Bork Tries to Fire Another Prosecutor

by emptywheel

How appropriate that Robert Bork would weigh in on the Libby conviction to assert that Fitzgerald's appointment might not be constitutional. Over thirty years later and he's still trying to fire the guy investigating the Republican Administration.

Mind you, Bork is not alone. Vikram Amar, Randy Barnett, Alan Dershowitz, Viet Dinh, Douglas Kmiec, Gary Lawson, Earl Maltz, Thomas Merrill, Robert Nagel, Richard Parker, and Robert Pushaw. Some interesting in names in that list, from a fwe good liberals, to architects of unitary executive, to Dershowitz, who served as such a nice liberal voice justifying torture.

At issue, these constitutional law scholars argue, is whether or not Fitzgerald was acting as an inferior or superior officer. His example is not precisely similar to previous examples of special counsels, and therefore it needs to be judged anew.

I'm going to go visit with my mom, so others are going to have to weigh in on the legal strength of this brief. I will say, from a rhetorical standpoint it is quite strong. I especially like how they use Lawrence Tribe to make many of their key arguments. They also use some of Comey's shrewdest moves designed to allow Fitzgerald to carry out his investigation against the constitutionality of the position now. No dummies, these guys.

That said, I do want to stress that this issue has ramifications beyond the question of whether Libby goes to jail before Bush pardons him. Here's what Judge Walton had to say about the issue (sorry that it's so sketchy--the server was crashing):

Walton: as far as appointment clause, the question is the extent to which there is appropriate supervision over Mr. Fitz and his operation. He was obviously confirmed by senate, occupies a position in Chicago as USA, he was tasked to conduct this investigation, even though AG, and DAG, have recused themselves, there was no indication they had recused themselves wrt supervisory issues if he did not conduct himself according to rules and regulations of DOJ.

Otherwise it seems to me that people who occupy high levels of DOJ, it would mean people who have direct responsibility for DOJ couldn’t be brought in. [my emphasis]

Walton provides a basic claim that Fitzgerald is an inferior officer since the AG could still fire him (hell--in this DOJ, even Kyle Sampson or Monica Goodling could fire him, apparently). More importantly, Walton explains the reason for the necessary legality of the Special Counsel: Because if we can't have a Special Counsel free of direct oversight of the AG, then there is no way to investigate those who occupy high levels of DOJ or those who have direct responsibility for it.

In other words, if Fitzgerald's appointment is unconstitutional, Walton was arguing, we can't hold Alberto Gonzales or Dick Cheney or George Bush to account.

That's not really a constitutional argument, mind you, it's a pragmatic one. But it really underscores the importance of this issue. Because Bork is not just trying to get Fitzgerald fired. He's trying to get the next Special Counsel--the one investigating BushCo constitutional violations--fired.

Comments

[pontificator]

Meanwhile, Bork is suing the Yale Club

Robert Bork , the one-time U.S. Supreme Court nominee, has sued the Yale Club for negligence. He is seeking $1 million in damages for injuries he sustained from a fall at the club last year.

http://blogs.wsj.com/law/2007/06/07/robert-bork-files-slip-and-fall-lawsuit-against-yale-club/

[p.lukasiak]

The key fact that the amicus brief seems to miss is that Fitzgerald's powers were the result of mutual agreement -- an agreement that could be breached at at point. What Comey giveth, Comey -- or his successor -- can taketh away.

There was nothing that actually prevented anyone from attempting to "supervise" Fitzgerald despite the agreement -- no penalties would accrue to anyone who demanded that Fitzgerald act in accordance with their wishes, and without there being any penalties, the "non-supervision" provision was not enforceable.

In other words, the "independent" powers conferred in the special prosecutor agreement was purely voluntary, and non-enforceable. The agreement represented an appropriate exercise of discretion on the part of Justice Department officials to not interfere with a case involving serious conflict-of-interest issues.

[Albert Fall]

This looks like cover to gin up an issue for Libby to appeal, in the absence of legitimate appealable errors in the trial.

When you look at the letter writing campaign, the continuous array of talking points over the past years, the coordination with various Rep front people coming out to be the face of the administration's arguments so that Rove does not have to make them himself, you see a great deal of time and effot spent to shape public perception on this matter.

My reaction.......Hey, there really is a vast right wing conspiracy.

[Woodhall Hollow]

IANAL but this approach, if successful, is chilling. That would mean that as long as the DoJ is run by Rove and Cheney (have they formally divvied up the turf? Karl gets Civil and Voting Rights and Dick gets Nat'l Security?), without some kind of mechanism for the appointment of a Special Prosecutor, then there is no chance that anything will ever be meaningfully investigated, which would give the Bushites 2 years to destroy evidence and cover their trail.

I also have a sinking feeling that the argument put forward in this brief will be very appealing to some of the wingnut judges now serving on the DC Circuit. And the Supreme Court, for that matter, were it ever able to get there.

Question: does Congress have a right to appoint a Special Prosecutor (w/out a Presidential signature) or can it only be done through the DoJ now that the Independent Counsel law is no more?

[oldtree]

Bork has always been a questionable human. He has admitted to idealizing the fascist way of life. He was put back in a box when a congress refused to install him in a position they knew he would abuse.
oh, but he is important today because he opens up the cake hole and starts spewing his racist, paternalist doctrine where he proves yet again, that he is the only person worthy of consideration for the job of god emperor.
I hope we get a new government that will make what this thing does for a living, illegal and punishable by prison. how many criminal enterprises has this "scholar" been involved with?

[*xyz]

Dershowitz's predictions for the Libby trial are below (from a Huffpo article published in November 2005).

Note that the article does not directly mention the issues raised in the amicus brief. Dershowitz was focused on the extent of Fitzgerald's power, not the underlying appointment of Fitzgerald.

http://www.huffingtonpost.com/alan-dershowitz/scooter-libby-prediction_b_10113.html

"The independent prosecutor will seek to turn the [graymail] material over... But the intelligence agencies will veto the independent prosecutor’s decision, claiming that disclosure of the requested classified material would endanger national security.

The question will then be posed quite starkly: who makes the final decision about whether to disclose such material? Does the independent prosecutor have final authority? Or do the intelligence branches have final authority?

[snip]

This is only one possible scenario, but it is a highly plausible one. It is important, therefore, for the decision to be made now as to how much power the independent prosecutor has. If he does not have the authority to disclose classified material, then he is a Potemkin prosecutor, not an independent one. Stay tuned."

[emptywheel]

Thanks for that, xyz.

Kind of curious that he didn't make that power argument then--it appears the outcome of the graymail is a case ruling against the brief, since Fitz wasn't able to make the final decision.

[Neil]

Consitutional lawyers, is the argument a reach or does it have merit? Can we expect the counter-argument in Fitz's brief next Tuesday? If the decision merely implicates whether Libby is allowed out on bail during appeal, then so be it. It seems that decision is Walton call as to whether this issue is a close question - could go either way. If the decision could allow the verdict to be overturned, I'll be dissapointed. EW, thanks for putting this up.

[albert fall]

One further reflection, I see the law prof document as feeding both the Cheney faction and the Rove faction.

Cheney wants to rescue his foot soldier Scooter, and Rove and Cheney both want to put Fitzgerald out of the counting now before another revelation gives Fitz ammunition to renew the investigation against them.

[Woodhall Hollow]

Albert Fall, yes that, and also to prevent the appointment of another one to look into illegal activities in the DoJ--which of course, would once again lead right back to Rove and Cheney.

[whenwego]

BTW, did you notice Bork the king of anti-tort is suing because he fell in some New York club?

[Mimikatz]

I am no longer a laywer and am abusing my status as a guest in someone else's home as it is, but the argument made above that DOJ COULD have reined Fitz in makes sense. They could have fired him as USA or probably as Special Prosecutor, but the political ramifications before the 2004 election were too great. By the time that the investigation heated up and Fitz got close to indictments, Katrina had happened and Rover must have realized that Bush's slow hemorrhaging of his popularity would become fatal if they fired Fitz.

I also agree that the argument is directed at the next SP. Congress should pass a new SP/IC act and let Bush veto it. What I'm afraid they do is wait too long and then watch it used against the next Dem pres, But now that the public is with them generally is the time to try.

[Woodhall Hollow]

According to Kyle Sampson, they certainly thought about firing Fitz. And I am would be willing to bet Kyle's last paycheck, that despite his protestations that it was just a "stupid idea," that they thought long and hard about it, and figured out that they actually COULD do it, but only backed off because of the political ramifications.

[MarkH]

An Independent Prosecutor is all too easily an Independent Inquisitor as Dems say Ken Starr was. It's not supported by Repubs who prefer not to be investigated and it's not currently supported by Dems who hate the politicized attacks on Clinton.

So, that leaves us with a Special Prosecutor/Investigator like Fitzgerald. The political pressures are there, as always, so let's see whether that kind of controlled independence holds up in practice. So far so good with Fitz.

[ab initio]

All this is just ginning up the PR campaign to a) put pressure on Walton to provide bail while the appeals are pending b) provide the talking points to the DC Circuit wingnuts to overturn the conviction c) provide the rationale for Shooter's campaign to get the pardon.

You've got to give the wingnuts credit for their chutzpah and hypocrisy. They parse IIPA to no end but were foaming at the mouth when Clinton was parsing "is". They are the first ones to file tort claims while decrying trial layers. The loudest voices against nation building but the cheerleaders for the biggest nation building debacle in modern US history. Fierce in their denouncement of government spending but the biggest spenders in actuality looting taxpayers with their crony capitalism.

Folks, there has been a subtle coup underway for decades with the cabal working every angle and infiltrating all aspects of political and government activity to entrench their power. The opposition at this juncture does not even fully recognize the depths to which the cabal will go - destroy the country and its constitution - let alone counteract in a focused and determined manner. We are paying as they have been able to skate from Watergate to Iran-Contra. Only a sustained campaign like against the mob to root out this cancer will work.

[freepatriot]

so george wants to fire the prosecutor ???

how'd that work out for tricky dick ???

kinda stupid to hire the fool who ruined his own life the same way in the nixon administration

[Sailmaker]

Whatever they (Bork and SCOTUS) are cooking up must be good: we have Thomas already on record as saying, "we have to pray for your brother, he's in real trouble " to Sandy Bush Koch. http://www.boomantribune.com/user/uid:2041/diary

[albert fall]

Per TPM, Bush has a "surge" in his legal staff:

http://www.talkingpointsmemo.com/archives/014531.php

Let the subpoena battles begin.

[jdm]

Bork's longstanding tendency towards verbosity in the extreme... as in "whatever it takes" to obscure the spirit of the law, strikes again!!! He'll sharpen his pen to construct an exception for a convicted perjurer on "the team", but throwing Habeus Corpus on the scrap heap...

I think it's time to start dredging up some Ken Starr quotes.

[John Lopresti]

I appreciate the link to the defense brief by the amici; it's intricacy seemed adumbrated in the liveblog the other day at FDL, wherein government special counsel bridled at the putative contstraint of having to write a reply in 96 hours. Well, the profession has written many of its annals based on the meticulous work misfortunate intellectual attorneys were forced by rigid timelines to author during Thanksgiving holidays and spending New Year's eve before the hearth adding yet a few more footnotes while opposing counsel attended festivities cavorting with extra exhuberance because of the plight of the respondent who would lose recreation time in order to write a competent exegesis in points and authorities. Fitzgerald can do this; congress itself will be grateful to him for his completing his writing effort by the agreed-upon next Tuesday.

The amici are mostly people whose writings I avoid, however, in this instance. For some reason, Kmiec's inclusion in that group sparked recall of a recent online argument in which he was a principal protagonist, though it is published at an academic website which has become marred by pay--as-you-go upscale trolls seeking to deflect whatever perspicacity contributors attempt to discuss; with those drawbacks as caveats, it is worth reading that discussion which took place May 17, 2007; the topic was Kmiec's apologesis for Gonzales and his editorializing against the Comey story of the night when there might have been two attorneys general told at the congressional hearing recently. It is more than coincidence that the themes in the linked Kmiec thread and Comey's adventure tale involve 4th amendment rights, telco wiretapping, torture, unctuous executive lemmas, and even the distinguished blue-ribbon ABA panel's moderately high dudgeon in the signing statements policy review conducted at the yearly meeting in HI and released as July 2006 waned. And all this is with regard to only one of the amici. Maybe the SC construct is imperfect, but like the solutions which some large modern government agencies represent bridging the zones of influence of the several branches of government, SC has a utilitarian function which is unlikely to find in Judge RWalton a critic in this post IC world.

[pianissimo]

As far as I can tell, the amicus brief is a ridiculous mishmash of argument. The comparison of "inferior" executive branch officers to the judges sitting on inferior courts is a real hoot, and as far as I can tell depends merely on the repetition of the word "inferior." In other words, this is argument based on a bad pun. Judges (even ones in lower courts) have a different *function* in the constitutional system, and using them as a basis for comparison with executive branch officials is truly brainless.

And you have to love that last paragraph that complains Fitzgerald was "too independent." Sounds like a good title for Fitz's memoirs....

[Gee]

That Alan Dershowitz is the highest-profile "liberal" they could get to sign on to this is deeply telling.

Laying aside the question of whether he is a liberal at all--I would say he is not--the fact is that in the legal academy Dershowitz is considered something of a joke, a self-promoting blowhard and a third-rate scholar. This is how he is viewed across the ideological spectrum.

As one highly esteemed scholar at a top five law school said in 2001:

"I had thought that not enough bad things could ever be said about Bush v. Gore. And then Alan Dershowitz wrote a book."
.

[UncleSammy]

The letter of Plenary Authority that Fitz has, including the second where Comey again outlines Fitz authority is locked up tight against idiots like Dershowitz and Bork. That is one nut even legal manipulators such as themselves can't undo. haha Comey got them good...he knew their kind!

[Ed*ard Teller]

Bork is not just trying to get Fitzgerald fired. He's trying to get the next Special Counsel--the one investigating BushCo constitutional violations--fired.

An interesting aside. Soon after Bork, as acting attorney general, fired Archibald Cox, I did a radio news story on the term "Bork," which then became a verb defining a sleazy opportunist who would obey any politically motivated order. Cox had been "borked." Later, when Bork failed to obtain a seat on the Supreme Court, the new meaning of the verb "Bork" came to be a word describing the process of keeping somebody from obtaining a politically controlled office. Bork had been "borked." In the urban dictionary, the newer term is definition # 2, the older one is #23. Wikipedia doesn't even mention the older term under their article on the man.

[Steve J.]

in the legal academy Dershowitz is considered something of a joke, a self-promoting blowhard and a third-rate scholar.

If so, how did he get tenure?

[Duncan Hare]

Hmmm

"Cabinet members are removable at will but they are constitutionally not inferior"
an interesting assertion, and possibly not correct as Cabinet Secretaries most certainly take direction from their superior (it's called policy, as in the 'policy of this adminsitration'), the President (and Vice President in this adminsitration).

Is there any good law that establishes this assertion? Becuase of there is not, then the argument in the amicus brief falls apart, as this assertion is the key stone of their argument.

Help from a good law student anyone?

If so, I'll pay for the counter amicus brief. ([email protected])

[raj]

It strikes me that Libby's defense waived the issue of the constitutionality of Fitzgerald's appointment by not raising it after the indictment came down, or at or before the beginning of trial. Third parties raising it at or after sentencing is pretty much irrelevant.

[Joe]

Amar has an absolutist argument up at Findlaw using the concurrence to Bush v. Gore as a core argument to striking down the Wyoming law involving Senate vacancies as unconstitutional.

It is a one sided "in for a penny, in for a pound" defense of executive power in no way compelled by the 17A, though he gives no real equal time to the other side in the piece. I'm thus not that surprised he joined in this argument, one that sounds pretty lame.

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