The Libby Appeal

Per a new court filing we can add Mark T. Stancil to the roster of the Libby defense team.  The honorable Mr. Stancil got his law degree in 1999, so we will peg him as a toiler rather than a star on this.

And I have been advised that the Libby appeal of Walton's decision to deny bail pending Libby's appeal, a 122 page .pdf, has been filed. [Here we go: (Libby Appeal, 122 page .pdf)] [html version].  However, I cannot find it on PACER at either the Criminal or Appellate level.  If some legal eagle wants to provide me with a clue or two, that would be lovely.

Thanks to Clarice, and I still want to know how she did that.

UNSOLVED MYSTERIES:  At the PACER site for appeals courts I did find this utterly mysterious order (1 page .pdf)  dismissing the Libby case as of Dec 27, 2006.  Uhh, Happy New Year, Scooter, but why did we go through the charade of a trial?

If I had to guess (and it appears that I do), I would say it is either an early April Fool's gag from the court or, with slightly higher probability, a dismissal of a particular aspect of some CIPA appeal.

Gee, I would hate to think Libby's defense team missed this.

SKIMMING THE APPEAL:  The defense cites three major questions they consider to be close - (1) the constitutionality of the Fitzgerald appointment; (2) the denial of a memory expert; (3) and the inability of the defense to call Andrea Mitchell.  The appeals occupy about 20 pages; the balance is exhibits, including a transcript of the June 14 2007 bail hearing.

Re the Fitzgerald appointment, they make several points but do emphasize the CIPA issue discussed here.  However, let me toss a bone to the prosecution - in footnote 2, page 9 the defense explains that they only learned after the trial that Fitzgerald had signed off on a CIPA affidavit.  However, as noted previously, JustOneMinute readers had noticed an oddity  in the signings last December 2006.  Now, maybe the oddity we noticed is not quite the oddity being mooted by the defense, but the prosecutor might want to nail this down - its something to watch for in the prosecution response, anyway.  [OR EVEN BETTER _ Fitzgerald noted that 6(A) filing was on PACER during oral arguments - p. 58/122 of .pdf)].

Comments

[clarice]

I emailed it to you at your hotmail account, TM.

[SDangerfield]

As you folks (or at least Clarice) seem to have an inside line with the defense team, have you landed a copy of Libby's D.C. Circuit application for bail pending appeal? AP has it, but quoted a less-than-illuminating except.

[clarice]

A reader sent it to me after it was filed and we are trying to get it up and converted to html format, . I hate pdf files and cannot use them,

[Ralph]

I've got it now. MSNBC has a link to it:
http://msnbcmedia.msn.com/i/msnbc/sections/news/070607_Libby_Release_Filing.pdf

(Sorry, posting links is NOT something I know how to do . . . we all have our weaknesses!)

All the Best,
Ralph

[Jeff Dobbs]

Well, being that the pdf is an image and not text, I had to manually type this in, so any errors or typos are solely mine.

But I think I like this Roy Englert guy....from p. 21:

CERTIFICATE OF SERVICE

I, Roy T. Englert, Jr., certify that two copies of the foregoing

Application for Release Pending Appeal were served by hand and with

middle finger raised with courtesy copies by electronic mail on

the 19th day of June, upon:

Patrick Fitzgerald
Office of Special Counsel
Bond Building
1400 New York Ave, N.W.
Ninth Floor
Washington, D.C.
202-514-1187

[boris]

Ralph's MSNBC Link

[Note - this looks like the Libby filing with Walton from last week. (and the URL is a helpful confirmation)

The main post now includes a link to the new filing.]

[clarice]

Well, I was locked out for a while but I'm baaaaaaaaaaaaack. Honestly, typepad is giving me fits.

[Jeff Dobbs]

Well, I was locked out all afternoon.

I don't know who I Blame™ yet. But when I figure it out, he/she/they may have to answer for some property damage.

[Pal2Pal (Sara)]

I just read the filing and now I wait with baited breath for the JOM Legal Eagles to tell me what they think.

[Pal2Pal (Sara)]

Some of you will love this:

From The Wide Awakes:

The Other Fitzmas

Crazed fanboy that I am, I’ve been avidly reading Mark Steyn’s dispatches from the Conrad Black trial, but even if you don’t trust men with beards or Canadians, it’s still worth giving this case a second look. It might just be that Patrick Fitzgerald has managed the near-inpossible and found a prosecution sleazier than the judicial lynching of Scooter Libby.

[Ralph]

Boris,

Thanks!

I've got to learn how to do that!

All the Best,

Ralph

[SlimGuy]

How to code a web link

Your Text Label

[SlimGuy]

Durn that didn't work like I intended lets try again

How to code a web link

Your Text Label

[SlimGuy]

How to code a web link

< followed by letter a then use href=" site Url "> Your Text Label and close with < followed by /a>

[Ralph]

SlimGuy,

Thanks.

Ralph

[PatrickR]

There's a nice dig at Walton in footnote 1 on page 7 (p12 of the pdf). They point out that Morrison was required by statute to follow DOJ regs, and that that was crucial to the decision in that case.

They then say that both the Libby team and the amici pointed out this fact to Walton, but he never responded to it.

[Other Tom]

Lucianne just posted something from Byron York, via the Corner, on the issue of Libby's freedom pending appeal. He begins by recounting what he said about the prospects a couple of days ago (Bush not inclined to act) and updates himself. It's short enough that I'll just paste it here:

"If I were asked the question today, all of 48 hours later, I might say it a bit differently. First, I think it is absolutely certain that the president will not take any action on Libby's behalf during the relatively short period in which a federal appeals court is considering Libby's emergency request to stay out of jail while the appeal of his conviction goes forward. If the court were to let Libby remain free, I think it's safe to say the White House would take no action as Libby awaited the final result of his appeal. If, on the other hand — as some observers think likely — the appeals court denies Libby's emergency request, meaning that he will have to report to jail by, say, the end of summer, I now think it is possible that the president would step in to assure that Libby does not go to jail. I'm not sure what form that action would take — perhaps a commutation or delay of the sentence without an outright pardon — but there now seems to be a real possibility that Libby will not go to jail while his appeal is considered."

[Pal2Pal (Sara)]

Tom I posted that article by York with link in the previous thread.

[SlimGuy]

Ralph

Sara recommended something a few threads back I am using now that eliminates accidents with malformation of web links simply due to typo errors.

It's a addon for Firefox called Xinha Here .

 

Once you install it, just right click on the JOM comment box and type in your comment then highlight the portion of your text where you want to imbed the link , then click the link icon at the top of the page and paste your url into the popup window.

When done , then hit apply at the bottom of the window and then submit the comment to JOM.

The stuff in the comment box will look funky because it has all the html imbedded codes carried along with your posting info. 

[vnjagvet]

Quick reaction:

First, thanks for getting it out so quickly.

The brief is understated and well done.

The "close question" issue is immediately tied into the statutory "substantial" question language in Section 3143(b) with a quick cite to U.S. v. Perholtz, a 1987 DC Circuit case.

Then, three "close questions" are briefly but artfully explained:

1. The appointment question (with the CIPA argument set out as evidence of Fitz's use of AG/Asst AG/Deputy AC only authority).

2. The exclusion of the daily summaries of Libby's activities because in part because Libby did not take the stand.

3. The exclusion of the Andrea Mitchell testimony based on a case denying prosecutors the ability to call witnesses who have made out of court exculpatory statements for the purpose of impeaching them in front of the jury.

The transcript of the bail hearing is particularly interesting. Judge Walton's comments on Fitz's affidavit supporting his CIPA redactions seemed to me to be quite long and defensive -- and not particularly persuasive. He tried to make the point that the issue was not raised until after trial, but it turns out no one knew the Affidavit was signed by Fitz and not the AG, an Assistant or a Deputy until the Affidavit was unsealed after the trial was over.

[RichatUF]

from the Libby appeal...still reading it but this caught my eye

It also includes newspaper articles from July 2003 and October 2003 that were found in Mr. Libby’s voluminous files (G 412, 413, 422, 423), even though in some cases there is no evidence the articles were even read by Mr. Libby. (pp. 15-16)

The Court admitted this evidence, over objection, to show that Mr. Libby was focused on Ambassador Wilson and (by speculative inference on his wife. [8] Mr. Libby expects to contend on appeal that the admission of newspaper articles to show, through a lengthy chain of questionable inferences, Mr. Libby’s purported focus on Ms. Wilson was wholly at odds with the exclusion of defense evidence concerning the matters that, as the Schmall and Hannah testimony shows, actually commended his attention at the relevant times. (pp.15-16)

fn 8 is the relevant Fitzgerald quote from the trial

Did those guys read JOM before writing it?

RichatUF

[SlimGuy]

GRRRR

after the right click select xinha here from the context menu then continue on.

[gmax]

OT

But I am outraged and need to vent. Is there a more disgusting human being on this Earth than one James Earl Carter? You would think that a one term failed President with much to be ashamed and certainly be humbled about, would have enought sense to keep his big mouth shut and just live off the magnamity of the salary for life he still draws... GRRR

[topsecretk9]

vnj

and not particularly persuasive. He tried to make the point that the issue was not raised until after trial, but it turns out no one knew the Affidavit was signed by Fitz and not the AG, an Assistant or a Deputy until the Affidavit was unsealed after the trial was over.

Sleazy affidavit file guy number 3 - Miller, Russert, this. Why is he hiding crap?

Fitz needs to be investigated.

[Ralph]

SlimGuy,

More Thanks.

Ralph

[clarice]

In the report of the oral argument, Libby's counsel noted they hadn't seen the affidavit until May (per fdl).TM wasn't sure if he meant May 2006 or May of this year. It is good to have that clarified.

[Ralph]

I have the appeal, and exhibits "approximately" converted to html after running them through OmniPage Pro 15.

The formatting of the pages is NOT an exact match, but the OCR conversion was very good except for some hand written notes, etc.

If anyone has a way of posting it so that anyone interested can download it, I'll be glad to send them a copy (or I can send copies to individuals.)

[RichatUF]

From the Mitchell part...

Here, the jury would have had an abundant basis on which to disbelieve Ms. Mitchell and to infer that the opposite of her testimony was true. Apart from demeanor alone, and her prior dtatement from October 2003 (which was made much closer in time to the relevant events than her subsequent retraction), there was the fact that David Gregory had learned Ms. Wilson's identity in time to apprise Ms. Mitchell. THere was the practice at NBC News, well-established by evidence admitted at trial, of sharing important information in a timely manner. And there was Ms. Mitchell's motive to shade her trial testimony in order to protect Mr. Russert and the NBC franchise from the embarrassment that would ensue if she testified in a way that undercut Mr. Russert's credibility.(p.20)

Was it Fleisher's testimony that he balbbed after the gaggle and that it was Dickenson and Gregory whom he blabbed to? NBC has kept Gregory quiet...

RichatUF

[lurker9876]

and not particularly persuasive. He tried to make the point that the issue was not raised until after trial, but it turns out no one knew the Affidavit was signed by Fitz and not the AG, an Assistant or a Deputy until the Affidavit was unsealed after the trial was over.

And Walton knew before the trial, right? And saw no problems, right?

Can this be added to the argument that Walton failed to act constitutionally on this affidavit as well as other things?

[clarice]

Ralph I could not open what you sent me and now I can't get onto Yahoo mail.
I'm about to kill myself. I'll keep looking to see if anyone can post this in html no matter how messed up that might be.

[Jeff Dobbs]

From Rich's quote:
Mr. Libby expects to contend on appeal that the admission of newspaper articles to show, through a lengthy chain of questionable inferences, Mr. Libby’s purported focus on Ms. Wilson was wholly at odds with the exclusion of defense evidence concerning the matters that, as the Schmall and Hannah testimony shows, actually commended his attention at the relevant times.

And from Walton at the hearing, well scratch that, let's go to Cathy quoting Walton as a joke, er making a joke:

The punchline is that Walton conducted a trial which was, in its entirety, "asking the jury to draw inference upon inference upon inference that [was] rank speculation absent evidence." And the secondary punchline is "If the government had tried to make this kind of case it clearly would be reversible" in a hearing where Walton ruled it wasn't close to reversible!

Rich asks:
Did those guys read JOM before writing it?

I say yes. I mean, they may be lawyers, but they ain't stupid.

I keed.

[Rick Ballard]

Ralph,

Go here, click my name in the column on the right and send me the translation. I'll post it on a subsite a few minutes after I receive it.

[Other Tom]

I'm sorry to raise a point that sounds like a lot of lawyer-talk inside baseball, but I honestly do believe that Walton denied bail not because he thought there was no close, substantial question, but because he (erroneously) tried to predict how that question would be resolved. That was my clear understanding of his comments during the live-blogging of the hearing on Libby's motion. Does this seem correct? I think I expressed at the time that he was using the "likelihood of success" standard that is applied in cases of temporary injunctions.

I may also be confused on another matter here. The 20-odd page brief dated June 7 is the one on which Walton has already ruled, right? I understand that the entire appeal brief (100-plus pages) is also now available. Question: do we now have access to the separate, shorter papers that Libby will be filing with the D.C. Circuit in conncection with his emergency appeal of the denial of bail?

Sorry to be so slow, folks. Worse yet, this degree of confusion is present with the cocktail hour not even having begun--although that infirmity will be taken care of without further delay. Perhaps things will be clearer in an hour or so.

[clarice]

God bless you Rick.

[clarice]

The answer to para 1 OT is yes, that is my belief, too.
As for para 2 I don't know what you are talking about. I think all he has to file with the Dist Ct at this point is a notice of appeal--a form basically.

[RichatUF]

H&R...

Fast...too fast...

I haven't even clipped the part of United States v. Safavian, No. 05-CR-037, 2006 (p.3, Libby Release Filing)....being instructive...

Clarice brought that up a couple days back...

RichatUF

[Ralph]

Clarice,

I just realized that I didn't send you all that was neede (I don't use html stuff that often) I'm sending you what should be the "complete" package now, and it opens in IE explorer without any problem, and the text can be individually selected, copied, etc.

Sorry about the confusion.

All the Best,

Ralph

[clarice]

Ralph, you keep sending me stuff but I'm afraid I cannot get into yahoo mail and yahoo is completely screwed up so I can't even report it.

[RichatUF]

OT...

...Walton denied bail not because he thought there was no close, substantial question, but because he (erroneously) tried to predict how that question would be resolved...

IANAL: However, he was pretty clear during the hearing that he didn't think the CIPA stuff or Mitchell was close. On the appointments issue he folded Morrison and Edmond into a jail cell. I looked at it as him ruling since his reasoning was flawless (removable=supervison), therefore the question wasn't close [he muttered something from the bench about how he needed to rule that the appoinment issue wasn't close before he took a recess]. He never got to the second part of if it were ruled differently it would result in reversal. My take FWIW

RichatUF

[Carol_Herman]

Other Tom,

I'm going to give Walton credit for guile.

From where he sits, if the president tosses the case, he's home free. There won't be an "upper court" disclosure of his errors.

What's the chances for that?

Hard to say. The DC circuit has found a way to be on "summer vacation" when it isn't even summer.

Yes, there are options on the table. And, increased curiosity. Again. Probably after Walton's life had returned to "normal."

Besides, if it's true that Ruth Bader Ginsberg is set to retire; that opens up the Supreme's "appointments" to the president's review. Robed wonders will be paying attention to that.

Where, here, for guile, Walton chose a road where there's at least an option of a presidential toss. That. And, he took lots of satisfaction in hurting Wells. These are the quirks that make outcomes ahead seem so interesting, even to the lay public.

[Ralph]

Clarice,

Let me know when it's working or where else you'd like it sent.

All the Best,

Ralph

[clarice]

Please send it to Rick to print. I really am unable to deal with this any more.
I can read and alayze it but this technical stuff is driving me up a wall. Go to the site he gave upthread. He'll post it there and we can all work with it. Thanks again for all your work.

[Other Tom]

Clarice, I've been under the impression that in the very near term (well short of having the actual appeal heard) the Libby team was going to appear on an emergency basis before either a single judge or a three-judge panel of the D.C. Circuit, simply seeking an order granting bail during the pendency of the appeal. I've also been assuming that they will file papers in connection with that effort, obviously similar in substance to the 20-some pager they filed with Walton, but different in that it will recount the fact that Walton has ruled, and will argue that he got it wrong--and maybe even that he applied the wrong standard in doing so.

What am I missing?

[Tom Maguire]

As best these tired eyes can tell, the MSNBC link offered above is to the brief Libby filed with Walton. The main post now has a link to the *new* Libby filing addressed to the appeals court.

And talk about the biter bit - Fleischer's testimony that he leaked to Gregory was uncontested and unrebutted. Fitzgerald presumably wanted to save Fleischer's credibility on the "weird lunch" story, but... how can he argue that Gregory did not know? Fleischer was *his* witness!

So, as the defense argues, if Gregory knew then Mitchell knew. This does not even seem like a hard one for the appeals court (but I haven't been right yet...)

[Pal2Pal (Sara)]

OT you are missing the emergency appeal that TM posted in this post above. It was filed today.

[clarice]

Yes, OT the 122 pg pdf filing is the filing with the Circuit Ct. We have been involved in a dizzying to me effort to get this converted to html formal and published so we can work with it.

If you belong to a bar association try to persuade them that it would be useful to have these things available to the public in some editable form for explanation to them.
If people only knew how damned hard it is to write a useful piece from one of thee daned pdf files briefs!!!!!!!!!

[clarice]

Re Gregory--it will be amusing to see Fitz argue the court should disregard the uncontested evidence from his star immunized witness.........

[Ralph]

Rick,

I just sent the html to you. My email has been funny today as well. No problem receiving, but intermittent problems accessing the mail server to send.

All the Best,

Ralph

[topsecretk9]

--how can he argue that Gregory did not know? Fleischer was *his* witness!--

Well, that is a conundrum. He'll use Dickerson's denial and argue with a straight face Fliesher was misremembering? - but then what exactly did Ari need immunization from then?

[Jeff Dobbs]

From the filing:

Counsel are informed that the Bureau of Prisons will shortly designate a prison facility and direct Libby to report withing a period of two to three weeks after designation. Accordingly, we respectfully request that the Court expedite action on this application.

2-3 weeks is shorter than was the guess (6-8 weeks, IIRC).

[clarice]

Dickerson's denial is not in evidence.
All that is in evidence is his star witness' testimony; the what one of us knows the other knows. Period.
He made this record. It's his to deal with now.
If you credit him on Gregory it is damned hard to justify keeping Andrea off the stand.

[clarice]

we don't know how long it takes the Bureau to designate, hit.

[topsecretk9]

Thanks Clarice.

[Rick Ballard]

Thanks, Ralph. I couldn't keep all formatting correct but here it is in HTML.

[cboldt]

Re: "One couldn't know until after the trial, that Fitz was signing CIPA things only the AG has statutory authority to sign," is false. Fitz signed the CIPA 6(a) certification in September 2006 - See Doc 134-2.

[clarice]

cboldt, regardless of when he signed it, defense counsel says Walton allowed them to see it only in May of this year.

[Pal2Pal (Sara)]

Walton allowed them to see it only in May of this year.

Isn't that their point, that Walton/Fitz kept it under seal so that it wasn't until after the trial that they knew it was signed by Fitz?

[clarice]

Thank you from the bottom of my heart. Rick.

[anduril]

Sara, Slimguy, thanks for the Xinha Here recommendation!  I just installed it and I'm trying it out for the first time, using the bottom bar option.  I used to open up a separate html editor when I needed to do some formatting, but this is even handier.

 That is nice that the defense is able to point out that Walton didn't even respond to their point about Morrison and DoJ regs.  Ridiculous.

 Oh what a modified limited hangout we weave, when first we practice to deceive. After that, it just comes naturally.

Posted by: JM Hanes | June 19, 2007 at 05:36 PM

Very true, JM Hanes.  But remember, in a criminal investigation, there is no such thing as "unofficial" contact.  If an investigator or prosecutor or anyone else employed by the government contacts you, it's official.  So, count on it, no matter how brief the FBI's contact with Mitchell was, there should be a record of it.  And there should be notes.

 Captain Ed takes note of Cohen's article here.  I don't actually give a rat's ass what Captain Ed thinks--he has no clue what he's talking about in re Libby--I'm just using that as an excuse to try out the link function in Xinha Here, because it sounds more convenient than in my other editors.

 

[Jeff Dobbs]

we don't know how long it takes the Bureau to designate

Well sure, and I certainly don't discount the idea that Libby's counsel is dramatizing the situation, but they wouldn't put that in there expecting people to think their word "shortly" meant 4-5 weeks (to keep a total of 6-8 weeks)...I think their point is to convey the idea that Libby ain't got 6-8 weeks to deal with here...

[cboldt]

-- cboldt, regardless of when he signed it, defense counsel says Walton allowed them to see it only in May of this year. --

There is more than one "it." CIPA 6(a) precedes CIPA 6(c)(2).

[Rick Ballard]

Clarice,

You're welcome. Ralph did all the work. I wish I could have kept the formatting, the fns being in the same size type is distracting.

You might want to print out the 20 pages to make it easier to work with.

[Ralph]

Rick, Clarice,

The conversion was quite fast, considering the size of the document. If this is an acceptable level of accuracy (and I think that it's 99%+), I'll be glad to convert any that come up in the future.

This was the first large document that I'd done with OmmiPage 15, and I'm VERY impressed with its OCR engine.

Thanks to everyone on this blog for all of the stimulating comments.

[topsecretk9]

OT horn tooting -- left a little comment over at protein wisdom last night (hint: Joe Wilson makes an appearance) and it generated like a 45 million word Jeff essay - Linky -- I'll be occupied for a while learning how my humble contribution spawned this great mind - and what better idea's he has made of it.

[Cecil Turner]

cboldt, regardless of when he signed it, defense counsel says Walton allowed them to see it only in May of this year.

They knew of the 6(a) certification in September. The December 6(c) certification (copy in appendix D of the appeal) was the one filed under seal. The point is that they knew earlier he was signing CIPA stuff that the act requires the AG sign . . . though there is an argument that while the 6(a) certification is a bit of a formality, the 6(c) one had a significant impact on the proposed substitutions allowed. But since [most of?] those weren't allowed anyway (when Libby decided not to take the stand), it's hard to see this as a big issue.

[Pal2Pal (Sara)]

There is more than one "it." CIPA 6(a) precedes CIPA 6(c)(2).

cboldt: consider this the denseness of a nonlawyer, because I don't understand the point you are making.

This case illustrates vividly the consequences of vesting a federal prosecutor with the "plenary" powers of the Attorney General, and then relieving him of "supervision or control" by any other DOJ official and freeing him of any duty to report or to follow DOJ policies. Section 14 of the Classified Information Procedures Act, 18 U.S.C. App. 3 § 14, provides that the functions of the Attorney General under CIPA "may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official" (emphasis added). Those functions include the power to submit an affidavit objecting to the disclosure at trial of otherwise admissible classified information because such disclosure "would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." Id. § 6(c)(2). Fitzgerald, though he is none of the designated individuals under Section 14, filed a Section 6(c)(2) affidavit in this case, successfully objecting on national security grounds to a proposed substitution for classified information.2 Fitzgerald sent the defense a copy of a cover letter at the time, identifying "an ex parte and in camera affidavit" submitted in support of a Section 6(c) motion. He did not state that he, and not the real (or Acting) Attorney General, had signed that affidavit. The defense learned that fact only after trial, 9 That crucial filing was a plain usurpation of powers assigned to higher officers by Section 14 of CIPA. As the Fourth Circuit explained in United States v. Fernandez, 887 F.2d 465, 470 (4th Cir. 1989), even though an independent counsel may be given full prosecutorial authority in a particular case, "{w]hat is never affected . is the Attorney General's power to protect information important to national security." This exercise of unlawfully delegated power is precisely what happens when a federal prosecutor is given "plenary" authority and then relieved of all "supervision and control"3 4. In short, the constitutionality of Fitzgerald's appointment is a close question. And the constitutional values at stake are important ones. "By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability" (Ed- when a redacted, unclassified version of the affidavit was produced to the defense. Ex. D. At oral argument on the bail motion, Fitzgerald contended that the 6(c)(2) filing was merely a "ministerial" act. 6/14/07 Tr. 39. That is simply not so. It is passing strange to think that CIPA 's drafters would have explicitly assigned the Attorney General an insignificant duty and limited its delegation to specifically enumerated senior DOJ officials. Moreover, Congress does not share Fitzgerald's understanding. When reauthorizing the Independent Counsel statute in 1994, Pub, L. No. 103-270, 108 Stat. 732, lawmakers expressly noted that "[t]he Attorney General . retains the power to prevent the disclosure of classified information" under CIPA – citing with approval the Fourth Circuit's decision in Fernandez. H.R. Rep. No. 103-224, at 9 & n.32 (1994).

[Charlie (Colorado)]

Is there a more disgusting human being on this Earth than one James Earl Carter?

Yes, but one would have to think a minute to come up with an example.

(Mugabe. Idi Amin. The Castro broters. That guy driving 40 in the left lane of a 65 speed limit highway this afternoon during Boulder rush hour.)

[clarice]

Thank you Rick--I did print it out. I know ralph did a lot of the work, but I thanked him repeatedly before and you not at all.

[Other Tom]

Thanks for straightening me out on what these various briefs are. I just misread the description of the 122-pager.

Fascinating stuff. Can't wait to learn who is going to hear and decide it. Dare we hope for, say, Janice Rogers Brown and Brett Kavanaugh?

[Tom Maguire]

...but then what exactly did Ari need immunization from then?

Ari denied leaking to Pincus but Pincus contradicted him. So let's see, Ari needed immunity because he was sure he leaked to someone, but couldn't remember who. The PERFECT witness for a memory trial.

And re Walton's notion that Mitchell testimony might prompt the jurors to actually draw inferences - dare we ask about the famous Wilson op-ed marked up by Cheney?

Fitzgerald wanted the jury to infer that Libby had discussed these points with Cheney. In his grand jury testimony, Libby denied it, and, when asked why Cheney had made these notes, suggested that Fitzgerald ask Cheney.

Fitzgerald did interview Cheney pre-trial, but never called him. And Walton was OK with that?

Oh, I am just winding myself up now. But I will now Boldly P{redict - *IF* their are no scheduling problems that keep this bail appeal from being heard, Libby will win this round and stay out on appeal - in my mind, these questions are all close enough to keep him out.

And eventually, he will win on the constitutionality and the Mitchell (and maybe the memory expert, to sweep the board).

Today marks the turning of the tide!

[Cecil Turner]

I'm having a bourbon. I suspect you've got something better.

[cathyf]

Mr. Libby expects to contend on appeal that the admission of newspaper articles to show, through a lengthy chain of questionable inferences, Mr. Libby’s purported focus on Ms. Wilson was wholly at odds with the exclusion of defense evidence concerning the matters that, as the Schmall and Hannah testimony shows, actually commended his attention at the relevant times.

For those commenting that this sounds just like JOM, well, yeah, but in this case Team Libby was ahead of us -- I believe they argued it immediately in front of Walton at the time.

[Paul]

Amen on your predictions, Tom.

InTrade has Libby's strongest supporter among the Presidential candidates, Fred Thompson, now leading for being the Republican nominee.

[Rick Ballard]

Clarice,

What we need is a copy of the special CIA regs pertaining to the Hatch Act. I think that Davis is missing a bet by not looking into whether Plame's adventures should put her right next to Doan when Wartman fires up again.

The CIA regs go beyond the Hatch Act (at least that's my understanding) and might be the basis for Val's last year being spent at home.

[clarice]

Janice Brown would be perfection . TM, I so hope you are right. (I despaired in the Duke case and then that marvelous young lawyer worked his butt off to understand DNA testing, nabbed Meeham and with that brought down that house of cards.)

[Tom Maguire]

On page 45 of the .pdf is the bit where Walton explains the importance of an independent independent counsel. Sweet jiminy, I hope no appeals judge hurts himself/herself laughing.

And when they are done laughing, I hope they make a note that two bucks plus Walton's concerns about fairness and public appearance gets a vente cafe latte at Starbucks. Back in court, the appointments clause still rules.

Or Congress could pass another Independent Counsel act. Or we could wait for Judge Walton to rule!

4 THE COURT: WOULDN'T THAT UNDERMINE THE PURPOSE 5 FOR WHICH MR. FITZGERALD WAS BROUGHT INTO THIS CASE? AS THE 6 SUPREME COURT INDICATED IN MORRISON, ONE OF THE IMPORTANT 7 THINGS THAT HAS TO EXIST IN OUR SYSTEM OF GOVERNMENT, IF THE 8 PEOPLE ARE TO RESPECT OUR SYSTEM OF LAWS, IS THAT EVERYBODY 9 IS ACCOUNTABLE UNDER THE LAWS OF THE UNITED STATES, 10 REGARDLESS OF WHO YOU ARE. AND, THEREFORE, IF YOU WORK. IN 11 THE WHITE HOUSE, YOU ARE JUST AS OBLIGATED TO COMPLY WITH 12 THE LAW AS ANYBODY ELSE. 13 AND IF IT'S PERCEIVED THAT THE JUSTICE DEPARTMENT 14 OR THE INVESTIGATIVE AGENCY IS SOMEHOW LINKED AT THE HIP 15 WITH THE WHITE HOUSE, OBVIOUSLY, IT SEEMS TO ME THAT THE 16 AMERICAN PUBLIC WOULD HAVE SERIOUS QUESTIONS ABOUT THE 17 PROPRIETY, OR THE APPROPRIATENESS, OR THE FAIRNESS OF ANY 18 INVESTIGATION CONDUCTED BY THE ATTORNEY GENERAL, AS IT 19 RELATES TO SOMEBODY WHO IS IN A HIGH-LEVEL POSITION, IF THAT 20 PERSON, WHO IS DOING THE INVESTIGATION, HAS TO REPORT TO THE 21 INDIVIDUAL WHO IS TIED AT THE HIP WITH SOMEBODY WHO IS 22 ASSOCIATED WITH THE WHITE HOUSE, 23 I MEAN IF THAT IS, IN FACT, GOING TO BE HOW WE 24 HAVE TO OPERATE, IT SEEMS TO ME OUR SYSTEM OF GOVERNMENT IS 25 GOING TO BE IN SERIOUS TROUBLE WITH THOSE PEOPLE WHO ARE THE 1 AVERAGE JOE ON THE STREET, WHO THINKS THAT THE SYSTEM IS 2 UNFAIR ALREADY, IF THEY KNOW THAT THE INVESTIGATIVE AGENCY 3 WHO IS INVESTIGATING SOMEBODY WHO IS CLOSE TO THE 4 WHITE HOUSE OR IN THE WHITE HOUSE IS GOING TO HAVE TO REPORT 5 TO THAT PERSON BEFORE THEY CAN TAKE ACTION,

[clarice]

TM notes some time ago that ANDREA MITCHELL had the scoop on the firing of Mary O McCarthy, too.

http://justoneminute.typepad.com/main/2006/04/cia_officer_sac.html

How cool is that? Woman has a hot line to Langley apparently.

[RichatUF]

from protein wisdom [by way of tsk9, YEA!]

And yet, yesterday and today, there was Joe Wilson, clueless interloper and diplomatic fraud, a pampered bureaucrat who, having conspired with his CIA agent wife, tried to swing a presidential election by lying to the American public and undermining a war effort that he should have known was, if not necessary, at least strategically and morally defensible.

What a loathsome creature.

I gave away the ending, but read it all. Good catch on the article tsk9.

RichatUF

[Rick Ballard]

Is Judge Walton really Col. Flagg?

"You think you're real smart. But you're not smart; you're dumb. Very dumb. But you've met your match in me."

[Tom Maguire]

Re the 6(a) and 6(c) filings, in the transcript (p. 58 of .pdf) Fitzgerald makes the point that the September filing was made on pacer and should have been available (it was!).

This is classic on his supervision:

3 THE COURT: WHAT ABOUT THE REPORTING ISSUE, 4 ACCORDING TO THE A. G.? 5 MR. FITZGERALD: YOUR HONOR, FIRST OF ALL, THE 6 NOTION THAT PEOPLE DIDN'T KNOW WHAT I WAS DOING -- 7 EVERYTHING WE DID -- WHEN WE WENT TO COURT, IF WE SUBPOENAED 8 REPORTERS, THE WHOLE WORLD KNEW IT. I WAS FIREABLE AT WILL,

OK, world - when did he talk to Novak? When did he talk to Fleischer? What were the circumstances of those two chats?

Don't even ask about Russert and the FBI, and Fitzgerald's concealment of Russert's cooperation in both their filings.

[hoosierhoops]

hey folks anyone that thinks this case will turn on a constitutional question must be smoking crack. Look Ken Starr almost brought down a sitting prez and no repub i know cared in the least. The whole issue of a special prosecutor must be ended or solved by our Congress...and no case in a court will change that. Even Libby.
You guys got to know that..come on..Walton just thinks some lawyers are trying to blow smoke up his ass..Even a circuit court would laugh behind closed doors...
We must end this law..But no court will, it takes an act of congress....
I know TM, OT, H&R and the rest of you are experienced bloggers and legal masterminds.
But from the cornfields here..There is a better chance of snow in hell than the appeal going through and having success..
I'd put money on it...
I feel so bad for Libby and if Bush doesn't step up to the plate then you guy voted for a lame, secret laden, leader....
Come on Bush..Take on DC and get in front of a mic and blow away the opposition with strong and powerful words and defend your boy..else Quit.
sorry if i offended anyone but that's the way i feel.

[anduril]

On page 45 of the .pdf is the bit where Walton explains the importance of an independent independent counsel. Sweet jiminy, I hope no appeals judge hurts himself/herself laughing.

My God!  Where do you start with this guy?  He doesn't have a clue about the Constitution.

[Pal2Pal (Sara)]

Hoosierhoops, what law are you proposing should be done away with? The Independent Counsel act was not renewed. In Libby, everything is being done with a wink, a nod, and a sweeping letter from an Acting AG giving the full power of the AG to some shlub Assistant Attorney from Chicago with proviso for supervision by newspaper reports.

[RichatUF]

Sorry for my clipings above from the wrong filing.

This is good-

Here, by contrast, an Executive Branch official, with the informal stroke of a pen, drafted two letters that created a new prosecutor with the "plenary" powers of the Attorney General, no supervision by anyone, and no input of any kind from Congress. Whether Morrison applies in this setting is far from clear.

I wonder if the guy who wrote this was getting more angry with every keystroke.

RichatUF

[Cecil Turner]

OK, world - when did he talk to Novak? When did he talk to Fleischer? What were the circumstances of those two chats?

Even more telling, why did he insist Armitage keep his involvement with the Novak leak a secret? Are we supposed to believe that, if it had come out in Dec '03 that the primary leak had come from an anti-war State Department source, that Fitz would've had the same freedom of action in pursuing OVP minutiae? I think not.

[anduril]

Rich, these guys are sharp. They see that this is essentially a fraud on Congress! The wussy Reps were afraid to object, and the Dems were colluding behind the scenes with Comey--it was a fraud on Congress that the Dems wanted and the Reps were afraid to object to. This is what we have Courts of review for.

[Tom Maguire]

More error from Judge Waltonx (p. 77) - he really needs to base his rulings on something other than articles written by jurors that appear in HuffPo:

1 I THINK WHEN YOU CONSIDER ALL OF THAT, WHICH IS 2 WHY, IN MY VIEW, THE JURY REACHED THE VERDICT THAT THEY 3 DID -- AND THE SUGGESTION THAT WAS MADE THAT SOMEHOW THE Page 49 58

June 14 07 Tr
4 LENGTH OF THE DELIBERATIONS WAS REFLECTIVE OF THE FACT THAT
5 MAYBE THE CASE WASN'T THAT STRONG OVERLOOKS THE FACT THAT
6 THE JURY, BASED UPON WHAT WAS REPRESENTED, HAD REACHED A
7 DECISION REGARDING EVERY COUNT, EXCEPT THE ONE, EARLY ON IN
8 THEIR DELIBERATIONS. IT WAS ONLY THE ONE COUNT THAT HUNG
9 THEM UP.
10 SO THEY WERE PERFECTLY CLEAR, BASED UPON WHAT WAS
11 PRESENTED TO THEM, ABOUT THE DEFENDANT'S GUILT, AS I AM,
12 BASED UPON THE EVIDENCE THAT WAS SUBMITTED.
13 THAT BEING SAID, OBVIOUSLY, IT SEEMS TO ME, THE
14 HARMLESS-ERROR ISSUE COMES INTO PLAY.
15 SO EVEN IF I DID MAKE ERROR IN REFERENCE TO
16 MS. MITCHELL -- WHICH I CONCLUDE I DIDN'T -- IT'S MY VIEW
17 THAT THAT WOULD HAVE MADE NO DIFFERENCE IN REFERENCE TO THE
18 OUTCOME BECAUSE IT WAS SO INSIGNIFICANT, CONSIDERING THE
19 LEAPS OF INFERENCES THAT HAD TO BE MADE IN ORDER FOR IT TO
20 HAVE ANY DEGREE OF WEIGHT WITH THE JURY, THAT IT WOULD NOT
21 HAVE HAD ANY IMPACT ON ULTIMATELY HOW THE JURY JUDGED THE
22 CREDIBILITY OF RUSSERT'S TESTIMONY.

[Jeff Dobbs]

hoosier:
I know TM, OT, H&R and the rest of you are experienced bloggers and legal masterminds.

OK, "H&R" and "legal mastermind" is perhaps a crazy idea...certainly positively unquestionably in the traditional literal sense.

Yet, I'm not in jail and not under investigation, so...perhaps it is slightly almost possibly believably true?

Sure, you have to bastardize the English language, but on that I AM an expert...so...you can kiss my sass.

[Pal2Pal (Sara)]

When you read that section TM just posted, all I can think of is "what arrogance!" I sat on a jury for a murder trial and I can say categorically that jurors spend time on issues that the defense did not challenge, giving more weight to the prosecutor's argument when there isn't conflicting testimony by the defense. How can Walton even have a clue how the jury would have looked at Mitchell's testimony had she been allowed to testify and how they would have related that to any other testimony. And how can he predict that Russert's testimony (or anyone else's) would have been the same had Mitchell testified the way she originally stated in her early interviews.

[clarice]

You're too modest, hit. I'm going to bed early to write up the filing tomorrow.I can't stay up round the clock any more.

[RichatUF]

anduril-

Rich, these guys are sharp. They see that this is essentially a fraud on Congress!

Frame it as a "bureaucratic despotism" argument. The appointment clause requires supervision and accountability to prevent an out-of-control bureaucracy from sprouting up. If Schumer et al. got their way, they would be harvesting fitzcutors by the bushel...

RichatUF

[Jeff Dobbs]

Cecil:
Even more telling, why did he insist Armitage keep his involvement with the Novak leak a secret?

Filed under wild fantasy: Can't someone get Bush to answer the question whether he would have stopped Fitz if he had known Armitage was the leaker?

Would be a nail in the supervision coffin.

And is as likely as [eh, too late, fill in your own favorite most unlikely scenario here]

[Jeff Dobbs]

Clarice:
You're too modest, hit

You're right.

I am an F'N GURU on bastardizing the English language!

[lurker9876]

I had not heard of xintha but I use Faroke on my Linux laptop and bbtags on my XP computer.

SlimGuy, I worked on REXX and VMS for about two years after ten years on MVS. Now I do exclusively Linux / Unix.

[hoosierhoops]

Sure, you have to bastardize the English language, but on that I AM an expert...so...you can kiss my sass.

Posted by: hit and run | June 19, 2007 at 10

Sorry Hit& run I consider you a genius of the off the wall reference and insight to human nature...plus we are celebrating the boy being home before Iraq..so it is Crown & coke all around..never had a martini Hit...But nobody like it ..kiss my sass :)
Now Sara..Let's be clear about this ( as clear as possible) The law i speak of can be outlawed by Congress..period..No Fitz, No Starr..no one period..Not renewed? How about illegal?
But, Our luck America would elect another Nixon....So we lack balance to a special prosecutor law..

[RichatUF]

Sara-

How can Walton even have a clue how the jury would have looked at Mitchell's testimony had she been allowed to testify and how they would have related that to any other testimony...

ESP and newspapers-it was how the DOJ was keeping tabs on Fitz; it would probably worked for Walton re: Mitchell.

I suppose its getting late and I have done a quick read of the filing, and maybe some lawyers can help me out re: Mitchell. The defense has avoided the question of what her notes might have contained. I know that since she wasn't called that issue was completely closed off, but since it was argued in pre-trial, could that have been an additional data point; or since that was an issue never explored, it can't be brought up in the hypotheotical event of her testifying.

RichatUF

[Jeff Dobbs]

plus we are celebrating the boy being home before Iraq

Enjoy that time!!!

[clarice]

Ditto hit's remark to hoosier.Bless your boy, honey.

Rich, as I recall the defense never saw those notes, only the judge did.

[RichatUF]

SlimGuy;

From the previous threads. I'm not that much of expert with computers or programming, but I can get by in a crunch. A few threads back, I was brainstorming an idea of a closed wiki- with some different types of search tools and edit functions. Specifcally, I wanted to build a "Plame-Wilson" space and use a model that I've been working on to see what would shake out. You are free to email me: richatuf at yahoo dot com if you can give me some pointers.

RichatUF

[Pal2Pal (Sara)]

Congrats on your son coming home safe.

On your other point about "the law" -- I don't get your point unless you are saying that Congress needs to pass a law saying it can not pass a law about independent prosecutors/special prosecutors. Is that what you are saying? Since we don't have an independent counsel law right now, I don't see your point. The fact that Comey tried to get around the lack of law to create a special prosecutor, isn't that what makes it a Constitutional question? It seems that a law to prevent a law would be in the bailiwick of the Supremes.