The live blog continues, with updates roughly every fifteen minutes. My fingers are not as fast as Marcy Wheeler’s, so this should be considered a kind of paraphrase of events. It is not a transcript and will be filled with typos.
Anyway, here we go.
[missed some weedy legal stuff here]
Fitz: AUSA’s handle CIPA material, so this notion that the alleged technical violation of CIPA was an issue of whether courtroom should be closed. These were issues that AUSA’a could have argued.
Walton: But if you signed something that you may arguably not have had the authorityto sign, does this go to you being a superior officer? One could infer you presumed such authority.
Fitz: If the defense thought this was an obvious error we could have dealt with it then. If there was a violation that I signed under one authority versus another authority, this is waiver and harmless error if it is error. We can’t turn around for filing on 6a and go through a whole trial and bring this out later.
Re, Morrison, her mandate was a person specific mandate, but I was authorized to investigate a specific crime. I was not authorized to investigate on a specific statute, which was the question at the time. It was not limited to a person, but to crimes related to the disclosure. Defense is comparing apples to oranges.
I was not authorized for any related matter, just to the disclosure.
Walton: re: reporting issue?
Fitzgerald: the idea that people did not know what I was doing, everyone know. Mr. Gonzales was recused. The idea that I should report to someome who had been in WH while the crimes were committed is wrong. I was subject to being fired at will.
We can make very serious charges without required reporting.
Walton: re 28cfr600, is three anything else in writing that requires reporting to AG?
Fitz: urgent matters AG should be aware of. We don’t seek permission, we notify. We have one of these in Chicago for Monday. It is not a matter of getting authority to charge, but we notify so they will not be surprised.
Walton: did the delegation of authority here relieve you of this obligation?
Fitz: I told Mr. Margolis before we returned the indictment.
Walton: whether or not you did, did the delegation of authority relieve you of this duty?
Fitz: I did not feel obligated but I did. If I can indict someone for a charge with life without parole as an AUSA, that’s still being an inferior officer. I could still be fired. They had the power to revoke me at will. That can’t be the test for what an inferior officer is. I can’t imagine any reading of the case law that would bring another reading.
12:32
Bonamici: Emphasized Fitzgerald removable at will. Re relief from followng DOJ policies and regs, he still had the obligation. There’s not other way to conduct a fair and honest investigation when there is possible wrongdoing at the highest level of US govt. No way, as in Morrison, the DC Circuit will ignore this.
There was an enormous amount of information about this case in the public domain on this case. . .
Walton: Is that relevant if at the time of the delegation there is relief from compliance?
Bonamici: Two points under Morrison. One is removability, and to this point, information in the public domain is relevant. Right of removal not illusory as defense argues. The issue of whether the appropriate officers have access to the information, no matter how obtained. But also, every part of this case involved the executive branch, every witness almost, every document. The idea that principle officers in this case did not know what’s going on is made up. Removability was an ever present consideration and all in the special counsel office were aware of it every day.
On issue of obligation to comply with DOJ regs, the language which applies to a person, as written, who is outside the DOJ. But Mr. Fitzgerald was already part of DOJ, so it clear he was bound by DOJ regulations. Authority to investigate any related laws to the initial disclosure, not the broad authority to investigate anything related.
Because this issue of 26cfr510 versus CIPA, this is 11th hour.
Walton: isn’t CIPA more specific?
Bonamici: wrt to classified information yes, but not more specific as to potential conflicts. This delegation was done specifically not to avoid a conflict. But none of these issues were addressed at the time. The mere signing of the document is not evidence that Fitz was a superior officer. There was not dispute from the defense. It did not even require a lot of discretion. It’s not weak evidence, it’s not even evidence. It was based on reasonable and undisputed situation.
Re: Mitchell, we agree with your honor entirely.
12:43
Walton: Jury based on their deliberations were clear on defendant’s guilt. So even if I did make error re: Mitchell, given the jury deliberations and leaps of inference it required, it would be harmless error given the view of Russert’s testimony by jury. [lengthy recitation here] On the record that existed in this case, I had no choice but to act in my responsibility as gatekeeper. I’m conviced this is no close issue. I do have to grapple with the appointment clause issue.
Bonamici: Morrison is powerful and Circuit will not find this argument meets burdens under Morrison.
Robbins: We prevail under Morrison.
Walton: What about the related case limitation argued by government?
Robbins: he’s authorized to eamine any violations related. . .
Walton: But isn’t it limited by the leak?
Robbins: you can imagine anything. . .
Walton: Related to the leak?
Robbins: This is what Alexia Morrison sought and was denied.
Walton: But her authority was limited to person.
Robbins: She wanted to go to any related violation.
Walton: But if she found another conspirator violation?
Robbins: She could not prosecute. She sought it and was denied. He filed a 6c2 and claims it was a mere ministerial act, but this is not the case, and it’s not the role Morrison had, it’s much more broad. It related to national security. The fact that Mr. Fitzgerald may have talked to the AG from time to time does not matter. He was not required. When Walsh was asked to sign the very same kind of thing, he went to the AG to get this authority. Fitzgerald assumed this authority.
Walton: Can I assume that Mr. Comey knew he was not acting in compliance with CIPA when he issued his memo? If Fiztgerald did something conceivably in violation of CIPA, how do I conclude he was in fact authorized to do so?
Robbins: Comey said Fitz had all the plenary authority of the AG. Fitz thought he had all this power.
Walton: I’ll take 5 minutes and let you know if I will rule today or later.
12:56 5 Minute Break. [Walton may want to take more time to review the arguments. We may not have a decision today, apparently. He’s consulting with law clerk.
1:13 PM Still in break.
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FITZ!
Pach!
epu’d from previous thread…
question for Christy, or Jeralyn, or other lawyers…
Were the appeals court to find the “28cfr600″ argument valid, would that actually require that the verdict be nullified, and a new trial be held.
IANAL, but it seems to be that lacking evidence that Fitz’s prosecutorial decisions would have been different (or that “supervisors” would have instructed him to act differently) the question of whether Fitz should have had the authority he exercised would not constitute “reversable error.” In other words, the same basic case would have been presented to the jury regardless, and the jury’s verdict would have been the same, and there would be no rationale for overthrowing the conviction…
Pach!!
Zed?
emptywheel @ 129
This is beautiful. Reggie tells Bork to fuck off:
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]
Kathleen
Thank you Judge Walton. We so want to celebrate Truth and Justice!
pach! — you are a stone-god
[but, i guess you know that already]
for doing this — excellent!
More liveblogging, gang. Please keep comments brief, on topic, resist the urge to launch copious one-liners, and generally be kind to Pach so he doesn’t have to constantly start a new thread. Our servers, Pach and the mods thank you!
Fitz: urgent matters AG should be aware of. We don’t seek permission, we notify. We have one of these in Chicago for Monday. It is not a matter of getting authority to charge, but we notify so they will not be surprised.
Now what’s that about???
God, that’s obnoxious. I can’t believe Robbins said that, or that Walton let him get away with it. I mean, that was a great opening for a comeback like:
“Fine. Let the record show that the defense believes it’s presence at the reading of Justice Scalia’s dissent provides a better barometer of intent than Justice Scalia’s own written words.”
EPU’d from last thread:
Biodun @ 173
and that. folks is the second
quote of the day — ‘cuz judge
walton will rule just that way. . .
Paul at 3 — That’s an unanswered question, actually — and the answer depends on a lot of factors which may or may not be pulled into play. In other words, maybe — or maybe not. Sorry I can’t be more specific, but it really depends on a range of arguments which may or may not be accepted, and which ones are taken determine whether it is a remand for further fact-finding, a nullification altogether, or some other means of clarification.
Pach and mods:
Thanks much. I love your liveblogging–
There’s an HTML hiccup if it can be fixed. Thanks.
Just askin’ – Is it common for defense to wait until after a trial and sentencing to go after a prosecutor’s authority to prosecute? Shouldn’t something like this have been argued at the time of the trial and decided at that time? To do less would be a waste of time and taxpayer money. This is a sham tactic.
CHS thanks for the reminder to stick to the points. Now could you just make that announcement to the defense team.
Thanks to Pach and to all the knowledgeable folks commenting on this.
Lets see;
Courtroom antics: Check
Pissing off the judge during the trial: Check
Having all of your asshat friends write bogus letters proclaiming what a nice guy the convicted felon is: Check
Pissing off the judge after the trial and right before sentencing: Check
They are currently batting 1,000
IowaDem @ 15
Agreed. “We didn’t like this apple after all. May we have another bite?”
IowaDem @ 15
Yeah, I noticed in the AP story, that Phoenix Woman had at her blog, that this would be a ‘tactic’ used by the defense for use on appeal.
> I mean, that was a great opening for a
> comeback like:
>
> “Fine. Let the record show that the defense
> believes it’s presence at the reading of
> Justice Scalia’s dissent
Part of the tactics here has to be to try to get Walton to blow his top. So he probably does not want to do this. The amicus shills were not part of the defendent’s team so dissing them is not much of a risk.
Cranky
IowaDem @ 15
They did go after the general constitutional question of Fitz’ appointment. But the did not go after the CIPA question that they’re arguing right now. That’s a new wrinkle that Robbins has introduced. But it appears that Defense didn’t raise it as an issue at the time (They were busy believing their greymail was going to succeed), so it may be irrelevant.
Christy? EW?
Had a question epu’d downstairs. Maybe totally beside the point after all the other hoopla that swamped it, but would appreciate answer, if only to help me understand lawyer-ese strategerie better. thanx! ;->
Adie 118 downstairs:
i.e., big, hyped-up p*ker bluff?
I hope we are confident that the challenge of Fitz’s prosecutorial authority will not prevail. This makes me nervous. Can someone shed some light on this?
If you want some good background on Judge Silberman I would refer you to “Blinded by the Right” by David Brock.
Also this morning’s NYT had a good editorial on “Bork vs. Bork” in regard to his personal injury suit.
BTW, great job Pach!!
EPU’d:
I see Barrister Robbins is in a tizzy because Fitz does not have the ability to file a final report of his findings and conclusions. His complaint in this regard should be remedied immediately with a full Fitz report. Beyond that, I think many of Robbins “expanded” arguments may have been waived by not being specifically pled before. These are not merely expansions, they are distinguishable arguments not previously fleshed out.
emptywheel @ 22
That’s my reading too. Sure seems like a waived objection to me.
Arca @ 9
It’s a basic example of standard (and appropriate) bureaucratic behavior. If you are going to do something that will land on the front page, you give your boss a “heads up” so that they are aware of what’s coming. It’s not asking for permission to do your job, but giving the boss some notice of what’s about to happen.
It has nothing specifically to do with this case, other than being an example of how Fitz operates.
LS @ 24
You shouldn’t be confident in Fitz’s ability to prosecute. The Bork brief that Walton so cavalierly dismissed was written by the Soliciter General (Bork) in the original Watergate case that formed the basis of the later Independent Counsel statute that lapsed and was superceded by an untested procedure which essentially attempted to grant Ashcroft’s powers to Fitzgerald. That is blatantly Unconstitutional and there is little doubt that the Supreme Court will invalidate the entire proceeding if it gets there before a pardon.
CIPA question emptywheel @ 22
Soo…is the defense saying that Libby Fitzgerald doesn’t have authority because of his lack of a certain level of classification?
Bonamic: “It’s not weak evidence, it’s not even evidence.”
Ooh. I like the echoes of Pauli here.
(Pauli is a physicist who frequently criticized theories and experiments with “That’s so bad, it’s not even wrong.”)
EPU’d from last thread:
I think I disagree with Christy’s view @ 77 that Robbins is just invoking the dreaded specter of reversal. He’s arguing, agressively, that the DC Circuit will embrace a view of the law that is not only inconsistent with what other federal appellate courts have done, but will repudiate existing Supreme Court precedent in favor of a DISSENT. He may — sadly — be right about that, but that is hardly the basis for an argument that the appeal presents a “close question.” That translates to “although all existing precedent is contrary, my appeal presents a close question because I will be appealing to a rogue court full of ideologues who will do anything to free my client.”
Wordsmith @ 20
Attack the Prosecutor appointed by the Bush administration, attack Valerie Plame and her service to our country, Kerry gets attacked for his service to his country…this group of thugs, traitors and chickenhawks will stop at nothing!
Peterr @ 28
Sounds like a “front page” new charge or indictment coming up in the Conrad Black trial. Interesting that he dropped that little specific tidbit in this setting, instead of making a generic referral to the practice of giving the heads up to the AG.
bmaz @ 26
Okay. IANAL, but wasn’t it actually illegal for PJF to write a report on the findings? Didn’t he make that statement during the October ‘05 press conference?
Confusedly yours,
-S
Peterr @ 28
A sad counter example: see Obama’s General Counsel Robert F. Bauer calling for Scooter Libby to be pardoned…I’m guessing he didn’t tell Obama about it first.
I had to read this over and over. Are they really questioning Fitz’s authority to prosecute? The prosecutor is now the defendent before the judge today? WTH!
Peterr @ 28
And specifically, it’s most likely related to the Conrad Black trial which I believe is ongoing in chicago right now. Either that or some juicy Illinois corruption charges are coming down.
I said
Libby, BUT I meant Fitzgerald.Strategerie - I recall Fitz saying that as well.
litigatormom @ 31
How deep are the connected roots?
Bustednuckles @ 18
Hiya Busted! Belated congrats on your new ‘job’. In the reverse: battin’ -1000
litigatormom @ 31
oh sigh! THAT’s why I’m asking. Does anyone else think this is just a big fat p*ker bluff tossed up to intimidate?
[my #23 this thread]
dakine01 @ #37 – yesterday another Chicago Alderman was indicted on more charges of bribery. That is probably what PJF meant.
dakine01 @ 37
Well that really narrows things down now, doesn’t it? No one could have anticipated corruption in Chicago.
/snark
(I’ve spent too many years in and around Chicago . . . )
In a Washington court room today, Americans learned that Judge Reggie Walton has received threatening phone calls and letters for his sentence of Scooter Libby. Apparently, from John Cornyn, Tom Delay and Ann Coulter to the right-wing grassroots, threatening judges from the Supreme Court down is now business as usual for the American conservative movement.
For the details, see:
“Libby Court’s Walton Latest Target of Right-Wing Threats to Judges.”
Adie @ 23
Sometimes, an ace up the sleeve can prove dangerous, when there are already four aces face-up on the table…
Your gambling analogy seems accurate to me, he’s throwing pasta at Walton to see if any sticks or makes him blow his top… But the cards he is playing didn’t come from this deck.
Strategerie @ 34
I believe what Fitz said after the verdict was that he was not going to file a report because he did not have the authority to do so under the Independent Counsel statute, and without such authority, he would be violating grand jury secrecy laws. There was then an exchange of letters between Fitz and Conyers about the possibility of Fitz providing grand jury material to Congress, but that went nowhere. Fitz takes grand jury secrecy very seriously, as he should. I once managed to embarrass an out of control assistant USA in front of the Fourth Circuit enough to get him taken off the case, even though the technical ruling by the court was that my client didn’t have standing to sue for breaches of grand jury secrecy. Shortly after the AUSA was replaced, the investigation was terminated.
litigatormom at 31 — I don’t think we disagree on that point, actually — but I also don’t think that arguing that he has a more friendly venue before the appeals court is the same as saying “the fix is in,” because it isn’t the same at all. And pointing out to Walton that the potential for the appeals court to buy his arguments is stronger that Walton buying them is, frankly, good lawyering in an attempt to sway Walton (futile though I think it is) — and also to appeal to the appeals judges on the record in the process. But mostly, for public relations purposes for the Free Scooter brigades.
Strategerie @ 34
I don’t know that it is illegal so much as not specifically provided for, which Fitz took as meaning he should not do it (kind of flies in the face of Libby’s argument that he is an out of control, unrestrained prosecutor eh?). Today Libby’s lawyer early in the hearing appeared to make the argument that Fitz not being able to file a report is evidence that he was not legitimate. I was merely being snarky and saying that if that is something Libby’s lawyer is concerned about, let’s give him a report. Trust me, he doesn’t really want that.
security classification, no.
job classification, yes.
THe CIPA law says that stuff has to be signed off on by the AG, DAG, or AAG. Fitz didn’t get those signatures (but the defense was well aware of that at the time), because he was supposed to be acting independently under 28cfr600 which says that special procecutors should handle necessary matter.
I think this is another red herring, because the its clear that the purpose of 28cfr600 is to ensure the independence of the prosecutor, and the whole CIPA thing is just a question of paper shuffling.
Peterr @ 44
The spigot is full open in Chitown and is flooding all the way to Springfield. His Hairness (IL gov) has some ethics and hiring problems, not that that should surprise anyone here in IL.
JEP 45 Thank you!
now back to catch up on lurking – where to begin!?!
Let’s not forget – today’s proceedings are a BSO compared to the revelation at Trial that Libby was Obstructing Justice in a Criminal Probe into the Outing of a Covert Agent (only a domestic enemy can do that, if you think about it) – ostensibly on behalf of the two people his job reported to – Cheney and Bush.
The 800lb gorilla in Court this morning is the spectre of the Leaker(s) having the Power to grant ‘Further Obstructing Relief’ to a henchman, thereby keeping the Leaker(s) protected from further criminal investigation.
Libby out on bail? or Bush/Cheney outing a National Security Assett and her CIA Front Company?
Hmmmmm…
Based on Walton’s comments before the break, I’m getting a hunch that he may just rule that the Morrison issue is close enough to allow Libby out on bail pending the appeal. I’m not saying its what I want, but based on what Pach has liveblogged, it really does seem as if Walton is seriously considering it.
How do you lawyers do it? I have almost bit my lip off this morning waiting for justice!
If, as Scooter’s team argues, the way the Preznit and his staff are held accountable is through the people deciding whether to elect them (”held accountable at the ballot box” was the term, IIRC), then under this logical construct it necessarily follows they cannot be held accountable for anything they do during the Preznit’s second term, since the Constitution precludes him from having a third.
Correct?
So, to keep Scooter out of jail, they are arguing that the Preznit and all his henchmen are, in fact and in law, absolute and unaccountable rulers.
Or, does my logic fail somewhere I’m unaware of?
dratty @ 53
My impression as well. Although the Prosecution sounds like it is saying the argument is bunk.
I’ll ask this again – is the defense saying that Fitzgerald doesn’t have authority because of his lack of a certain level of classification…’secret’, et.al.?
Libby story first at top of the hour on CNN, but, watching it, I almost asked here, hey, where’s his wife, but then notice in teeny tiny letters at the top of the screen…June 6..
CNN isn’t even showing video footage of today (yet).
Walton: “I’ll take 5 minutes and let you know if I will rule today or later.”
Hmm. Looks like Walton is going to pen a written decision rather than issue a judgement today.
I suspect he want to address the CIPA and Appointment clause issue in written form, to provide guidance on his reasoning to the appeals court.
That would seem to make a decision denying bail extension more likely. Walton probably wouldn’t need to defend a decision to leave Scooter free pending appeals.
Ah Gawd, Pach just said that Walton may not rule today. This is killing me!!
Kathleen @ 54
You get used to it. Days mean weeks, etc. ;)
As long as we are in a court break, I’d like to ask Christy a question.
Can we have 2 threads for liveblogging events? One for the liveblog with no comments allowed, and the second for comments about the liveblogging?
I keep 2 windows up on one thread now. One for the blog and one for the comments. I would think it would keep the blogger from having to open new threads to keep us off of it.
dratty @ 55
OTOH, if Scooter doesn’t get sent to jail soon, his lawyers will just manage to drag this out indefinitely. I don’t care if he only spends 24 hours in jail before he is released pending his appeal. I just want to see the reaction of his supporters to this indignity on their superior status.
If I were Walton, it would be worth it.
dratty @ 53
I’m leaning more toward Walton wanting to make sure his smackdown of Team Libby is as on-target and forceful as he can make it. Gotta line up those quotations and citations.
Walton wouldn’t want his ruling to look like a first year law student issued it, would he?
Wordsmith, answered at 49
***************
I think he’s just “consulting” to make it look like he’s considered the defense argument….
Demi @58:
No cameras in the courtroom — they aren’t permitted in Federal court. So the only ‘live’ shot would be taken at the entry to the courthouse.
I’m betting on live coverage after the hearing concludes.
Hi y’all – just catching up–hope Walton doesn’t decide to postpone ruling.
Query: does the judge have a current law clerk? IIRC, his clerk was leaving last month. Do DC judges rate summer clerks? (mostly a rhetorical question – no hurry, if anyone knows the answer).
EW: I think I was EPU’d on the last thread, but my fisrt response to your query re the summer recess was a bit half-cocked, so I amended. The amended picture is a bit more depressing:
Here’s what Team Libby should be prepared to do. If I were them, I’d have a signed notice of appeal and check for the filing fee in the hands of a lackey, ready to file by hand the moment the sentence is finalized. The rules say they do not need a separate notice of appeal of the bail denial; they can just file an application. So they should also have in hand an application to the court of appeals for a stay of the sentence pending appeal, with a brief in support. That application is briefed on a motion schedule — not a full appeals briefing schedule — meaning Libby files the application and a brief in support and Fitz will have 10 business days to respond.
The applicable rule requires a “prompt” disposition by the court, so it does not seem that Team Libby needs to file anything separate to get expedited consideration, but they will write their application in the purplest of prose I’m sure. Like I say, if I were them — and had their resources — I’d have all this in hand TODAY, and thus start the clock as fast as possible.
The court definitely is in its summer recess, but it has panels available for emergency matters. My guess is that they are pretty busy, but I’m sure they decide lots of these, as well as dealing with emergency cases.
The sum is this: If Libby snares a sympaethic “summer panel,” there’s a chance he could be sprung before his report date. But my feeling is that the court is busy enough — and that Libby is going to be throwing so many issues at the court — that it’s going to be a couple of months before a decision.
dratty at 61 — Weeks mean next year, etc., etc. The wheels of justice turn, but slowly — but they do grind things to a fine grade when they turn properly. Walton may well want to get something in writing on this since Robbins has decided to throw in some extra arguments above and beyond what was in the written brief — I would if I were Walton, to dot all the i’s and cross all the t’s prior to this heading to the appeals court.
kdh22 @ 50
Look just because people who are friends of or give money to Blagojevich get state jobs and contracts is all just coincidence, blind chance, could have happened to anyone, how was he to know, surprised as anyone, at least I expect this is what he will tell the judge someday. *g*
Brisingamen @ 66
That’s what I was talking about. I should have been more specific. I just felt it was misleading footage.
Wordsmith @ 30
No. Comey granted Fitz authority for the INVESTIGATION. But he never came back (he was gone already) and say how Fitz should handle CIPA. Normally, CIPA requires a signoff from AG, DAG, or AAG, all of whom were recused. So the question is, does that prove that he was acting as a superior officer.
There are two questions. 1) Is that tantamount to being a superior officer, and 2) Did Defense effectively waive their right to appeal on this issue bc they did not raise this back in the Fall.
I think number 2 is right, so whatever the answer to number 1 is moot.
On MSNBC, now saying that the only hope Scooter has is a ruling on Fitzgerald’s right to prosecute this casse.
litigatormom @ 48
Do you have home video? I’d love to see it.
My guess is that Walton had an draft order prepared for this decision, but needs to modify it in light of the 11th hour new arguments thrown up by new Libby Lawyer Robbins, and Walton and clerks are figuring out whether they can do this quickly or need more time to redraft.
Christy @ 47:
I guess I have more tin foil on my head than you do! I’m not there of course — not like Robbins was THERE when Scalia read his dissent! — but reading Pach’s live-blog, I’m getting a more threatening tone than the usual “we think the Circuit will reverse.” I also have bad memories of the DC Circuit’s appointment of Ken Starr. Then, of course, the wingnuts were complaining that Bob Fisk, one of the MOST respected lawyers in the country, was not sufficiently independent to investigate a 10 year old pre-presidential failed land deal because he’d been appointed by Janet Reno. This necessitated the appointment of Ken Starr by two of the most wingnutty judges on the DC Circuit — Silberman and Sentelle — and the out-of-control, endless investigation that followed. It’s almost as if they knew that if Starr’s investigation “drug out” long enough, sooner or later Clinton would get a blow job in the Oval Office.
It makes me so MAD when wingnuts criticize Fitz as “out-of-control,” as if Starr never existed. Not to mention how mad I get when I think of the fact that no one in Congress ever challenged the legality of Starr’s appointment, or investigation, and how quickly everyone agreed that Starr should expand his investigation, which at that point was running on fumes, to include Monica.
Sigh…..
TJ at 62 — It’s a nice idea, but it is all we can do to keep things running smoothly without too many server hiccups as we are going now. Our tech folks are looking into some modifications for us to smooth things out but, for the moment, we’re going to have to stick to how things are done. Sorry — but we just don’t have the capacity to change horses in mid-stream at the moment.
Walton getting death threats from wingnutters- might cause him to err on the side of caution.
Can Judge walton rule now – and then release soemthing in writing later today or tomorrow? Ot does it have to be at the same time?
Thank you, Marcy! NOW I get it!
Kinda like physics…couldn’t get the easy stuff until ‘something‘ clicked in the midst of the really hard stuff.
> and Walton and clerks are figuring out
> whether they can do this quickly or need more
> time to redraft.
By all means let him take the time to do a thorough job. Tomorrow is not a long time away.
Cranky
Sebastian Dangerfield @ 70
Exactly. This is precisely what I was saying the other night at TNH. The interlocutory in nature separate issue remand/bail could certainly be decided within the window Libby will have to self surrender.
he may want to go into the CIPA thing in more depth, but its pretty obvious that even IF the CIPA issue itself is close, it doesn’t represent the kind of issue that would result in a reversal on appeal. The defense was fully aware of what Fitz was doing at the time, and raised no objections. And even if the appeals court did rule that Fitz should have gotten the signatures, absent evidence that these signatures would not have been forthcoming, I don’t see how this becomes the kind of “close” question that would get Libby out on bail pending an appeal.
scribe @ 57
No, that sounds about right.
Thanks CHS, EW & Pach,
I’ve reading all morning, but have stayed mum ’cause I have no legal background at all. Media backgroud.
I’m reading and watching this in my head.
I like reading the live-blogging, ’cause it gives me a context for what I see and read later in and on the news.
Hugh @ 72
There are so many crooked politicians up and down I-55. I sometimes dream of all of them standing before a judge accepting their sentences…then I wake up. *g*
Defense can argue that if it takes days to decide if something is a “close question” then it’s a close question.
emtywheel@74 says:
There are two questions. 1) Is that tantamount to being a superior officer, and 2) Did Defense effectively waive their right to appeal on this issue bc they did not raise this back in the Fall.
I think number 2 is right, so whatever the answer to number 1 is moot.
If Libby’s lawyers didn’t challenge ala #2, could it be because they believed he was a superior officer ala #1? Considering how much money and effor they threw into defending Scooter, you’d think they would have put the caboshes on it earlier than this and just say that Fitz wasn’t authorized. The fact that it went through seems to imply that they checked into it but found they had no basis for challenging Fitz on it.
IANAL so there might be another more convoluted explanation.
emptywheel @ 74
No, alas.
rwcole @ 78
No, exactly the opposite. The judge said he was saving the letters, as a message to the Dark Side, so they’d know the letters were preserved in case something horrible happened.
(I bet Comstock will stop those letters now.) *g*
bmaz @ 77
I bet you’re right on that bmaz.
Also, Reggie appeared to intend to start the hearing at 11, end at 12, so he had an hour to dot the I’s. So now he’s got to see how long that process will take, since he’s gone past the time he said he’d take to rule.
Trying to figure out what the case law is by following the arguements. Fitz is doing a great job of explaining himself, almost like he knows lay people are listening.
He’s so cool.
Christy Hardin Smith @ 71
I would too, and I hope you’re right, but it just seemed to me (from reading a transcript of someone else’s live view, admittedly) that Walton appeared to be taken up a bit short on the CIPA question. Again, I hope I’m wrong on this…
litigatormom @ 78
DING! You are so right! If there ever was a prosecutor NOT out of control, it’s Fitzgerald. And I tend to take the defense point of view, in most cases (not this one).
It’s just the RW using the usual emotional cliche/boilerplate.
TJ @ 64
TJ, I’m not Christy or part of the FDL management team, but as an IT professional, I can tell you that wouldn’t work very well.
Once the comment thread gets to about 200-300 comments, it puts a heavy load on the server whether or not a post is attached or being updated.
TeddySanFran @ 92
are you mocking her, Teddy?
Did Kenneth Star have different powers than PJF?
bmaz: Originally, I was thinking (wishfully) that the ordinary appeals process would unfold, albeit with a request to expedite. Forgot that thee’s an expedted procedure for just these situations. Sorry to all if I got hopes up based on a less-than-full think of the sitch.
Now, to try to see if I can figure out which judges are sitting this summer ….
My personal belief is Walton does not want to let Libby out pending appeal but he has to have legal cover. I am still afraid Libby will never spend a minute in jail but I will always hope that justice is served.
I do not know if a decision will come down today, but the Morrison issue seems way late in coming. I would qualify it as highly dubious at best, not close.
Again the larger question here is whether there is a mechanism whereby the government can investigate itself. When high government officials are involved essentially the whole upper reaches of the government are going to have conflicts. If the counsel does not enjoy a large (although not absolute) degree of independence under such circumstances, the investigation will be tainted or have that appearance.
Down goes Fraizer.
I have been following along today with my mother. This blog is incredible and the hearing is fascinating.
It will be very dissapointing if Scooter Libby gets off for his crimes. That would be a horrible example for young people who are trying to take our justice system seriously.
emptywheel/bmaz
I’d actually go a little further. I suspect Walton was all ready to rule that Libby had to go to prison before appeals were exhausted, but he is newly impressed by the defense’s arguments regarding the appointment, and is seriously reconsidering his decision – and in fact I predict he will now, especially in light of the partly acknowledged violation of CIPA, allow Libby out while his appeals go forward.
tejanarusa @ 97
You know, we heap praise on him now but I sure as hell wouldn’t want him prosecuting anyone *I* know. He isn’t out-of-control but he is relentless and driven.
Scary.
dratty @ 55
That’s what I thought, too. This makes me very nervous and I doubt more than ever that Scooter will ever see a jail cell. What do you think of this latest action by Walton, Christy? EW?
The fact that the “5 minute break” has now taken 27 minutes is not reassuring.
Hugh @ 102
‘the whole upper reaches of the government are going to have conflicts’
Would these upper reaches of gov’t include the DC circuit court?
Yes… they (Libby team) questioned this up front and Walton ruled against them. It is a matter as to whether or not Walton was correct or incorrect in his ruling.
The fact that they didn’t “reraise” the issue in the middle of the trial after Fitzgerald signed the CIPA papers could probably be ruled a non-issue as it could be considered further proof of their first argument (rather than an individual new issue as Fitzgerald is playing it out to be).
IOW… Robbins is arguing that Fitzgerald believed he had the authority to sign the CIPA paperwork (which Robbins argues would make him a Principle who would have needed to be confirmed)… whereas Fitzgerald is arguing that he did not have authority (as an inferior) but that it was just a minor transgression on his part.
Jeff @ 105
You have usually been right when my thoughts countered yours, I sincerely hope that is not the case here.
bmaz @ 84
i just think — after scooter has had
“his notice and opportunity to be heard“,
and after he has received all “the process“
he is “due” — and been convicted by a jury of his peers. . .
it would evince naked politics to put ONLY
scooter’s case — an no other — on a fast-track
in the under-staffed summer-time at the d.c.
circuit court of appeals. . .
and i think even silberman knows this.
so — i think he’ll be locked up for
at least a while.
appeals to be heard, after briefing, in
the fall. . . just my $0.02.
in any event, we’ll know very soon.
umm, isn’t this case about Scooter Libby? Fitz is not on trial… cut the crap (the court, not you, Pach) and talk about his sentencing…
tbsa @99:
From what I remember they gave Starr what amounted to a “hunting license” — every time I read something about the case, the investigation kept expanding…
WRT Fitz’ investigation, it was, uhm, well tailored?
> ’d actually go a little further. I suspect
> Walton was all ready to rule that Libby had to
> go to prison before appeals were exhausted, but
> he is newly impressed by the defense’s
> arguments regarding the appointment, and is
> seriously reconsidering his decision – and in
> fact I predict he will now, especially in light
> of the partly acknowledged violation of CIPA,
> allow Libby out while his appeals go forward.
During the jury deliberation is was interesting to watch the consensus here slowly move toward “the jury is deadlocked – they need an Allen Charge” (not to mention even more conspiratorial theories). Whereas the Washington Post reporter on the jury wrote that they were moving forward almost the entire time; they were just being very careful and methodical.
Cranky
tommy yum @ 108
Read what Christy and I said above. Days mean weeks, weeks mean next year etc.
Just have to know the lingo.
tommy yum @ 108
not if the clerks are editing the order.
or, preparing for tomorrow’s order.
j.m.h.o.
keep the faith!
Sebastian Dangerfield @ 100
Yep. That is why I was asking about the senior judges (especially Silberman), because in my Circuit, they are often the ones on the emergency wheel oftentimes during summer recess.
dratty @ 115
I have enough experience to understand the glacial pace of litigation. I’m just running out of fingernails!
dratty @ 115
The jury took a long time. Could it be a good sign?
Lawyers and doctors have different senses of time than civilians.
When we say be there at 9, we mean be there at 9. To a doctor that may mean they will see you at 9:45, to a judge, you may not get in with him until after lunch break.
Just go with the flow.
CNN says decision is imminent
litigatormom @ 78
Can’t remember, did anyone ever suggest that Monica might have been in the employ of Starr’s office? Though we might not have been made paranoid enough then to ask…
When applied to a judge, the unit of time “five minutes” does not exist in any court system in which I have ever practiced over nearly three decades.
(It does, however, exist for attorneys!)
MSNBC’s Schuster says Walton will make his decision now
portia.vz @ 88
If they believed that Fitz was a superior officer because he was acting unilaterally under CIPA, then they committed malpractice by not raising this earlier.
brassband at 123 — So very true. *g* Attorneys are held to the limits, judges get whatever leeway they need and then some because they are making the decisions and no attorney with a brain is going to call them on going over their stated timeframe.
Something tells me Judge Walton would like to see Libby leve in ‘cuffs, along with most of us, but I have no doubt he will dot every “i”, etc. to make sure he doesn’t slip away through any “fault” of the Court’s.
nolo – Have you been baking any pastries?
Libby denied his appeal. He must report to prison
Walton: go to jail go directly to…
Libby to report to prison!
jailtime says schuster.
Reported by David Schuster/MSNBC.
Would he need signatures, or would evidence of notification and his not being fired for what he was doing be accepted that as Fitz having the approval of the AG, making the CIPA point moot? Under CIPA, shouldn’t this have been made at the time? And doesn’t the fact that this wasn’t raised at trial make it unreviewable?
bmaz @ 129
erh — not yet. but do take a look!
proud pecan pie?
or humble apple pie?
we’ll soon know. . .
Well, I suppose it was a good idea to send The Peanut to preschool in her dinosaur costume this morning after all. (Kidding.)
While we are waiting, I am curious about the scene at the courtroom. Is there a lot of media? Are Vicky & Harridan Matalin there? Etc.
Not only is the live blogging wonderful, but it is such a treat to have so many attorneys commenting here today.
Yay for the activist judges!
From following this case, Walton seems to be the very methodical type, and I suspect he’s doing is level best to see that this sentence is appeal-proof.
I think he’s conferring with other judges right now. (Triangulating? *g*)
vachon @ 94
Probably trying to make sure the MSM can follow.
Never have I been happier to be wrong.
MSNBC saying only a pardon will keep him out of jail-I don’t think so. Whitehouse can stay his sentence.
get your affairs in order, Mr. Libby.
trifecta @ 121
sigh. Too true.
Though I’m generally puntual with my psych clinic patients, when I’m late I apologize.
Frequent response
“Expect the doctor to be on time? Do you think I’m crazy?” (with a smile and a wink)
SNOOPY HAPPY DANCES ALL AROUND!!
well, hot shit!
My faith is restored for another day.
CNN reporting that Libby will not be free while appealing his case. No details yet about when he must report to jail.
erh — bmaz — looks like proud pecan pie!
portia.vz @ 106
Absolutely. If I were the subject of a Patrick Fitzgerald investigation/prosecution, I would be terrified. OTOH, I would feel reasonablly confident that he would not ignore exculpatory evidence in his pursuit of conviction. I don’t see him as a prosecutor concerned w/ his W/L record, but really concerned with rule of law and justice.
Of course, if I were guilty in the hypothetical, I’d just cave and go for the best deal.[g]
Fresh thread from Pach.
Justice is done–in the Libby case.
Now on to Gonzo.
No delay in reporting to prison! YES!
via CourtTV
What’s taking so long?
Meanwhile. Inside the judges chambers:
“I have the pastrami on rye, that one’s the salami.”
spurious @ 121
I always found it odd that her “best friend” — the person to whom she poured out her heart about her relationship with Clinton — was Linda Tripp, a woman she must have known was a Republican. A woman who turned out to have a relationship with Lucianne Goldberg, who isn’t just a Republican, but a bona fide wingnut.
But then, like I said, my hair appears to have a high tin content….
CatelynK @ 148
MSGOP saying Libby will report to jail in 4 to 6 weeks.
vachon @ 94
It’s also just plain smart strategy. The clearer it is, the harder it is for the other side to spin it. If you want to hide your meaning, then you use the $5 words and legalese.
Yeah! Good job, Judge Walton. Justice!
My $.02
I think Reggie will rule today, and he’ll say no bail. He and his clerks are re-working the opinion, probably to add more analysis on CIPA in general and the newly minted argument that Fitz didn’t have the right permission slip to engage in the CIPA process. I don’t think he’s impressed with Robbins’s Edmond argument — it’s nothing new at all. It’s the same argument he shot down before and I don’t see him going back on it. Reggie thinks he’s right and he’s quite annoyed with these schmucks and their meshugas. I don’t think that he is particularly intimidated by the prospect of reversal. I think he’s the kind of judge that makes the call for himself.
nolo @ 136
I never said Libby would be out pending appeal; quite the opposite, I always thought he would be remanded. I simply point out that he can address this in the Circuit Court in the time between now and the date he likely has to self surrender. The Circuit Court should affirm Walton, but we shall see what they really do.
bmaz — understood. we’ll see.
Yes!!! High fives all around!
Why isn’t the AG denouncing the threats Judge Walton received? He should be threatening to prosecute anyone who does this to the full extent of the law.
These ReTHUGlicans are rotten to the core.
Congress can prevent a pardon.
The president has the power to pardon all of Libby’s offenses against the Uited States before, during, or after criminal trial. As well as the power to commute a sentence on any condition the President chooses, as long as they are not independently unconsititional – schick v. reed.
Though Congress can not limit the president’s pardon power, it can prevent the president from executing his pardon power. Congress may impeach any civil officer before or after they have resigned or have been pardoned.
The President would be barred from pardoning Libby if Congress were to impeach Libby before the President pardons him.
It has been accepted that perjury in a civil matter regarding peripheral matter is not an impeachable offense. But perjury in a criminal matter which is not a peripheral matter as in blocking a federal investigation into violations of federal statutes and other high ranking offical could very well be an impeachable offense.
Why impeach him after the pardon?
It prevents Libby from holding future civil office. It would allow further investigation into the Niger Forgeries, CIA Leak, Fitz’s investigation, and possible interference from other officals as well as damage done to national security as a result of the CIA leak and failed prosecution of higher ranking officals due to Libby’s perjury preventing further investigations, and also increased scrutiny of officals that escaped prosecution under Fitz’s intestigation. It also would mean witnesses galore including Fitz himself and the CIA.
The point here is Congress has the power. The reality is they lack the will.
I beg your pardon, when was this accepted? Eight years ago, if memory serves, a civil officer was impeached over exactly that.
Your right.
I guess Barbri’s Bar review books have it all wrong. snark.
”I’m a traitor to my country but I skated, so I’m getting a kick out of these libtard replies.”
– Sandy Burglar
[Mod Note; and didn’t he plead guilty?]