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June 07, 2007



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..



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: 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:


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.


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



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.


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.

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