The most telling detail from Team Libby's response in support of bond pending appeal is this one:
(D.C. Bar No. 420260)
Robbins, Russell, Englert, Orseck and Untereiner
Team Libby has added a lawyer. A lawyer who specializes in championing cases before SCOTUS.
Robbins, Russell spins courtroom losses into U.S. Supreme Court wins.
Its lawyers have argued six cases before the U.S. Supreme Court, including two back-to-back one morning in December 2002. It has four wins and one split decision. [this was written in 2005]
"They ae basically a portable appellate department,"
Said lawyer has brought an entirely different tone to the response brief: nasty and a bit disingenuous. As one example:
The government virtually concedes that, if this case is controlled by the "direction and supervision" test set forth Edmond v. United States ... then Mr. Libby's Appointments Clause challenge presents (at the least) a "close" question for appeal.
But the government did no such thing. The government points out that Edmond states that removability at will is a "powerful tool for control," which is a detail the Defense likes to gloss over.
This Court stated that it “would have no basis for adopting the view that an inferior officer must be under active day-to-day supervision. Rather, an inferior officer’s work must be simply be ‘directed and supervised at some level.’” Id. After reviewing the limits on the Special Counsel’s authority, including removability at will (which Edmond labeled a “powerful tool for control”), this Court concluded that for purposes of the Appointments Clause, “the Special Counsel is subject to the direction and control of the Deputy Attorney General.” Id. Even if this Court had applied Edmond, the defendant’s argument that Edmond requires day-to-day supervision, while perhaps presenting a more difficult question than the application of Morrison, would not present a substantial issue on appeal.
More difficult but not a substantial issue on appeal, concedes ... those are not the same things, huh?
So today's hearing should have some interesting new personality dynamics. Good thing we've got the blogosphere's resident shrink liveblogging it.
One thing the addition of Robbins suggests, though, is these guys aren't going to roll over and let Libby be pardoned anytime soon. Robbins' job is to get this reversed, before Justice Roberts' court if need be.
No wonder they're so desperate to win Libby bail pending appeal.