This morning we have the hearing as to whether or not Scooter Libby will be free on bond pending the outcome of his appeal.
For us lay people, here’s the essential legal landscape:
Judge Walton has already said he is disinclined to leave Libby free, but he’s heard motions from both sides on the matter.
Christy has described the prosecution briefs here and here. The essence here is that Team Fitz is arguing Libby is unlikely to have his conviction overturned on appeal and that the Special Prosecutor’s appointment was legitimate, under case law relying on precedent in a case called Morrison. The prosecution also argues, contrary to the defense argument, that the matter of the legitimacy of the special prosecutor in this case has already been extensively reviewed and ruled on by Judge Walton (today’s sentencing judge) earlier in the life of this case. Likelihood of winning a case on appeal is a material consideration for the disposition of a bond hearing, as we have today.
The defense has argued in its submission that a case referred to as Edmond provides better precedent for evaluating the legitimacy of the special prosecutor (a legitimate special prosecutor is an “inferior officer,” that is to say, he answers to some authority and can be fired). The problem with the Edmond precedent, according to the prosecution, is that it compliments but does not nullify Morrison, and that the dissenting opinion in Morrison written by Justice Scalia concedes that if a special prosecutor can be fired, then he or she in an inferior officer and hence legitimate. There seems to be no real argument in evidence that the special prosecutor (Fitzgerald) could have been fired (as apparently had been discussed during the U. S. Attorney firings scandal), so the defense contention is undermined. On the other hand, our good friend Jeralyn at TalkLeft takes a point of view more sympathetic to the defense and believes bond should be granted today.
Expect a combative hearing today. Judge Walton was clearly annoyed at the defense team last week as Wells read some of Libby’s support letters out loud for the press, then sandbagged Judge Walton with a splashy amicus brief submitted by Libby apologists Robert Bork and others (including torture defender Alan Dershowitz), which obviously had been prepared well in advance. What’s more, the defense attorney who may argue today is a new member of the team, Lawrence Robbbins, whose written style seems to be a bit more combative compared to what we’ve seen previously in this case. Team Libby is going for broke and seems unconcerned about pissing off the judge in order to do its political PR work and to play to the conservative DC Circuit Court, which will hear the appeal. . . a court headed by Judge Silberman, a longtime conservative activist who had a hand in appointing Ken Starr to investigate former President Clinton.
Those are the broad outlines of what will unfold today. I will type as best I can to keep you updated here on the main page. Arguments will proceed this morning and the judge is expected to rule at 1:30 PM EST. Please refresh sparingly, as main page updates will come in roughly fifteen minute intervals.
Here we go!
11:27 AM The lawyers are getting set at their tables. Blue suits rule the day, but I can’t see Fitz yet, or if he’s in his gray one. I know this is very important stuff! Court now in session. Fitz begins. Looks like blue or dark green, but I’m watching on camera and it’s a little tricky on the color.Walton: Explaining again his reasoning for 30 months sentence. Citing the guidelines and the concurrent service of sentences for different counts.
Fitz: Says concurrent 30 month sentences are okay.
Walton: I’m told I don’t have to do concurrent sentences according to the guidelines but it seems this current ruling is appropriate.
Walton: Disclosing that he has received many angry letters in response to the sentencing, wishing bad things to him and his family. He had thrown away a few, but then decided he had better begin to save them, in the event someone were to act on these threats, a record would need to remain.
Robbins (for Libby): Asks to reserve 5 minutes for rebuttal.
Walton: Asks for clarification on reply, clarification of footnote in defense brief. Is the argument that I am obligated to offer release on a white collar case just because other judges have done so? Just throwing out these names does not override the law, that’s not being suggested here, is it?
Robbins: We agree. The point of footnote 1 is these cases illustrate that how close the question is on appeal is important.
Walton: But the footnote does not identify the issues, and just because these people cited are high profile people, this does not mean judge should override the law.
Robbins: These others recognize reasonable people can disagree if question is close.
Walton: I understand that.
Robbins: This is our argument. We argue there are three close questions. The first is the appointments clause question. I have six points on this one.
Number 1: If we’re right, this is reversible error.
Number 2: If the court says Edmonds is controlling, then this will be overruled.
Walton: But Morrison is still good law.
Robbins: We don’t argue it overrules Morrison, but it clarifies. But we argue that we prevail under either Morrison or Edmond. But we believe Edmond is controlling. Edmond is most complete SCOTUS statement of the appointments clause. Fitzgerald was relieved of supervision and control by any officer of the department, according to his original authorizing language. This court rules previously that the question is far closer under Edmond, the most recent SCOTUS case. If this is the most applicable case, then it establishes not inferior officer.
Walton: But Edmonds does not state it overrules Morrison.
Robbins: DC Circuit will seek to review both. Edmond does not overrule Morrison, but they will see Scalia’s opinion that supervision is necessary, and comparing this from the appointing letter by Comey, Fitzgerald was insulated from direction and supervision at DOJ.
Walton: Several circuit courts who have reviewed this do not come out where you are regarding the harmonizing of Morrison and Edmond.
Robbins: I think DC Circuit will reconcile them differently.
Walton: But the law will require review of individual factors of each case and situation, and in the context of each case, Edmond versus Morrison, which fact situation is most applicable to this case. Edmond related to military and is not as clearly applicable. Also, re: Scalia, if we had a situation where the special counsel could be removed at will, this would have changed his position regarding Morrison.
Robbins: Well I doubt that since I was there when Scalia read his opinion. But let me move to whether Fitzgerald must comply with all internal DOJ rules and regulations. Your honor concluded Fitz has to comply with all such rules, but I believe this decision was incorrect. If I’m right, then DC Circuit will agree that Morrison factors do not make Fitz an inferior officer.
Mr. Fitzgerald, in the clarifying letter by Comey, includes a sentence at variance with this court’s previous ruling. “I don’t want my reference to the word special counsel to be understood as meaning your position and authorities were limited by 28cfr600 (check reference)”
This means Fitzgerald is not defined or limited by rules and regs.
These are the rules of special counsel, but these rules require compliance with DOJ policy and require reporting of significant events to superiors. And yet Comey states these do not apply to Fitzgerald in his clarifying memo. This means Fitzgerald was expressly exempted from 28cfr600, and these include exemption from making prosecutorial reports. This is unprecedented. Respectfully, there is no part of this court’s past decision that reckons with this sentence. We submit DC Circuit may view this as significant.
Next point: We do not suggest Mr. Fitzgerald could not be removed. But re: Morrison, the ethics in government act required Morrison to follow DOJ policies, and one of those policies means keeping AG posted on significant events in the prosecution. The power to remove without the power to supervise is all shell and no chocolate.
Walton: Wouldn’t that undermine the purpose of this statute, that everyone is accountable under the laws of the US? If you work in the White House you still have to follow the law. If the investigative agency is linked tb the hip with n investigation, then the public can have no confidence that investigation is fair and just. If we have to operate this way our system of government loses significant credibility with the average Joe on the street, who already thinks the system is unfair.
Robbins: This I believe is a red herring. I don’t think anyone believes Morrison was not sufficiently independent.
Walton: I recognize Weinberger had a significant job, but this case deals directly with the White House. Regarding following DOJ policy I think that’s crucial.
Robbins: This includes reporting significant events. But the ultimate vehicle of accountability is that the president has to stand before the voters every four years. This is the way the Constitution provides for accountability.
Mr. Fitzgerald has the broadest delegation of responsibility that has been done before. Your honor’s previous ruling does not reckon with this. This is not the situation in Morrison.
In Comey’s write in, the 2/6 letter. Power is plenary. It includes the authority to investigate any violations related to the disclosure. This is as broad as it gets. Everything is related to everything else. Morrison asked for this and was refused this by AG and (missed this part). She wanted to examine Dinkins and Schmoltz. She said an ongoing conspiracy to obstruct congressional oversight power, because they are related. AG denied this. She went to the special division which said it did not have authority to undo AG decision.
The question here is whether these are close questions. I don’t think it can be debated that these are close, and I think we’ll win.
When someone does not have to report to anyone, does not have to follow DOJ procedures, sometimes things go wrong. Under section 6c2 under ______ the AG is allowed to object to disclosure of classified information, if disclosure would damage national security. Fitzgerald did submit such a report because he assumed plenary authority.
Walton: but the CIPA issues did not arise until later when Libby asked for material.
Robbins: But this is an example of how things go wrong when authority is too broadly delegated. [Reads the language of the act, congressional statute]. Authority to AG, DAG, AAG. These are the ones who can make these disclosures, and no one else.
Walton: Be that as it may, your client through his counsel did not submit his request to Mr. Fitzgerald, their CIPA request, not to others. This issue was not raised at the time. Was this issue waived?
Robbins: My understanding is this document was declassified and made public after the case. I was not part of the history of this case. But Lawrence Walsh was denied this authority in the past.
Walton: I think your co-counsel did not address this.
Jeffress: This affidavit was submitted in camera. It has recently under seal, and we obtained it pursuant to your ruling, we received it in May
Walton: Your time is up.
Robbins: We have also submitted why we believe the Mitchell and memory rulings are close questions. We believe re: Mitchell, US v. Johnson review by DC Circuit will say Johnson does not control.
Walton: Problem was asking the jury to draw inference upon inference upon inference that would have, in my view, been rank speculation absent evidence. She would have testified her statement on Imus was off the wall and she would disavow it, and then she would have been impeached. Then your client wanted to say jury should conclude maybe she’s not being truthful, maybe she did know about Plame. If she did, it’s conceivable she would have told Russert. Therefore Russert could have heard as your client supposed. If that’s the chain of inferences then we may as well throw out rules of evidence. That cannot be the law. If the government had tried to make this kind of case it clearly would be reversible.
Robbin: going back to appointments clause. Your honor has received an amicus brief.
Walton: With all due respect, these are intelligent people, but I would not accept this brief from a first year law student. I believe this was put out to put pressure on this court in the public sphere to rule as you wish. [Reggie pissed]
Robbins: These 12 scholars believe this is a close question.
Walton: If I had gotten something more of substance from them, maybe.
Fitz: I was not a special counsel at the time of Comey memo, so there was no issue of my being bound by DOJ guidelines. Regarding CIPA, the only things filed were under 6a and 6b. This was transparent. We had a month long hearing on this. If someone had objected, not oly could we have gotten a different signature, we could close the courtroom.
Walton: Do you think you were in full compliance with what was envisioned by CIPA.
Fitz: If someone had objected would could have gotten a second signature or could have made an application to close the courtroom. We are picking on the most minor violation.
Walton: There was a violation, so what is remedy.
Fitz: It was not a classified document and it would have been waived or we could have had any number of other signatures.
Walton: I assume suggestion by defendant is that you were given the authority by inference to handle CIPA matters even though it was not clear at the time that CIPA would be in play.
Fitz: They are misdescribing 6a as if it was 6c.