime for the revelation of Valerie Plame's employment with the CIA. We know that a jury of his peers found Lewis "Scooter" Libby guilty of perjury and obstruction of justice in connection with the investigation of such possible crimes. Mr. Libby and his lawyers are in the midst of exercising their rights to have that verdict, and his conviction and sentence, reviewed in the normal appellate process. Whether his appeals are successful in whole or part, they will presumably eventually bring closure to his legal battles — and either way, there will be important lessons for us to learn from that final result. The respect we all share for the rule of law requires that we allow that process to reach its natural conclusion, and that we then seek out and pay attention to such lessons.
Nevertheless, it is already sufficiently clear to me that in the particular circumstances of this case and this individual, service of a lengthy prison sentence would promote no good end but cruelty. Scooter Libby is not a continuing threat to anyone. I know from first-hand personal knowledge how dedicated and devoted a public servant he has been, and what personal sacrifices he has already made on behalf of our country. I know this man's character; I have seen into his heart. And from that, I know that his abrupt, forcible exile from public service, his shame over the damage done to his reputation, and his agony at the effects of all this upon his family and friends and former colleagues — all these things have already combined to inflict upon him a greater punishment than most men would suffer from 30 or even 300 months in prison.
Without undermining our law enforcement system, the Constitution gives every President the power and the responsibility to weigh competing considerations, including very subjective ones, to ensure that genuine justice is done even in individual cases. And it is in fulfillment of that responsibility that I exercise that power today to commute Mr. Libby's 30-month prison sentence — while deliberately leaving in place, at least for the present, his conviction and the remainder of his sentence, including the very substantial monetary fines and two years of supervised release.
I do so without prejudging or even making any implied comment on how his ongoing appeal should turn out, and I do so without endorsing any of the conduct that the jury found to be blameworthy. I do so knowing that in the tragic story of Scooter Libby — as already written, and as yet to be finished until his appeals are done — there is already an ample deterrent to any public official who may ever be tempted to commit perjury or obstruct justice, so that this act of mercy will in no way encourage future lawlessness.
And finally, I do so knowing that reasonable men and women of decency and good will might reach a contrary conclusion to the one I have reached, or that they might have continued to reserve judgment until after Mr. Libby's appeals had been completed, even if that meant he would serve prison time on a conviction and sentence that might ultimately be overturned. I respect those views, but I cannot substitute them for my own. It would be easier, frankly, to permit Scooter Libby to simply go to prison, but I believe it would be wrong, and that it would be an injustice, and that my responsibilities under Article II, Section 2 of the Constitution in this particular case require me to take the opposite course to this limited extent.
So I act now with grave purpose, and with a humble acknowledgment of the imperfections of our species, and with thanks for the grace we enjoy as citizens under the Constitution and laws of these United States of America.[/quote]
h/t:Captain's Quarters
Posted by: clarice | June 08, 2007 at 01:47 AM
Well, I'm gonna watch Greta now. Catch you all in the a.m.
Posted by: Other Tom | June 08, 2007 at 01:48 AM
If youhave to, but I'll be a spoiler-they still haven't found Natalie Halloway.
Posted by: clarice | June 08, 2007 at 01:50 AM
"I believe that Patterico and Capt Ed have consistently made judgements about this case w/o knowing bupkis about the facts. I like them both as a general matter, but I think they do not know what they are talking about."
"Bupkis" is, I think, overly harsh. I have a pretty good working knowledge of the basics, which is belittled by calling my knowledge "bupkis."
I think I heard a juror saying Clarice Feldman knows "bupkis" about the case. Ditto the judge, who said the evidence was "overwhelming."
Judge and Jury: Clarice :: Clarice: Patterico
How are Dave and Judy? We go back and look at their house sometimes as we stroll around the old neighborhood, but never see them. The house looks like such a fortress.
Posted by: Patterico | June 08, 2007 at 01:53 AM
-Once Comey was out of sight answering the higher calling of Lockmart--
but I thought Fitz said that Comey was his supervisor and could do that thru the WAPO or NYT's? And if Comey appointed him and left and Ashcroft was recused then who? (your resurrecting of Ashcroft as poor sick hero is hilarious - you'll recall how much you hated him - he even made a line in the movie "Sideways" don't be an Ashcrroft")
actually, President Bush was his supervisor - and apparently Fitz didn't do that. Would you have approved of his boss firing him?
Some day when you have a Democrat as President this will mean something to you. Trust me.
------------
Speaking of this appointment and the appeal --
I am wondering if this "special appointment" that Fitz said the President was his ultimate boss since this role was not subject to a confirmation and Pres could fire him any time...doesn't the President need to sign off on this or be made aware that he has a new person to keep track of?
I mean - it seems that if the USPres is made boss of someone he'd ought to be notified and sign off on it -- and in that, since Pres. is his boss he should have to regularly report to him. (otherwise Secret Police, yada, yada)
(someone keeps posting about Specter in this - I thought I read that he slipped in something in the Patriot Act wherein AG do not need judicial confirmation - does anyone know?)
Posted by: topsecretk9 | June 08, 2007 at 01:55 AM
Just as I'm logging off I see Clarice's post about Beldar. Beldar and I are on exaclty the same page, except that he's a far better speechwriter.
Now I'm REALLY gonna watch Greta.
Posted by: Other Tom | June 08, 2007 at 01:56 AM
OT:
In addition to seeking reauthorization of the NSA eavesdropping program, didn't Gonzales visit Ashcroft in order to determine which administration staffer should be the fall guy?
On a serious note, I'm glad to see that the defense intends to appeal the rulings on the state of mind evidence. IIRC, Cheney's infamous and annotated copy of the op-ed was introduced to show only Cheney's state of mind, from which the jury could then infer Libby's. Not surprisingly, the inference they drew was rather different.
I assume from the fact that he was not called as a prosecution witness that Cheney did not tell the Special Counsel that he made the annotations or asked Libby to get him answers before Novak's column. Did the vice president say he didn't remember? Or, did Fitzgerald just not ask lest an explicit denial preclude him from introducing the state of mind argument in the first place?
Posted by: Elliott | June 08, 2007 at 01:59 AM
OT:
In addition to seeking reauthorization of the NSA eavesdropping program, didn't Gonzales visit Ashcroft in order to determine which administration staffer should be the fall guy?
On a serious note, I'm glad to see that the defense intends to appeal the rulings on the state of mind evidence. IIRC, Cheney's infamous and annotated copy of the op-ed was introduced to show only Cheney's state of mind, from which the jury could then infer Libby's. Not surprisingly, the inference they drew was rather different.
I assume from the fact that he was not called as a prosecution witness that Cheney did not tell the Special Counsel that he made the annotations or asked Libby to get him answers before Novak's column. Did the vice president say he didn't remember? Or, did Fitzgerald just not ask lest an explicit denial preclude him from introducing the state of mind argument in the first place?
Posted by: Elliott | June 08, 2007 at 02:00 AM
OT:
In addition to seeking reauthorization of the NSA eavesdropping program, didn't Gonzales visit Ashcroft in order to determine which administration staffer should be the fall guy?
On a serious note, I'm glad to see that the defense intends to appeal the rulings on the state of mind evidence. IIRC, Cheney's infamous and annotated copy of the op-ed was introduced to show only Cheney's state of mind, from which the jury could then infer Libby's. Not surprisingly, the inference they drew was rather different.
I assume from the fact that he was not called as a prosecution witness that Cheney did not tell the Special Counsel that he made the annotations or asked Libby to get him answers before Novak's column. Did the vice president say he didn't remember? Or, did Fitzgerald just not ask lest an explicit denial preclude him from introducing the state of mind argument in the first place?
Posted by: Elliott | June 08, 2007 at 02:00 AM
OT:
In addition to seeking reauthorization of the NSA eavesdropping program, didn't Gonzales visit Ashcroft in order to determine which administration staffer should be the fall guy?
On a serious note, I'm glad to see that the defense intends to appeal the rulings on the state of mind evidence. IIRC, Cheney's infamous and annotated copy of the op-ed was introduced to show only Cheney's state of mind, from which the jury could then infer Libby's. Not surprisingly, the inference they drew was rather different.
I assume from the fact that he was not called as a prosecution witness that Cheney did not tell the Special Counsel that he made the annotations or asked Libby to get him answers before Novak's column. Did the vice president say he didn't remember? Or, did Fitzgerald just not ask lest an explicit denial preclude him from introducing the state of mind argument in the first place?
Posted by: Elliott | June 08, 2007 at 02:00 AM
OT:
In addition to seeking reauthorization of the NSA eavesdropping program, didn't Gonzales visit Ashcroft in order to determine which administration staffer should be the fall guy?
On a serious note, I'm glad to see that the defense intends to appeal the rulings on the state of mind evidence. IIRC, Cheney's infamous and annotated copy of the op-ed was introduced to show only Cheney's state of mind, from which the jury could then infer Libby's. Not surprisingly, the inference they drew was rather different.
I assume from the fact that he was not called as a prosecution witness that Cheney did not tell the Special Counsel that he made the annotations or asked Libby to get him answers before Novak's column. Did the vice president say he didn't remember? Or, did Fitzgerald just not ask lest an explicit denial preclude him from introducing the state of mind argument in the first place?
Posted by: Elliott | June 08, 2007 at 02:00 AM
OT:
In addition to seeking reauthorization of the NSA eavesdropping program, didn't Gonzales visit Ashcroft in order to determine which administration staffer should be the fall guy?
On a serious note, I'm glad to see that the defense intends to appeal the rulings on the state of mind evidence. IIRC, Cheney's infamous and annotated copy of the op-ed was introduced to show only Cheney's state of mind, from which the jury could then infer Libby's. Not surprisingly, the inference they drew was rather different.
I assume from the fact that he was not called as a prosecution witness that Cheney did not tell the Special Counsel that he made the annotations or asked Libby to get him answers before Novak's column. Did the vice president say he didn't remember? Or, did Fitzgerald just not ask lest an explicit denial preclude him from introducing the state of mind argument in the first place?
Posted by: Elliott | June 08, 2007 at 02:00 AM
Apologies for the sextuple post. If that is a record, it is not one I am proud to hold.
Posted by: Elliott | June 08, 2007 at 02:02 AM
which is belittled by calling my knowledge "bupkis."
Well actually she said you didn't know bupkis so there is no need to feed belittled anymore. Go forth and rejoice.
Posted by: boris | June 08, 2007 at 02:03 AM
"Bupkis"
OK PatRico -- you know emotional, your side of the fence about this case.
Do you think you would have said in a press conference that Lewis Libby was the first known official to talk about Plame with reporters - knowing that you did not look at the confessed leaker's calendar of the same dates you looked at your hook's?
UM - I think not.
And, upon finding out the known leaker had concealed from you the knowledge that he had actually leaked to another reporter way earlier (as in before your indicted) -- would you look at that and say cool no big you obstructed me - I only care that Libby obstructed me?
Forgive me if I don't think you've absorbed this injustice.
Posted by: topsecretk9 | June 08, 2007 at 02:07 AM
"Bupkis"
OK PatRico -- you know emotional, your side of the fence about this case.
Do you think you would have said in a press conference that Lewis Libby was the first known official to talk about Plame with reporters - knowing that you did not look at the confessed leaker's calendar of the same dates you looked at your hook's?
UM - I think not.
And, upon finding out the known leaker had concealed from you the knowledge that he had actually leaked to another reporter way earlier (as in before your indicted) -- would you look at that and say cool no big you obstructed me - I only care that Libby obstructed me?
Forgive me if I don't think you've absorbed this injustice.
Posted by: topsecretk9 | June 08, 2007 at 02:10 AM
"Bupkis"
OK PatRico -- you know emotional, your side of the fence about this case.
Do you think you would have said in a press conference that Lewis Libby was the first known official to talk about Plame with reporters - knowing that you did not look at the confessed leaker's calendar of the same dates you looked at your hook's?
UM - I think not.
And, upon finding out the known leaker had concealed from you the knowledge that he had actually leaked to another reporter way earlier (as in before your indicted) -- would you look at that and say cool no big you obstructed me - I only care that Libby obstructed me?
Forgive me if I don't think you've absorbed this injustice.
Posted by: topsecretk9 | June 08, 2007 at 02:10 AM
Preemptive strike on Hit and Run:
No, that is not what I meant when I said I would post more frequently.
Well, that should severely limit his production of conventional humor. However, if he can deploy something as innovative as the "Clarice's electrician" scheme, I fear I will be at a loss to counter it.
Posted by: Elliott | June 08, 2007 at 02:16 AM
Ouch TS. When you put it that way it kind of stings a bit. In a good way though.
I'm impressed, after clubbing trolls all day a little finesse is appreciated.
Posted by: boris | June 08, 2007 at 02:30 AM
Kudos to Susan Estrich. She is a liberal who can put aside her politics for this matter.
Personally, just to use a little whimsical thinking here, I kind of feel that it should be freedom of speech in America to lie to anyone you want to. After all, it's up to the prosecutors to prove their case - why should you be compelled to help them do their jobs? How many people found guilty of a crime, who swore up and down on the stand they didn't do it, are then found guilty of perjury too and then have THAT added on to their sentence afterwards as well? None that I know of - so why should people innocent of the underlying crime be treated worse than the guilty people? Doesn't make sense to me. I think this "materiality" concept has really been increasingly and unfairly stretched.
But in either case, I agree with others that Libby's lawyers don't seem that up to the job. I kind of wonder if Libby was as bright legally as everyone suggested. His testimony was ridiculously stupid, and the lawyers he hand-picked haven't exactly wowed me. Anyway, the memory expert issue seems to me to be the most black and white issue to appeal.
Posted by: sylvia | June 08, 2007 at 02:35 AM
Patterico! I almost missed your post in the middle of the Elliott and TS competition to see who would post the most duplicate posts.
Face it, compared to those of us locked in TM's No Exit blog , everyone knows bupkis about this case.
I know you would not have given that presser; I know you would not--having claimed Plame's status was irrelevant and discovery on it, therefore, not permitted, raised the issue at sentencing; I know you would have conducted this investigation more fairly than Fitz did.
David, Judy AND their no two year old darling are fine. You can see the inside of the house here..it was still in its early stages--no fence , landscaping and not a hint of the guesthouse, but you can get a good idea:
http://www.syndesisinc.com/arch/add-remodel.html#Slat
Posted by: clarice | June 08, 2007 at 02:39 AM
their noW teo...
Posted by: clarice | June 08, 2007 at 02:42 AM
their noW tWo--
(sorry, it's way past my bedtime..
Hope you are happy in your new digs with that gorgeous view, Patterico)
Posted by: clarice | June 08, 2007 at 02:48 AM
"Well, Bush is a notorious poker player who doesn't tip his hand unless he needs to. "
You know that reminds me of an article I read in the Smithsonian magazine once (great magazine by the way - not as dull as the National Geogrpahic). It was about some Egyptian writer who moved to Oklahoma in the 1950's, and wrote his impresions of Americans and America (bad of course) and apparently this guy's writings formed, and still form, the basis for the anti- American thinking of many Arab radicals, including Bin Laden. Sorry can't remember his name now.
Anyway, he wrote he theorized that American men were so tactiturn because they didn't want to tip their hand in business, as he considered this an overly business-centered society. And seeing what Cathy wrote makes me think that that may apply to Bush as well.
Posted by: sylvia | June 08, 2007 at 02:49 AM
thanks Boris.
I'm a bit tired in the apologists and their cursory defenses that seem to rooted not in facts but in the good old jesuit club cronyism themselves or immune to career self criticism.
Posted by: topsecretk9 | June 08, 2007 at 02:58 AM
Hi Lesley! & Thanks :)
Posted by: JM Hanes | June 08, 2007 at 03:28 AM
Typepad is the pits.
Posted by: topsecretk9 | June 08, 2007 at 03:32 AM
Clarice
Ignore the ever changing bot name
it's clear he/she is bought and paid for stooge ala townhouse - prolly directly called for or financed by the Wilson's -- you can clearly see when they descend - when the Wilson's need it the most - and I don't think this jolting substance like fueled-like ardor is pro bono!
Posted by: topsecretk9 | June 08, 2007 at 03:34 AM
cathyf:
In the Bush is boss scenario, Comey is irrelevant. How many times have people in these very threads, voiced frustrated calls for the President or later for Gonzales as AG, to step in and do something? While Bush/Gonzales may have decided it would be politically suicidal to intervene, they were certainly legally empowered to do so, or to change the rules, or reverse Comey's decisions. Essentially, the argument is that they chose not to do so and not to exercise hands on supervision.
That's actually more substantial than the "mere 'right to fire,'" but as I recall, the caselaw on the narrower issue alone, was actually mixed. The collected citations included quotes from both majority and minority opinions -- most of which were rendered in the context of an independent or special counsel whose position was definied by statute, which is no longer the case. All of which is why I suggested that it looks exceedingly difficult to find a definitive precedant.
The question be decided on appeal is also somewhat more complex, it seems to me, than the emphasis on actual supervision here implies. The basic constitutional question is whether Fitzgerald the Special Prosecutor is sufficiently autonomous and sufficiently distinct from Fitzgerald the US Atty to require separate confirmation by the Senate.
I don't pretend to know the answer to that question, in part because I don't have the legal expertise to understand the technicalities involved, but also because, it seems to me from the Defense's filing, that basis for making that determination has not, in fact, been established. That's why it looks a whole lot tougher to argue than any of the other appealable issues. I'm certainly not happy about that, but there it is. Given the potential ramifications with regard both to this case and to others in future, I wonder if it doesn't really belong in front of the Supremes, assuming they'd be willing to take it, which is not a sure thing either.
Posted by: JM Hanes | June 08, 2007 at 04:04 AM
tsk9:
"Does it matter? I mean look a the bastardization of the IIPA in the hands of opportunistic leftists?"
I'm not sure we're talking about the same things here. It matters a lot in the context of Fitzgerald's appointment. If the Special Prosecutor guidelines had been enacted in law by Congress, instead of adopted as DoJ departmental regulations, it would have been illegal for Comey to appoint Fitzgerald, and he could never have gotten away with it.
Posted by: JM Hanes | June 08, 2007 at 04:11 AM
And yes, I know I misspell precedent more often than not, even when it doesn't look right and I change it. I blame TypeKey. I even blame TypeKey for Bush.
Posted by: JM Hanes | June 08, 2007 at 04:31 AM
JMH:
I even blame TypeKey for Bush.
So usually, I come in in the mornings, read through the thread(s) and then go back and make any comments in order.
So usually this would be the last one I would comment on from the night before.
But blaming TypeKey for Bush is so creative and so novel, I don't see how I can refrain from commenting.
[VIMH: Um, so do you have a comment?]
Actually, no. I'm stupefied. Absolutely stupefied.
I'm still trying ... and ... nothing. But I can't stop staring at that statement.
Posted by: Jeff Dobbs | June 08, 2007 at 07:40 AM
H&R,
Quite simple really,in the beginning there was TypeKey and TypeKey said,"Let there be Bush" and there was Bush.
Posted by: PeterUK. | June 08, 2007 at 08:53 AM
Essentially, the argument is that they chose not to do so and not to exercise hands on supervision.
And from a basic fairness standpoint, I might even buy that argument, if the decisionmakers had adequate information. The obvious disconnect in this case is Fitz's successful suppression of the actual leak mechanism until well after the indictment (and the trial process was well underway).
If the powers-that-be had known in early 2004 that he was ignoring the leaker in favor of a political witch hunt, their inclination to let him continue (and take measures like locking up journalists) might've been considerably different. Thus inadequate information precluded effective oversight.
I'm also a bit disappointed the Libby team didn't emphasize the Fifth Amendment issues more. The idea that a man can be compelled (by threat of losing his job) to "cooperate" with a multi-hour grilling on far-ranging issues (almost all of which appear to be inconsistencies in witness testimony of months-past details); have much of his exculpatory evidence be denied by CIPA procedures; and then have even the agreed-upon substitutions further limited because he declined to testify again, seems like anything but "due process," and makes a mockery of the protections provided by the Fifth.
Posted by: Cecil Turner | June 08, 2007 at 08:53 AM
Elliott, I don't know the answer to your questions. (Repeat six times.)
Good morning, dear friends.
Posted by: Other Tom | June 08, 2007 at 09:28 AM
Cecil, The DoJ's response to Clarice's letter indicating no evidence of malfeasance may not help the TeamLibby to defend the SP issue. If they weren't able to see it and failed to provide oversight over Fitz, then how can Libby's team defend this in the appeals process?
TeamLibby would do better to reference to law of appointing SPs and that the AG at that time, acting or not, should have followed the rules and law in appointing a SP to ensure the oversight and review of the SP's work.
Posted by: lurker9876 | June 08, 2007 at 09:30 AM
You night owls are hard to keep up with.
OT, yeah, we're on pretty much the same page.
JM Hanes, I agree that it all comes down to whether the appeals court wants to address the issues--and I have no better idea than anyone else. But cf. Cecil Turner.
TSK9, nice response to PatRico, who really doesn't know Butkus, ,, I mean, bupkis.
Cecil Turner, I think you put your finger on what could be determinative as to whether the appeals court will grab this bull by the horns: the possibility that Fitz was playing hide the ball with the courts.
JM Hanes again. Actually, I think my approach would be an easy way for the court to avoid getting into serious constitutional issues about who needs to be confirmed and so forth. Just say: forget those issues, Comey relied on a statute that doesn't apply.
We'll see. Bottom line, there really are some serious issues that the defense is raising. It won't be easy to sidestep them all...or, it wouldn't be if there were truly two sides to the debate. We'll see.
Posted by: anduril | June 08, 2007 at 09:47 AM