Should Libby Go to Jail? Congress Says Yes

by emptywheel

I'm struck by the centrality of the balance of powers in Fitzgerald's response to Team Libby's efforts to get Scooter bond while Laurence Silberman dreams up some way to set Scooter free.

Right at the very beginning of the filing, Fitzgerald foregrounds the intent of Congress in changing the default from bond pending appeal to the opposite:

The new presumption of confinement pending appeal “gives recognition to the basic principle that a conviction is presumed to be correct.” S. Rep. No. 225, 98th Cong., 1st Sess. 27, reprinted in U.S. Code Cong. & Ad. News 3182, 3209. The change in the law also reflects Congress’s appreciation that “[r]elease of a criminal defendant into the community after conviction may undermine the deterrent effect of the criminal law, especially in those situations where an appeal of the conviction may drag on for many months or even years.” Id. In other words, Congress has recognized that “harm results not only when someone is imprisoned erroneously, but also when execution of sentence is delayed because of arguments that in the end prove to be without merit.”

Such foregrounding doesn't directly address any of the arguments presented by the Defense. But it's a nice reminder--to Judge Walton--that Congress changed the law to increase the deterrent effect of punishing criminals. Rather appropriate in this case, I think.

Then, to deal with the Appointments Clause , Fitzgerald reminds everyone of the centrality of SCOTUS precedent, something (he argues) the Defense chooses to ignore in its complaints about Fitzgerald's appointment.

Defendant does not argue that under the Morrison decision the appointment of the Special Counsel was unconstitutional. Indeed, the appointment of the Special Counsel presents an easier case than the appointment upheld in Morrison because the Special Counsel can be dismissed by a principal officer at will, while the Independent Counsel at issue in Morrison could only be dismissed for good cause. Rather than making a futile attempt to make a case under Morrison, the thrust of defendant’s argument is that Morrison is no longer good law and has been overruled sub silentio and supplanted by Edmond v. United States, 520 U.S. 651 (1997). Defendant presses this argument despite the fact that in Edmond, a case that did not involve a special prosecutor, the Supreme Court did not overrule Morrison, disavow it, or even suggest that Morrison was no longer good law or that the outcome in Morrison would have been different under Edmond’s formulation of what constitutes an inferior officer. Nevertheless, defendant contends that this issue is “a close one” and that the D.C. Circuit “could easily reach the opposite conclusion from this Court.” Def. Mot. at 5.

Defendant’s contention simply cannot withstand scrutiny. As this Court concluded, Morrison and Edmond can be read to be in harmony. But even if there were any significant “tension” between the two Supreme Court cases, defendant’s contention ignores a fundamental principle that governs the resolution of legal issues by the District Courts and the Courts of Appeals, namely the obligation of the federal courts to faithfully apply Supreme Court precedent in the absence of some clear command to the contrary. This Court’s decision in this case was based upon such an application of binding precedent. [my emphasis]

In a nice touch--responding obliquely to the Amici Illuminati--Fitzgerald even deals with the Scalia dissent on the Morrison case.

This factor carries even greater weight in this case because the Special Counsel is removable at will; his delegation of authority may be revoked without cause and without further review. As has been pointed out – and it bears repeating – Justice Scalia’s dissent in Morrison explicitly stated that had the Independent Counsel been removable at will, even in his view of the Appointments Clause, the Independent Counsel statute would have passed constitutional muster.

And then, not to leave the Executive Branch out, Fitzgerald cites the same principle of law that Alberto Gonzales used to delegate his hiring and firing authority to Sampson and Delilah Goodling.

This Court had little difficulty concluding that the plain language of Section 510 allows the Attorney General to delegate any of his authority, including the authority to supervise and direct criminal cases: “This result is compelled, as there is no language in Section 510 which limits the type of functions which can be delegated.”

And just for good measure, Fitzgerald repeats the reference to the Attorney General's delegation authority in the footnote to the Amici Illuminati.

This ignores that the Attorney General, acting pursuant to statute, delegated authority to a Department of Justice attorney holding the statutory office of United States Attorney, subject to revocation at will.

Perhaps the focus on basic constitutional issues would be heavy handed if the Defense hadn't made such a disingenuous argument in its motion for bond pending appeal.

[A ruling that Fitzgerald's appointment was unconstitutional] would not, contrary to the Court's concerns, immunize high-level administration officials from future investigation and prosecution. Indeed, the Department's own regulations provide for the appointment of a special counsel who is subject to supervision and direction by the Attorney General.

In an era in which the Attorney General appears to have lied to Congress on repeated occasion and helped the President implement a domestic spying program that the DOJ found to be unconstititional, don't you think that footnote rather proves the point?

In any case, that's where Team USA does the heavy lifting. The bar for appeal on evidentiary issues is much higher and Defense's arguments are much more silly, and Fitzgerald's tone adopts a suitable level of disdain, as when Fitzgerald points out that the Defense's reasons for appealing on Mitchell's testimony rests upon a theory that invokes a chain of inferences, none of which have evidence to support it.

Likewise, defendant’s suggestion that, had Ms. Mitchell testified, the jury may have inferred from her demeanor or otherwise that Ms. Mitchell had heard a rumor about Ms. Wilson, told Mr. Russert about it, and later lied to protect Mr. Russert and the NBC franchise from embarrassment (Def. Mot. 21), is fantastical, as is the proposition that this unsupported “theory” raises a legal question regarding whether a factfinder may properly infer from demeanor evidence alone that the opposite of what a witness says is true. In fact, the utter and complete lack of evidence supporting defendant’s “theory” is persuasive proof of the correctness of this Court’s determination that defendant’s purpose in calling Ms. Mitchell was merely to put her October 3, 2003 statement before the jury. There is no reasonable possibility that the court of appeals will disagree.

Perhaps my favorite passages in the response, however, are those that point out that Libby is basing his appeal on issues that he didn't even attempt to use at trial. For example, Fitzgerald points out how silly it is to complain about CIPA substitutions when Libby didn't make the first step required--taking the stand--to actually use the evidence produced through the CIPA process.

The defendant first contends that the adequacy of the government’s proposed substitutions under § 6(c) of CIPA provides a basis under which he should be granted release pending appeal. This is simply not true. First, it is of no small import that despite the favorable rulings the defendant received throughout the CIPA § 6(a) stage, and the fact that he had available to him extremely detailed and voluminous substitutions, he failed to make use of most of those substitutions at trial. Having not even used the substitutions as part of his defense, the defendant has no basis by which he can claim that a different ruling on the adequacy of the substitutions would result in reversal or an order for a new trial.

It can't have been very serious, can it, if Libby didn't even attempt to avail himself of this evidence in the trial. Likewise, his need to have the CIA briefing evidence submitted at trial can't have been very serious when he didn't call a readily available witness who could have testified to the content of Libby's CIA briefings, not to mention how seriously he appeared to take the content of those briefings.

In addition, it is worth noting, as this Court did, 29 that the defendant had the opportunity to call a number of other witnesses at trial to provide additional testimony relating to information in the Statement. See Libby, 475 F. Supp. 2d at 91 n.21. The defendant’s failure to call those witnesses, including the Vice President (who was present with the defendant during many of the intelligence briefings and could offer better testimony than the briefer Mr. Schmall as to the defendant’s responsibilities), should not now enable him to claim that his defense was somehow impaired by his inability to admit information contained within the Statement. [my emphasis]

You think maybe the government is still cranky about the double headfake Team Libby pulled with the Libby and Dick testimony?

I know I am.

Comments

[Jodi]

Fitzberald is doing what prosecutors do. No surprise. The defense will do their job also. I hope that they rely less on Wells' hysterics and more on good thinking and the law.

I am no lawyer, but many lawyers say that Libby does have an appealable case, and should be free pending his appeal.

[bmaz]

Ah, I see you navigated your way through the entirety of the Government's pleading. I had to stop for lunch about halfway through; needed the nourishment to continue. Despite it's length, a pretty fine piece of work. This is exactly why I have been so repetitively commenting on the Amici Illuminati's failure to distinguish Morrison. Contrary to the efforts of the defense and friends, there seems to be very little straining to make the requisite legal arguments; they flow naturally from the law and facts, a hallmark of Fitzgerald and his team. The one issue I might take with is your last statement regarding the potential for testimony by Cheney and Libby. I am positive he was perfectly prepared for it, but I find it hard to believe that Fitz really thought they would take the stand. Nice turn of a phrase that "Amici Illuminati".

[freepatriot]

Yo EW, you ARE my muse

now for some troll biskets:

you got one thing right, shit stain, you ain't no lawyer

you ain't even a logical thinker, and that's kinda required of a lawyer

also, I think a lawyer would be required to make decisions based upon "facts", not "beliefs", so you're kinda disqualified from being a lawyer, ain't ya, shit stain ???

cheer up shit stain, I'm sure you could get a degree from regency school of law and small engine repair

even an idiot like you should be able to repair small engines without killing yourself ...

and I'm willing to test that theory ...

[emptywheel]

bmaz

Oh, I'm not suggesting that Fitz ever thought Cheney would take the stand. No chance. If he had, Conyers would be firing up the impeachment bus, as we speak. But regardless of whether the bid to put Cheney or Libby on the stand, the claim they were going to do so made the government (both Fitz and Reggie) spend a lot of time they shouldn't have spent.

Also, as I re-read the Defense brief and the Amici Illuminati brief, I kept thinking of your argument that the A.I. brief was a journal article. I haven't checked, but if I had to guess, I'd guess that they took an Akhil Reed Amar article and rewrote it. Did Vikram borrow his brother's work for a brief he wouldn't support?

[emptywheel]

Oh, and Amici Illuminati is not my term--it's from someone here in the comments. I wish it were. It gives them all the considerable respect they deserve.

[Dismayed]

Jodi, Thank you as always for informing us of the official far right talking point. For those of you who don't know, Jodi is our beloved troll, and, in my opinion, more than one person. Please don't feed her.

[Sparkles the Iguana]

Did we ever hear from Lady Greenspan? She kept saying she wouldn't discuss it until the trial was over. Waiting....

[bmaz]

Hee hee - That lovely little appellation was my invention. Interesting thought on the Amars. You would think it would be the other way around between the two of them; but it could be. I'll prowl around a bit tonight (assuming I remember) and see if I can find the genesis. I am not sure about that thought I had, but it sure does strike me that way.

[Ishmael]

Bmaz & EW - FWIW, I agree that the tone of the AB was that of a re-jigged journal article, cut and pasted. The appeal strategy adopted by the defence from the outset regarding the appointment clause required the AB to adopt a very strained interpretation of overrule of Morrison by implication in Edmonds. The Supreme Court is very well aware of its precedents, if it wants to overrule it says so, or makes a point of distinguishing the prior case - neither of which happened in Edmonds. If a less-illuminated group of lawyers were making this argument (say the legal equivalent of DFH bloggers, a lawyer such as myself), s/he would be looking at a very unpleasant afternoon before a cranky appeal bench. Hanging your hat on a Scalia dissent (of one!), where he expressly states that he would have decided a case on the Libby facts differently is legal chutzpah. Since jury nullification didn't work, even though some jurors felt that Libby wasn't the lone gunman, the defence can only try Appeal Court nullification, supported by the media and the Federalist Society.

[freepatriot]

Advice to any newbies out there, this community can be lethal to the reputation of crooked public officials

to any crooked public officials who might read this:

if "emptywheel and friends" get on your case, you're roped. Plead guilty and save yourself the slow torture of exposure

you couldn't sneak a crumb of evidence past this crowd

reading bmaz and ew expose the history of the AI brief (heh) I get the idea that the children of the people around here had a very miserable childhood

if you didn't take the cookies, why are your fingerprints all over the cookie jar, and why do you have crumbs on your shirt, and is that a chocolate smear on your face, and isn't that your footprint in the dust on the floor by the cookie jar...

I got visions of children tramatized by parents with binder full of overwhelming evidence

It's almost enough to make me feel sorry for scooter, if scooter were a child ...

well ... maybe not

[emptywheel]

bmaz

I say that because the Tribe quotes appear to be nested in the Amar quotes, and because of the way the Defense uses Amar in their brief. I could be wrong, but it seems like an argument Akhil may have made for a different purpose.

Sorry for not remembering who made the AI appellation. The weekend is now a blur.

Ishmael

I like that notion: Appeals Court nullification. Of course, with Silberman, you don't even need that. You just need bold-faced partisanship.

[freepatriot]

props to Ishmael too

I think the term we're looking for here is PLAGERISM

try that shit at the local junior college and you'll be out on your ass

I hear it's like that at most academic institutions

cept at regency law school, where you could probably qualify for an "Honors" degree this way

[bmaz]

EW, what meager contributions I have are always yours for the taking, I was Joshing and you know it. I'll take another look at the quote nesting. Tell the truth, I hadn't looked at it that hard, the retooled article thought just kind of stuck out my first time through. the reason I made the comment above was simply that my limited exposure to the two Amars led me to believe Vikram was the more enlightened of the two. I don't really have enough foundation to say that with any confidence though. Any idea how many cases Silberman is sitting on these days or how they are using him in the assignment rotation?

FreePatriot - A very carefree childhood here, as long as you kept your nose in the books. Also, I wouldn't call it plagiarism necessarily, one or more of those clucks authored the core argument I would think.

[Mimikatz]

Jodi--EVERY case is appealable. There is an appeal as of right to the Court of Appeals. The question is whether the appeal is winnable.

The argument against Fitz's appointment sure has holes. Thanks, EW.

[earlofhuntingdon]

I'm sure that if anybody, lawyer or lay, had a good suggestion for why Libby should be free pending appeal, they'd tell us. Claiming that an argument is decisive without actually making the argument is a tired Rovian limerick. Thankfully, that tack doesn't make much headway with this crowd.

[Sebastian Dangerfield]

bmaz: I can tell you from first-hand experience that Silberman is still in heavy rotation. And now we have not just him and Sentelle and K.L. Henderson -- but the hacktacular Kavanaugh and J.R. Brown to boot. I shudder to think, but the wheel could yield some really bad panels -- and I think that Wells has telegraphed that he's going to try to get some super-expedited review of Walton's bail ruling. Too bad for Team Libby: the judges have already begun their summer recess. I'm sure there is some provision for emergency appeals (i.e., death sentence cases, injunctions in cases involving massive irreparable harms), but I'd like to think that the court will not consider one wealthy and well-connected convicted felon's effort to avoid serving so much as a day of his sentence to be a true emergency.

[bmaz]

Sebastian - Thanks for the info. Summer recess was behind my question as to how fully Silberman is in the wheel. Recess, as you probably know, often leads to heavy involvement of Seniors if they have not been in heavy rotation; especially if it is an expedited matter. I understand fully the nightmare that is Janice Brown from her days in California. My condolences to you, but I was glad to get her out of my neighboring state, because i had a few cases that bled over there and I lived in fear of running into her. I will say this, I have actually seen attorneys distinguish a case by saying "well, this is a Brown opinion...".

[emptywheel]

Sebastian

Can you say more about the impact the recess might have on a Libby appeal? IIRC Judge Walton said it'd take the BOP 45 days to "process" Libby. Will they be able to get to Silberman before then?

[bmaz]

They can start their approach to the Circuit Court as soon as Walton lodges a final sentencing order.

[nolo]

and that final order -- i think -- can
come as early as thursday at 1:40 p.m., right?

i do much admire the crystal-clear
road-map team fitz has laid out -- listen up,
d.c. circuit appeals panel (or, en
banc) -- you have no authority to
over-rule the united states supreme court's
controlling precedents in this case, just
to get to the result you might favor -- the
actual quote:

". . .defendant’s contention ignores a fundamental principle that governs the resolution of legal issues by the District Courts and the Courts of Appeals, namely the obligation of the federal courts to faithfully apply Supreme Court precedent in the absence of some clear command to the contrary. This Court’s decision in this case was based upon such an application of binding precedent. The Court of Appeals also is obligated to apply Morrison. . .[ed. note: and even if scalia's dissent in morrison were the law applicable, note the following:]

. . .it bears repeating -- Justice Scalia’s dissent in Morrison explicitly stated that had the Independent Counsel been removable at will, even in his view of the Appointments Clause, the Independent Counsel statute would have passed constitutional muster. Morrison, 487 U.S. at 716 (Scalia, J., dissenting) (stating that if the Independent Counsel was removable at will by the Attorney General 'then she would be subordinate to him thus properly designated as inferior.'). . ."

[Swopa]

"... listen up, d.c. circuit appeals panel (or, en banc) -- you have no authority to over-rule the united states supreme court's controlling precedents in this case, just to get to the result you might favor..."

Unless, of course, Kennedy decides to throw in with the 4 Wingnuts of the Apocalypse, in which case the Supreme Court will tell Silberman & Co. to do as they please.

[emptywheel]

nolo

I agree--Fitz wrote this to the Silbermans of the world as much as he did Reggie (Reggie's going to do what he will do, and pestering him at this point is just going to make him cranky).

That said, I'm sure the Silbermans of the world are talking to the folks upstairs as much as Reggie was during the trial. I'm not convinced they'll use the Appointments Clause (bc against the background of the DOJ scandal, it'd invite a Special Investigator law). But they're dreaming up their reason to overturn now, I'm sure.

[nolo]

swopa -- i hear you. but my point,
such as it was, erh. . . was, that the
chronology of it all means scooter must
sit in jail -- at least for a bit -- even
if the newly rightie-fied supremes see
fit to over-rule morrison, expressly.

you see -- as i've written elsewhere,
scooter does not have any "right" to
be heard by the supremes, on his appeal.

no, cert. will be discretionary only, here.

so, even if the supremes are inclined to
grant him an extraordinary writ of
certorari, they will have to wait for
a final, appealable order from the d.c.
circuit court of appeals. . . which,
in turn, can only come after judge walton
has entered a final d.c. district court
order of sentence (perhaps thursday), AND
after briefs, motions and arguments, all
again, at the appellate level -- before
silberman or not -- in short, scooter goes
to jail, no matter what happens from here. . .

save, of course, a pardon.

now, unfortunately -- as irony often would
(erh, does) have it -- i am beginning to
believe that as the chances of scooter serving
at least some time increase (as they did
today, after team fitzs' stellar filing!),
so, too, do the chances of a pardon. . .

and if that happens this summer -- it will
be a long, hot summer of protest, i predict. . .

can you say "mmmmmm-peach-ment?"

i can. you can too.

[nolo]

EW -- i do think the supremes may look
for a reason to overturn -- and will
very likely grant cert. on some issue -- but,
thank godesses(!), judge walton has carefully
crafted as near-a-bullet-proof record at
trial as one might ever wish for, given
the complexity of proving this particular
federal criminal case. . .

i just want -- with all the pieces of
my heart! -- to see scooter do at least
some jail-time for what he did to
valerie plame, and for criminally
obstructing justice, with his pro-
tection of the sitting vice president. . .
who allegedly master-minded this
whole sordid, awful, disgraceful affair. . .

and may i say -- such a great
set of posts, here, today!

well-done!

[bmaz]

Oh no, nolo, done properly, Libby could have an answer from the Supremes before he ever has to self report for incarceration. These issues have already been briefed fairly completely, and my guess is Jeffress already has all transcripts, including sentencing, expedited and ready for certification and transfer to the Circuit Court, which is simply on another floor of the same courthouse. This can can really be moved along by separating off the remand issue as an interlocutory application, which i think the Circuit Court would probably entertain.