Libby's Plea For Relief Cites Andrea Mitchell

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

Dig in.

MORE:  The defense is citing:

(1) the constitutionality of Fitzgerald's appointment;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OK.

SUSAN ESTRICH:

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

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

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

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

Comments

[Jane]

Well I'm thrilled to find out that Mary Winkler got less time for shooting her husband in the back while he slept than Scooter Libby got.

And today in other news Sandy Berger surrendered his law license, and Paris Hilton went back to solitary..

[RichatUF]

clarice...

I think with this filing Walton will look biased and vindictive if he doesn't grant Libby bond pending appeal. These professors are of some standing and the test for bond pending appeal most certainly has been met.

I'm still pretty stunned by the footnote in the Walton filing that was pointed out above. But since Clarice has said Libby should get bond pending appeal, I'm going with Mr. Dependable Judge Walton-Libby won't get bond. I suppose that the bond-pendng-appeal issue can also be appealed? Has Mr.70% put a number on it? Tradesports only has a pardon, not bond pendng appeal

I've read some of the issues surrounding the appointment [rather technical for this non-lawyer], but I didn't realize that it was such a strong point. I sort of remember a discussion that even if Fitzgerald was acting beyond the scope of the regulations, since he was acting as an office of the court, his appointment can stand [something about people passing themselves off as laywers or the current Air Force mess with a twice disbarred JAG without proper creditals].

Anyway, learn something new everyday

RichatUF

[MJW]

RichatUF: I sort of remember a discussion that even if Fitzgerald was acting beyond the scope of the regulations, since he was acting as an office of the court, his appointment can stand...

That's a good point. The argument for allowing an improper appointment to stand is called the de facto doctrine, but it isn't universally applicable.

In the original dismissal motion Libby's lawyers argue that if Fitz's appointment is invalid, the case must be dismissed, starting on the bottom of page 31 (unfortunately, it can't be cut and pasted, and I'm too lazy to type it all in). Some cases they cite are:

YOUNG v. UNITED STATES EX REL. VUITTON ET FILS S. A., 481 U.S. 787 (1987)

RYDER v. UNITED STATES, 515 U.S. 177 (1995)

NGUYEN V. UNITED STATES, 540 U.S. 935 (2003)

In YOUNG, a civil court appointed a private attorney to prosecute a contempt case. The SC held that the appointment of a private attorney was proper, but that the civil court improperly appointed the attorney for the opposing side of the case, which was improper because the attorney was not a disinterested party. They therefore reversed the conviction. Since there are two factors -- improper appointment and bias -- this case is close, but not an exact analogy.

Working against Libby is a comment in Powell's dissent: "Even where constitutional errors are found to have occurred, this Court has found harmless-error analysis to be appropriate. Chapman v. California, 386 U.S. 18 (1967). As the Court recently noted: '[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.' Rose v. Clark, 478 U.S. 570, 579 (1986)." (Though since Libby objected to the appointment prior to trial, the force of this comment may be diminished.)

Working for Libby is a comment in Scalia's concurrence with the judgment, in which he takes the position the the appointment of a private attorney as prosecutor was improper: " Since that is the only grant of power that has been advanced as authorizing these appointments, they were void. And since we cannot know whether petitioners would have been prosecuted had the matter been referred to a proper prosecuting authority, the convictions are likewise void."

Both RYDER and NGUYEN involved the improper appointment of judges, so I'm not sure to what degree they apply.

[RichatUF]

Thanks MJW...

It seems that the appointment issue is the red meat on this. I'm going to stand back and watch and let the pros argue this one.

I'm curious however if the appointment of Fitzgerald is successfully challenged, doesn't that mean the Miller affidavit can be reopened as well. I'm not a big fan of the press, but I found the idea that a prosecutor could send a reporter to jail for 85 days a bit troubling. It wasn't as if Libby didn't give a voluntary waiver and the issue of other sources was closed to Libby at trial [not withstanding the Miller counts were dropped, it was prejudicial. I'd have to look over the juror's comments to be sure, but I thought one said on Larry King she felt that Libby's lawyers were picking on Miller]

If the situation were something like Jeff Gerth getting tossed in jail for 85 days because he wouldn't cough up who gave him the Clinton tax returns, I'm sure more of the media might take notice of the potential for abuse. It also is corrupting on the media as they 'learn' which way to shade their stories [cough-NBC-cough] so as to not run afoul of the Super Special Prosecutor

RichatUF

[MJW]

As an interesting sidelight, in Fitz's response to the dismissal motion, he only argues that the appointment was valid; he doesn't argue in the alternative that even if it wasn't valid, the indictment should stand.

[clarice]

Let him argue that a properly appointed counsel--some practitioner not in the DOJ like Jacob Stein, for example--would have proceeded knowing Armitage was the leaker
and there was no factual predicate for the application of the IIPA.Make my day.