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

[Jeff Dobbs]

Byron York's article today...

No reason to rush Libby to jail

So it looks like Lewis Libby will be going to jail, possibly pretty soon, for two and a half years.

The jail part is a not a surprise. Vice President Dick Cheney’s former chief of staff was, after all, convicted of perjury and obstruction of justice. Judge Reggie Walton, who presided over Libby’s case, couldn’t just ignore that.

At sentencing this week, Walton also said that he saw no reason why Libby shouldn’t be behind bars sooner rather than later — in other words, that he should begin serving his sentence while his appeal is underway.

Why the hurry? These days it’s often the case that when a defendant is judged no danger to society and no danger to flee the country, he is allowed to remain free on appeal.

[Sue]

...the leak that exposed Plame's identity...

That would be Armitage. Who faces zilch, nada, squat. If anyone obstructed the investigation, it was Armitage. By remaining silent until after Libby is indicted about his early conversation with Woodward, Armitage allowed this train wreck to continue down a path that it didn't need to take. If Fitzgerald had indicted Armitage, I'd be on board with him right now. Perjury, obstruction, false statements are a big deal. But not when selectively administered and not when the actual leaker is already known to the prosecutor.

[anduril]

Got past verification on the first try! But how do you people pull off that sextuple post trick? Shift + 6?

[Cecil Turner]

The DoJ's response to Clarice's letter indicating no evidence of malfeasance may not help the TeamLibby to defend the SP issue.

That's probably true (or at least it's unprovable), but whether or not it was improper of Fitz to suppress the information, the lack of information still arguably made Fitz's supervision inadequate.

TeamLibby would do better to reference to law of appointing SPs . . .

Yes, I accept that argument would likely be more a more effective legal argumetnt. My non-lawyerly take on this is more driven by what I perceive as fair than the legal niceties.

[Paul]

OpinionJournal.com has an excellent piece this morning by Fouad Ajami: "Fallen Soldier. Mr. President, do not leave this man behind."

[Jeff Dobbs]

Sue:
If anyone obstructed the investigation, it was Armitage.

Oh, I think someone else deserves a mention. Not in the legal definition of obstuction of justice, but in the practical application of it.

[RichatUF]

sylvia says...

...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.

Sayyid Qutb and some stuff here

RichatUF

[cathyf]

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).

This is also related to the whole question of whether there was ever an investigation "disclosure of classified information". If the FBI investigated "disclosure of classified information", then they discovered the Plame's CIA affiliation was not classified, and Fitzgerald's false affidavits claiming that she was are perjury. If the FBI did not investigate "disclosure of classified information", then Fitzgerald's affidavits are false in claiming that they did.

According to this little little note (which I came upon while trying to puzzle out how Fitzgerald was allowed to violate the Two Witness Rule for perjury, which still remains a puzzle)

Section 1623(c) allows prosecutions for making two or more statements under oath that are inconsistent to the degree that one of them is necessarily false. In such prosecutions, the government does not have to prove which irreconcilably contradictory declaration was false.

Fitzgerald committing perjury, obstruction and conspiracy to obstruct does rather argue against supervision, right? What supervisor would allow it? And I also have the simplest question of all: if Fitzgerald had a supervisor, who was it? According to the briefs filed before trial, Comey is the only person even willing to claim to be Fitzgerald's supervisor; accordingly, Fitzgerald has already stipulated that his only supervisor after July, 2005, was not a government employee!

I've also consistently claimed that Bush should be impeached for allowing this appointment to occur and to continue. If Bush is his supervisor, and Bush has allowed him to commit crimes, then Bush should be removed from office.

[Rick Ballard]

"If Bush is his supervisor, and Bush has allowed him to commit crimes, then Bush should be removed from office."

When the appeals court declines to hear the appeal, that will be the underlying reason. There will be a few pages of obfuscatory smoke generated but at bottom there will be the rationale that the judicial branch doesn't delve into politics without a gun to its head. It's actually not the job of the Judiciary to save the Executive from the effects of its own mis and malfeasance. If Gonzales and Bush lacke the huevos necessary to correct Comey's error, why should the courts fix it?

I wonder if the Compassionate Conservative has marked his calendar with the sentencing date in order to make sure that a sympathy card is sent to Libby on an annual basis? It would be a very kind gesture and I'm sure that the Libby's would appreciate it.

[Elliott]

Sue:

If Armitage denied (or equivocated with respect to) discussing Plame with any reporter other than Novak, it is incredible that he was not indicted. Furthermore, if Woodward's assertion that he was not released from his pledge of confidentiality is admissible, it does not seem like it would be the hardest case to prove.

However, if the FBI or anyone else who interviewed him never asked Armitage if he mentioned Plame to another reporter, convicting on obstruction would, I think, be extremely challenging.

While, in the latter scenario, the investigators would have egg on their face, the decision not to indict would be defensible.

[cathyf]

However, if the FBI or anyone else who interviewed him never asked Armitage if he mentioned Plame to another reporter, convicting on obstruction would, I think, be extremely challenging.

Yeah, you would think, but Fitzgerald did convictions on obstruction -- convictions of someone whose convicted-as-perjury testimony would have caused a reasonable investigator to run right out and question Armitage on exactly that question. (See, it still bothers me that logically, Libby's "false" statements could have been perjury, or could have been obstruction, or neither, but logically, couldn't be both. What, in fact, prevented investigators from discovering the truth, is that they decided Libby was lying and didn't investigate his eyewitness testimony. If they had taken his testimony for true, they may very well have discovered for themselves, before the indictment, that Libby was not the first leaker.)

[Cycloptichorn]

Not that it matters that Libby wasn't the first leaker; it does not remove culpability for those who leak afterwards.

[Sue]

Is anyone else having problems getting the copy and paste to work?

Elliott,

If Armitage was not asked if he talked to anyone other than Novak about Plame, that merely makes it worse than it already is. Rove was certainly asked. Libby was asked. And the known leaker was never asked? If they didn't ask, they didn't want to know the answer. Armitage did more to obstruct the investigation than anyone. And Powell. Had either told Bush early on that Armitage talked to Novak, Bush would have shut it down. On that, I'll be the house. Bush did not want to lose what little support Powell still afforded him.

[Sue]

I might be a house, but in the instance above, I'm betting the house. ::grin::

[Jane]

Not that it matters that Libby wasn't the first leaker; it does not remove culpability for those who leak afterwards.

Of course it does, or would if the issue was outing a covert agent, because once outed she would no longer be covert, thus removing the issue. When it wouldn't matter is if the issue was placating a petulent whining ex-ambassador who didn't get his candidate elected and wasn't getting enough attention.

That last part actually must sound familiar to you cyclops.

[Other Tom]

Bulletin for Cyclops: No one was culpable for leaking. No crime occurred.

[Cycloptichorn]

Failure to prosecute a crime does not mean that no crime occured, OT; just that noone has been charged for that crime.

There are many different reasons why this might be true. You are well familiar with all of them, but instead of looking at the situation logically, you choose to fall back on assertions such as

No crime occurred.

Why?

But as an aside; if Libby or others WERE to be held culpable, the fact that Armitage leaked would be immaterial to their prosecution.

[boris]

I might be a house, but ...

Such is the influence of expectation on perception that I read that line as "I'll bet the house."

Didn't notice the typo till you pointed it out.

[boris]

Why?

Because the IIPA was not violated.

[boris]

Why?

Because passing information that was not designated classified by the CIA officials who directly provided it is not even unauthorized disclosure.

[Cycloptichorn]

Why?

Because the IIPA was not violated.

Assertion, nothing more.

The only part of the IIPA that's really in question in this case is intent. I suspect that this is why Armitage wasn't charged; he successfully convinced Fitz that he didn't intend to out the agent.

Which brings up an interesting point: the reason Libby is in trouble is b/c he chose to lie about what happened. Let's assume that there was no conspiracy; if Libby had just told the truth, and said 'yeah, we were getting the word around, but we didn't know she was secret - the CIA never told us, for sure,' then there is every chance that no one would have been charged at all, with anything. But he chose to lie instead, for reasons we'll never know.

[Semanticleo]

EW has been arguing, of late, that Fitz' appointment may indeed be unconstitutional.

"Walton provides a basic claim that Fitzgerald is an inferior officer since the AG could still fire him (hell--in this DOJ, even Kyle Sampson or Monica Goodling could fire him, apparently). More importantly, Walton explains the reason for the necessary legality of the Special Counsel: Because if we can't have a Special Counsel free of direct oversight of the AG, then there is no way to investigate those who occupy high levels of DOJ or those who have direct responsibility for it."

But as any reasonable mind can conclude;

"In other words, if Fitzgerald's appointment is unconstitutional, Walton was arguing, we can't hold Alberto Gonzales or Dick Cheney or George Bush to account."

Then she adds the capper;

That's not really a constitutional argument, mind you, it's a pragmatic one. But it really underscores the importance of this issue. Because Bork is not just trying to get Fitzgerald fired.......................

He's trying to get the next Special Counsel--the one investigating BushCo constitutional violations--fired."

So all this banter about Libby's unfair
treatment at the hands of the bad ol' SP is just the prelude and appetizer designed to spoil the 'entree'. You are doing good work
folks, keep it up.

[boris]

The only part of the IIPA that's really in question in this case is intent.

Your lack of undestanding of the issue is hardly compelling as an argument.

By providing the CIA wife detail without classified designation REQUIRED by law for classified information, the CIA itself busted two of the requirements for IIPA.

[Cycloptichorn]

By providing the CIA wife detail without classified designation REQUIRED by law for classified information, the CIA itself busted two of the requirements for IIPA.

I disagree, but let's accept that this is true. Then what I wrote above applies:

Which brings up an interesting point: the reason Libby is in trouble is b/c he chose to lie about what happened. Let's assume that there was no conspiracy; if Libby had just told the truth, and said 'yeah, we were getting the word around, but we didn't know she was secret - the CIA never told us, for sure,' then there is every chance that no one would have been charged at all, with anything. But he chose to lie instead, for reasons we'll never know.

WHY was Libby lying about stuff he had no reason to lie about?

[Jane]

I think it is hysterical that the same people who think that Islamic tererorists will simply go away if we are nice to them, think that the entire US government is engaged in one large conspiracy to protect a democratically elected president.

FDL seems to have been completely taken over by Rosie O'Donnells. Poor thangs.

[PeterUK.]

"Because the IIPA was not violated.

Assertion, nothing more."

So who violated it?

[anduril]

If Bush is his supervisor, and Bush has allowed him to commit crimes, then Bush should be removed from office.

Posted by: cathyf | June 08, 2007 at 10:17 AM

As Rick points out, something along these lines is one line that the court could take. Put a little differently:

If Bush was his supervisor but declined to supervise effectively, who are we to second guess the executive? True, Comey had no basis for the appointment under the statute he relied upon and failed to supervise Fitz. But Bush was Comey's boss, the Chief Executive, and Bush acquiesced in the appointment, thereby confirming it. The legislative branch failed to challenge it, too, and since Fitz's actions qua prosecutor were not unconstitutional, we decline to get involved. Therefore, Libby can't complain either--it may have been sloppy, but it was the province of the executive branch one way or the other.

This takes us back to McCain Feingold, when Bush, in one of his most cowardly acts, declined to step up to the plate as the Constitutional player that the President is.

WHY was Libby lying about stuff he had no reason to lie about?

Are you aware you are plagiarizing a post">http://justoneminute.typepad.com/main/2007/06/libbys_sentence.html#comment-71965652">post of mine from 2 days ago?

Which includes this ...

Anyway, if that's the truth Libby had to cover up ... 2 questions. (1) Why? Nothing there particularly embarrassing or risk for legal jeopardy. (2) How would that truth have altered the "investigation" into IIPA violation at all?

Those points are why I claim that concluding Libby lied is the explanation that is simple, obvious and wrong (as a conclusion anyway).

All you had to do was ask.

[boris]

Wierd ! I must be "covert" or something. A new one for typepad.

[cathyf]

I should use more precise language... A "leak" is a "disclosure of classified information." We now know, established as fact at the trial, that only unclassified information was disclosed. When it comes to disclosing a particular piece of unclassified information that shows that the CIA are incompetent idiots, yes, certainly whether the discloser was the first or the ten-thousanth to so disclose, the culpability is exactly the same -- there is no culpability for disclosing unclassified information, and in fact doing so is explicitly protected by the First Amendment. And that applies to Armitage, and Ford, and Grossman, and the State Dept guy at the Feb, 2002, meeting, and Harlow, and Cathie Martin, and the parade of CIA briefers who chatted about it, Congressional staffers (whether married to reporters or not), and any and all other CIA, DIA and/or DoS people who chatted about it with people in and out of government, just as much as it applies to Libby.

[Other Tom]

"But as an aside; if Libby or others WERE to be held culpable, the fact that Armitage leaked would be immaterial to their prosecution."

And if my grandmother were to have balls, she'd be my grandfather.

You wanted the "24 imminent indictments"; you didn't get them. You wanted the May 13, 2006 Karl Rove indictment to be unsealed; you didn't get it. You wanted an IIPA or Espionage Act conviction; you didn't get it. So now you're reduced to whining about crimes that may have occurred but weren't prosecuted. What great fun.

[Tom Maguire]

From cathyf:

According to the briefs filed before trial, Comey is the only person even willing to claim to be Fitzgerald's supervisor; accordingly, Fitzgerald has already stipulated that his only supervisor after July, 2005, was not a government employee!

Well, let's applaud them for following the spirit of the special prosecutor rules then - instead of having the special counsel come from outside DoJ, they had his boss outside DoJ. Slick.

From Rick B:

It's actually not the job of the Judiciary to save the Executive from the effects of its own mis and malfeasance. If Gonzales and Bush lacke the huevos necessary to correct Comey's error, why should the courts fix it?

Good point, but - Libby is a private citizen whose interests may or may not overlap with Bush/Cheney. For all we know, Bush is OK with letting this train wreck roll, as long as his hands stay clean; a court would be Libby's only source of relief.

(Do trains wrecks roll? I mean, after?)

If Armitage was not asked if he talked to anyone other than Novak about Plame, that merely makes it worse than it already is. Rove was certainly asked. Libby was asked. And the known leaker was never asked? If they didn't ask, they didn't want to know the answer.

As a sidebar, remember how the AP filed a Freedom of Info Act request and found Woodward on Armitage's appointment calendar for June 13 (?)? One might presume that Fitzgerald and his crack team failed to check calendars for anyone at State for June.

Bonus cover-up - how did Armitage explain learning about Plame? If he dated it to the Air Force One July 7 memo, then his leak to Woodward (based on the original INR memo from early June) is inexplicable, and his story takes on a lot of water.

OTOH, if Armitage blithely claimed he learned about Plame in early June but told no one - NO ONE! - until after the Wilson column, well, that was a bit misleading, too. And one might really question the DoJ failure to even ask for his calendar in that scenario.

That said, as of Libby's Grand Jury appearances, it appears that Fitzgerald had yet to study Libby's June calendar - Fitzgerald asked whether Libby met with Judy Miller prior to July 8, Libby said sometime in May or June, check my calendar, and eventually a trial exhibit pinned down the June 23 meeting (And I mocked Christy Hardin Smith, but not enough).

Anyway, if Fitzgerald had studied Libby's calendar, he might well have said, OK, good answer, here is a June 23 meeting, tell us about it. Didn't happen. Makes me think he had not yet studied Libby's calendar, let alone Armitage's. Jiminy.

[Sue]

And if my grandmother were to have balls, she'd be my grandfather

ROTFLMAO. Best line ever...

[Tom Maguire]

From Silly:

Failure to prosecute a crime does not mean that no crime occured, OT; just that noone has been charged for that crime.

There are many different reasons why this might be true. You are well familiar with all of them, but instead of looking at the situation logically, you choose to fall back on assertions such as

No crime occurred.

Why?

Let me guess - because he knew and you knew and he knew you knew that you have both been over this a million times?

Or is Silly one of those folks surprised each morning to see the sun in the east? (Helpful hint - buy an apartment with a northern exposure - one day its value may soar!)

As to why was Libby lying, and would the truth have set him free - better question.

Libby ahd studied the IIPA, so he should have known he was clear on lack of knowledge (barring scenarios where someone never located by Fitzgerald told him about Plame's status).

So, reasons to "lie" - (1) keep Cheney out of the story so he is not dropped from the 2004 ticket as an embarrassment with a weak ticker (some folks wanted Bush to drop Dick and annoint a successor);

(2) keep his security clearance - even if he committed no crime, if Libby was found to have mishandled classified info and lost his clearance, that would effectively fire him from his chief of staff job.

At least as puzzling as "why did he lie?" is "Why such silly lies?" He could have invented a better cover story on five minutes thought.

OT, but - my latest theory is that you need to set your computer to accept cookies to get past the TypePad security. Maybe...

[anduril]

From Rick B:

It's actually not the job of the Judiciary to save the Executive from the effects of its own mis and malfeasance. If Gonzales and Bush lacke the huevos necessary to correct Comey's error, why should the courts fix it?

Good point, but - Libby is a private citizen whose interests may or may not overlap with Bush/Cheney. For all we know, Bush is OK with letting this train wreck roll, as long as his hands stay clean; a court would be Libby's only source of relief.

But what basis would a court have for giving Libby relief--if Comey's claim to have delegate "all the powers of the AG" was BS, nevertheless, he could still be said to have appointed a Justice employee to oversee the investigation = no constitutional issue? At that point Team Libby would have to go hunting for actions by Fitz and/or Comey that did raise a constitutional issue--lack of supervision? Probably not.

If Bush was his supervisor but declined to supervise effectively, who are we to second guess the executive? True, Comey had no basis for the appointment under the statute he relied upon and failed to supervise Fitz. But Bush was Comey's boss, the Chief Executive, and Bush acquiesced in the appointment, thereby confirming it. The legislative branch failed to challenge it, too, and since [if?] Fitz's actions qua prosecutor were not unconstitutional, we decline to get involved. Therefore, Libby can't complain either--it may have been sloppy, but it was the province of the executive branch one way or the other.

[cathyf]

More importantly, Walton explains the reason for the necessary legality of the Special Counsel: Because if we can't have a Special Counsel free of direct oversight of the AG, then there is no way to investigate those who occupy high levels of DOJ or those who have direct responsibility for it.

Except that this is precisely the behavior that the Founding Fathers intended to make unconstitutional. When it comes to the bedrock principles of the Enlightenment which the Founders were relying on to construct our constitution, the history of the Star Chamber is enormously important. The Star Chamber was "obviously necessary" by common-sensical thinking, and was always popular. Just like dunking witches or torturing heretics was "obviously necessary" by common-sensical 15th-16th-17th century thinking.

After the horrors perpetrated by it in the 16th and 17th centuries, the overwhelming consensus was that common-sense is simply wrong, and it is better to let high-powered people be inadequately punished or unpunished rather than to create all-powerful unaccountable prosecuting entities. This is why the Founders put the Appointments Clause in the constitution -- they were trying to make it unconstitutional for positions such as Fitzgerald's to exist in the federal government. Walton doesn't get to disregard the constitution just because it prohibits something that his own personal common sense tells him ought to be done. If judges were allowed simply to ignore clauses of the constitution that prohibit things that they want to do, why would the Founders have set up that whole pesky amendment process for changing the constitution?

[Cycloptichorn]

TM
Let me guess - because he knew and you knew and he knew you knew that you have both been over this a million times?

It's wrong to claim that no crime occured, and use that as a basis for other claims, when this is not even close to a proven fact. But, you're correct that it's an old point.

So, reasons to "lie" - (1) keep Cheney out of the story so he is not dropped from the 2004 ticket as an embarrassment with a weak ticker (some folks wanted Bush to drop Dick and annoint a successor);

(2) keep his security clearance - even if he committed no crime, if Libby was found to have mishandled classified info and lost his clearance, that would effectively fire him from his chief of staff job.

At least as puzzling as "why did he lie?" is "Why such silly lies?" He could have invented a better cover story on five minutes thought.

Thanks! This is the part which confuses me, b/c Libby is obviously an intelligent, trained lawyer. He had to have known that his story wouldn't have held up under close scrutiny.

I suspect that Libby never counted on Miller's jailtime or Russert's denial of the story. Shrug. Who can say now?

There's a spectrum of opinions on this issue; on one end, the 'Bush is evil, everything they do is evil, Libby should be shot and Cheney hung;' the other, 'There was no crime, she wasn't covert, even if she was there's no crime, Fitz committed a crime just investigating it, this case represents the downfall of the Justice system in America.' I'm somewhere in the middle, but there are many here who are solidly on the 'was no crime' end; it's no less silly then the 'bush is evil' arguments.

[PatrickR]

Fouad Ajami doesn't mince words:

At the beginning of this ordeal, it would have been the proper thing to acknowledge that this case rested on a political difference over the prosecution of the war, that Valerie Plame Wilson and Joseph Wilson were protagonists in a struggle over the conflict. It was then, it should be recalled, that you, Mr. President, said that any of your staff caught up in that case "would no longer work in my administration." And it was then that the Justice Department stepped out of the way to let a special prosecutor launch an investigation that would, by necessity, have to vindicate itself. The better part of wisdom was to see the matter for what it was--a policy difference over the war, a matter that should never have been criminalized.

The prosecutor, and the jury and the judge, had before them a case that purported to stand alone, a trial of one man's memory and recollections. But you have before you what they and the rest of us don't--a memory of the passions and the panic, and the certitude, which gave rise to the war. And a sense, I am confident, of the quiet and selfless man who sat in the outer circle when your cabinet deliberated over our country's choices in Iraq, and in those burning grounds of the Arab-Islamic world. Scooter Libby was there for the beginning of that campaign. He can't be left behind as a casualty of a war our country had once proudly claimed as its own.

[anduril]

cathyf, the potential problem with your argument is more or less as follows:

EW (I think it is) presents the argument for a Special Counsel, but elsewhere (I believe) she concedes that it isn't really a constitutional argument--in fact, it's an end run of the constitution. So far so good.

The problem arises if a court says: DoJ had no authorization to appoint Fitz in the way that Comey claimed to do, but...

Since Fitz was already a DoJ employee and since (if?) his actions as a prosecutor did not raise constitutional issues, and since the Chief Executive acquiesced in this appointment, Libby has no constitutional claim that we can remedy. He had due process of law, and even if there was no active supervision, he had a trial before a duly appointed judge and a jury of his peers.

I don't like this, but it's a potential problem. The devil is in the details--the "if".

[Cecil Turner]

He had to have known that his story wouldn't have held up under close scrutiny.

He also had to've known he wasn't in any legal jeopardy, and he'd already 'fessed up to hearing it first from VP Cheney, which contradicts the "protect Cheney" reasoning. So we're left with a nonsensical lie for a nonsensical reason, or a perfectly mundane case of forgetting substance and sequence of a 3-month old set of conversations. I suggest reviewing the memory expert testimony, and revisiting the "he lied" assumption.

I'm somewhere in the middle, but there are many here who are solidly on the 'was no crime' end; it's no less silly then the 'bush is evil' arguments.

No it isn't. There is exactly zero evidence Libby knew Plame was covert (if she in fact was, which I find dubious). It's a required element in the crime. "No crime" is the odds-on favorite.

[clarice]

Here is a transcript of the SCOTUS argument in Morrison v. Olson which provides some interesting contrasts on the degree of supervision of independent counsels with that here.

http://www.oyez.org/cases/1980-1989/1987/1987_87_1279/argument/>Unsupervised

[Rick Ballard]

"He can't be left behind as a casualty of a war our country had once proudly claimed as its own."

I would commend a quiet afternoon with Il Principe in hand to Mr. Ajami. The ritual hand washing occured some time ago (albeit, without the declaration of "I find no fault with this man." and the appellate court will use the reasoning outlined by Anduril concerning a "legal basis" to ignore the constitutional issues eloquently outlined by CathyF.

The legal process system will have performed per its current design, salient facts will never be known, having been successfully hidden within the maze of the legal process and Mr. Libby will do his time.

I'd sure like to be wrong but the fact that Bartlett was mentioned as having been there when Mr Compassion issued that phoniest of statements of sympathy leads me to believe there is a bit more than anyone knows about the prince's dispatchment of this particular courtier.

The President might want to peruse Machiavelli in the same manner that I suggested for Mr. Ajami. He's going to wind up with a bigger due bill for his actions than he ever dreamed, prince or not.

[clarice]

There are those who believed that everything Fleischer said about telling Gregory and Dickerson was a lie, that he told reporters earlier and that his source was not Libby but Bartlett and his story was a creation to protect Bartlett.

He's leaving soon, Thanks Heavens.

[boris]

There is exactly zero evidence Libby knew Plame was covert

There is trial testimony that establishes CIA officials (Harlow and Grenier) disclosed the CIA wife detail without classified designation.

That isn't just saying "it was their fault, not Libby's!", it also says loud and clear that at that time, those officials did not consider her to be classified or covert.

If Libby assumes those officials are idiots and double checks with (???) to find out that she really is classified, but blabs her to reporters anyway, that might be an unauthorized disclosure and possible crime. That scenario depends on 2 CIA officals breaking the laws regarding classified information and some other CIA (???) expert who has been covering for Libby all along by not coming forward.

At that level of speculation one might determine that Bill Clinton is actually a cleverly disguised zombie reanimated from the body parts of JFK and MLK. First black president indeed.

[clarice]

Amendation:

There are those who believed that everything Fleischer said about telling Gregory and Dickerson was a lie, that had Libby told him there would be no reason to wait 5 days and he'd have told reporters earlier and that his source was not Libby but Bartlett and his story was a creation to protect Bartlett.

He's leaving soon, Thanks Heavens.

[kim]

As I recall Fitzgerald limited his investigation to events occurring in a period of time beginning near Wilson's article publication and ending sometime soon after Novak's article.

At the time I was annoyed that he wasn't going to look into OVP and WHIG behavior earlier in June, May, April, etc....

[lurker9876]

Which brings up an interesting point: the reason Libby is in trouble is b/c he chose to lie about what happened. Let's assume that there was no conspiracy; if Libby had just told the truth, and said 'yeah, we were getting the word around, but we didn't know she was secret - the CIA never told us, for sure,' then there is every chance that no one would have been charged at all, with anything. But he chose to lie instead, for reasons we'll never know.

I don't think he chose to lie. Besides, the Team Libby's sentence filing said that Libby and no one else knew Plame was secret, if she was secret and that CIA never told him and everyone else. No, I don't think he chose and intentionally lie.

Think that if Dave Gregory and Andrea Mitchell both testify truthfully that they told Russert before Russert talked to Libby, then it proves more of his innocence. Right?

[lurker9876]

Here is what Toensing says about the following factors must be present for a government employee to violate the Act:

The following factors must be present for a government employee to violate the Act:

1. The United States is taking affirmative measures to conceal a covert agent's intelligence relationship to the United States;

2. The person disclosing the identity knows that the government is taking affirmative measures to conceal the relationship;

3. The person disclosing the indetity knows that the information so identifies the covert agent.

4. The covert agent whose identity was disclosed is an employee of an intelligence agency.

5. The covert agent whose identity was disclosed has a relationship with such agency that is classified.

6. At the time of disclosure, the covert agent whose identity was disclosed was serving outside the United States or had done so within five years of the disclosure, and

7. The disclosure was intentional.

In a prosecution, all these factors, which are called elements of the offense, must be proven beyond a reasonable dout. Two of these factors were particularly important in drafting the law: 1) the definition of "covert agent", including the requirement of serving outside the country; and 2) the law's requirement that the government take "affirmative" measures to conceal the agent's intelligence relationship to the United States.

So boris is correct in saying:

By providing the CIA wife detail without classified designation REQUIRED by law for classified information, the CIA itself busted two of the requirements for IIPA.

[anduril]

clarice, this part provides a contrast of a different sort. Do we have any evidence of these considerations being addressed in the Libby case? Libby might have some sort of equal protection argument. But, of course, the referral letter, which should have provided "specific, credible information that ... high administration officials .. has committed a crime" is being withheld from public scrutiny as a deep dark secret, so we don't know what standard was used. Was it: specific credible information? We don't like neocons? Chuck Schumer whispered in my ear? We don't know.

The statute is triggered when the Attorney General receives specific, credible information that one of the high administration officials covered by the Act's provisions has committed a crime. If the Attorney General determines in his own unreviewable discretion that the specific, credible information constitutes grounds to investigate, he causes a preliminary investigation to be conducted under the Act.

If as a result of that preliminary investigation he finds there are no reasonable grounds to believe that further investigation or prosecution is warranted, he reports that finding to the court, and his final determination on the subject ends the matter. The court has no ability to appoint an independent counsel.

If, on the other hand, he finds that there are reasonable grounds to believe that further investigation or prosecution is warranted in one of these matters where the statute imports a conflict --

QUESTION: Ms. Morrison, your opponents suggest that that is really a very narrow kind of discretion that is entrusted to the Attorney General, that following the structure of the statute he is almost bound to recommend the creation of a special prosecutor. What is your reply to that

MS. MORRISON: The statute leaves the matter entirely within his discretion. In fact history, we would suggest, supports the notion that the Attorney General not only is able under the statute to refuse to appoint an independent counsel where matters have been brought to his attention under the statute, but in fact on repeated occasions Attorney Generals have refused to appoint an independent counsel.

The matter comes to him, as would any allegations of criminal misconduct, and he uses, pursuant to the statute, the same standards and the same policies that he would apply to the review of any matter if he were trying to determine whether or not to cause a full-blown grand jury investigation to be conducted within the Department of Justice.

[clarice]

Not a Moment too soon--law professors finally pay attention to the law:
WASHINGTON (AP) -- A dozen prominent law professors are questioning whether Special Counsel Patrick Fitzgerald had constitutional authority in the CIA leak trial that this week sentenced former White House aide I. Lewis "Scooter" Libby to prison.

The push comes as Libby's lawyers, who are making the same argument, prepare to appeal his 2 1/2-year sentence.

"The constitutional issue to be raised on appeal is substantial," conservative Robert Bork, liberal Alan Dershowitz and 10 other professors wrote in their nine-page brief, filed Thursday at U.S. District Court in the District of Columbia.

"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors," the professors wrote.

The professors argue Fitzgerald may have been given too much power, with too little accountability, since he was not appointed by the president or approved by the Senate. Moreover, they say, Fitzgerald was exempted from complying with Justice Department policies — even thought he was appointed by the attorney general.

http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/06/08/national/w101417D08.DTL

[clarice]

http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/06/08/national/w101417D08.DTL>waking up

[anduril]

clarice, does anyone have a link to their nine page brief? We can all agree that Fitz had too much power and too little accountability, but I'd like to see if they raise constitutional issues that would get them past the potential problem that I outlined above.

[clarice]

Not yet--I'm waiting for ts, Sunny Day or Cboldt to grab it, and I haven't seen the story anywhere else which would provide more detail.

[Jeff Dobbs]

Oh no. Oh no. No. No. No.

My day is shot. My weekend is ruined.

I just found out that John Edwards has the same birthday as my daughter.

Sunday.

I can only console myself with one man's account of Pink Sapphire's efforts to cash in on his birthday:

What does one give to a plantation-owning multi-millionaire with his own basketball and squash courts, a swimming pool and an eponymous lounge who loves to raise barns for neighbors in his spare time?

To Bobbie [John's momma], the answer is clear: Give the man money. "We know everyone can't give a lot," she reassures the Other America, so long as we give in a meaningful way. To that end, the online form is comprised of three donation buttons: Give $6.10 if you would like to commemorate John's June 10th birth date. Or $19.53 to acknowledge 1953, the year Wallace Edwards "borrowed $50 to bring me and our new born boy home from the hospital back in Seneca, South Carolina." (Let your inner voice adopt a slow, Southern drawl.) Of course, if you're really dedicated to the Edwardsian worldview you'll pony up $54 -- a dollar for every year this planet has been blessed with his existence.

For only $4 -- a dollar for every year my world has been blessed with her existence -- you can to donate to the princess hit and run birthday fund and I will gladly send you my gumbo recipe.

[clarice]

Somewhere in the archives anduril we have the full filing Libby made on this issue. I think in Potemkin Prosecution Part 1 I cited it so you can see what he argued. At the time I thought his arguments were weighty and well-argued.

As to the genesis of this case: I believe the DoJ sat on the referral obviously because it was insufficient and then after Tenet called a leak to Andrea Mitchell built up political pressure and Comey appointed Fitz. From Waas and others we had reports that Eckendrode and others filed reports which persuaded Ashcroft that he was close enough to some people under investigation that he should turn the matter over to Comey and that early on Eckenrode and Fitz created an argument to Comey that Libby and Rove had given inconsistent statements and that process crimes whould be specifically mentioned in Fitz' charge. (Of course, knowing what we do now, the Libby /Russert inconsistency stands only if you discount altogether Russert's original statement memrialized in the mysteriously missing Eckenrode memo.)

[cathyf]

Moreover, they say, Fitzgerald was exempted from complying with Justice Department policies — even thought he was appointed by the attorney general.

Interesting catch... Am I remembering correctly that part of Fitzgerald's brief, and Walton's rationale for his decision, was that Fitzgerald is subject to DoJ policies? Because, of course, it appears that Fitzgerald took complete discretion with DoJ policies -- he threw a reporter in jail for 3 months in order to get information which he believed would be incriminating for Libby even though that violated DoJ guidelines for dealing with reporters, ignored the guidelines' rules about questioning public officials who are being denied their fifth amendment rights, while at the same time he invented a "State Department Shield Law" which precluded him from collecting any of the most basic and core information characteristic of an investigation into the disclosure that resulted in Novak's column.

Sure, the guidelines are guidelines, not laws. But a fundamental difference between being an inferior officer vs a superior officer is that inferior officers don't get to ignore guidelines on their own authority. So if Fitzgerald was deciding which guidelines to follow and which to ignore, then that is inconsistent with him being an inferior officer. And also, I'd say that this speaks to the argument that Bush was his supervisor and that no supervisory activity actually happening was Bush's mis-/mal-feasance and not Fitzgerald's fault. In the case of receiving permission to disregard guidelines, or to ignore due diligence, the initiative must come from Fitzgerald -- it was his duty to go to his supervisor and say "pretty please mother may I". The notion that the "supervisor" is exercising supervision when he fails to object to something is risible when the only opportunity which the "supervisor" has to learn of the things he might object to is through telepathy.

[clarice]

Exactly, cathyf. I do nope someone passes your post onto the professors.

[lurker9876]

The professors argue Fitzgerald may have been given too much power, with too little accountability, since he was not appointed by the president or approved by the Senate. Moreover, they say, Fitzgerald was exempted from complying with Justice Department policies — even though he was appointed by the attorney general.

"It appears to be undisputed that there is no day-to-day supervision of Special Counsel Fitzgerald by anyone, and no way short of removal even to assure that he complies with the policies of the Department of Justice or the Executive Branch," the professors wrote.

Libby could have a better chance of release if his supporters can convince the judge the constitutional question is a close call.

But U.S. District Judge Reggie B. Walton last year rejected the same argument, saying then that Fitzgerald's powers are limited because he can be removed by the Justice Department.

I don't agree with Judge Walton saying that Fitz's powers are limited just because he can be removed by the Justice Department.

Besides, it sounds like Walton was daring the Justice Department to step in to remove Fitz.

I thought at one time, the way Comey appointed Fitz, the Justice Department could not even remove him.

And I asked who pays him?

Amazing that no one from Congress has done anything to get Fitz removed.

Too bad that no one can file a complaint against Fitz for his unethical tactics.

[anduril]

cathyf, your argument here goes toward my "if." "If" Fitz simply acted like a normal prosecutor the court might use that as an excuse not to address constitutional issues. But if he didn't act like a normal prosecutor that would put more pressure on the court to address those issues. I'm not really up on some of these equal protection type ideas, but looked at from this standpoint it's possible that having his own personal, paranormal prosecutor denied Libby equal protection. Interesting.

[sylvia]

"Sayyid Qutb and some stuff here"

Thanks RichatUF. I tried to do a small google search for his name and came up empty, so I'm glad you found that. Def an important guy to be familiar with nowadays especially for his influence on Bin Laden's num 2, Zawahiri.

"(2) keep his security clearance - even if he committed no crime, if Libby was found to have mishandled classified info and lost his clearance, that would effectively fire him from his chief of staff job."

Yes TM I think that is the most likely reason - just a general, unnecessary paranoia from Libby that somehow he would get in trouble or get Cheney in trouble if he did not shade the source of his knowledge while he was in the act of speaking it.

I would add to that my theory that perhaps Libby did not remember the exact wording from his verbal info from his CIA sources and couldn't perhaps remember exactly what words of warning they gave him months before about her covertness, so he wanted to be extra cautious.

[sylvia]

I'm also disappointed that the Libby team did not make more hay over my pet gripe on whether Plame ever was covered under the IIPA statute. However, I heard that not all issues for appeal have to be listed now, and perhaps they think it's less likely to fly with Walton, so maybe we will still see this at a later time at the actual appeal.

[clarice]

anduril--

In Potemkin Prosecution Part 1 I hyperlinked to Scooterlibby.org--he lost that domain somehow and it is now a porno site. The filings in this case are now at http://www.scooterlibby.com/news/archive.aspx

[clarice]

lurker raises another interesting question which I believe was addressed in the Libby filing.

Under the Independent counsel law Congress had the ability to cut off funds to the counsel. Under this system his operation was funded out of a separate account not subject to cut off by Congress.

[JM Hanes]

anduril:

"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."

Unless Fitzgerald is a principal officer (which would require confirmation) the statute Comey relied on would apply, because he would be delegating a function, not a principal office. If you don't win the constitutional argument, you can't win the statutory argument. I presume that's why Libby is making the constitutional argument in the first place.

Cecil:

"And from a basic fairness standpoint, I might even buy that argument, if the decisionmakers had adequate information."

Alas, fairness isn't what I'm talking about here, more's the pity. I'm just explaining why I think it's going to be tough to persuade a court that Fitzgerald's appointment was unconstitutional.

Comey exceeded his authority and violated DoJ regulations. Fitgerald abused his authority and conducted a witch hunt instead of an investigation. Gonzales and/or the Prez could have fixed that. They didn't. If they didn't know what Fitzgerald was doing, it's because they chose neither to inquire nor review. We all know why they couldn't, but the reasons that are so utterly compelling politically, may not be compelling legally at all.

"I'm also a bit disappointed the Libby team didn't emphasize the Fifth Amendment issues more."

I'd like to think the issue of the President's instructions could be addressed somewhere myself, but I just can't figure out how you frame it the context of an appeal for a reversal or a new trial. It's not an error on the part of the Prosecutor or the Judge. It strikes me as something that would depend on Libby lodging a separate complaint.

5th & 6th Amendment abuses otherwise seem huge -- even emblematic of the Fitzgerald approach -- and I suspect we'll see them fleshed out more fully in the appeal itself. If I weren't superstitious, I'd say persuading the Appellate Court that Libby was unconstitutionally punished by Walton for not testifying should be a slam dunk. On the Andrea Mitchell front, Walton planted himself firmly in reversible ground by accepting Mitchell's lawyer's assertions in lieu of testimony. He ignored Defense objections at the very point where his decision required, at the least, a stipulation from them instead.

That's just the tip of an iceberg that makes me wonder if there's any way "pattern" of judicial rulings could be framed as an issue for appeal. It seems to me that Walton gave Fitzgerald the benefit of a lot of doubt on questionnable issues all along the way. Where any single ruling might not have devastated Libby's defense, taken collectively, they ultimately affected the fairness of the proceedings. Unfortunately, I suspect appellate courts don't like the smell of kitchen sinks.

I share Clarice's concern about the inexplicable (or as yet unexplained) delay on the Dow Jones decision. If Fitzgerald's affadavit to the Miller court reflects the kind of manipulation we suspect, it's conceivable that dominoes could start falling all over the place. In that regard, I wonder if there's any reason to expect the Miller panel to recuse themselves from hearing the Libby appeal -- or is the link between the cases at a sufficient remove -- or sufficiently common -- to be irrelevant?

[clarice]

From my Potemkin article:
In his affidavit presented to the Court of Appeals in the Miller case, Fitzgerald acknowledged the wide scope of his appointment

'[A]s Special Counsel, I serve as the functional equivalent of the Attorney General in this matter.'

He added, that his authority

'is in many respects broader than the authority conferred by [28 C.F.R.Part 600] as I need not seek approvals prior to significant investigative or prosecutive steps.'

At the press conference in which he announced the indictment of Libby (and ironically exceeded the bounds of DoJ regulations on public statements about ongoing proceedings) he acknowledged that he was not constrained by the regulations, procedures, practices and policies of the Department that govern special counsel. So extensive was the grant of authority that in this new position (unlike the Special Counsel provided for in the established regulations) he need not obtain approval 'to issue a subpoena involving the media,' to 'subpoena a lawyer,' to grant immunity, to take an appeal, or to seek access to classified information in the custody or control of U.S. intelligence agencies.

Indeed, he isn't subject to any meaningful restriction on his jurisdiction or tenure. There isn't even any Department or other control over his budget. His post was, in sum, a hybrid creation which could not have been better designed to create a loose cannon. Only in that respect has Fitzgerald lived up to his assignment.

3. Libby's constitutional argument is that this grant of unsupervised power to Fitzgerald and the Attorney General's total abdication of supervision and control over the Special Counsel (who Comey said was not really the Special Counsel contemplated by the Statute) makes him the equivalent of a 'principal officer': a person who must be nominated by the President (not a Deputy Attorney General) and confirmed by the Senate (which Fitzgerald wasn't).

[boris]

Italiacto!

[clarice]

The Italics should end here
'is in many respects broader than the authority conferred by [28 C.F.R.Part 600] as I need not seek approvals prior to significant investigative or prosecutive steps.'

[boris]

RE-Italiacto!

[clarice]

The Fifth Amendment argument re Bush is far weaker than the Fifth Amendment issue re Walton's ruling IMO. The answer is he simply could have quit.

OTOH I found once but never again a DoJ guideline which sensibly admonished DoJ counsel to understand when they were interogating government officials to be sensitive to the fact that by merely invoking a Fifth Am claim they would hurt their careers and therefore to be less aggressive in pursuing questioning of them which came close to that.

[cathyf]

"If" Fitz simply acted like a normal prosecutor the court might use that as an excuse not to address constitutional issues. But if he didn't act like a normal prosecutor that would put more pressure on the court to address those issues.

I think we are getting at the same point. An insubordinate subordinate is still a subordinate. But the question at the heart of the "supervision" argument is really: at what point does insubordination become unsubordination?

That's one of the reasons that I think that the historical point is so important. The founders were not just dealing with some hypothetical notion of out-of-control prosecution, but had actual, concrete, multiple, historical examples, which had happened to their ancestors and their ancestors' peers just a few generations back. Certainly the members of the Star Chamber were each subject to removal by the king (or queen), and not just to removal from their positions on the court, but to removal of their heads from their necks as well. The notion that the founders intended that any appointment subject to removal to be adequate with respect to the appointments clause is simply absurd.

[anduril]

JM Hanes:

anduril:

Unless Fitzgerald is a principal officer (which would require confirmation) the statute Comey relied on would apply, because he would be delegating a function, not a principal office.

What I was suggesting was that as long as Fitz acted as a normal prosecutor and did nothing that only a principal officer could do the court might be tempted to sidestep the constitutional issues by saying that they would treat the delegation as one of function; as long as Fitz's actions were consistent with a delegation of function they would ignore the "all the powers of the AG" language in Comey's letter. I seem to recall (but am open to correction) that independent counsels of the past always went beyond the DOJ guidelines. The court could claim that it's standard to decide cases on the narrowest possible grounds (here a statute) than the widest possible (the constitution), and they would be on solid ground. Of course, if they wanted to go the constitutional route I would love it and there would be nothing in their way to prevent them.

If you don't win the constitutional argument, you can't win the statutory argument. I presume that's why Libby is making the constitutional argument in the first place.

Agreed. Libby's challenge, as I argued above, is to convince the court to go constitutional. If the court decides on the basis of the statute, Libby most likely loses. If the appellate court is squeamish about this case they might want to avoid the big issues.

[anduril]

At the press conference in which he announced the indictment of Libby (and ironically exceeded the bounds of DoJ regulations on public statements about ongoing proceedings) he acknowledged that he was not constrained by the regulations, procedures, practices and policies of the Department that govern special counsel.

That certainly takes it a step further--he appears to be saying that the functional equivalent of the AG can act in ways that Special Counsels cannot (even though that was his title). If we could find an example of that--going beyond what other special counsels had done, and I'm not sure what that would be--the constitutional argument would be quite compelling.

[clarice]

Well, I think it's helpful to Libby that Comey's grant was so extensive and that Fitz so broadly defined his powers:
At the press conference in which he announced the indictment of Libby (and ironically exceeded the bounds of DoJ regulations on public statements about ongoing proceedings) he acknowledged that he was not constrained by the regulations, procedures, practices and policies of the Department that govern special counsel. So extensive was the grant of authority that in this new position (unlike the Special Counsel provided for in the established regulations) he need not obtain approval 'to issue a subpoena involving the media,' to 'subpoena a lawyer,' to grant immunity, to take an appeal, or to seek access to classified information in the custody or control of U.S. intelligence agencies.

[clarice]

Of course there are many examples, anduril--beginning with his supoenas of the press, granting immunity to Fleischer (and per Apuzzo, to Armitage).

[Cecil Turner]

JMH: good stuff.

The Fifth Amendment argument re Bush is far weaker than the Fifth Amendment issue re Walton's ruling IMO. The answer is he simply could have quit.

Concur. At the least, it's certainly a slipperier issue to get around. Still, I hate the idea that a government employee would have to choose between his job and his Fifth Amendment protections, and there oughta be a way to address it. I also think the Administration finally recognized the error (and came full-circle on that with the US Attorney probe), but they should've either managed the investigation or kept out of it entirely. Making testimony a condition of employment enabled abuses like Fitz's fishing expedition--which I still contend was a borderline perjury trap--and in hindsight was a serious mistake.

[clarice]

On another thread TM notes that the professors are also challenging Walton's decision to keep the defense from questioning Mitchell..

And
The NY Sun has more:

[quote]

The remaining professors joining the brief were Vikram Amar of the University of California Hastings, Randy Barnett and Viet Dinh of Georgetown, Douglas Kmiec and Robert Pushaw of Pepperdine, Richard Parker of Harvard, Gary Lawson of Boston University, Thomas Merrill of Columbia, Earl Maltz of Rutgers, Robert Nagel of the University of Colorado.

The legal question centers on whether a 1988 Supreme Court decision, Morrison v. Olson, which upheld the constitutionality of a now-expired independent counsel statute, renders Libby's appointment lawful. Libby was appointed to resolve potential political conflicts of interest in the Justice Department. He was subject to removal by the acting Attorney General, but was not under the department's day-to-day supervision.[/quote]

http://www.nysun.com/article/56207

[anduril]

You've convinced me. Fitz looks more and more like he acted as a principal officer. Libby could make a good argument to dismiss the whole thing at that point. Or alternatively that this arrangement violated due process and equal protection, if one could argue that at some point departmental regulations can rise to the level of due process.

Interesting how this highlights the cynicism of the appointment. Comey is no dummy. He knew the potential problems with this appointment, but he also knew, or someone convinced him, that the important thing was to have a loose cannon in place. Why? Because the likelihood was that no one in the Executive Branch would have the gumption to act like they had a fundamental duty to uphold the constitution--instead they'd play the public opinion angle and get weak in the knees.

[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.

[clarice]

As a practical matter Boris, consider the okaying of drug testing of employees.

[topsecretk9]

--Libby's appointment lawful. Libby was appointed to resolve potential political conflicts of interest in the Justice Department. He was subject to removal by the acting Attorney General, but was not under the department's day-to-day supervision.[/quote]--

is this right - or do they mean Fitz (Fitz replaces Libby in this passage?)

[clarice]

They mean Fitz--It's an error Uncle Pinky noted on another thread.

[cathyf]

That's just the tip of an iceberg that makes me wonder if there's any way "pattern" of judicial rulings could be framed as an issue for appeal. It seems to me that Walton gave Fitzgerald the benefit of a lot of doubt on questionnable issues all along the way. Where any single ruling might not have devastated Libby's defense, taken collectively, they ultimately affected the fairness of the proceedings. Unfortunately, I suspect appellate courts don't like the smell of kitchen sinks.

Absolutely appreciated. But there is a more organized and controlled version of "piling on" which avoids a lot of that. Take this as an example:

-- Walton denied Libby discovery on the question of Plame's covertness;

-- Walton prohibited discussion of Plame's covertness by either defense or prosecution;

-- Walton admonished jurors' not to ask questions about Plame's covertness;

-- Walton scolded the juror(s) who did ask questions about Plame's covertness;

-- Walton's prohibition on discussing Plame's covertness was in fact followed during the fact-finding stage of the trial, which both prohibited Libby from offering proof that Plame was not covert and demanding that Fitzgerald supply proof that she was;

-- Walton responded limply to Fitzgerald's highly improper bald-faced assertion with no proof of Plame's covertness during the what should have been the prosecution's rebuttal, which the defense has no opportunity to respond to;

-- Walton fully reversed himself with no warning or notification in the sentencing phase and allowed Fitzgerald's completely unsupported (and perhaps perjurious) assertions of Plame's covertness to be used to punish Libby for a crime when no evidence had been presented that the crime was even possible, let alone that Libby had committed it;

-- Walton made a weird, creepy and prejudicial statement to the jurors that even he didn't know whether Plame was covert. At the time, the comment in context seemed a reasonable, if colorful, way to state that the matter was irrelevant; in light of Walton's later actions, this interpretation became untenable and so jurors may very well have taken the comments to mean that there was no evidence that she wasn't covert, a finding of fact which the defense had no opportunity to rebut and from publicly available evidence is simply false.

Taken all together, Walton's rulings created a finding of fact that Plame's covert status was not only unquestionable, but unquestionably true. Since there is ample evidence available in the public domain that in fact Plame was not covert during any relevant time frame, this is a reversible error.

How is that? You create a whole series of such arguments -- the sum total of all of the supporting logical predicates is a "kitchen sink" but it is all structured and broken down into smaller, tightly-focused individual arguments.

[Looking_For_a_Way_out]

Didn't Walton basically shoot these claims down on Tuesday? He addressed the memory expert and Fitzgerald's appointment specifically, and certainly he expected appeals re: CIPA, Mitchell, and his rulings pertaining to Libby's change in heart about testifying. The appeals will still go forward. But Walton is saying Libby can serve some time as the appeals work their way out because he feels the appeals are weak and not likely to succeed. (If that's the case, Libby will have this behind him the sooner he does his time, right?)

Maybe Libby should consider almost having a nervous breakdown when he gets checked into Club Fed.

[lurker9876]

Libby's constitutional argument is that this grant of unsupervised power to Fitzgerald and the Attorney General's total abdication of supervision and control over the Special Counsel (who Comey said was not really the Special Counsel contemplated by the Statute) makes him the equivalent of a 'principal officer': a person who must be nominated by the President (not a Deputy Attorney General) and confirmed by the Senate (which Fitzgerald wasn't).

Need to be careful with "removal" as the only thing that supervises runaway SP's.

How the heck can Congress approve the budget for a runaway SP without confirming him AND ensuring that Fitz has the superivision by the AG as well as having his case reviewed by the DoJ to ensure that Fitz does not run way with wild ideas and all. The process should ensure that Congress' approved budget for a SP is well-spent with our tax money.

No, Walton did not shoot those claims down based on what I read. Well, Libby wins the appeals, proving his innocence, then time spent in jail is wasted and his liberty deprived.

[clarice]

Italiacto

As I recall it Fitz' budget was not approved by Congress and can't be cut off by it. It is a separate fund in the DoJ account--maybe from forfeitures (I forget the details) and is not part of the appropriation process.

[clarice]

<>

[Looking_For_a_Way_out]

TM,

You should try to find something to help you with your Adrea Mitchell problem. She has publicly contradicted herself on this key statement, so as a witness she represents a waste of the jury's time. Somebody else would need to back her up, and that person could have been called without her anyway.

I know Mitchell or Gregory would be very useful witnesses, because they could be links to Russert. Why didn't the defense call Gregory? His testimony alone could eliminate the need to call Mitchell.

[clarice]

<>

[clarice]

Why didn't they call him? Because only a stupid lawyer calls someone to the stand when he hasn't a frikken idea what he would say, I suppose.
One one hand if he confirmed Fleischer's story he'd undercut Russert. If he contradicted it, he'd contradict the govt's chief witness Fleischer on the question of when Libby knew about Plame so perhaps they should of..perhaps they put all their effort on this score on Mitchell who they had a better shot at discrediting.

[Sara]

Clarice: Would you clarify something for me. If Comey appointed Fitz with virtually unlimited powers and little supervision other than by press accounts, and then Comey leaves government in 2005, leaving no possible supervision at all by anyone, not even anyone supervising by press accounts then:

is the argument being put forth here that the supervision falls to President Bush and him alone?

Is it at all reasonable for the law to expect a President, any President, to supervise an individual criminal prosecution? This seems nutty to me.

Or am I screwing up in my own mind the arguments I seem to be reading?

Who had supervisory responsibilities over Fitz after Comey's departure from government? And how was that person supposed to exercise that power of supervision? Either as a matter of practicality OR as a matter of fact and law?

[clarice]

i>>

[Sara]

Off

[Sara]

Off off off

[clarice]

As has been pointed out earlier upthread, when the issue was raised Comey and Fitz filed the supervision by newspaper affidavits. There is no record evidence that anyone exercised any supervisory control over Fitz when Comey was in office and certainly there wasn't even a similarly risible affidavit filed respecting what happened when Comey departed.

Not a shred of correspondence, notation, email, phone records, meeting logs..nada, zip, zilch, zero.

[PeterUK.]

Lettres d Cachet a means of arbitrarily incarcerating those who aroused the displeasure of the King of France,or indeed those who could influence the King,would be much better than a Special Prosecutor.Admittedly the usage was one of the factors which lead to the French Revolution,but a nice one to add to the Sumptuary Laws.

[anduril]

"frikken"

I'm guessing now: friggin'? freakin'?

:-)

[Jane]

Are we under permanent italics attack? H&R would blame Bush!

[Sara]

I tried but my wireless is going in and out and giving me more fits than Typepad.