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June 13, 2007

Comments

cathyf
OTOH if the Court finds that it was perfectly okay to delegate to Fitz all the powers of the AG...
...then there's always H&R's solution of naming a Special President to pardon Libby. Damn, talk about schadenfreude -- can you imagine how fun it will be to watch Fitzgerald trying to argue that the Special President's appointment is unconstitutional and Libby isn't really pardoned?
clarice

I still think it's a bad idea to let H & R babysit alone.
*****

I'm struggling for an analogy to explain my argument on the appointment/CIPA arguments. This isn't great, but-------..Let's assume in a tort case a medical intern was allowed to perform brain surgery unsupervised and the hospital claimed that lead surgeon had okayed it. Would it be necessary to show that there was a state law precluding unsupervised interns from administering anesthetics? If the entire thing was preposterous, this is just one indicia that it was wrong.

MJW

TM: *MAYBE* the DoJ can argue that Fitzgerald became "an Assistant Attorney General designated by the Attorney General for such purpose" but what seems to be missing is missing is any paperwork making that designation.

Title 28, Section 506. Assistant Attorneys General

The President shall appoint, by and with the advice and consent of the Senate, ten Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties.

So Assistant Attorney General is a very specific job, requiring advice and consent.

cboldt

In the North case, the AG and IC butted heads, they were at odds. The IC wanted more classified information into the case, and the AG wanted less. Under that fact pattern, the AG wins, less comes in.


In this case, we don't see any evidence that the AG and SC are at odds on the point of how much classified information should come into the trial. The difference is played out as a question of judgement in bringing the case, i.e., "all or nothing."

clarice

But we don't KNOW what the AG thinks on the CIPA info or anything else here, do we? He's been utterly out of it.
Under the IC law, the AG by law had to be involved. Here Fitz had a ticket to ride ..

Pal2Pal (Sara)
because Mr. Libby "was not prejudiced and . . . any error was harmless." Resp. at 15 n.

5

12. The government has never before made this argument, and for good reason. Where,
as here, a federal official exercises authority in violation of federal law, his actions must
be invalidated regardless of whether specific prejudice is shown. See rouNg v. United
States e_ rel. VuittoN et Fils S._., 481 U.S. 787, 809-14 (1987) (plurality) (contempt
convictions must be reversed, regardless of any showing of harm, where district court
erroneously appoints counsel for an interested party to prosecute alleged violations of a
court order)i id. at 815-25 (Scalia, 7., concurring in the judgment) (concluding that
appointment of counsel to prosecute contempt charges exceeded district court's power
under Article III and that convictions therefore must be reversed)i NguyeN v. United
States, 539 u.s. 69, 79 (2003) _udgment of court of appeals constituted in violation of
federal law must be invalidated without assessment of prejudice)i cf. United States v.
Providence 7ourNa1 (To., 485 u.s. 693 (1988) (dismissing case for want of jurisdiction
because special prosecutor lacked the statutory authority to represent the United States in
a petition for certiorari). Indeed, the D.G. Circuit has already indicated that a violation of
the Appointments Clause qualifies as structural error and therefore cannot be subjected to
harmless error review. See Landry v. Fed. Depositions. (Torp., 204 F.3d l 125, l 130-32
(D.G. Cir. 2000).
Nor can it be said that Mr. Fitzgerald's unsupervised and undirected exercise of
principal-officer power has not made a difference in this case. As Special Counsel, he
has made numerous crucial decisions - implicating national security, First Amendment
interests, and the appropriate use of prosecutorial resources - that are typically subject
to oversight and approval by a principal officer properly appointed by the President with
the advice and consent of the Senate.
Here, by the express terms of Mr. Fitzgerald's

6

appointment, no such oversight or review occurred. If, as Mr. Libby contends, the
appointment of Mr. Fitzgerald and his exercise of the authority conferred upon him was
unconstitutional, the remedy is dismissal of the indictment.

This seems important to me. How does Fitz get around the part I bolded?

lurker9876

Why, then, has the AG decided to stay out of it?

cboldt

-- But we don't KNOW what the AG thinks on the CIPA info or anything else here, do we? --


No. But the AG is one of several agents of the executive, and Court filings by Fitz indicate consultation with, and agreement from the executive agencies affected by the various releases/substitutions of classified information.

Jeff Dobbs

Clarice:
I still think it's a bad idea to let H & R babysit alone.


Saturday night, I'm on the job.

Rick Ballard

"Why, then, has the AG decided to stay out of it?"

Because press reports didn't make the issue clear enough for him to exercise supervision?

MJW

I still think that the issue of Fitz filing the CIPA petition, etc., goes well beyond the appointment issue and the CIPA substitution issue, since by the wording of the law, Walton had no authority to conduct the CIPA hearings in the first place. In fact, I might argue (if I knew anything) that it constitutes plain error.

clarice

Well, that very language was highlighted hours ago and that IS what we are discussing..along with the fact that CIPA specifically forbids the AG from delegating the function which Fitz performed pursuant to Comey's general delegation to him of ALL the functions of the AG.

Deagle

Since Bush is pushing so hard for the corporate side on the immigration bill, I can't possibly imagine that he cares one whit about Libby's predicament.

My guess is that he will ignore all pleas for intrusion and ignore the facts (hello immigration bill). His belief in right and wrong have been totally disabused. I disavow any knowledge of my previous vote.

lurker9876
that are typically subject to oversight and approval by a principal officer properly appointed by the President with the advice and consent of the Senate.

Wonder who the principal officer was...

Also, sounds like Fitz was selective in what part of his work was to be reviewed by the so-called principal officer.

But still, it's against the law.

clarice

My last remarkwas directed to Sara.

Pal2Pal (Sara)
Finally, the government contends - for the first time in this filing - that even if the Special Counsel's appointment were unconstitutional, reversal would not be required because Mr. Libby "was not prejudiced and . . . any error was harmless."

And this is outrageous. Is Fitz all but conceding his appointment was unconstitutional, but screw the Constitution, I want what I want and I should be allowed to get away with whatever?

Rick Ballard

Clarice,

It would be interesting to know what authority was used to gain acquiesence "from the executive agencies affected by the various releases/substitutions of classified information."

Did SlickFitz show 'em Comey's letter with "all" underlined?

Jane

Sara,

He's just arguing in the alternative, something which always sounds foolish but is done all the time. Don't let it bug you.

Pal2Pal (Sara)

Sorry Clarice for cluttering up the thread. Not all of us get the connections that those of you versed in the law do and need to ask questions for more clarification.

cboldt

-- since by the wording of the law, Walton had no authority to conduct the CIPA hearings in the first place. --


Looking at the CIPA(6) signatory infirmity, by the wording of the law, Fitz had no authority to keep certain filings out of sight of the defendant and the public. Plenty of CIPA stuff happens without personal involvement of the AG, Deputy AG, etc. (short list of statutorily-authorized players)


In any event, the infirmity has more power in the context of defective appointment than it has in the context of CIPA substitutions, that was the only point I was trying to express.

lurker9876

So how do we know that Fitz still kept some certain filings out of sight of the defendant and the public? IOW, how do we know Fitz released all of his filings to Libby and the public? Or perhaps some filings are considered....irrelevant by Fitz?

lurker9876

So tomorrow is Walton's day to make up his mind?

cboldt

-- So how do we know that Fitz still kept some certain filings out of sight of the defendant and the public? --


Docket entries tell the story in some amount of detail.


-- IOW, how do we know Fitz released all of his filings to Libby and the public? --


The nature of classified information is that it is not released during the course of the trial. Libby's complaint is that certain classified information, if admitted, has a reasonable probability of reversing the trial outcome.

lurker9876

Did Walton review those classified information?

cboldt

-- Did Walton review those classified information? --


Yes, all of it. He applied his personal judgement as to substitutions, etc.

lurker9876

Ah, I see. Walton was given a chance to interpret one way or the other withOUT giving the defense team to challenge the classified information.

cboldt

-- Walton was given a chance to interpret one way or the other withOUT giving the defense team to challenge the classified information. --

Defense can challenge the information if it is brought in, but the opposite bias is in effect in this case. In this case, Libby wanted to introduce classified information to make his defense, and Fitz's "secret" filings expressed why those secrets needed to be protected.

Walton's role is to make sure the defendant gets a fair trial. The classified information was useful to show Libby's preoccupation with national security matters.

cboldt

Just thinking out loud on the CIPA(6) signatory deficiency. If the case was managed by the AG, instead of by an infirm proxy, how would the AG approach CIPA issues? If Fitz's approach was substantially the same as the AG routine (I'm guessing, but for talking purposes, consult with each agency affected by the release of classified info, obtain their substitution or agreement, etc.), then the Fitzgerald's CIPA infirmity has no effect on the material available for the trial. If the trial was unfair, it was due to Walton's error as to accepting substitutions, not as to the difference between Fitz and an AG as to what substitutions were made available to Walton.

Just another way to view putting a CIPA infirmity in the "defective appointment" box instead of the "evidence wrongfully excluded" box.

Tom Maguire

I think the CIPA(6) signatory point is better attacked as an error of the Court, than as Fitzgerald acting at odds with executive prerogative to control the release of classified information.

If I follow cboldt's subsequent clarification, he is saying the CIPA defect cuts in two directions - (1) the whole CIPA process is defective and can be tossed, or (2) the CIPA delegation implies that Fitzgerald must have become a principal without benefit of Senate confirmation. Cboldt then suggests that (1) is weak, and he may be right. But (2) looks like a strong horse to ride.

From MJW:

Title 28, Section 506. Assistant Attorneys General

The President shall appoint, by and with the advice and consent of the Senate, ten Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties.

I love this game. The appointment made Fitzgerald a principal, the DoJ let him act like a principal, but he was never confirmed as a principal. Next case.

Is anyone getting any insight from the constitutional lawyer/bloggers? They should love this.

Other Tom

Sara, I certainly share your views about Fitzgerald as a person, and I have since the first time I saw him. Something of the half-mad zealot there, and subsequently learning some of the oddments of his personal life only reinforces that intuition. Frankly, I had similar feelings about Giuliani when he was a US Attorney, but I think with him it was a matter of political ambition, not a sense of personal moral superiority making him the designated Avenging Angel.

Concerning some of us completely overlooking or forgetting the CIPA issue, I think that just illustrates the difference between "practicing" law as a hobby, and the actual practice, which is pure all-consuming bloodsport. I like to hope that, were I actually engaged, it would have been on my mind continuously, and if it wasn't that I would have been summarily hanged.

Cathyf, my guess (as part of my hobby) is that the Court of Appeal, if it didn't reverse on the appointment issue, would address each of the reversible-error issues, even after finding one of them grounds for reversal. I think they'd be a little bit nutty to send the thing back with other reversible errors waiting to be repeated--even though this does conflict with the basic notion of deciding only what you have to decide.

And I don't entertain any hope that any of the current papers or tomorrow's argument will sway Walton at all--I see all of this as directed straight at the D.C. Circuit.

Martini number one (evening session) is going down in seven minutes.

cboldt

-- If I follow cboldt's subsequent clarification, he is saying the CIPA defect cuts in two directions - (1) the whole CIPA process is defective and can be tossed, or (2) the CIPA delegation implies that Fitzgerald must have become a principal without benefit of Senate confirmation. Cboldt then suggests that (1) is weak, and he may be right. But (2) looks like a strong horse to ride. --

I was opining as to applying the CIPA complaint to two defense arguments, either the defective appointment argument or the wrongfully precluded evidence argument. I never intended to invoke a "the whole CIPA process is defective and can be tossed" argument.

But, as between the two angles of argument that I did have in mind, and the two angles of argument that TM has in mind, TM's (2) parallels my opinion that CIPA signatory deficiency is more powerful in a defective appointments argument, than it is in a wrongfully precluded evidence argument.

JM Hanes

Wow, I picked the wrong day to tend to things offline! I forgot TeamLibby promised a 24 hour turnaround. Apologies to the thread for posting before catching up, and for the length of what follows; alas, cboldt took me to task for what I left out yesterday, so I wanted to reply in full before pressing on. Scrollers! To your marks!

cboldt:

"The question at this point in Walton's opinion is interpretation and construction of Comey's letter's - what do they grant?"

Which the excerpt I provided makes clear and which is precisely the part of the process I was looking at. Indeed, I think I might have made my point clearer by quoting more extensively from Fitzgerald, not Walton. In appellate terms, plain language arguments normally concern the relative weight assigned to intent vs. text in interpreting statutes at issue. What is most remarkable in this instance, as Walton points out, is that:

This is not the case here, as there are neither regulations nor statutes detailing this Special Counsel's authority.
There are, of course, regulations governing what a Special Counsel's authority ought to be, which were specifically developed to balance the need for independence against the need for a supervision -- both of which are necessary to the appearance and substance of fair play required when an administration is faced with investigating itself.

Fitzgerald states :

This Court also rejected defendant’s Appointment Clause challenge, carefully analyzing the limits on the Special Counsel’s authority and tenure, including being subject to dismissal at will, before concluding that the case “falls squarely into the mold of Morrison [v. Olson, 487 U.S. 564 (1988)],” which “remains binding authority” from the Supreme Court.

You'll find the point which my original excerpt was intended to illustrate in my final paragaph. When the grant of authority itself is sui generis, logic suggests that it doesn't fall squarely into the mold of anything -- making what is, in fact, the unresolved question of whether Morrision does or does not constitute "binding authortiy" in any case potentially irrelevant here. The 12 Amigos, of course, find that singularity compelling.

Where Walton's common law plain reading of Comey's letters ends up is very much at odds with Comey's own representation of the powers he conveyed (and Fitzgerald's as well from time to time) -- unless we are to assume that Comey, in his offical capacity as Ashcroft's deputy, misrepresented his intentions and the Fitzgerald mandate he described in his press conference. Similarly, Walton's conclusions are at odds with additional factual findings he declined to make. Perhaps where I've been going with all this would have been clearer if I'd said that the Walton excerpt makes a dramatic contrast to the simple assertion in Fitzgerald's filing. Since your own point, I presume, was Fitzgerald's accuracy, I will extend his summary here. My own observations and quotations from Comey's presser are {bracketed} in between Fitzgerald's language which I've italicized:

The plain language of the appointment letters, the Court concluded, established that “the Special Counsel is limited by the specific scope of the investigation he was directed to conduct. Accordingly, the Special Counsel cannot make any decisions that extend beyond his express jurisdiction.” Id. at 41.

{Per Comey, "I told [Fitzgerald] that my mandate to him was very simple: Follow the facts wherever they lead, and do the right thing at all times." Comey's express purpose, was to move Fitzgerald's jusridiction "outside the normal chain of command." He distinguishes Fitzgerald's purview from that of a DoJ mandated outside counsel thusly, "An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission."}


The Court further concluded that the Special Counsel had no authority to disregard Department of Justice policies promulgated by the Attorney General.

{If that were the case, then the mission-defined devoluton of powers to Comey, by virtue of Ashcroft's recusal, could not have included the authority to disregard DoJ regulations governing the appointment of special counsel to politically & ethically sensitive cases, nor, by logical extension, could it include Comey's own expansive use of 28USC§510.}


The Court stated, “[T]he only logical way to interpret the Deputy Attorney General’s delegation to the Special Counsel of ‘all the authority of the Attorney General,’ is that the delegation simply permitted the special Counsel to bypass certain approval requirements contained in the regulations and policies, not ignore them altogether.” Id. at 42.

{Having expressly directed Fitzgerald to exercise the A.G.'s authority in his capacity as Special Prosecutor "independent of the supervision or control of any officer of the Department," the logic of Walton's interpretation is less than clear. The energy he devoted to the import of "any" where the delegation of AG "functions" was concerned is strikingly absent here, with regard both to function and to the ambiguity of "certain" approvals -- especially when one of the approvals Fitzgerald can bypass, per Comey above, is permission to expand his own jurisdiction. Even common law principles are insufficient to the task of determining precisely what regulations & policies an officer with plenary powers operating "outside the normal chain of command" might or might not be obliged to follow. Egregious violations of "certain" other requirements & policy wouldn't necessarily even come to light, under the terms of the Comey appointment, and even suspected violations of policy would not actually be susceptible to inspection, let alone critically important, timely correction, without a "contractual" violation by DoJ HQ. Shoot, there's been no way that even a potentially constitutional violation could be addressed definitively, short of indictment, conviction and appeal.}


Finally, the Court concluded that “the Special Counsel’s tenure is both limited and temporary.” Id. This conclusion was based in part on the Special Counsel’s limited jurisdiction, which carried the implicit limitation that once the “assigned mission is complete his tenure as Special Counsel will end.” Id.

{Any explicit limitation, however, short of termination as SP by the AG or firing by the Prez, is non-existent. According to Comey the mission will be over when Fitzgerald says it's over: "That will be Mr. Fitzgerald's call. He'll be in charge of the matter and he'll make that judgment."}


The conclusion about the Special Counsel’s tenure was also supported by the fact that the Special Counsel’s delegation could be revoked at will. Id. at 43.9

{The tenure of principals can also be terminated at will by the President, which is why that fact, in and of itself, is not dispositive in the current Appointments Clause challenge as it might have been, per Scalia, had the circumstances in Morrison been different.}


Having made these conclusions about the source and scope of the Special Counsel’s authority, this Court applied the Supreme Court’s Appointment’s Clause precedents. {'Nuff said.}


Implicit limitations are a poor legal substitute for the actual definition of powers. Fitzgerald's response when challenged to define what might constitute supervision by any "superior" officer couldn't survive the laugh test. The stark contrast between the implicit understandings advanced by the retired Mr. Comey, more than 2 years ex post facto, and his official assertions at the time is a cautionary tale on its own, and a story even Walton didn't buy. Comey stated at the time:

Well, the issue surrounding the attorney general's recusal is not one of actual conflict of interest that arises normally when someone has a financial interest or something. The issue that he was concerned about was one of appearance.
Given the paramount, even generative, importance accorded to the public perception of fairness, emphasized in Fitzgerald's own excerpt from Morrison, Comey's public pronouncements take on added weight. They are doubly problematic here because what Comey described for public consumption, belated assertions in an obscure affidavit to the contrary, was the appointment of an independent officer -- one whose very title was imbued with specific historical significance and whose position as U.S. attorney was quite deliberately construed as a housekeeping advantage over other possible outside alternatives.

In reality, the grant of authority at issue represents an unprecedented, unecessary exploitation of the AG's statutory power of delegation which resulted directly from an unprecedented, unnecessary, rejection of the AG's own regulatory policies -- by a deputy whose access to the authority he excercised, if we're to accept Walton's reasoning, was constrained by the delegation he, himself, received as the beneficiary of Ashcroft's original recusal. If not, then Fitzgerald could logically have made delegations of his own which, like tumbling dominoes, would soon fail the "absurd result" standard which Walton also insists should apply.

clarice

Brava, jmh!!

clarice

Re the question how would the DoJ have handled the CIPA request we can never know, but as I noted far earlier, Comey knew when he appointed Fitz that in the NSA investigation DoJ officials had nixed subbpoenaing media and therefore we have reason to believe that had this been run thru the DoJ maw especially with the facts, not the leak storyline.Miller would not have gone to jail and the other reporters would not have been forced to testify.

Pal2Pal (Sara)
Similarly, the Court held that the week of7uly 6 through 12, 2003 is "critical to the case, and the events occurring during this week are relevant and highly probative."

I realize this really refers to what Libby was saying or reporters were claiming was said, Novak's column, etc, etc., but in relation to the discussion about classified info and Walton deciding what could be substituted and whether Libby's defense was hampered by not being able to show the extent of his workload with extraordinarily important matters, I took a look at what else was in the news.

In that regard, I found a speech the VP made to the Ameriican Enterprise Institute on July 24, 2003, that reminds us of that period of time. For instance, 2 days earlier, Uday and Qusay were killed.

I think if I were a juror, to fully understand the type of pressures and tensions Libby would be under would go a long way in convincing me that he could forget or confuse less significant or important details like Joe Wilson had a wife and she was CIA.

I understand why classified info can't be broadcast in a trial, but I'm not sure that a single Judge should have the authority to decide what substitutions can be made and the defendant still be afforded a fair defense. And in some ways this ties into the memory expert part because it is so easy for us to forget the big news from a specific period of time. In fact, I doubt most jurors can even begin to appreciate the incredible amount of information someone in a position such as Libby's has to process on a day to day basis. Not to mention the daily life and death situations they are presented with.

I'm not sure where that puts me on the legal question, but my sense is that it shouldn't be up to a judge to decide what and what was not critical to the defense when it comes to someone's time and job, even when most of the product of that job is classified. It penalizes someone who deals in classified information as part of their job that wouldn't even be a factor if Libby sold widgets.

Vice President's Remarks on War on Terror at AEI

cboldt

-- cboldt took me to task for what I left out yesterday --

My point in that post wasn't to the substance of either side. It was to your assertion that Fitz mischaracterized Walton, which was how you opened your comment, "here's a first stab at testing Fitzgerald's representations of Walton's Opinion."

I see Fitz and Walton singing in harmony on the construction of Comey's delegation letters, hence Fitz didn't misrepresent Walton.

cathyf
Just thinking out loud on the CIPA(6) signatory deficiency. If the case was managed by the AG, instead of by an infirm proxy, how would the AG approach CIPA issues? If Fitz's approach was substantially the same as the AG routine (I'm guessing, but for talking purposes, consult with each agency affected by the release of classified info, obtain their substitution or agreement, etc.), then the Fitzgerald's CIPA infirmity has no effect on the material available for the trial.
So, is this the "Congress, They're Such Big Kidders, Passing Laws They Don't Really Mean" school of legal interpretation?
PeterUK.

"Did SlickFitz show 'em Comey's letter with "all" underlined?"

A kind of Fuhrer authorisation?

JM Hanes

Well, cboldt, there's what you say I meant and there's what I say I meant. I called my comment "a first stab at testing Fitzgerald's representations of Walton's Opinion" and as far as I'm concerned that's exactly what it was. I didn't think your own point went "to the substance of either side," I assumed you were aiming directly at me, and making an assumption I attempted to correct.

Fitzgerald and Walton are obviously "in harmony" here, but it's also manifestly in Fitzgerald's interest to minimize the complexity of the questions -- and answers -- at issue, and in the process to buttress, not belie, Walton's confidence in the logical inevitability of his conclusions

stonedeliver

to it we just I still I thought my dad let it go. by themselves as a sapling where I spent I was took

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