Stare Decisis

Linda Greenhouse and David Kirkpatrick of the NY Times cover the latest Supreme Court ruling overturning part of the McCain-Feingold campaign finance reform.  They aren't sure who won, but they know who lost:

It is not clear which candidate or party is more likely to benefit from the ruling in 2008. But Senator John McCain, the Arizona Republican seeking his party’s presidential nomination, may suffer the most in the short term. His sponsorship of the law, formally called the Bipartisan Campaign Reform Act, is unpopular with conservatives and Republican primary voters, and the Supreme Court’s decision is a reminder of his role.

Comments

[Other Tom]

McCain is toast anyway--if at this point he still thinks he has a snowball's chance in hell of getting the Republican nomination, he's been smoking the draperies.

As for the Supremes, it's a minor tragedy that four justices would have upheld this unconscionable provision of this horrible law. And I note that the other five are being called the Court's "conservative majority." Anyone who believes Anthony Kennedy is a conservative jurist is doomed to many disappointments in the future. He has "learned" and "grown" since his appointment, and is cultivating the dreaded "strange new respect" within the beltway.

[clarice]

Ditto. On another thread, I quoted Taranto who yesterday devastatingly sliced and diced the minority comparing their Bongs 4 Jesus and CFR opinions in which they made clear that only really important political speech can be curtailed. (Really, he's right--there's no other way to read those 2 opinions.)

[clarice]

Off topic --Steyn on the closing arguments in the Conrad Black trial:
"Ron Safer started the morning with a deft bit of improv theatre. He was making a rather dull point about a wire transfer his client Mark Kipnis sent from Hollinger International in Chicago to Hollinger Inc to Toronto. According to the government, this demonstrates that Kipnis was in on the scheme.
Safer scoffed at this, pointing out that his client didn't know what proportion Conrad Black owned of Inc vs what proportion he owned of International. He didn't know what proportion of Inc was owned by Radler or Ravelston.
Eric Sussman leapt to his feet. "Objection! There's no evidence about what Mark Kipnis did or didn't know."
"Exactly!" said Safer. "That's the very point I'm making." The room fell around laughing, and defence counsel jabbed his finger at the chief prosecutor: "They have the burden of proof. A tie doesn't go to the government."
Exactly encore! But Sussman's twitchy trigger-happy objection is most revealing: The government seriously believes that its thinly stretched inferences unsupported by any evidence have to be actively disproved by the defence.
They don't, and it's alarming the government doesn't understand that. Let's hope the jury do."

http://forums.macleans.ca/advansis/?mod=for&act=dis&eid=52

[Carol_Herman]

Heck, Other Tom; not only doesn't McCain have a chance at the republican nomination; he's not even going to be invited over to the other side, to prop up hillary as her veep.

Can he even get a cabinet chair, now, in someone else's presidency?

He can't even measure for a "seat cushion," in my book.

And, what he tossed out with his senatorial behaviors? He's alienating voters. Seems to me, this is the whole purpose, now, of his DOUBLE-TALK EXPRESS.

I say this, knowing McCain has a madman's temper. And, he's been angry for awhile.

Good that the supreme's dealt a blow to McCain-Feingold. Which shows ya we're dealing with ONE PERCENT POLITICS. The stuff that gave Pelosi the majority chair; and the "claim" that the Bonkeys can run government.

Actually, all the Bonkeys are running now are the "center stage" of the old media's propaganda war.

Perhaps, McCain is enjoying his temper tantrum? While the Bonkeys have to figure out how to stop Bush from naming another candidate to replace a seated justice, who falls out of her seat.

Politics. Can't seem to move off of the 50-yard line.

[SunnyDay]

Exactly encore! But Sussman's twitchy trigger-happy objection is most revealing: The government seriously believes that its thinly stretched inferences unsupported by any evidence have to be actively disproved by the defence.
They don't, and it's alarming the government doesn't understand that. Let's hope the jury do."

**********888888

amazing

[Other Tom]

The Senate just invoked cloture on the immigration bill.

This thing has got me wondering: has there ever been a greater disconnect between the people of this country and the US Senate? Or is it just me?

I just can't think of an instance in which that body has behaved in more of an elitist, we-know-what's-best-for-you-so-just-shut-up manner.

If they pass this thing next week, it's gonna get real interesting in the House. Strikes me that this issue could be absolutely pivotal in the 2008 House elections.

[clarice]

I agree, OT. It looks to me as if the high cost of running has turned the Senate into a Confederacy of Dunces, a club for rich, pampered fools.
OTOH, you needn't be rich to run for the House and reportedly the House Republicans are plotting how to kill the Bill.

http://www.politico.com/blogs/thecrypt/0607/House_Republicans_set_to_oppose_Senate_immigration_measure.html>Arrogant Dopes

[SunnyDay]

Turn on Rush.

[RalphL]

Lott already has

[RalphL]

"Let's hope the jury do."

Is that a Canadian colloquialism? Steyn usually uses better grammar.

[clarice]

Thanks, Ralph!! I thought it was just me who thought that odd. I always thought jury was singular anot plural.

[clarice]

Ralph you and I are wrong and Steyn is right apparently:
http://64.233.167.104/search?q=cache:slNRimTquoIJ:www.grammar-monster.com/lessons/singular_lessons.htm+jury+singular+or+plural%3F&hl=en&ct=clnk&cd=1&gl=us>Jury is plural

[clarice]

Though this grammarian says it's singular.

http://ehlt.flinders.edu.au/humanities/exchange/style/grammar.html

[Charlie (Colorado)]

Jury --- and other collectives --- is singular in American english, and plural in Brit and Canadian. Just another example of two peoples separated by a common language.

[Rick Ballard]

"Is that a Canadian colloquialism?"

Nope. Standard British English. "Jury" is assigned plural status rather than singular. It's not unusual to read "the United States do" in the UK press.

Watching the votes coming up on the immigration bill is going to be entertaining. There are going to be a number of Senators playing "I was for it before I was against it" games in order to have votes on both sides "on the record". My bet is a ton of posturing and no bill makes it to the President.

[Other Tom]

First time I encountered the Brits using the plural verb form with corporate names really amused me, and it took some getting used to. They'd say stuff like "Exxon have the largest reserves in the region." Go figure.

[clarice]

Interesting sidenote on grammar.

Rick, I do hope you're right.

I'm thinking Webb just earned himself the description "single term Senator".

[Charlie (Colorado)]

Bet you guys a buck that the immigration bill passes and is signed.

[clarice]

I'm not betting--just hoping it doesn't. It's an unmitigated disaster.

I'd be more inclinsed to bet that Reps who go along with it are making a major mistake.In fact, that the entire Congress may be in for a big surprise in 2008 if this does pass.

[clarice]

Mr. Immigration Bill (Kaus):
"Kabuki Kabuki? The Senate has voted 64-35 to take up the immigration bill. There is a second, now-crucial, cloture vote to cut off debate later this week. Emailer J.S. makes a good point:

I think the first cloture vote is now itself possibly becoming a sort of kabuki for some senators, like Burr and Bond, as they will vote to proceed today to impress the leadership and the Grand Bargainers, in hopes of keeping their relationships decent with them for future favors. These guys can afford, they calculate, to vote for cloture today, knowing they can still filibuster it on the second cloture vote. (I think the message has been gotten by most that a traditional kabuki move of voting for cloture and against the bill won't work anymore.)

So this raises an absolutely critical question: what will happen between a vote to proceed today and the next cloture vote? The outrage and pressure, mainly from the right, will have to triple. If people like Burr, Bond, McConnell, etc. vote to proceed today and then don't get absolutely swamped with constituent outrage, their reaction will be "that wasn't so bad, I can do it again." [E.A.]

That seems right, although with some potential second-vote switchers--like Webb--it may be important to be extra-polite about and not get their back up. Cold, polite, implacable outrage! ... If a net five Senators switch between today and the second vote, the bill is (again) dead. That's a much more plausible scenario in this case than it usually is, given all the maneuvering and posturing and pressure. Burr is a potential switcher (if his amendment is defeated) in addition to Webb. And Brownback, if he wants to do well in Iowa. ... The fate of various amendments will give lots of Senators lots of excuses to switch. ... The pro-bill forces lost Hatch and Stabenow on the first cloture vote, which may become significant. ...10:09 A.M. link"

--------------------------------------------------------------------------------

[Ralph]

Is today the day that Libby's team is supposed to answer Fitz's filing?

[clarice]

That's my recollection, Ralph.

[Ralph]

Clarice,

I'm going to be off working for a living for the last half of this afternoon (It's not quite 1:00PM here in Wyoming), but I'll plan to convert the filing when I get back (though Sunny Day will probably beat me to it.)

[clarice]

Ralph. Thanks. But I am not able to read your attachments for some reason. It would be better if you sent it to Rick to post if you don't mind.

[Ralph]

Clarice,

I guess I wasn't clear --- not unusual for me! --- that's what I plan to do, then anyone can get them from Rick.

I'd like to know what he does different to be able to read them.

Anyway, I'll check when I get back and if I can a copy I'll get it converted.

[clarice]

Thanks, Ralph. I appreciate your work.

[SunnyDay]

When do you expect it to be filed?

[Rick Ballard]

"I'd like to know what he does different to be able to read them."

Nothing special - unpack the zip file, open the html file and cut and paste. Clarice (and others) might be having a problem because they're trying to look at the thumbnails which accompany the html file.

Team Libby could do us all a favor and stop using the image PDF format.

[clarice]

Close of business today, SD.

**In the Black trial, Steyn continues with the closing arguments. Defense pointed out the only illegal transaction was by and for the prosecution's star witness, Radler.
The jury asks the court to run late to complete instructions tonight so they can get on with this--Steyn correctly notes that this doesn't look like they plan to take their time on getting rid of this dog of a case.

On rebuttal, this is the prosecution's response to the fact that radler who they counted on to make their case was proven a liar hundreds of times in this matter:
"Eric Sussman has now offered the most ingenious defence of his star witness:
"Don't you think if David Radler was 'just reading from a script' he would have done a much better job? Don't you think he'd have times and dates and notes for his telephone calls?"
Brilliant! So the very implausibility of Radler's testimony testifies to its plausibility. Just as the absence of evidence only testifies to the cunning of the scheme, so David Radler's lack of credibility is all the more reason to believe him."

Sound familiar? It does to me.

[RichatUF]

Sorry to go OT but this is a great piece at AT: Casting Terrorists as Defenders of the Constitution

Wow!

and OT-

If they pass this thing next week, it's gonna get real interesting in the House. Strikes me that this issue could be absolutely pivotal in the 2008 House elections.

Think the 60's and 70's were bad, wait for the unintended consequences of this turkey to come do. We could turn over the House and a large portion of the Senate, but they both are going to be solidly left-democrat. Someone is going to have to pay for all that compassion-

RichatUF

[glasater]

Regarding the above comments regarding the immigration bill I totally agree. In my mind if the State Department cannot handle the overload requests for passports, how in the world can our government handle Z visas if the bill passes both houses pretty much intact. Here is a comment regarding passports:

The problem is that the State Department is so short staffed (blame the Iraq war) that it is overwhelmed with passport applications and renewals. The backlog is largely due to a new rule that requires U.S. citizens to have passports when flying to Canada, Mexico, the Caribbean and Bermuda.

My friend’s passport sat in a vault somewhere in western Pennsylvania for six weeks until it was moved to a queue to await renewal.

"How long is that going to take?" she inquired.

"We have no idea," was the response.

"Who can I talk to about expediting the renewal?" she asked.

"No one."

"So there’s no one in charge?"

"Nope."

"Do you know that I’m a prisoner in my own country?"

No response.

In my part of the world, the illegals would never sign up for the Z visa. They are not stupid people and are just fine with the status quo.

[manys]

Who benefits from the immigration bill? Can they be said to be the real constituents of Congress in this matter?

[glasater]

The above comment was from a blog called Kiko's House. The URL was very long and am not terrific with the tags.

[glasater]

"Who benefits from the immigration bill? Can they be said to be the real constituents of Congress in this matter?"

Here I'm assuming that the democrats--down the road feel they will have a rock solid voting base.

[Carol_Herman]

The whole HOUSE is up for grabs in 2008.

For the senate? 12 seeking re-election, are Bonkeys. And, 24 are GOP keisters.

In Tom DeLay's very interesting book, he talks about the HOUSE from the inside. He got to DC in 1980, on Ronald Reagan's coattails. Only five other republicans from Texas were also elected that year.

And, while DeLay was in the HOUSE? Well, he says his decision to impeach Clinton was a doozy of an error. Because in 1998 it tossed out HOUSE members from the GOP side. (I live in the district where Rogan needed to win. And, he didn't.) There's no such thing as a seat that's bullet-proof.

What seems to be a bit shakey? Mitch McConnell's grasp on the minority chair. With the clown, Trent Lott, as the GOP whip.

Also, InstaPundit put up the link. It seems Harry Reid is "trying something NEVER done in the senate, before!)

Dubya's already blown his lines. As he was surrounded by American flags, and he called this bill AMNESTY. The headline's up at Drudge.

And, DRUDGE gets real traffic!

We will know on Thursday if all the senators are tone deaf. Because Reid goes for another cloture vote; before pressing this thing into the HOUSE.

The HOUSE on the other hand? All those seats are under DIRECT THREAT, when voters go to the polls in November 2008.

We hear that its possible for a candidate to appear in 2008, who will be INDEPENDENT. (Ross Perot blew away quite a few voters when he "quit," and then didn't. Still? He got, then, 19%. So, it's like a GUINNESS BOOK OF WORLD RECORDS. Can someone else do better?

Is Hillary in? Or is she bounced? (Are the Bonkey's shy of "bouncing" because Wesley Clark, banging out Howie Dean from 2004 contention, also only survived ten days on the presidential stage.) One just never knows what happens to those standing, trying to race for a seat, while the music stops at Musical Chairs. I don't know. The future contains a complex system of choices to call with any accuracy.

By Monday? This could be just as much a disaster for the clowns in congress, as not.

I have to go back to LBJ, to remember a performance as out of touch with the public's mood, as what JIMMY BUSH is doing, today.

I think the momentum is on the side of the public paying attention, too. Today's congress critters seemed never to have heard of the Edsel?

[MJW]

Other Tom: Anyone who believes Anthony Kennedy is a conservative jurist is doomed to many disappointments in the future. He has "learned" and "grown" since his appointment, and is cultivating the dreaded "strange new respect" within the beltway.

So true in many in many cases, but in this case, he was on the side of the angels, joining with Scalia and Thomas to advocate overturning the McConnell decision.

[cathyf]

Is today the day that Libby's team is supposed to answer Fitz's filing?

C'mon, guys, where is it?!?!? she demands querulously, convinced that the world revolves around her convenience...

[SunnyDay]

Nothing yet.

[Other Tom]

MJW, I certainly agree concerning this most recent decision. My point is simply that Kennedy is guided by no principle of any kind that I can discern, and it is impossible to know what will be the basis of his decision in any given case. His jurisprudence is almost as loony as that of the sainted Sandra Day O'Connor, the queen of the five-prong test, the less restrictive alternative, the undue burden and the delicate balancing--all of which give us a body of law that can't be interpreted by any oracle in any cave.

All I wanted to know was, is Thomas pronging Ginsburg? Is Breyer pronging Stevens? But they never tell us that...

[Maybeex]

According to nolo at EW's, this is it:
http://www.robbinsrussell.com/pdf/392.pdf

http://www.robbinsrussell.com/pdf/392.pdf>pdf link

[Pal2Pal (Sara)]

all of which give us a body of law that can't be interpreted by any oracle in any cave.

After trying to read through and balance out the conflicting stuff surrounding the Appointments issue, I have come to the conclusion that when the law becomes so confusing, it is useless to anyone. We are all at risk. There are too many laws with far too many sub sub sub laws under them, there is no way anyone can say they are obeying THE law. And when it comes to politics, the law is really useless since the conventional wisdom is not that you actually broke some obscure law, but that you appeared to have broken a law. And when you add in the vast divide between what people consider to be legal but unethical, you get a mess beyond fixing.

[Ralph]

OCR conversion of PDF to HTML is on its way to Rick.

[boris]

Spasibo

[Pal2Pal (Sara)]

It reads like a Tom Maguire blog post with legal cites. I don't know about the legalities, but I loved the informality and burst out laughing at a few of the turns of phrase.

[Rick Ballard]

Libby Reply in HTML

Thanks again, Ralph.

[Maybeex]

Is it RichUF that keeps talking about how Mitchell's statement was hardly ambiguous?
That's the closer on this filing.

Looks good to me, but then I'm pre-convinced.

[Pal2Pal (Sara)]

Page 7-html ver.

If Fitzgerald was not a "principal" officer at that moment, who exactly was?

That's my question.

[clarice]

From beginning to end this is a delightfu,l pleading to read.
This is a dynamic and catching first graph:
"When a Special Counsel is directed to exercise the "plenary" authority of the Attorney General "independent of' anyone's "supervision or control"; is exempted from the "limit[s]" of 28 C.F.R. Part 600 (which include the duty to "comply" with DOJ "rules" and "policies"); is authorized to prosecute any violation he deems "related to" his original mandate; and discharges CIPA authority that Congress reserved only to the actual Attorney General and a narrow set of other high-level officers not including the Special Counsel or U.S. Attorneys, surely it is a "close" question whether he is a "principal" officer. Special Counsel Fitzgerald, backed by Judge Walton's .30-page post-hearing memorandum ("Mem"), contends otherwise, but does so unpersuasively. "

They do a grand job of untwisting the Fiz-Walton Gordian knot on CIPA and the appointments issue, and end with a beautiful retort to FDL's fav argument on Mitchell--

[RalphL]

Poor Libby was a clue on Jeopardy tonight. The category: People with Muppet names.
Scooter was the cheap clue.
How the mighty have fallen.

[topsecretk9]

woo hoo

Constr, N.A., .519 U.S. 316, 335 (1997) (Scalia, J., concurring) ("applying the 'relate to' provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else").

5
supervis[ion]"? Fitzgerald suggests that "much information about the Special Counsel's significant investigative steps was in the public record" (Opp. 7); but, in a case shrouded both in grand jury and CIPA secrecy, that is cold comfort indeed, In this critical respect, as well, Fitzgerald enjoyed powers Alexia Morrison could only have dreamed of: If Special Counsel Fitzgerald was removable at all, it was by someone who would never learn important details of what he was doing in the first place. "[I]n the context of a Clause designed to preserve political accountabilitI' (Edmond, 520 U.S. at 663 (emphasis added)), such a hollow form of removal authority cannot possibly constitute "direction and supervision."

C. Compelling evidence that no one has exercised "supervision and control" over Fitzgerald is his now-acknowledged violation of Sections 6(c)(2) and 14 of CIPA. This dereliction has everything to do with the Appointments Clause challenge in this case.

[RalphL]

"Because Mitchell's testimony cut right to the quick of Russert's contradiction of Libby... "

Mitchell gave testimony? Did they leave out a "could?"

[Other Tom]

Wahoo.

[clarice]

"In Fitzgerald's view, his 6(c)(2) filing was purely "ministerial" because he simply "relied on an attached affidavit of a CIA representative." Opp. 10-11 & n.11.7 But that blanket deference to the CIA is precisely what Congress was trying to avoid by interposing the independent judgment of the Attorney General or other specified high officials.' By simply deferring to the affected agency – which would be institutionally biased in favor of excessive secrecy – Fitzgerald ceded away the very check-and-balance powers Congress wanted the Justice Department to exercise. If Fitzgerald was not a "principal" officer at that moment, who exactly was? "

***************
"
The Special Counsel's defense of the Andrea Mitchell ruling is especially anemic. True, Mitchell's attorney apprised the district court that, if called to the stand, his client would disavow her previous exculpatory statement. But that's why lawyers get to do cross-examination.9 In the face The fact that defense counsel declined the district court's offer to permit them to examine Mitchell outside the presence of the ,jury is scarcely a

9
of questioning under oath, Mitchell may have gone back to her first story – and if she didn't, the jury might have credited her first version anyway. As we explained in our opening brief (and as the Special Counsel fails to dispute), there was abundant corroboration for Mitchell's prior statement.'

Only under a truly extravagant reading of United States v. Johnson, 802 F.2d 1459 (D.C. Cir. 1986), could such routine but crucial cross-examination be precluded. But precluded it was. Because Mitchell's testimony cut right to the quick of Russert's contradiction of Libby – a proposition that the Special Counsel does not dispute – the preclusion of this vital witness is yet another close question on appeal. "

__Russert's testimony, RalphL--Diagram the sentence.

[clarice]

**Mitchell's excupatory statement (if admitted into evidence as the defense requested when it aought her testimony)"cut right to the quixk...

[Rick Ballard]

Clarice,

Pretty good evidence that "more" /= "better". Fitz and Reggie pumped a lot of smoke - Robbins didn't even take a deep breath before blowing it away.

[clarice]

Isn't is a joy to read a clear argument? I blogged this for AT and it should be up soon. I cited your version of the pleading so please hide the porno ads in case strangers come calling.

[Rick Ballard]

WHAT!! That's 87.634% of the revenue!

[clarice]

For one damned day flog Amazon crap like everyone else does,Rick.

[SunnyDay]

Advertise this

Triple Cross: How bin Laden's Master Spy Penetrated the CIA, the Green Berets, and the FBI--and Why Patrick Fitzgerald Failed to Stop Him (Hardcover)

[JM Hanes]

Feeling better, Clarice?

Even the footnotes are a thing of beauty:

We are unaware of any rule of criminal practice requiring defense counsel, on pains of waiver, to do a dry run of their cross-examination outside the presence of the jury.

What I admire most is Robbins' restraint. Where 28C.F.R. Part 600 and the CIPA filings are concerned, for example, he resists the temptation to elaborate on any implications which do not feed directly into the case for a defective appointment. Ditto on identifiying which points from Fitz/Walton needed to be disassembled, which did not, and which could actually be turned to Libby’s advantage.

Will the Applets prefer the clean pressed shirt or the week’s worth of laundry tumbled straight from the dryer?

[clarice]

I adore this filing--I agree it's masterful in every way. Yuu know reading anything Fitz has filed or J Walton has said or written on the law, makes my head hurt because in the first case so obviously an illusive tap dance and in the second proof of sloppy reasoning and incomprehension of the issues at hand.

[Pal2Pal (Sara)]

I love this line:

Fitzgerald enjoyed powers Alexia Morrison could only have dreamed of:

[vnjagvet]

IMHO, Fitz (and Walton) were masterfully set up by Libby's first Brief.

Almost to the point that it feels to me that the main points of the rebuttal were written and thought out before their first brief as filed.

If Libby goes to jail pending appeal, there ain't no justice in the DC Circuit.

[RichatUF]

from the filing...

...We are unaware of any rule of criminal practice requiring defense counsel, on pains of waiver, to do a dry run of their cross-examination outside the presence of the jury...

Put Mitchell on the stand and let her say in open court that she "was drunk".

maybeex-

Is it RichUF that keeps talking about how Mitchell's statement was hardly ambiguous

I didn't lead the charge

RichatUF

[Other Tom]

My late, great mentor, Max Gillam, once wrote a brief before the Supreme Court where the appellant (and his adversary) was a flagrantly fraudulent real estate scammer that operated under the corporate name of "Boy's Town."

The first sentence of Max's brief was, "Appellant in this case is not Father Flanagan's Boy's Town." (We won.) That brief was always held up to me as the example of how, if you do it right, you can get the court to understand what you're trying to say before they've finished the first page.

I think the Libby team has come very close to that kind of elegant prose in this brief.

[RichatUF]

I also like the heavy use of sneer quotes-the only thing I might have added would have been sneer quotes around "Special Counsel", because Fitzgerald wasn't bound by the relevant guideline and Special Counsel is defined.

RichatUF

[clarice]

vnjagvet..I think you're right.Just set the cheese on the mousetrap and they will come.

[chch16]

Is today the day that Libby's team is supposed to answer Fitz's filing?

Why yes Ralphie they did and now you can joy one of the most surreal renditions of Morriosn and CIPA 6 in the galaxy as Robbins puts another nail in Scootie's coffin as they shove him into the custody of BOP:

Robbins's">http://www.robbinsrussell.com/pdf/392.pdf">Robbins's Reply Brief for Prettyman Scootie Filed with Surrealistic Takes on Morrison and CIPA 6/27/07

[Ralph]

Any guesses as to when we hear if there will be oral arguments?

Before the end of the week?

[RalphL]

"jury is scarcely a

9
of questioning under oath"

Anyone know what was lost in translation here?

[chch16]

I would like to see oral arguments--but my guess is they won't do it.

I know this case is extremely high profile, but in general, because of the drug case load that is the majority of appellate cases, all of the Circuits have reduced the number of appeals that get oral arguments, and for that matter get published for precedent and of course this is not the main appeal, it is the bond appeal.

But there may be a predilection in the D.C. circuit I'm not aware of--they have the discretion but I would be surprised if they allow oral arguments on a bond appeal. I'd venture to say that it rarely happens in any circuit. Someone will correct me if I'm wrong.

A couple years ago there was an interesting case in the Eighth Circuit, and if I remember correctly (I'd have to look it up) Judge Arnold and clerk wrote the opinion--it would have forced all cases to be published which would have force the per curiams to get more than a one sentence disposition which is a shame IMO, but the case was quickly taken en banc and the panel's opinion was over-ruled.

[JM Hanes]

vnjagvet:

It struck me similarly. Even if Robbins weren't teeing up Fitz/Walton directly, I think he is smart enough to keep some powder dry for his rebuttals and to extract maximum advantage from having the last word by making every single sentence count -- and providing as little fodder for disagreement as possible. Hopefully, that kind of clarity will finally pay off here.

[JM Hanes]

RalphL:

Actually that's Footnote #9 (which confusingly also starts on Page 9) and is continued at the bottom of page 10. When reconstituted whole it would read:

9 In the face The fact that defense counsel declined the district court's offer to permit them to examine Mitchell outside the presence of the ,jury is scarcely a "waive[r]" (Opp. 18 n.21) of their right to establish that Mitchell's prior story was the truth. We are unaware of any rule of criminal practice requiring defense counsel, on pains of waiver, to do a dry run of their cross-examination outside the presence of the jury.

When I'm using a converted document, I sometimes decide it's worth it to go through it and change the footnote texts to blue instead of black.

[cathyf]

I also like the heavy use of sneer quotes

Yeah, a lawyer after my own heart. I actually noticed something, perhaps because it is related to my own pet suggestion for the sneer parenthetical. Throughout the case up to this point, the defense has referred to the prosecution as "the government". My suggestion was to do a global search/replace and replace the phrase "the government" with the phrase "the government (of something)".

What I noticed, and confirmed with a quick search, is that the word "government" does not appear in the pleading at all.

[JM Hanes]

Oops, selected the last three words of text on page 9 along with the footnote by mistake. Make that:

9 The fact that defense counsel declined the district court's offer to permit them to examine Mitchell outside the presence of the ,jury is scarcely a "waive[r]" (Opp. 18 n.21) of their right to establish that Mitchell's prior story was the truth. We are unaware of any rule of criminal practice requiring defense counsel, on pains of waiver, to do a dry run of their cross-examination outside the presence of the jury.

[clarice]

Interesting catch, Cathy. It might seem small but it is critical to framing the issue in the eyes of the Court--after all they are arguing he was an unauthorized prosecutor on a rogue mission, not "the government" which implies authority.

[vnjagvet]

Anyone who says Libby's lawyers are making "surreal" arguments in this brief is either not a lawyer or not a good one.

[Other Tom]

Ground control to Major chch16
Ground control to Major chch16
Take your protein pills and put your helmet on...

[cathyf]

They call him "Special Council Fitzgerald" which has it's own problems. But then "ExtraSpecial Council Fitzgerald" is a bit over the top. And "Supercalifragilistic Council Fitzgerald" is well over the line into obnoxious.

A light touch is definitely called for in these things. I know this because I personally am the canonical example of the loose cannon... ;-)

[clarice]

Who else is on that council?Wink

[Pal2Pal (Sara)]

Yep, it is just Fitzgerald, no Mr. or Special Council Fitzgerald, or the Special Council as opposed to "a" Special Council.

[Pal2Pal (Sara)]

oops, I did it too. COUNSEL

[RalphL]

He was a council of one. Very special, in the Church Lady sense.

[chch16]

Vnjagvet--

I don't think Robbins would win in any circuit. I know that you do. But this isn't any Circuit. We all know that the D.C. Circuit has 14/17 judges who are committed to rule for this administration and they have demonstrated that.

Soon there will be a decision, and we all know that either team will motion for an enbanc opinion, and we all know that either team will then motion the S. Ct. per Rule 21 for a ruling on this bond appeal. I expect if Robbins is on the losing end by that time that he might try to get a stay for Libby to begin his prison term until the S. Ct. rules. Normally they would never grant one if the D.C. Circuit (either panel or en banc has denied it until they rule on the main appeal, but they could either take the bond appeal for consideration or refuse to hear it.

There have of course been situations where the Circuit rules against a bond appeal and the S. Ct. gets the case while the defendant is in prison, and they reverse the conviction and release the defendant. Relatively that doesn't happen often, but it happens and I know one case well where it happened.

Your assessment "not a lawyer or a good one" based on one comment is humerous and I wonder if you've considered you are wrong more than you ever realize in your life Vnjagvet.

And you think Robbins' arguments are strong because...

I suppose you think that Addington's arguments for Cheney's being a hybrid branch of government and a 4th branch at that are strong valid arguments as well.

[clarice]

I think RIck got tired of everyone stealing his stuff and trademarked Frankenprosecutor so, even though that's best, they couldn't use it.

[clarice]

Actually, chichi, It's Addington's position that the Classified document records keeping order signed by the President was not intended to apply to either the Vice-President or the President, and I expect he has good reason to think that.

[Other Tom]

This is ground control to Major chch16, You've really made the grade
And the papers want to know whose shirts you wear,

Now it's time to leave the capsule if you dare...

[cathyf]

Maybe I'm imagining this, but there is a very distinct shift in tone. The filings to Walton treat him somewhat gingerly -- the care given when speaking to the not-so-bright in power. The pleading aimed at the appeals court is more brisk -- now that it's just the grownups in the room we can cut the crap.

[clarice]

"In a letter to Sen. John F. Kerry (D-Mass.), Cheney Chief of Staff David S. Addington wrote that the order treats the vice president the same as the president and distinguishes them both from "agencies" subject to the oversight provisions of the executive order."(Wash Post)

[JM Hanes]

Not just sneer "quotes" either (citations omitted):

Indeed, in his first lengthy ruling on the issue, Judge Walton found no "need" to "confront th[e] analysis" of Edinond at all because he thought that Morrison (alone) is controlling. Now, in his latest ruling on the matter, Judge Walton suggests that perhaps the "directed and supervised" standard in Edmond is merely one "alternative" way of determining inferior-officer status.

cathyf:

Nice! I would never have noticed, and yet once you point it out, it's easy to identify the effect that subtlety has on the document as a whole. It takes real talent to make something look as simple and ineluctable as this brief, and I don't doubt that the omission of "government" was deliberate.

[topsecretk9]

If Fitzgerald was not a "principal" officer at that moment, who exactly was? "

A question not even Fitzgerald can answer--

In Fitzgerald's view, his 6(c)(2) filing was purely "ministerial" because he simply "relied on an attached affidavit of a CIA representative."

I'm sure not an original thought, but doesn't this seem a pretty tasty nugget for Tatel to chew in light of the Miller affidavit?

[clarice]

There is a shift in tone, Cathy..it may be because of the differences in who is judging, but remember this is to an appellate court on a time-sensitive, emergency matter and counsel surely understands they must be brief and as persuasive as possible--they simply have to cut to the chase.
It is a tad sarcastic about some of the arguments they are rebutting, but I think that tone is right. The Walton-Fitz positions are patently absurd and should not be given more deference than they deserve.(How can you not respond with the back of your hand to Fitz' contention, i.e., that the very fact that he violated CIPA is proof that he was an "inferior" officer?)

[JM Hanes]

chch16:

So, are you saying you're a lawyer?

[Jeff Dobbs]

WHERE IN THE WORLD: I am here

Apologies for not being here to engage full time.

Heh, that cracks me up. I'm not sorry. Eh, and you probably aren't either.

I am here without any regrets or apologies.

I love you all, but will be posting sporadically at best while here. And I WILL apologize in advance for not keeping up with the conversations here before posting. Not gonna do it. Not gonna pretend I'm gonna do it.

::smooches::

[vnjagvet]

My legal judgment has proven itself in 42 years of law practice, cheech.

I don't think you will be able to back up your assertion with any documentary evidence, cites or links.

[clarice]

Hit--Save some cowboy chatchkis for me--I don't get there until next month.

[topsecretk9]

Have fun Hit!

[cathyf]

...this is to an appellate court on a time-sensitive, emergency matter and counsel surely understands they must be brief and as persuasive as possible--they simply have to cut to the chase.

Yeah, I've got to think that a strong temptation for the appeals court when reading Fitzgerald and Walton tying themselves in knots is to think, "you know, if we just rule in favor of Libby, then we wouldn't have to read anymore of this crap, at least in this case." Especially Fitzgerald's crap, since he works in another circuit!

[clarice]

And in this stage of the proceeding they need only show it is a "close question" of law. I do not see after reading all these briefs how they can rule otherwise.

[JM Hanes]

Hit!

I had to switch my irony meter back on! If you ooched southeast about 20 miles you would run into my youngest. In fact, if you're fishing -- and I do hope you're fishing! -- one of his buddies might be guiding. The weather back home, of course, is positively perfect:)