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June 20, 2007

Comments

EW - very good news on the appeal panel. Do you know how such panels are filled out in the DC Circuit? My experience ranges from whatever the Chief Justice of the Court in question decides, to a random wheel, to considerations of particular expertise in the subject of the appeal.

Also encouraging - leave for appeal to file the amici brief on appeal - DENIED!!! The A.I. must be very insulted!

Oops - missed your last line on the AI. Sorry!

I thought we weren't going to know the identity of the panel until their final ruling was made. This is a real surprise.

*xyz

That's what I thought too. Am I misreading the order?

nah -- EW, i think you've gotten it right!

this is very fine news! great scoop!

it is not on pacer yet, cool!

we do not know -- yet -- whether
these were to be the same amici --
illuminated, or not so. . .

that part remains luminous, i think. . .

but no matter -- we won't need 'em!

At least someone sensible that has refused to hear the propaganda of the right wing luminati.

so the wingnuts are gonna be screaming about "activist" judges soon ???

I mean, considering that the judges ain't likely to act the way the wingnuts want, they must be "Activist" judges, right ???

anybody wanna take some bets on how long it takes the wingnuts to start howling ???

Judge Tatel, IIRC, he's the author of the ruling that included the phrase "The Plot Against Wilson", how likely is it that Judge tatel is willing to buy the "No Underlying Crime" argument ???

freepatriot

Exactly, my friend. The truly activist judges those that believe the bill of rights is superseded by "national security" and those that believe that Jack Bauer was a hero are "strict constructionists" while those that rule against any wingnut or authoritarian scheme are surely "activist" and needs to be hounded out.

It was, iirc, Dan Froomkin who got a statement from the clerk that the panel wasn't named until the decision was announced. Could it be that this panel, determining the Illuminati's legitimacy to be friendly, is the same panel that will decide the bond appeal?

ya, i'm worried about the noise. we know the panel too early. can they be cloistered like a jury so that they can ignore the shrieking sillys?
enjoyed all the youtubbies from the TBA. smart dresser that EW!
off to see "paris je t'aime"--any reviews?

It was, iirc, Dan Froomkin who got a statement from the clerk that the panel wasn't named until the decision was announced. Could it be that this panel, determining the Illuminati's legitimacy to be friendly, is the same panel that will decide the bond appeal?

Posted by: TeddySanFran | June 20, 2007 at 18:28

let us be clear here -- this is the
panel to decide the "release while on
appeal" motion -- the appeal itself, like
the panel that will hear that appeal "on
the merits" -- does not yet exist.

that is, robbins hasn't filed the
"on the merits" appeal yet -- this is
the "is it a close enough question"
to let him out, while on appeal, filing,
and panel. . .

so both pieces of information are consistent.

and yes, EW, this is expedited scheduling.

i actually think that makes it MORE likely
the panel is already set to deny the motion
to keep him out -- giving fitz only until
friday on a filing he saw last night for
the first time. . .

but i am -- as ever - the optimist, here. . .

I think it is fair to assume that this is the panel that is hearing the appeal, and has been assigned because they had the earlier matters. Certainly, if they are denying the amici brief they are going to be deciding the motion for release pending appeal issue, as it makes no sense to have one set of judges decide the briefing schedule and whether an amici brief will be accepted, but have another set of judges decide the actual motion...

by the way, anyone have a link to Libby's motion? I've seen news stories about it, but not the actual motion.

IANA American lawyer, but I think nolo is right, and that this is an interlocutory appeal panel on the stay/bail issues only, not the appeal on the merits. We may not know the identity of the judges on that panel until they walk into the courtroom.

What is the normal length of time an appeal on the merits takes in this court? And if the bail appeal is denied, how long does Libby have to appeal his conviction?

Tick tock tick tock. Time's running out, Scooter. Every Hail Mary your team has thrown has been a miserable failure. You can either go down in history as an unrepentant liar or as a repentant one. Either way, you're going down.

by the way, anyone have a link to Libby's motion? I've seen news stories about it, but not the actual motion.

Posted by: bushworstpresidentever | June 20, 2007 at 18:41

here is the link -- from lawrence s. robbin's
firm site -- it is 122 pages of PDF, about
3.8 megs
. . . f.y.i. -- best on broadband. . .

next -- all i am saying is that it
is possible that a differing panel
will hear the underlying appeal, or
the appeal may be heard en banc
(or, "by all" -- though that would be
astonishing!) -- i do think the same panel
will ultimately hear the appeal on the merits.

today we are looking at whether he is to be
out on bail during that time -- while
all of the appeals are still-pending.

it is thus a "process" -- not "merits" -- hearing.

I agree with all those who say this is only the panel for the release question. BUt IMO that is the big issue. If Libby doesn't go to jail now, he likely never will.

That said, Seamus, Walton said procssing would take 6-8 weeks (one has already passed). So that's how much time Libby has left for his appeal.

What is the normal length of time an appeal on the merits takes in this court? And if the bail appeal is denied, how long does Libby have to appeal his conviction?

Posted by: Seamus | June 20, 2007 at 18:51

seamus -- the "normal" time is a fluid notion.

in his case, it could be late fall by the time
the merits are heard -- see my too long-ish, wonk-ish
post on that
, here. . . the upshot is that it will
be about fifty days after the last brief is filed, before
the oral argument is held, then more time for the opinion to issue. . .

as to this expedited process hearing, it
could be right after the fourth of july break. . .

then he would likely get a quick answer on
any petition for cert. to the supremes. . .

he is still expected to be in fed-jail-camp in
about40 days, now, unless an appellate order changes that.

hope this helps. . .

it is all just my bunch o' hunches.

There is a worse case (for some) scenario that most here have failed to see, and all have failed to address.

I can see scooter going to jail,

then winning his appeal, and getting a get out of jail card,
with appropriate apologies and of course Reimbursement for expenses and a per diem payback.

He would be glorified as a valiant warrior and courageous POW returned to home and he would be a thorn in the Liberals Sides for all eternity.

Another Super Ollie North!

Thanks for the answers, EW and Nolo. You both help make the workings of the federal judicial system less murky.

Aren't you supposed to be working?

Well if he looks around the cell he may find yet another forgotten Judy notebook. Word was last week as the NY Times newsroom moved a few blocks west across town, a few dust kittens were likely to appear. For symmetry's sake, he should serve at least 83 days, like his associate Judy. Judy can write a letter to him about palms waving in the sultry oasis breeze, wondering if that falling star is a MIRV; which way is west, Judy? It seems to me Irv and Judy both got nipped by the people promulgating the causus. It is puzzling how either of them could have believed their expertise so expansive as to guess that part of the world's future politics.

Scooter's brief is at least written in more temperate language than the oral argument. The strongest argument is the one briefed first: the appointments clause issue. If the appellate court gives Scooter any relief, it will be on that basis. Not saying it will, just saying I think the memory expert and Mrs. Greenspan issues are dead losers.

My take on the appointment issue is over at my place, but the gist is, I think it's a nonstarter. Fitz is a U.S. Attorney, appointed by the President and confirmed by the Senate. All Comey did was fill in a few missing issues and wall off the investigation from prying eyes. The delegation was not unusual in my experience. More details and some US code over at TiredFed.spaces.live.com

The ruling on the amici brief is in connection with allowing it on the Motion for Release Pending Appeal. When the merits of the appeals (and not the issue of release) go up, amici will probably be allowed to file briefs. But it was a doofus move on the release issue, especially with such a lightweight brief. Walton just bent over backwards to be fair.

Around here, it would be a rare thing for the appellate panel dealing with an emergency issue - like the Motion for Release - to change as the non-emergency elements of the case go up.

Without having read the brief and just based on prior filings, I agree with litigatormom that the only real issue is appointments clause. I would like to see what they do with the issue of the Affidavit.

Here's the pertinent 'Attorney General-only' portion of CIPA Section 6(a):

Any hearing held pursuant to this subsection (or any portion of such hearing specified in the request of the Attorney General) shall be held in camera if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information.

Such a certification was submitted to the court on September 5, 2006 by United States Attorney Fitzgerald, "Acting as Special Counsel," so that the 6(a) hearings would be conducted in camera because of the classified evidence that was at issue; the certification accompanied the separate 6(a) hearings motion petition itself. That "Certification In Support Of In Camera Hearing" signed by Fitzgerald, is Document #134 on the Libby Docket, and has been public and unsealed on PACER since it was filed with the court on 9/5/06. It is not called an affidavit, but is signed and sworn before a Notary Public like an affidavit, and using exactly the same language ['United States Attorney Acting as Special Counsel'] and notary as the later 6(c)(2) "affidavit." Included in that 6(a) certification is this sentence:

"This certification is also based upon discussions had with other Justice Department officials."

[There goes that wild, uncontrolled, unauthorized loose cannon of a principal officer Special Counsel, riding roughshod over his helpless equals at the DOJ again... NOT.]

Here's the pertinent 'Attorney General-only' affidavit provision of CIPA Section 6(c):

(1) Any such hearing shall be held in camera at the request of the Attorney General. [This is the last sentence of (1).]

(2) The United States may, in connection with a motion under paragraph (1), submit to the court an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court shall examine such affidavit in camera and ex parte.

Such a 6(c)(2) affidavit was executed by Special Counsel Fitzgerald three times, in accordance with the information provided by the Intelligence Community, and at least one of those affidavits (12/7/06's), though originally submitted only to the court, was subsequently publicly released per a Judge Walton order, in redacted form, amidst other formerly-sealed filings released to public view in May, 2007. [Each 6(c)(2) affidavit would have supplanted the one before, I presume. These affidavits were all filed to help justify the government's position (as provided and revised by the IC) regarding substitutions for highly-classified details sought as evidence by Libby during the government's close-fought, hard-won battle to avoid a graymail-forced dismissal of the case and trial, after Judge Walton gave Libby everything but the kitchen sink in his ruling under CIPA Section 6(a).]

As for 6(c)(1)'s last sentence stipulation that a request from the Attorney General for in camera hearings should be made to close the proceedings - the government does not appear to have formally asked to continue closed hearings under 6(c) via such an Attorney General (or Special Counsel) request, and the parties simply continued the process of closed hearings that they had already been following for more than a month under 6(a), a process which had been initiated [without any objection from the defense] by Fitzgerald's 9/5/06 certification under 6(a). The need for a second "Attorney General" request to close the courtroom during 6(c) hearings was presumably seen as redundant and considered a given, considering the obvious classified information concerns of the ongoing CIPA hearings, although Fitzgerald may have verbally notified Judge Walton during a 6(a) hearing that the 6(c) motion hearings needed to continue in the same closed fashion as had 6(a)'s hearings, I suppose (causing a similar technical, but harmless, violation of Section 14's authority for only DOJ leadership to act under CIPA, of course).

The three 6(c)(2) affidavits were filed with the court (only) under seal and without docketing on PACER on (presumably) November 7, 2006, December 4, 2006, and December 7, 2006 (with notice of the affidavit filing simultaneously served on Libby and docketed on PACER each time). The language of the final Section 6(c)(2) affidavit's "Notice of Filing" reads:

"The United States of America, by and through its attorney, Special Counsel Patrick Fitzgerald, hereby provides notice that the government has filed an ex parte and in camera affidavit with the Court pursuant to Section 6(c)(2) of the Classified Information Procedures Act."

Finally, CIPA Section 14 states, in full:

The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.

So:

Why isn't Robbins pointing out the well-known-to-Libby-at-the-time Section 6(a) certification [a "function and duty of the Attorney General" according to CIPA's Section 14] that was publicly signed and filed by Fitzgerald on 9/5/06, just as he is pointing out the final Special Counsel-signed affidavit (signed in December and revealed in May) filed under Section 6(c)(2), as an alleged Appointments Clause strike against the inferior officer status of the Special Counsel? The weight of both [6(a) and 6(c)(2)] Section 14 "function and duty" CIPA filings by Fitzgerald seems to be equivalent with regard to an Appointments Clause officer-status issue, if not heavier in the case of Section 6(a)'s filing [since that certification was required to be filed upfront in order to protect classified information through the barring of the public from the 6(a) hearings, while 6(c)(2)'s affidavit related to (semi-voluntary if graymail wasn't an issue) justifications for IC substitutions at the end of the process]. And thus the argument the government made at oral argument that Libby lost his chance when he didn't press this issue with regard to the unsealed 9/5/06 CIPA 6(a) certification that Fitzgerald signed in lieu of the Attorney General or one of the specifically-authorized CIPA actors at DOJ.

In short, there's no "news" - as it relates to any issue with merit or a "close question" on appeal - in the May, 2007 release of the CIPA 6(c)(2) affidavit of Fitzgerald, contrary to the assertions of Robbins and Jeffress et al. Anything one can say about the Appointments Clause-import of the May-released 6(c)(2) Fitzgerald affidavit, one could have said (and more) - but didn't - about last September's CIPA 6(a) certification by Fitzgerald.

Last But Not Least Addendum: With regard to the ongoing efforts to end-run the Constitution and the law by way of abuse of the CIPA process - the now routinely attempted 'graymail privilege' defense for high government officials - there are two pages in the government's response to Libby's district court motion for release pending appeal that speak volumes. On Pages 25 & 26 (under B.), without ever mentioning the word graymail, or otherwise dropping hints, the government paints a clear and quite sinister picture of the graymail tactics and strategy of the Libby defense in this case, that I think should give everyone reading it pause. Our Judicial Branch and Congress need to seriously consider and closely examine the games that are still being played in the justice system by those officials previously granted a security clearance for access to highly-classified information, who then proceed upon indictment to tirelessly try to avoid accountability for their actions through bad faith abuse of CIPA to try to force a graymail dismissal, simply by virtue of having been entrusted with a security clearance in public office in the first place. The Scooter Libby case is a textbook example of how the good faith CIPA process can be, and is being, abused by bad faith defendants.

We must remember to send a nice glazed ham Christmas basket to the DC Circuit Court Clerk's Office. Outstanding. I thought this was a possibility because of the panel's prior involvement in the Grand Jury issues, but was literally afraid of jinxing the thought by making it publicly; also seemed to good to be true. I agree with Mary, although this may not end up being the panel on the main merits of the appeal, I think it very likely will be. Keep in mind that the "hot" justice for and accelerated decision on cert on the bail issue is Roberts because this is a DC Circuit case. I find it unlikely he will very easily bounce the decision made by his friends from the Prettyman Courthouse. The Artist Formerly Known As Scooter should be renamed Inmate No. 070603 by the first week of August.


Nobody should be happy that David Sentelle is on this panel. He's a hard-right Republican and protege of Senator Jesse Helms who was on the panel that overturned the convictions of Ollie North and John Poindexter and thus short-circuited Lawrence Walsh's investigation of the Iran-Contra criminals like Cap Weinberger and Poppy Bush. He's an almost certain vote for keeping Scooter out of the joint, especially if Scooter's pal's let it be known that Scoot will drop the hammer on Cheney if he has to do time.

Basharov - Sentelle may be a right winger as you describe, but, all thing s considered, this is a great panel for the DC Circuit. You don't get to pick and choose. There are probably at least five or six that would have been far worse than Sentelle, starting with Silberman, Brown and Kavanaugh. I would gladly stipulate to Sentelle to insure that one of those three was not on my panel; and I would do it 100 out of 100 times.

Basharov: Bingo. The best I can say about this panel is that it could be worse. A Silberman and Sentelle combination was my worst-case scenario. Henderson is very conservative. Sentelle is very conservative, sometimes partisan-seeming in decisions that raise hot-button issues (see, e.g., the decision striking down D.C.'s gun control law -- which basically casts aside 7 decades fo Supreme Court precedent), and was a member of the standing panel that gave us Ken Starr. But I don't see him as quite as partisan -- in the partisan hot-button-type cases -- as Silberman. Neither of them in my view are lock-step partisan judges in the general run of cases. (Disclosure: despite my revulsion at Sentelle's politics, I rather like him as a judge to appear before, and he's given my side a fair shake in every case I've had before him. I have also seen him absolutely filet lawyers who are underprepared or who cling to bad arguments. Robbins will not be under-prepared, but in my view, he is selling a pretty dodgy bill of goods, and some of the arguments -- such as the business of pushing the regs. that deal with outside-of-DOJ appointments are the kind of transparently bad-faith arguments that I think just about all judges hate.)

If these two members of the panel want to give Scooter relief for extralegal reasons, they have a real opportunity here because all they have to do is write the opinion such that they repeatedly say that they're not prejudging the issue but that they find it substantial in the 1343 sense. (Of course, they may be less invlined to do that if it would provoke a Tatel dissent, so he holds some power even if he's outvoted; I wouldn't want this to be a 2-1 decision with a dissent if I were a judge trying to pull a fast one here.) Also mitigating my sense of dread of course is the fact that this same panel decided (correctly) the Judy Miller appeal and that they knew damn well where this case was heading -- possible perjury/obstruction charges against Libby and Rove. That much is exceedingly clear from the unredacted opinion in the Miller appeal. None of the opinions in the case is consistent with the talking point that fitzgerald was out building mountains out of mine tailings left by moles. So I'm not despairing yet, but I think "we lucked out" is pretty far from how I would describe the draw.

"they're not interested in hearing the Amici Illuminati's brief."

Maybe if it had that actual label on the front cover, they might just open it up long enough to recognize that some first year law student wrote it...

"Scoot will drop the hammer on Cheney if he has to do time."

Don't we wish... I would guess his twisted sense of honor bends not towards protecting The People with public disclosure, but rather much more towards doing the time and then receiving the rewards of silence when it is all over.

I can't say that I really know, but it seems to me that most of those who defend Scooter now would not be so helpful if he snitched on Deadeye...

There may be a "save Scooter" faction, and if so they should perceive Cheney as one of the victimizers, but I am more inclined to view them (Scooter's supporters) as Cheney-camp neocons and economists, and Scooter only gets their big public media hugs, cocktail-party kudos and fat defense-fund checks BECAUSE he won't rat out Cheney.

Just some food for thought.

Here's the skinny on "who" made the amicus filing ...

6/19/07 MOTION filed (5 copies) (certificate of mail service dated 6/19/07 ) to allow amicus curiae in connection with Appellant's application for release pending appeal [1048066-1] . Motion filed by Vikram Amar, Randy E. Barnett, Robert H. Bork, Alan M. Dershowitz, Viet D. Dinh, Douglas W. Kmiec, Gary S. Lawson, Earl M. Maltz, Thomas W. Merrill, Robert F. Nagel, Richard D. Parker, and Robert J. Pushaw. (smc)

cboldt - The "amicus filing" was actually filed by Christopher J. Wright of Harris, Wiltshire & Grannis LLP ; 1200 18th St., N.W. ; Washington, DC

Sebastian - With the exception of Janice Brown, I don't know these folks at DC Circuit nearly as well as you, but as I said above, I would be inclined to take any of the three over Silberman, Kavanaugh and Brown. Also, I thought their decision earlier in the case on the classification issues and Miller was pretty straight up, and they could have really monkeywrenched the prosecution right then and there if they were so inclined. I may well be a fool here, but I am kind of relieved by this being the panel; relatively speaking. Could have been much worse. Also indicates that Silberman is not pulling strings behind the scene, which I have heard he is wont to do when he wants to make things happen. You could probably verify or refute that; but that is what some friends of mine in New York advise me.

cboldt - I like to call them the Bork 12 (or just Borkers).

I think one reason Robbins is clingy on the CFR argument is that when the issues were originally joined, Gov's argument (and as a result, Walton's opinion) on the CFRs was not as succinct and crisp (the "HELLO, I'm not an OUTSIDE Special Counsel until Illinois secedes" response). But IMO they would be well to drop that one fast. As a matter of fact, I've been waiting for anyone to mention the constraints that the CFRs put on those supervising an outside Spec Counsel that are absent as limitations on DOJ supervising THIS "special counsel."

Under the CFRs, Fitzgerald would not have had to go get a clarification as to whether or not he could go after obstruction cases - it is spelled out. Under the CFRs, if the Spec. Counsel's supervisor (acting AG for the matter) blocked certain actions by the Spec Counsel, the supervisor would have to go, hat in hand, to Congress and fess up to their interference - not so here. I'm finding the whole Margolis exchange interesting and it makes me wonder why Fitzgerald is holding so adamantly that he didn't have any obligation or duty to give Margolis notice, especially since a) he did and b)it helps he inferior officer argument.

Pow Wow - lovely job!

To be devil's advocate, here's what I'd say re: your question about: "Why isn't Robbins pointing out the well-known-to-Libby-at-the-time Section 6(a) certification ..."

Robbins gets double bang for his buck on the CIPA stuff. On the one hand, there is just the normal issue of violation of evidentiary and procedural rules. On that issue, Gov has a waiver defense on the non-redacted, not sealed, items (which is your point - Robbins isn't pointing them out bc it looks like no one on Team Libby objected timely). With respect to the c-2 affidavits that were sealed and redacted, there is obviously a better case for Libby that objections weren't waived, bc they didn't know how they were signed until Walton unsealed. Still, Gov can argue (and does) that there wasn't harmful error IF the affidavits should have been signed by someone else.

But I think Libbyco will also make a general argument at some point that, even if they didn't specifically object to the 6(a) certifications, they had made the general objection to both an overbroad delegation to Fitzgerald and to Fitzgerald acting unconstitutionally, assuming powers of a principal officer. Those pleadings put Gov on notice of Libbyco's objections to Fitzgerald acting as a principal officer in all areas. But that's all just on waiver and the actual effect on the proceedings of whether or not it was, procedurally, harmful error for Libby to be restricted as he was vis a vis 6(a) and 6(c) issues/activities by the Special Counsel.

The CIPA issue, though, is also an item of evidence (not just a stand alone issue) with respect to the claim that the Spec Prosec was appointed as and/or acted as a principal officer rather than an inferior officer. Section 14 gives a very limited list of those who can receive the delegation of the AG's CIPA powers. A USA or other employees of DOJ are not included. So for DOJ and the Spec Pros to acquiesce in, on the one hand, and assume, on the other hand, a power that Congress limited in its delegation to a handful of specified officers is an evidentiary issue as to whether DOJ actually did unconstitutionally grant to the Spec Pros AG-like, principal officer powers (to make policy decisions on classified info treatment despite Congressional limits on the persons authorized to make those decisions).

What makes it all odd, is that supposedly there was a non-recused DAG (and one who possibly, by the time of trial, had called back the delegation from Margolis - I wish someone would ask McNulty that and nail it down) and Fitzgerald didn't go to him for the signatures. The argument that Fitzgerald has done it without one of those designated hitters in other cases (which it seems from the transcript was an argument he made??) doesn't count for anything. So why did he sign off himself? Was there already a problem with the DAG or did he just think he didn't have to?

Spec Pros is saying that he isn't giving in on the ability of the AG to delegate CIPA powers to someone other than one of the specified persons (someone like himself) and while, from the face of the statute, that seems questionable, I think he might be able to cobble a good argument on it.

But it does add a wrinkle that he didn't have to address in the initial, pre-trial Libby filings on appointment clause issues - an actual instance or series of instances that might involve violating procedure, not just by mistake but under color of having the right to exercise the authority of a principal officer. There, the impact isn't whether the violation of procedure is harmful error on its own, but whether or not it lends any additional evidence to the appointments issue. Especially if any of the exercises of principal officer authority were sealed and as a result, not something where his supervisors knew what he was doing to be able to remove him for it.

I'm not saying they (Team Libby) have a great argument, just that Robbins has made a better argument for them than they have had to date.

I still go back to a standard delegations analysis. If the delegation wasn't irrevocable, there's a fair amount of analogous agency and trust law that would support that it is both revocable (i.e., Fitzgerald could be terminated by the delegor) AND subject to amendment and modification (for example, the 'supervisor' could take the kinds of actions specified in the CFRS, as well as more or othe actions) and that is a whole lot of supervisory power waiting in abeyance. It's the supervisory power of any boss over an inferior employee who has been assigned a task.

It's also why I would kind of like to make sure who the boss is right now (Margolis or McNulty) and whether there have been any changes. But I don't see the House Judiciary getting around to asking anything like that and I'm kind of alone in wanting the t-s crossed.

bmaz: Points well taken, all of them. I have a little bit of a wrinkle on the notion that Kavanaugh would presumptively be a partisan hack in this case (a wrinkle that appleis equally to the D.C. Circuit judges who sat on the special panel under the Ethics in Government Act -- i.e., the Independent Counsel Statute): Kavanaugh was of course at least the deputy chief panty-drawer sniffer for Starr's OLC. That being the case, he might blush at the prospect of holding that it is unconstitutional to appointm prosecutors who are not supervised on a day-to-day basis by the attorney general. This of course assumes an interest in being intellectually honest and consistent, which may not be a fully warranted assumption.

The other plus about this panel is that if this panel denies release -- rather than, say, a Rogers, Garland, and Tatel panel, which is about the most liberal one i can dream up -- then the Libby apologists will have to tie themselves into even more exquisite knots as they continue to bray that this is all a partisan witch-hunt over nothing.

Finally, on an barely related point, we can thank the officious amici (AKA the Bork 12, the Dirty Dozen, or the Amici Illuminati) for flushing out the panel. Their misbegotten efforts to re-file their pathetic amicus brief, this time in the D.C. Circuit, provoked an almost instant "DENIED," which revealed the composition of the Special Panel earlier than we would have otherwise. So now we can give a hearty "huzzah" and salute the public service that the Bork 12 have offered us.

Also, that was about the fastest denial of leave to file an amicus brief I have ever, ever seen. Hah.

Mary: "the 'HELLO, I'm not an OUTSIDE Special Counsel until Illinois secedes' response": absolutely precious.

I couldn't agree more that they should not lean on the regs dealing with non-DoJ prosecutors. I think that is a transparently disingenuous argument -- literally, strictly disingenuous in that they not only ought to know better; they surely do know better.

Henderson is the key. I don't trust Sentelle at all. From Sentelle's perspective, the earlier ruling was largely a thumbing of the nose at The New York Times. On this release ruling or on appeal, I wouldn't count on him. I don't know much about Henderson except that she was a GHW Bush appointee.

I goofed above. It was Silberman who wrote the opinion striking down D.C.'s handgun ban, not Sentelle. Sentelle was not even on the panel. Apologies.

Sentelle joined Randolph in the Odah February 2007 appeal; writing at length in the minority Judith Rogers reviewed the illegal constructs in MCA. In the Libby remand into custody and/or appeal, I think Sentelle and the two other judges will have an easier time supporting the reasoning in exegeses by both Fitzgerald and Walton. Judge Walton Thursday published a thorough explanation of his reasons for his opinion.

It is possible this retrospective contemplating the habeas issue is too contrived, yet, it seems to follow some thinking outlined in the thread above concerning the political components in DC appeals judgecraft. Further, I think the relevance of the rulings in the Miller-Cooper matters an enriching sidelight in the obstruction and allied charges upon which Libby was convicted. To me one of the dicey parts of the Miller standoff and her incarceration remained unaddressed in her post-release presentation in congressional hearings about the reporter shield law; namely, Miller's problems, though multifoled, in part related to grand jury instrumentality in discovery, whereas many other nontargets and targets in the Libby matter, like Miller, had pre-cast bargains with prosecution confining testimony to absurdly disconnected timeline segments, discrete topics, and based on redacted documents, many variously further redacted for publication. I would expect the appeals panel to be eager to examine the scandal again, this time including Libby's actions. Especially weighty for me is one topic prosecution agreed to avoid, the effects upon world events engendered by Libby's acts and coverups.

In R. Comey's vignette of his hospital visit and Mueller's assignment to his crew to protect Comey's right to remain present in that room, as well as Comey's followup bargaining demand that a high level official be present for any conversations he might have while being woodshedded the next day for his refusal to sign off on an undescribed program, I perceived an analog of what occurred for Libby. Comey was worried about liability; in Libby's instance my impression was Fitzgerald was extra cooperative in selecting charges out of deference to the liability issues for Libby if Fitzgerald had sought wider scope. In all, Fitzgerald seemd to opt for the pragmatic way through the documentation classification thicket, too. It is in the current news that congressional access to documentation pertaining to some of these matters now nears subpoena phase, though actual production is yet to occur.

In all, I think the Walton and Fitzgerald concerns about rule of law in the Libby charges will prove attractive to the appeals panel, and some interesting opinions should result.

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