highlighters.jpgJudge Walton ends his memorandum opinion where I would like to begin my analysis — because this gets right to the heart of the entire Traitorgate investigation, the Libby indictment, subsequent trial and conviction, and every other fingerprint left by every member of the Bush Administration on this whole betrayal:

“[T]he integrity of the rule of law, which is a core ingredient of the American system of government, is challenged to the greatest degree when high-level government officials come under suspician for violating the law,” and “[t]here must therefore be a process by which the perception of fairness [within our system of justice] withstands the scrutiny of the American public when prosecution authority is called upon to investigate [such] public officials.” (pp. 27-28)

In the course of the investigation in which Libby now finds himself indicted, convicted and sentenced in a court of law, FBI investigators and later, after appointment, Patrick Fitzgerald and his legal team, found themselves facing a referral from the Central Intelligence Agency alleging that a covert intelligence operative had been exposed by members of the United States government who worked at the highest levels.

That investigation led to depositions and grand jury testimony and conversations with federal investigators encompassing the President, the Vice President, the Bush Administration’s chief political strategist and operative, national security, foreign policy and legal advisors at the highest levels of our nation’s government — all of whom were implicated, either as potential targets who participated in the unlawful disclosure, or who knew information which was material to the investigation.

I cannot think of a more important reason to proceed not only with care and concern for the laws and the evidence, but also holding the trust of the American public as a very important fiduciary obligation while, at the same time, upholding the oath to serve and protect the Constitution, the laws of our nation, and to seek justice.

That the “Free Scooter” screeching crowd has so denigrated this difficult obligation because a prosecutor dared to seek conviction for a high-level government official who has now been found guilty by a jury of his peers for not one, not two — but four federal felonies for which he stands sentenced for perjury under oath, for false statements to federal investigators and for obstructing the investigation into the leaks — is disgusting enough. That they do so by attempting now to also denigrate the federal judge who oversaw the trial, in as even-handed a manner as I have seen a trial run, is dishonest on its face. And they ought to be ashamed of themselves.

So I want to begin by saying this: Judge Walton and his law clerks have done an exemplary job in examining the law and the evidence, and the arguments both for or against each sides’ positions, in a very thorough a manner, both from the bench and in writing. The law clerk who worked for Judge Walton in the lead-up to the trial and during the bulk of the conduct of the trial itself, worked his butt off — and it showed in the detailed footnotes and thorough legal grounding of the opinions from the court. Judge Walton himself allowed defense counsel an extraordinary amount of leeway, having patience with them that I could never have mustered when, at times, defense counsel were droning on and on with repetitive questions down dead-end tangential alleys surely meant to confuse a jury that saw right through them, even to the point of allowing them to bring in CIPA information that had already been excluded to some extent by the court to give them enough space to make their outside-the-box memory arguments on Libby’s behalf.

Any lawyer who cannot argue their case on the merits but, instead, has to resort to some outside PR tactical offensive built on half-truths and outright lies and smokescreen obfuscations, who has to instead rely on an attempt to besmirch the character of legal professionals who have done nothing but try to remain true to the rule of law, wherever the evidence and the actions of the defendant and the other witnesses in the case may take them — that smacks of nothing but desperation and smarm. And it says to me that they know that, on the merits, they have nothing — and thus they have nothing to lose by stepping into the gutter.

I needed to get that off my chest, because it is unseemly conduct. This is the work of the political operation crew — the Comstocks, the Matalins, the smear and fear crowd, all of whom have been loyal to Dick Cheney from day one above anything else in this case — and conservatives who have any sense of decency and respect for the rule of law should denounce this conduct, and fast, or forever be tarred with the same fetid, dishonorable brush.

And now, onto the substance.

Judge Walton has already addressed the bulk of the substantive arguments contained in the current memorandum opinion (dated 6/21/07) in prior rulings and opinions wherein the arguments on Fitzgerald’s authority and appointment as special counsel were already raised by defense counsel prior to trial. (See here for a summary of that prior argument and opinion from back in April of 2006.)

There are two newer issues that Judge Walton addresses herein that need further amplification. The first is whether or not a substantial question of law is raised with a likelihood that reversal on appeal might occur. For the record, Walton says no, and then goes further to address that quirky defense assertion that simply because a judge thoroughly answers questions of law and evidence in a prior opinion that this is some sort of evidence that a substantial question exists:

It should be evident, of course, that the fact that this Court has taken the time to explore the issues before it in a careful and thorough manner is in no way reflective of the closeness of the questions presented. It is the habit of this Court — confirmed by a cursory examination of the collective corpus of its published opinions — to evaluate every legal issue, however close, to the fullest extent merited by, among other things, the novelty of the question in this Circuit, the complexity of the facts, the import of the case, and the quality of each party’s legal representation. Indeed each of the foregoing factors was abundantly present here. Accordingly, the Court’s desire to decide an issue completely and correctly to the best of its ability should not be taken as an indication that the issue is “one that could very well have been decided either way.”…This “[T]almudic dissection[]” of the Court’s word choice and phrasing scissors the language of the Court out of its memorandum opinions in a manner that deprives it entirely of context…and does not befit a considered and searching analysis of the defendant’s claims on their own merits, in accordance with the circumstances of the case and all relevant precedent, to determine whether a substantial question of law or fact has or has not been raised by the defendant…. (fn. 6, p. 4)

In other words, “counselor, don’t try to twist my words into something I did not say, because this court does not put up with that. And, also, you are wrong in both your factual representation and your interpretation of Section 3143.” I think that was pretty clear, don’t you?

The judge then goes into analysis of the defense claims that Fitzgerald does not meet the criteria of Morrison and/or Edmonds as an “inferior officer” for purposes of the Appointments Clause, and further on to the CIPA argument which was newly raised in arguments by new appellate counsel Robbins. Judge Walton characterizes the “inferior officer” arguments made by Team Libby (and their amici proxies) as follows:

The defendant’s points of disagreement with the Court’s application of the Morrison factors are predicated on illogical leaps of reasoning and inferences that no appellate court is likely to draw based on the facts of this case….The defendant substantially overstates the plausible breadth of the authority granted to Fitzgerald by the Comey letters….Rather, they delegate to Fitzgerald “all the authority of the Attorney General” within the limited sphere of the Plame investigation.

In other words, “that’s quite a stretch, but no one is buying it” with the Fitzgerald wasn’t appropriately given authority, with monitoring strings attached to an acting attorney general who supervised him.

Judge Walton is even more blunt about the CIPA argument being “without merit, albeit for different reasons.” (p. 14) And on page 15 he drops what is likely the fatal blow on the argument: that defense counsel failed to raise this issue during the pre-trial, CIPA or even trial phase, and that Mr. Robbins entry as appellate counsel was the first reference to any such objection — and then, only in a response brief to the government’s initial response to appellate grounds being argued for retention of bond pending appeal.

Ouch.

What this means is that, where trial counsel fails to make a timely objection on the record to perfect an issue for appeal, the defendant is often not allowed to raise that issue during the appeals process. It is never an absolute — especially where you can show that trial counsel was altogether incompetent and failed to do its job properly. But, in Libby’s case, it is tough to argue that a multi-million dollar, multi-lawyer, very high profile trial team with layers of lawyers and associates all working the case at once was incompetent and not diligent — especially given the reams of motions papers that flew through the course of the entire pre-trial, trial, and post-trial phases.

Additionally, and this is the part that made me laugh out loud, Judge Walton says that even if you take the argument on its face that Fitzgerald did not have the authority to make the CIPA designations as argued by defense counsel, because only the Attorney General and a few other expressly designated officials have the authority to do so (had there actually been a 6(e) filing, which there was, in fact, not…so that argument is thus moot), that this proves, then, that Fitzgerald was a subordinate officer. That it is “therefore resoundingly clear that the constitutional status of the Special Counsel as an inferior officer for the purposes of the Appointments Clause is not a close question.”

Ooops. Plus, the failure to contend that the defendant was actually prejudiced by Fitzgerald’s actions in the CIPA proffers and summations — to which there was no objection on the record anyway — pretty much classifies this as a harmless error, if that, according to Walton in footnote 22, p. 19.

So, in sum: still weak grounds for defense appeal, hoisted on their own petard on that last bit, and Judge Walton isn’t buying their aggrieved defendant act. Here’s hoping the appeals panel of Sentelle, Henderson and Tatel agrees.

(Photo of highlighters via NinJA999.)

PS — I’ll be on Sam Seder’s Show on Air America Sunday afternoon beginning at 5 pm ET.

Related posts:

  1. Fort Hood Shooter’s Trial May Shed Light on NSA/CIA Domestic Spying
  2. Why Doesn’t the SEC Know about the Doctrine of Implied Waiver?
  3. OLC: Johnsen Encouraged Discussion, Diversity of Opinion
  4. DOJ Still Feels Ripples of CIA Leak; Lanny Breuer Still Has Conflicts
  5. Isikoff Pops the Question: Newsweek Reporter asks Holder About Torture