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June 22, 2007

Comments

yippee! document-alicious!

thanks EW -- now, one of the
true drawbacks to blogger, and
to wordpress, it that one cannot
store pdf-files in a blog-accessible
format -- thus i doubly appreciate
that you can -- and you have!

[of course when one gripes about
this lack of flexibility in blogger,
the quite sensible answer is "what?
it's not free enough for you?
"]

off to read the filing. . .

and, to keep "a weather-eye on
the horizon
", for footnotes there,
that do "the walking". . .

p e a c e

From Walton's written opinion (following his bench ruling)

At the June 14, 2007 hearing, the defendant's attorney argued that (1) the Special Counsel performed certain functions during the CIPA proceedings that could not have been delegated to him; and (2) the fact that the Special Counsel performed those non-delegable functions is an indication of his "sweeping powers" and suggest strongly that he should be considered a principal officer under the Appointments Clause. Reply at 5. It is true that, by the plain language of Sec. 14, the Special Counsel cannot be delegated certain duties under the CIPA that are expressly assigned by Congress to the Attorney General and his duly designated proxies. (ftnt 19) See 18 U.S.C. Appx. III, Sec 14. It is similarly true that the Special Counsel appears to have performed at least some of these duties, in seeming contravention of Sec. 14. (ftnt20) And if the scope of authority given to the Special Counsel by the Comey letters encompassed duties that no inferior officer could possess, this is indeed strong evidence that the Special Counsel is a principal officer for Appointments Clause purposes. (ftnt 21) Here, however, the defendant has not demonstrated, nor even credibly argued, that Comey intended for his delegation of authority to Fitzgerald under 28 U.S.C. Sec. 510 to include powers expressly declared to be non-delegable to United States Attorneys (such as Fitzgerald) under Sec. 14 of CIPA.

Walton's pretty much limiting his holding to intent. Despite a pass at ministerial act, he pretty much says if there was actually an intent to delegate ALL AG powers, even ones that seemingly by statute are not allowed to be delegated to inferior officers, then there might well be a problem, but the fact that Comey used such broad, plenary language and the fact that Fitzgerald actually acted - without intervention by anyone at DOJ - as if he had such power, aren't evidence of intent.

Fitzgerald's brief refuses to give ground on ANY point and even argues that some of those who can receive the deletation under CIPA Sec 14 are inferior officers, so it doesn't make him a principal officer if he, perhaps incorrectly, received or acted as if he received a power that could be given to inferior officers anyway.

"In fact, the delegation was made pursuant to the AAG's statutory authority under 28 USC 510 to delegate any of the functions of the Attorney General to any other officer of the DOJ."

Supremely tenuous, but I wonder if this is where the administration got the idea to put Goodling and Sampson in charge of the DOJ HR department.

exactly, mary!

team fitz is in fine form, here, tonight.

we also see in the filing, for the first
time, a fleshed-out version of what fitz
meant when he said, in argument before judge
walton on june 14, 2007, that mr. robbins
had confused c.i.p.a. §§ 6(a) and (c)
with § 6(e) -- and that makes ALL the
difference
.

this -- as all (well, most) good things
do -- appears in the footnotes -- footnote
12 on page 14. . .

fitz lucidly explains that because § 6(e)
contemplates a breath-taking abridgment of
a criminal defendant's right to present exculpatory
information in his own defense -- due to what must
be highly unusal national security considerations, mr. robbins is. . .

. . .looking at the wrong set of cases -- cases
that interpret § 6(e) -- not cases that interpret
the far-more mundane, and ministerial §§ 6(a) or
(c) c.i.p.a. motions to close courtrooms. . .

kinda' embarrassing for mr. robbins, no?

Now I'm mystified - did you get this from PACER, and if so, where? The last thing on the docket I am getting is pretty mundane:

6/21/07 NOTICE from Clerk, District Court transmitting copy of order filed 6/21/07, pro nunc tunc to 6/14/07, denying defendant's motion for release pending appeal and accompanying memorandum opinion [1048567-1]. (smc)

6/21/07 NOTICE from Clerk, District Court transmitting receipt for payment of docketing fee [1048568-1]. (smc)

Baffling.

tom m. -- look at EW's post above -- it is linked as a PDF by EW herself!

Looks like you made it back ok.
Don't forget to write.

Tom - Marcy is in DC. She simply had to stroll over to the DC Court (Prettyman I presume) and ask the nice clerks there for a copy. no biggie. my guess is the the Appeals court has fewer clerks to run around scanning and p-d-f'ing motions. Just a guess from a local boy.

ooh -- forgot to make my
prediciton! -- unless the
team libby/robbins reply on
tuesday turns up something
truly earth-shattering -- our
bestest buddy scoots loses
this round, and soundly so.

thus he must take an appeal to
the supremes. . .

and he'll be in camp fed before
argument on any cert. (even if
granted) can be heard. . .

that's my $0.02. . .

p e a c e

look at EW's post above -- it is linked as a PDF by EW herself!

Thanks, but I am pretty sure she did not type it herself and run it through the photocopier for the judges - I cling to the theory that she got a .pdf file from someone or somewhere, and I am curious as to where. (FWIW, on other occasions I myself have hosted these documents, but I normally download them from PACER).

This is where Team USA ...

Let the record note that you are assuming a conclusion - a question before the court is whether Fitzgerald et al are in fact "Team USA" or merely improperly appointed pretenders.

I continue to be astonished by the notion that, with all the litigation that has surrounded special prosecutors, Comey could have solved all the issues in one paragraph, citing four articles of statute, and not stepped on any Constitutional landmine.

I am even more astonished by the notion that this single paragraph was so powerful (yet insightful!) that it is not even a close question as to whether Comey succeeded.

I will say this - even after a document has been typed, photocopied, converted to .pdf, uploaded, and finally downloaded, it is still possible to detect the smell of fear. And I smell it here with Fitzgerald's filing.

These inferences [the whole Mitchell argument] would have been powerfully rebutted by, among other things, evidence indicating a search of NBC News' files revealed no document reflecting any information regarding Ms. Wilson prior to publication of Novak's column.

And that notion would in turn be rebutted if the defense could only establish, hmm, the existence of telephones and watercoolers.

Or, if the new EmptyWheel position is that a conversation did not happen unless there is an email or memo to confirm it, shouldn't we agree right now that Libby and Cheney never discussed Ms. Plame during Hell Week in July 2003?

Maybe the funniest thing in the defense filing is a recitation that "As the district court correctly held, the Oct 3 2003 statement [by Mitchell] was not admissible as substantive evidence."

As the defense noted in their filing, this was the same court that admitted newspaper articles to demonstrate Libby's state of mind despite no clear evidence that Libby had actually read the articles. But videotaped words from Mitchell's mouth were not indicative of her state of mind? Got it.

Well. I didn't expect Walton to rule that he had made some close calls, but I will be surprised if the appeals court does not find these to be close questions and grant Libby bail pending appeal. The special counsel question is a once-in-a-lifetime, unprecedented office - are they really going to rule it was that easy?

ENDURING MYSTERIES: Back in Oct 2005, Andrea Mitchell said this:

MITCHELL: You know, I should have spoke--'cause there's been a lot blogged about all of this--I was called by the CIA because it was erroneously reported in The Washington Post that I was the recipient of the leak before Novak's column came out, and I had not been. So I was never questioned because I simply told the FBI--and, you know, NBC put out a statement that night--that I had not been a recipient of the leak; in fact, I had learned about it from Novak's column like everyone else. Then after the fact, a lot of us had gotten calls and conversations with people, you know, `Hey, how about the Novak column?' But that was after the fact.

So she claimed then that she told the FBI back in Sept 2003 that she knew nothing. Yet in all the trial maneuvering (and this filing)s, Fitzgerald never cited her FBI statement, but instead relied on a statement from her lawyers as to what she might say.

Of course, Fitzgerald kept mum for as long as possible about Russert's cooperation with the FBI, too, leaving it out of his court filing when he was explaining why Russert ought to be forced to testify to the grand jury. Que pasa?

What happens if the Appeals Court rejects Scooter's appeal? And then the SCOTUS rejects the appeal too?

Would all the neo-con apologists then start ranting and raving about those activist judges that they put in place?

Tom

You're aware that Fitzgerald did disclose the fact that Eckenrode interviewed Russert in various affidavits and sealed pleadings submitted to Hogan in 2004?

Now, the fact that Eckenrode interviewed Russert doesn't necessarily include just what Russert said; and as best as I can tell, we don't know just what Fitzgerald said about it. But in the context of litigation over reporters' resisting subpoenas, it's pretty significant just that Russert was indeed interviewed by the FBI - that's cooperation, no?

So in other words, it appears that you're wrong that Fitzgerald left it out of his court filing, except in the most technical sense. The substantive point is that Hogan was informed that Russert had been interviewed by the FBI.

OfT: Mercer quits, headed back to USA job in Montana:
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/22/AR2007062201291.html?hpid=topnews

. . .Thanks, but I am pretty sure she did not type it herself and run it through the photocopier for the judges - I cling to the theory that she got a .pdf file from someone or somewhere, and I am curious as to where. (FWIW, on other occasions I myself have hosted these documents, but I normally download them from PACER). . .

erh, tom m. --

i thought i'd try to play nice. . .

i guess that wasn't welcomed by you.

i'm disappointed by your implying
that EW did something untoward to
obtain the filing. . .

i wrote in the thread directly below
this one, as follow: "it looks
as though pacer, in texas, images
the local (d.c.) servers around
one a.m. on every early [busi-
ness?] morning, so if fitz filed
near the 4:30 p.m. filing cut-off
time this afternoon, we won't see
it imaged onto the main pacer server
until around one a.m. fri-night/sat-morn. . .
"

that is accurate. it will not
appear until the local drives in
d.c. are imaged by the main PACER
server in texas. . . later tonight/
early tomorrow. now -- the fact is
that anyone can have a copy made, day
of filing, at the courthouse, and then,
it is a trivial matter to turn the
photocopy into a PDF from there. . .

just the same, i'd thank EW for hosting
this PDF. . . it was very gracious of
her to do so, and to share with all. . .

so, do show a little common courtesy, eh?

or, is that beyond you?

btw -- the only issue with a snowball's
chance -- and only a snowball's chance -- in
hell, for mr. libby's side, is the appointments
clause -- article II claim of error. but the
appellate courts are duty bound NOT to reverse
supreme-court decisions on that -- so, if scoots
has any shot at all, it is before the supremes.

and they will have to overrule morrison to
free him. and that, my friend, i predict, they
will not be disposed to do. . . it is too much
sauce for all the gander-to-come, for this
particular little-goose-to-be-freed. . .

for next time 'round, it may not be
a republican who obstructs justice, perjures
himself, and endangers a covert c.i.a. asset,
in the process -- right? for evil comes in both
colors -- blue and red -- from time to time. . .

but what do i know?

If Libby's Circuit Court appeal gets rejected - and it certainly looks like a reach for the 4th to even take it up, imvho - I seriously doubt the Supremes will even hear a further appeal - there'll be nothing left in the case to reverse, and no basic law at issue.

Irve is going to jail.

And Andrea is an unreliable drunk.

I continue to be astonished by the notion that, with all the litigation that has surrounded special prosecutors, Comey could have solved all the issues in one paragraph, citing four articles of statute, and not stepped on any Constitutional landmine.

I think that's straw trying to move from underoos to big boy pants. High profile Independent/Special Prosecutors have been pretty much brought in from outside DOJ. So you have a fairly odd situation with them, of non-DOJ persons acting on behalf of the US as if they were DOJ. That takes some words to work through. Fitzgerald's delegation is just an in-house task assignment. Doesn't need much to do that and you do not have to spell out all the interaction mechanism and rules/regs that will apply to outsiders and how they will apply and with what protections, etc. bc what you have is someone in house who is pretty naked on the protections front.

I am even more astonished by the notion that this single paragraph was so powerful (yet insightful!) that it is not even a close question as to whether Comey succeeded.

Wow - you astonish easily. I bet they'd love to have you in the audience for reality shows - zoom in on your astonishment as the guy with the overbite and the W/O4 tie gobbles up the sheep eyeballs. It's not a close question in large part bc it was an in house assignment with no protections to the assignee. No irrevocablity, not restraints on modification or amendment of delegation. Just a bare - go work on this.
*********
*********

Re: how the fourth will react, remember this is just the jail or bail argument. The very same issues will come up as actual appeal issues.

nolo - I hate to say it, but I don't buy Fitzgerald's 6(a)& (c) vs. (e) argument. Yes, the issue in (e) is more drastic, but I think it is a hard argument to say that decisions as to how to handle this kind of national security information in the court room and in litigation, even under the lesser issues presented in 6(a) and (c), goes beyond mere minsiterial acts - all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. The fact that, in this paricular case, the USAtty handling the case has more credibility than the AG and all the delegees listed in the CIPA statute doesn't mean, IMO, that you can minimize the importance of what is intended to be highest levels of DOJ involvement in CIPA decisions, beyond ordinary classified info and getting to national security considerations. I like Fitzgerald's arguments on the whole, and I would have made the same argument as he did as a part of a phalanx of counterarguments (I like arguing the string and not picking out a pearl), but I'm not sure how good an idea it is to try to get a court to rule that the AG's CIPA involvement in 6(a) and (c) settings is merely ministerial - that would bother in the long run if it held the day. But that's just a personal take.


Tom Maguire: "Let the record note that you are assuming a conclusion - a question before the court is whether Fitzgerald et al are in fact "Team USA" or merely improperly appointed pretenders."

Tom, isn't the case USA v. Libby?

Whatever your belief as to which side is more patriotic, the terms you're debating are those used in the briefs by the respective legal *teams* -- thus Team Libby and Team USA, colloquially. If you have a problem with those terms, shouldn't you take it up with the courts or the DoJ, rather than excoriate emptywheel?

.

Whew!

Lawyer stuff.

I will wait for the sound and video clips.

Marcy has often said that Tom is the best on the other side, but now it appears his argument has become so bankrupt that he is reduced to sounding like Jodi. It's hard to argue a political vendetta when a conservative prosecutor has put his case before a conservative jury in a court presided over by a conservative judge, all of whom seem utterly convinced that not only did crimes occur but that the crimes were committed for the purpose of covering up a far more serious underlying crime.

The thin thread of his A Mitchell argument supposes that the liberal media were so eager for Libby's conviction that none of them would confess to having spoken with her about Valerie Plame's identity around the water cooler or in the employee cafeteria or between cocktail weenies. To equate this possibility with the sworn testimony of eight or nine witnesses concerning Libby's conversations re Plame is to wander far into the wilderness of fantasy.

Tom, you'll need some better intellectual armor next time you wander into Emptywheel's territory.

" ... it is still possible to detect the smell of fear. And I smell it here with Fitzgerald's filing. "

the only thing to smell is the shit running down scooter's legs and the shit running down shooter's legs and the shit pooling in your depends, maguire.

how in the world can you neocon nazi enablers continue to defend these treasonous bastards ??

you people must really hate America, Freedom and Democracy.

mary wrote:

". . .all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. . ."

mary -- all you wrote makes good sense. permit
me to suggest, however, that just because national
security is in play, it does not a priori mean
that none of it can be ministerial. as fitz correctly
notes, assistant u.s. attorneys (i.e., ones not appointed
by the president, with the advice and consent of the senate)
often sign the sort of filing only now -- belatedly -- complained
about (more on that, in a second) by team libby.

thus, a look at the intent of separating § 6(a) or § 6(c)
from § 6(e) is illuminating, here. note that (e) forecloses a
defendant's right to present exculpatory evidence -- and, that
plainly runs down the middle of the sixth and seventh
amendments' fairways. . . closing the courtroom to the
public, on the other hand, is a very commonly-employed
device (think mob-RICO trials, here), that in no manner
reads upon the defendant's constitutional rights. that
is plainly so, because the the right to witness trials
is a "public" right -- it is the public's right to
know, not the accused's right to be watched -- in
play at that moment, generally speaking.

now, if that does not persuade, mary, let me suggest,
as team fitz/team USA did, that the whole c.i.p.a. issue
has been waived by team libby. all of these matters
were filed with the court, via pacer, at the time, pre-
trial, and the law deems scooter's lawyers to know every-
thing filed in the case. specifically, fitz points the
court of appeals to the well-settled case-law that holds
a defendant must make plain the basis upon which -- with
particularity -- he assignes error to any portion of his
trial and convcition, in order to preserve the issue for
appeal, and allow for remediation, if possible, during the
trial. . . so, while i don't like waivers much, regarding
what may turn out to be a contentious issue -- i think the
court will actually likely rule not on the merits of the
c.i.p.a. claim of error, but instead will hold that the time
to complain about so easily-remediated a matter was over
a year ago -- when a simple second signature would have
evaporated any perceived infirmity.

in sum, i am no longer worried at all about the c.i.p.a.
issue -- such as it is -- being the basis for a release
while on appeal, nor ultimately, a remand or reversal.

i'll likely write more on some of this today at my shanty.

p e a c e

not that it matters [but it must,
to me(!)] -- EW's PDF bears all the
indicia of having been copied live,
on paper, at the court house. note
that the left margin is run-through
with rectangular cut-out holes, perfect
for spiral-binding, as required of
paper-copy memos, by local rule. . .

note, by way of contrast, that no
such hole-throughs appear on the
PACER served-pdf's, simply because
local rules ALSO require that an
electronic copy of the filing be
made at filing-time, as well. . .

and, from that electronic copy, the
pacer-served file is generated. . .

here endeth my geek-squad response
to tom macquire's rude innuendo. . .

Tom

I got the filing (and the last one) from the court.

As to the CIPA filings, I do agree this is an interesting issue. But there are perils for Libby's side, not least that it was pretty obvious (having looked at the filings) that Fitz signed this. And there is the question of whether this merits a new trial. So I think it more likely that this will be decided later. The central issue--the constitutionality of the appoint--might well have merit too (though Scalia would have to eat his prior statements now that he's on a wingnut majority). But it's a SCOTUS issue, not an Appeals issue.

EW -- ding! -- and here is the NEW pacer docket image:

6/22/07 OPPOSITION filed [1048911-1] (5 copies) by Appellee USA (certificate of service by mail (electronic) dated 6/22/07) to a motion release pending appeal [1048062-1]. (mam)

Docket as of June 23, 2007 1:03 am Page 4

thanks for hosting it overnight, EW!

i may now write on the appointments clause/
article II issue, as judge walton also had
some very cogent observations on it in his
memorandum opinion. that said, i do agree
with fitz, that this court of appeals cannot,
by law, really do much re the law on the merits
of the article II question -- as fitz and EW
point out -- only the supremes may do that.

p e a c e

You're aware that Fitzgerald did disclose the fact that Eckenrode interviewed Russert in various affidavits and sealed pleadings submitted to Hogan in 2004?

...So in other words, it appears that you're wrong that Fitzgerald left it out of his court filing, except in the most technical sense. The substantive point is that Hogan was informed that Russert had been interviewed by the FBI.

I am not aware of that but would love to see just what was said. My criticism that he was misleading the court would take on water, but my criticism that he was propping up Russert's public image would stand, depending on just how sealed these filings and affidavits were - e.g., in the public Fitzgerald memo arguing that Russert should be compelled to testify to the grand jury, he cited an example where Russert outed Richard Clarke as a source but did not cite the much more on-point fact that Russert had already testified about Libby.

In other matters, good point about the PACER server updating after midnight. But my goodness:

i thought i'd try to play nice. . .

i guess that wasn't welcomed by you.

i'm disappointed by your implying
that EW did something untoward to
obtain the filing. .

Something untoward? What implying? Geez, maybe someone emailed it to her, maybe she is rehosting it from some other site, maybe my PACER account has gone blooey, maybe, maybe, maybe. I've done both and there is no reason to think maybe she didn't. But "untoward"? Such paranoia. Bad weed?

I got the filing (and the last one) from the court.

Geez, how... 20th century.

But there are perils for Libby's side, not least that it was pretty obvious (having looked at the filings) that Fitz signed this.

I think Fitzgerald's waiver argument is pretty thin on the Appointments question. The defense has already appealed the fundamental issue, so this signature is simply evidence in support of that point (that Fitzgerald was unsupervised and exercising extraordinary power).

I would guess the implied waiver is relevant to the extent they are appealing the specific CIPA exclusions and substitutions, but that is a separate issue.

Tom, you'll need some better intellectual armor next time you wander into Emptywheel's territory.

You go to comment threads with the armor you have, not the armor you hope to have.

Whatever your belief as to which side is more patriotic, the terms you're debating are those used in the briefs by the respective legal *teams* -- thus Team Libby and Team USA, colloquially. If you have a problem with those terms, shouldn't you take it up with the courts or the DoJ, rather than excoriate emptywheel?

My goodness, I have no opinion at all as to the relative patriotism of the two sides. As I noted, the issue *is* being taken up with the courts, but I will be ever so careful not to make jokes without flagging them.

Tom

As to the CIPA and Appointments issue, I'd point out that the chain of the argument is as tenuous as the Mitchell one. Here's why:

To win on the CIPA issue specifically (rather than the larger Appointments issue, which I agree could happen if Scalia eats his words), the following would have to happen:

1) Ignore the fact that Defense did not raise the CIPA issue when they learned about it last fall--indeed, they didn't even raise it in their first motion for bond!

2) Ignore the fact that there would have been an easy way to fix that, had Defense raised it

3) Ignore the fact that Defense decided to forgo virtually all the CIPA materials that came out of this action

4) Ignore that Fitz's actions on CIPA really have nothing to do with the legal backup for Comey's appoint of Fitz

5) Buy the underlying argument about the appointments clause

ALL of those things would have to happen for the CIPA thing to be sufficient to overturn the case.

Mind you, I'm not saying Andrea Mitchell is credible and I'm not saying Fitz should have signed that CIPA form. But to get from there to something appealable is a stretch because of the legal foundations that the Defense laid. In both cases, I'd point out, they forwent significant opportunity to establish this as a grounds for appeal.

i.am.sorry.EW.i.cannot.resist:

". . .But "untoward"? Such paranoia. Bad weed?. . ."

my rejoinder:

erh -- "he who smelt it; dealt it. . ."

here endeth my onion impersonation.

tom -- more substantively, as
exhibits f and g from lawrence s.
robbins' own filing on behalf of
mr. libby (on june 19, 2007) indicate,
on the offered topic, ms. andrea mitchell
is simply daft. the rule against hearsay
is a rule against rumors -- and she repeats,
then denies, the worst sort of quadruple
hearsay. judge walton ruled it could not
be offered, even for impeachment, because
there was no evidence showing that mr. libby
knew of ms. mitchell's rumor-monging, nor later
dissembling about same. . . in short, robbins
tries to convert the libby trial team's decision
not to offer other credible witnesses into a fore-
closure by the court, of mr. libby's right to
mount a defense. and that is plainly specious.

at some point, the judge, relying on daubert, must
decide what is too speculatve, and too prejudicial, to
be in any way probative on the issues of the defense
theory of the case -- or the veracity of any witness.

this was manifestly one of those.

From sometimes a great notionathon, above:

The thin thread of his A Mitchell argument supposes that the liberal media were so eager for Libby's conviction that none of them would confess to having spoken with her about Valerie Plame's identity around the water cooler or in the employee cafeteria or between cocktail weenies.

More projection, I guess. The thin thread of the A Mitchell argument is that reporters are very reluctant to let themselves get drawn into courtroom situations where they might be forced to disclose sources.

So, when asked if he discussed Valerie Plame with Libby, Russert might say something evasive like, just a guess here

"The first time I had heard of Valerie Plame and the fact that she was a CIA operative was when I read Robert Novak's column the following Monday."

Might that have steered a trusting FBI investigator away, secure in the belief that Russert knew nothing about Ms. Plame? Russert used variations of that formulation repeatedly, but note - he does *not* deny discussing "Wilson's wife from the CIA" with Libby - he denies specific knowledge of her name and "operative" status.

Maybe he played a game like that to avoid being subpoenaed and forced to reveal his source. Maybe Ms. Mitchell played a similar game. Who knows? And how high were the stakes? If Mitchell took the stand and admitted her source was Armitage, that could be strike three in his "leak and forget" portfolio - would Armitage go to jail? Would Mitchell want to send him there?

The notion that this is a liberal media conspiracy rather than simple and very normal source protection comes, I guess, from your rich fantasy life. Share with nolo, and good luck arguing against strawmen.

Tom

I'll repeat this. My point is not that Russert is above reproach or that Mitchell is credible--I already agreed they weren't. My point is that your argument--on both Mitchell and CIPA--would depend on so many interim legal claims that they have a small chance (not nil, but small) of working.

Regardless of what Russert did, Team Libby twice backed off getting Mitchell's testimony (once at the start of the trial when--after Reggie ruled them pertinent--they withdrew their request for Mitchell's notes, and second when they declined the opportunity to question Mitchell under oath). So while there may very well be reason to be suspicious (though, given the fact that LIBBY's team, not the govt, backed off of getting Mitchell's evidence, I doubt it's what you think it is), that doesn't make it sound legal grounds for an appeal.

at some point, the judge, relying on daubert, must
decide what is too speculatve, and too prejudicial, to
be in any way probative on the issues of the defense
theory of the case -- or the veracity of any witness.

this was manifestly one of those.

As noted above, that contrasts nicely with the Wilson op-ed marked up by Cheney. Libby never saw it, we don't know when Cheney marked it, the prosecution never called Cheney to establish those points, yet it was allowed in. Whatever. And yes, I recall Addington's interplay there with the wife and the documentation of a CIA trip.

What Fitzgerald did not address i nhis latest filing was the defense point (from the last filing) that no one challenged Fleischer's testimony that he had leaked to David Gregory (John Dickerson's challenge is out of court and seems not to be part of the formal record).

So a prosecution witness has offered unchallenged testimony that Gregory knew. Yet is is absurdly speculative to suggest that he told his colleague Mitchell? Really? All because he didn't email her? NBC doesn't have phones?

I'm learning a lot here.

Tom

I'll continue to point out that you need to make legal arguments, not strictly logical ones (I'd dispute certain things you say about the Cheney op-ed and how it was introduced, but it's just not relevant).

First, Fleischer's testimony on Gregory is not the same category of evidence as Mitchell's--his testimony was admitted because it directly pertained to known (or claimed) events pertinent to the central case. There was no dispute that Fleischer spoke to Libby, even if there was a dispute about what was said.

However, there was no direct chain of evidence making Mitchell's later comments directly relevant--neither the defense or the govt seemed to care to introduce the content of Libby's July 8 conversation with Mitchell. In other words, in the scope of the case, the only way Mitchell's knowledge of Plame, if it were true, would be directly relevant is if Libby had told her of Plame. For whatever reason, neither Libby's team nor the government cared to find out (and, as I've pointed out, LIbby's team declined to introduce her notes from the conversation, even after Reggie permitted it).

In other words, you argument makes precisely the point REggie has always made about Mitchell's testimony. It would only be relevant if Russert, not Libby, were on trial. If Russert were charged with illegally knowing of Plame, then Mitchell's testimony would be central (though it's still not clear it would support that charge). Now that's the legal argument Reggie's making, anyway; the Appeals court may disagree, but that would be a novel interpretation of evidence and would be argued up to SCOTUS.

But my other point is that, even before you'd get there, there are the other legal issues (such as the fact that the defense declined to question Mitchell under oath) that would probably make the legal argument moot.

Tom - Libby is standing on the legal bricks of a well-deserved jail cell he made for himself. IMVHO, from the point of view of The People, you aren't going to spring Libby from an airtight prosecution by arguing that the sheriff wasn't wearing his badge at the time of the arrest.

The real challenge here is: Can the Mayor strip the Sheriff of his power when the Mayor's administration is the primary suspect in the outing of a National Security Asset and her CIA Front-Company?

Rule of Bush vs. Rule of Law

Your line of argumentation, and IANAL, shades along technicalities that are departing from the overwhelming main line that points strongly towards malfeasance by the Bush Administration.

Just as we couldn't let Slavery divide us before, in this great Country, neither can we let a Monarchy divide us now, either.

Why are you siding with the overlords?


erh -- "he who smelt it; dealt it. . ."

I will pass on that.

On the appointments issue, from EW:

(4) Ignore that Fitz's actions on CIPA really have nothing to do with the legal backup for Comey's appoint of Fitz

5) Buy the underlying argument about the appointments clause

The Fitzgerald filing is comically weak here - as I read it, they are saying, OK, maybe it was illegal for Fitzgerald to sign the CIPA affidavit, but it was not unconstitutional because it was not Comey's intent to create an unconstitutional office.

That was easy! All we need to know is Comey's intent and the issue is solved!

The *facts* are that Comey wrote a one paragraph letter granting Fitzgerald extraordinary power, no one can offer evidence that Fitzgerald was actually supervised, and he signed forms that would only have been appropriate for a person of higher (although not necessariy 'principal') office.

To say to the court, 'well, ignore what actually happened and focus on Comey's' intent may not cut it. At a minimum, it may not satisfy the court that this is not even a close question.

As to Scalia eating his words, I am touched by your presumably new-found confidence in his intellectual rigor - if I had to guess, I would say he would be happy to toss this seemingly extra-curricular special counsel. But why ask me? At the hearing, Libby's counsel volunteered that he was involved with the case on which Scalia opined, and he thought he could enlist Scalia. Now, he *would* say that, but still.

Well, if Scalia is the foundation of your hopes, good luck. Somewhere I noted the oddity that Bush may come in with the Florida decision and leave with the Libby decision, so he may have to thank Scalia twice.

On Mitchell and Russert, I propose a detente - you can stop reminding me that you don't take her words as gospel (I knew that) and I can stop mentioning that even if Russert did tell Libby about Plame Libby may still have been lying about other things (my view). That said, if the jury had become convinced that Russert was lying, they might have delivered a "pox on this case" acquital, figuring everyone was lying.

Anyway, I am not sure why a Libby-Mitchell chat is relevant - if Gregory got a leak from Fleischer (undisputed, and maybe even true) and Mitchell said it was widely known amongst reporters working the story that Plame was CIA, the defense ought to argue that (a) Mitchell's "widely known" referred to Gregory (at a minimum), so her subsequent denials of independent knowledge are somewhat beside the point, and (b) ... will come back to me. (But not yet).

As to the defense having waived any or all of this, the right to confront a witness and have the jury assess her credibility is different from allowing the witness a dress rehearsal in a closed hearing. They appealed the initial ruling, so I doubt that have lost the right to maintain the appeal.

tom m. sez --

. . .What Fitzgerald did not address. . .

first -- i'll second every word of EW's,
save this one bit -- yours is not logical,
tom -- for libby was charged with -- and
convicted of -- perjury. not leaking.

so -- the cheney notes come in to prove
that libby's boss was keenly interested,
certainly as would his underling be -- to
say nothing of the fact that libby's march
24, 2003 grand jury testimony implicates
cheney as the source of libby's information. . .
[yes -- then we all know libby later lied, to
cover that up -- and made up the whole "don't
recall not recalling that" re russert lie. . .]

soo -- libby told two starkly differing
versions under oath to the grand jury. . .

it is the lie -- not the leak -- that makes
cheney relevant. and it is the lie, not the
leak, that makes mitchell, et al. irrelevant.

to equate cheney (libby's boss, and as EW
has shown, in subsequent posts of today),
very likely the original source from whom
libby learned this info -- in truth, not
the "after-acquired, manufactured fiction
version
" -- is as illogical as it is
disingenuous. . . you are plainly capable
of better argument than this. . .

what fitz -- as prosecutor -- did or did
not do has much more to do with proving
scooter lied, than the substance of where,
exactly, scooter really learned the info
for the first time. it was, employing
sir william of occam's fine parsimony, almost
certainly, from cheney himself -- but that is
not the most important point.

the most important point is that scooter
offered contradictary accounts under oath,
mentioning cheney in one, but not the other.

thus cheney cannot equal -- or even remotely
resemble -- mitchell. EW is right -- russert
potato-head was not on trial, and mitchell's remarks
were so tangental to assessing his credibility,
that judge walton ruled them inadmissable hearsay.

i think the defense know this is a loser, because
they never accepted the offer to have her sworn.

it is just here -- in the appeal -- so that pundits
and others, might endlessly replay her video at exhibit f.

but of course, they'll never re-run the exhibit g video.

seen simultaneously, they show us
why hearsay -- rumor -- should not
be evidence, in criminal cases.

so -- i'll let it go now.

nolo -

I'm not saying that, overall, I don't like Fitzgerald's arguments. Personally, I am quite certain he is an inferior officer and that is because the investigation was in-housed with a delegation that was not in any manner irrevocable or subject to any constraints on the delegor with respect to subsequent with respect to amendment or modification - I don't think Fitzgerald wants to go there, though, bc it undercuts the whole premise that DOJ can conduct thorough investigations without interefence.

Still - I don't buy the 6(a) & (c) v. (e) arguments (and you don't have to buy them for the inferior officer argument to prevail).

While you sever out, for constitutional reasons, the 6(e) aspects on the right to present exculpatory evidence, I think the whole issue of national security aspects does present, a priori, a different situation. AsstUSAs can request closed hearing and the like with respect to normal classified information. But there is no question but that they do NOT have that ability under CIPA.

If Fitzgerald had wanted to act under something other than CIPA, too, the Judge has different rights and duties vis a vis his independent determinations on classified info. OTOH, when national security is implicated, you are talking immediately about an area where the court is pretty much required to give more deference. When you have, not only the existing case law and the Executive's positions that there should be special handling of national security info, but also have Congress weighing in and saying that ONLY a very select group in DOJ is supposed to make determinations about the handling of national security information in the judiciary, I think it is artificial to pull out the 6(e) separately and that statute makes no effort to do that.

Keep in mind that the appointment objections were made before the CIPA rulings, but there is a very different issue of waiver on the actual CIPA issue presented (that there was improper authorization under 6(a) and 6(c) - and Walton seems to pretty much decide that Fitzgerald did violate statute there) than there is on the CIPA violation as evidentiary of the original appointments violation. I don't think Team Libby has to re-raise their appointments objection every time something happens that they think is further evidence of their rejected appointments claim. Their claim as originally timely made and I think that preserves all they need, but the case law could be to the contrary on that.

What you basically have, on the Constituional front there, is not the constitutional issue of the impact on Libby's 6th amendment rights, so much as the constituional issue of: if the AG (here the acting AG) delegates to a USA powers that Congress said, in CIPA (for national security/policy reasons) can only be delegated to a small group that does not include USAs or Spec. Prosecutors, or if a Special Pros assumes the right to act without statutory authority to act, then is this merely a statutory violation or is it evidentiary of a violation or intent to violate the appointments clause? There, it seems the principal element is whether the power delegated is on that can arguably only be held by a principal officer. You have the Deputy AG, Associate AG, and Assistant AGs as the possible recipients under the statute and so one of the main questions is - are THEY principal officers?

All of them? I'm going to bet there is not a lot of authority out there, but also that it would be a hard way to go to show that none of them are subject to "meaningful supervision" by the AG. If so, and Fitzgerald makes the argument that at least Assistant AGs are inferior officers, then the statutory violation pretty clearly does NOT implicate the appointments clause. So whether Comey violated the statute by impermissibly delegating, or Fitzgerald violated the statute by acting without authorization under it, if the statute allows the AG to delegate to INFERIOR OFFICERS and the screw up was either a delegation to the wrong inferior officer or an inferior officer acting without receiving or being entitled to receive delegation - it really has nothing to do with the appointments clause.

I think Walton (and/or an excellent clerk or so) does a nice job with the statutory/constitutional dichotemy in his opinion, even though he had very little time to get it out. If Sec 14 allows delegation to inferior officers (and I'd have to agree with Fitzgerald's argument - although assistant AGs go through confirmation who would say they are not subject to meaningful supervision?) then it is really just an issue of statutory violation. Of course, the Spec Pros crew isn't going to want to be in that situation either if they can help it (violating statute) so there will be argument on the rest of it - ministerial acts, ability of AG to delegate this kind of power to a Spec Pros bc of 510 even though not specified in CIPA, etc.

But to me, the winner is that the CIPA delegation has to be to a small group, but that small group include inferior officers. So the statutory violation isn't really - despite the good try at the argument by Robbins - evidentiary on the principal/inferior officer issue.

fwiw.

. . .Well, if Scalia is the foundation of your hopes. . .

that is not anyone's hope.

we know that should the supremes take
this case, scalia, or someone, will have
to step up to over-rule morrison, or
distinguish it away, if scooter is to
be granted a new trial, or a reversal,
or a release. . . given that evil comes
in all forms, i suspect the supremes,
scalia included, will not over-rule
morrison to set mr. libby free.

so, the detente i propose is that we
stick to what libby was convicted of,
rather than the parlor game of whom
he might have learned it from -- he
lied, under oath, and repeatedly.

that is what he is going to jail for.

let's address that in our assesment of
the motions -- not the tom clancy novella. . .

that's my offer of detente -- fair?

mary -- we disagree on truly
minor points, not the broad
outline here, so. . .

[to make the reading of longish
blockquotes from the team fitz
filing of june 12, 2007 easier - i
have set the discussion with mary
out in full on my post on this topic
.

here is the conclusion, though:]

so -- while i will concede that there may be
some tenuous basis to suggest that the c.i.p.a.
§§ 6(a) and (c) substitutions were some evidence
of fitz acting beyond the statute -- too indepen-
dently -- i think it a stretch to manufacture the
rich and hearty soup of release, from this warm
but ultimately-watery-gruel. i submit that these,
like the admission or non-admission decisions are
evidentiary, and would not present a question -- "close",
or otherwise -- likely to result in a reversal.

libby loses this round. and decidely so.

Thanks to the commentors for some very interesting analysis--fact and the law. You raise a lot of interesting questions and I wish we had the answers as to who said what to whom and when--what Andrea knew and when and where she knew it--what Gregory knew and when and he knew it--and the well documented disingenuous of Tim--"I skim the surface at all times--particularly when I interview anyone high in the Bush administration" Russert who represented to Walton something different than he had done when he answered F.B.I. investigator's questions.

I got Fitz's .pdf from Tom Maguire's blog JOM--thanks for that. I've found the Pacer sites could be a lot more intuitve for users--although once you know the route they aren't that hard. The problem is though that the district courts and appellate courts don't scan material uniformly or consistently--i.e. they participate at different levels instead of uniform rules for them to scan. It didn't cause the slowness of these briefs to get on Pacer, but it does impeed access to info from some of the Circuits and some of the districts.


I am really surprised that Team Libby and Robbins didn't go for an initial en banc hearing since Robbins' oral demeanour before Judge Walton was pretty much in the vein "Screw you Reggie--I have the D.C. Circuit in my pocket--almost all of them are Bushie automatons and I'm just here to let you know how badly the D.C. Circuit is going to kick your ass for us".

I read the brief Team Fitz (Debra Bonamici, et.al.) wrote as solid, and that it will create difficulty for the D.C. Circuit to fashion any reason to grant Libby relief from the B.O.P assigning him to a prison camp soon and that it will necessitate the defense requesting an en banc hearing/ruling and then on to the S.Ct.

Could someone clear up three points for me?

1) Why was it that the defense could not or did not call Ms. Greenspan and why was it that the defense was only allowed to question her under oath *without the jury present?

2)Once the bond appeal goes into a motion for reconsideration for an en banc opinion, (FRAP 35) where I presume a majority of Circuit Judges may order a rehearing (I can't imagine with 14/17 Bush robots on the D.C. Circuit that won't happen), what is the procedure to appeal to the S. Ct.? Forgive my confusion, but does it take the form of an emergency appeal to the Justice that presides over the D.C. Circuit for emergency appeals similar to the applications for stays of executions or like some of the Presidential election appeals on an expedited time table? And is there a procedure for that Justice to refer them to the Court for a specified number of votes to gain consideration and an opinion?(I mean for example as Justice Kennedy presides over the 9th Circuit for emergency appeals)

Isn't there some S.Ct. rule (that I couldn't find in their rules) that the presiding Justice receives it and presents it to the S. Ct. for a required number of votes ( 4 for cert. for example) but it's presented as an expedited emergency appeal?

I tried the S. Ct. Rules but might have missed it there.

3) There were 8 pages redacted in a previous D.C. Circuit separate opinion by Tatel and his law clerk(in response to a Dow Jones motion forcing Miller and Cooper to testify by Tatel if I remember correctly. What's the legal basis for the D.C. Circuit being able to redact part of their ruling on a motion--and if I read the FDL post on it correctly--Fitz had the option to unredact or release it and he has agreed or did release part of that? Can someone clarify for me the legal context of this 8 page redaction by the D.C. Circuit? Is it because of C.I.P.A. issues in this case?

I think they begin here at p.30 regarding Miller and Cooper:

http://www.justice.gov/usao/iln/osc/documents/dccircopinion_02_15_05.pdf

chch15

1) Why was it that the defense could not or did not call Ms. Greenspan and why was it that the defense was only allowed to question her under oath *without the jury present?

Because of evidentiary laws. You can't introduce a witness who is not directly relevant to the case for the sole purpose of discrediting that witness. So if Libby wanted to introduce Mitchell for something within the narrow scope of the case (to argue, based on what he said to her on the 8th, that he told her something) he could do so. But as Wells admitted to the court, he only wanted to introduce Mitchell, along with the TV clips showing her to be an idiot, to discredit her claims that she didn't hear of Plame, and with it, suggest that Russert was lying when he said he didn't know of Plame. If Wells KNEW Mitchell was going to testify she knew of Plame, then it would have been admissible. But since her attorney said she wouldn't, then it was not admissible. And the sworn testimony, outside of the jury, was an opportunity to see what she would actually say.

What's the legal basis for the D.C. Circuit being able to redact part of their ruling on a motion--and if I read the FDL post on it correctly--Fitz had the option to unredact or release it and he has agreed or did release part of that?

The grand jury secrecy. The redacted portion treated Fitz' argument of why the journalists could be subpoenaed under DOJ guidelines. The portions relating to Judy were, by and large, unsealed after the indictment. What remains sealed pertains to Rove's involvement. So it can't be unsealed, because otherwise you'd know all the evidence supporting supoenaing Cooper (and therefore, potentially indicting Rove).

Tom

Two points. I think the larger appointments clause may get overturned. But the point you don't seem to point to is first the legal basis for the appointment, which fits into normal DOJ guidelines, and Comey's passing of oversight of the case to Margolis when he left. So it is not the case that there was no oversight. The appointment looks just like other DOJ appointments done for conflict reasons (I'm thinking, for example, of how Cummins got appointed to investigate Blunt in MO bc everyone in MO had a conflict), but in this case you need to recuse the people who might have conflicts in the vertical chain of command.

chch16 sez --

". . .Forgive my confusion, but does it take the form of an emergency appeal to the Justice that presides over the D.C. Circuit for emergency appeals similar to the applications for stays of executions or like some of the Presidential election appeals on an expedited time table?. . ."


here's the deal.

we can't be certain.

that is so, because lawrence s. robbins
has a whole series of possibilites
-- in
terms of the procedural tactics -- to employ
if/when this expedited three judge d.c. panel
rules against him. for example, if mr. libby
has reported to prison camp by that time, mr.
robbins (as irony would have it!) could make
a motion for a federal writ of habeas corpus. . .

or, he could appeal the "procedural" ruling. . .

or, he could simply file an appeal "on the merits."

what is certain, is that mr. libby does not
have any "right" to expedited hearings.
so -- his will be "permissive", if granted
.

he is not within the categories so enumerated,
as you correctly mention, for example, a death-
sentenced convict. . . so probably the best thinking
has it that it is best to wait and see what robbins
chooses to do next -- he is limited, truly, only
by his own imagination, and desire for a speedy result,
one way or another, for his client.

hey chch16 --

my links, immediately above, reference
the d.c. court of appeals handbook. . .

now, here's what the u.s. supreme
court rules provide:

Rule 21.

1. Every motion to the Court shall
clearly state its purpose and the
facts on which it is based and may
present legal argument in support
thereof. No separate brief may be
filed.

. . .4. Any response to a motion shall be
filed as promptly as possible considering
the nature of the relief sought and any
asserted need for emergency action, and,
in any event, within 10 days of receipt,
unless the Court or a Justice, or the
Clerk under Rule 30.4, orders otherwise.

i must note, in a case such as this -- a convicted
felon, seeking release from a sentence of prison,
while his appeals are prosecuted, is almost NEVER
given "emergency" treatment by the supremes. . .

the law presumes the sentence correct.

so, i think mr. libby will have to wait in jail,
if he loses this round -- and, he will wait
in jail, while the papers for any en banc
rehearing are cobbled together -- just my guess.

finally -- given the court's more-recent holdings
generally curtailing federal habeas corpus availablity
[again, ironic!], i would submit that his chances of
winning a hearing on habeas would be remote.

hey chch16 --

my links, immediately above, reference
the d.c. court of appeals handbook. . .

now, here's what the u.s. supreme
court rules provide:

Rule 21.

1. Every motion to the Court shall
clearly state its purpose and the
facts on which it is based and may
present legal argument in support
thereof. No separate brief may be
filed.

. . .4. Any response to a motion shall be
filed as promptly as possible considering
the nature of the relief sought and any
asserted need for emergency action, and,
in any event, within 10 days of receipt,
unless the Court or a Justice, or the
Clerk under Rule 30.4, orders otherwise.

i must note, in a case such as this -- a convicted
felon, seeking release from a sentence of prison,
while his appeals are prosecuted, is almost NEVER
given "emergency" treatment by the supremes. . .

the law presumes the sentence correct.

so, i think mr. libby will have to wait in jail,
if he loses this round -- and, he will wait
in jail, while the papers for any en banc
rehearing are cobbled together -- just my guess.

finally -- given the court's more-recent holdings
generally curtailing federal habeas corpus availablity
[again, ironic!], i would submit that his chances of
winning a hearing on habeas would be remote.

crap -- pliz delete double post -- sorry, EW.

Tom Maguire: "My goodness, I have no opinion at all as to the relative patriotism of the two sides. As I noted, the issue *is* being taken up with the courts, but I will be ever so careful not to make jokes without flagging them."

Ah, a joke. Hard to tell, since it sounded so much like the usual pro-Libby, conservative whinging.

Actually, you know what I find works real well for flagging jokes -- making them funny.

AFAIK, The CADC does not make briefs available via PACER. The only material available via the internet is Court Opinions and Orders. One can check various case at CADC to confirm that proposition - my experience is limited to checking half a dozen or so cases.

I'd like to learn a bit more about the habeas corpus argument - at this point Libby -IS- before an Article III court, not at all the same as the Gitmo and other detainees under military custody and being denied access to an Article III court.


Thanks very much for the good answers from Nolo and emptywheel.

It is nice to see a high level of legal expertise here, and helpful for those of us who want to further our education and understanding in the nuances of this case.

I also meant to include my question on the redaction that if the decision is made by Tatel in his separate opinion to redact, how it has been written by some people that Fitzy had the discretion to (I think) release portions of the redaction maybe under pressure from Dow's attorneys? I'm grinning a bit, because I think many people read WSJ for some of their articles that aren't politically slanted.

The editorials are surreal and crazy including op ed pieces by Revisionist Rabinowitz). WSJ
has been fretting every day for 3-4 weeks in multipaged articles over whether Murdoch would muck around with their "pristine editorial integrity" while the Bancrofts allowed the Libby trial and now the appeal to be totally ignored--unique (to use a Dana Perino term fed to her by Addington referencing the VP) compared with any major American newspaper and a good deal of the foreign press.

The Libby trial has been totally ignored by them, and rarely referenced in a one sentence "What's News" item on the front page--except for their Team Libby Multimillion Dollar club editorials or the whacky and comical Rabinowitz editorial yesterday,or goofey ramblings by Victoria Tonsiltongue and her hubby Joe Disingenuova.

I'm not very familiar yet with the ways to italicize and link, so if someone knows the name of the convention used if it has one, then I could google for a glossary to be able to do this. I wonder how Nolo is linking helpfully to another site, but is able to context and name the link what he wants--different from the actual url--I'd like to be able to do that because it can "kill two birds with one stone"

It's a different convention than I got used to on a previous forum I used to work with a lot for Windows problems.

I'll bet Libby really regrets not being around to christen the
Good Ship Cheney in the 4th Branch of Government (whose name has not been revealed yet by Fred Fielding and Addington)--not part of the Executive Branch because he can break ties as President of the Senate (Article 1, Section 3 of what we know now is that antiquated and apparently scrapped document by this Administration, the Constitution). He could have also dictated circumferential BS to the idiots Fratto and Perino --the broken record that "no matter what we do we are comporting with the law."

It's hard to understand then, why Cheney is being housed, fed, sheltered, flown, driven, and as Rahm Emanuel has said, paid [and funded] by the tax payers.

I thought I had a pretty decent American History teacher and a pretty sharp poly sci. prof. in college, but they didn't contemplate Addington-Cheney's Margueritaville theory of government or they hid it from us.

If Libby is ever incarcerated wouldn't a habeas be the slowest possible route of appeal and wouldn't it have to be done after the regular appeal was finished by law if we're talking a § 2255? I believe he can't file a § 2255 until his other appellate remedies are exhausted, and the law is, if I'm not mistaken, that he has one year to file it after all other appellate rememdies (in his main appeal) are exhausted by the highest court which is going to be the S.Ct. here unless Cheney/Addington's puppet Bushie steps in.

And wouldn't it have to include the merits of the acutal case--his main appeal not the bond appeal in the habeas since they are already committed to one path which is an emergency appeal on the bond?

I was under the impression he could only get one "habeas bite of the apple" so to speak, and could not subspecialize the habeas to focus on only his appeal bond. On reflection I suppose this makes no sense, because relief from the main appeal would accomplish the purpose of a habeas.

I'm aware that prisoners often file for §2241 often because they are at a facility where the BOP staff is making their life as miserable as possible, throwing them in the hole for bogus reasons for extraordinarily long periods of time, or picking up their legal work and hiding it in their offices or intercepting their legal work or mail from the Federal Defender and keeping it forcing them to miss reviewing or contributing or communicating with their attorney when there is a crucial appellate deadline looming) or because they can't get care from the incompetent BOP medical staffs who have less clinical competence than my dog are usual complaints (deliberate indifference by DOJ/BOP employee M.D.s and P.A.s and this is pandemic and real--denial of subspecialty care or hospitalization or often, chemotherapy that is competent or cardiac care that a second year med student could improve upon.

Conventional Habeas Remedies
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/37mcrm.htm

I also saw where an unusual writ was used to correct a sentence in the 2nd Circuit, but I doubt Libby would have much luck if he used it at any time if the D.C. Circuit were to deny his bond appeal, and when last I checked, Washington D.C. is not in the 2nd Circuit.

Columbia Law Review, Vol. 53, No. 5 (May, 1953), pp. 737-739 Writ of Error Coram Nobis Allowed in Federal Court to Attack State Prisoner's Prior Federal Conviction

His incarceration would be past the hurdles of what I perceive as a very Bushie prone D.C. Circuit with one of Bush's good friends on the Court who was counsel in his office--Brett Kavanaugh of the $166 million and change spending Ken Starr Whitewater staff--Bush attended his swearing in and spoke at it). and unless it were somehow (can it be done?) expedited my perception is that there are a helluva lot of people stuck in the BOP quagmire whose habeas petition takes 2 years or more.

The district court can sit on it and fox/hencoop reject it, as they nearly always do 99.+% of the time, and then through a confusing labyrinth the petitioner (prisoner who doesn't have a 5 million dollar and rising white elite D.C. Cabal and posse who wants relief above and beyond the law) has to appeal the district court's rejection (and Walton will certainly provide that in a hypothetical habeas for Libby--only probably much faster than Mr. or Ms. average prisoner would get) so a habeas for most filers is a very slow road to China--of course they are granted as frequently as Paris Hilton will become Dean of Harvard Law or Med next week.


Italic on is done with <i> italics off is done with </i>

italics <i> on - italics </i> off ... yields italics on - italics off

well, tom miguire, you just had to go and be an idiot that even I could outsmart:

the right to confront a witness and have the jury assess her credibility is different from allowing the witness a dress rehearsal in a closed hearing

if you understand that, why don't you understand that this relates to the question of RELEVANCE ???

scooter libby could have called ANY FUCKING PERSON ON THE PLANET to testify that the sky appears blue to most humans

but what does that information have to do with the legal questions involved in scooter's trial ???

NOT A FUCKING THING, THAT'S WHAT

"andrea the greenspanner" and "any fucking person on the planet who could testify that the sky is blue" HAVE NO RELEVANCE IN THIS TRIAL

are you too stupid to understand that fact ???

IANAL, but I could kick YOUR ass in a courtroom any day, tom mcguire

sorry, it had to be said ...

I am not aware of that but would love to see just what was said. My criticism that he was misleading the court would take on water, but my criticism that he was propping up Russert's public image would stand, depending on just how sealed these filings and affidavits were

Here's a relevant bit from February 14, which I think addresses both parts of your argument. The notion that he was propping up Russert's public image collapses under the weight of two or three considerations: first and perhaps mainly, Fitzgerald treated Russert no differently from how he treated other journalists - was Fitzgerald "propping up" Novak's "public image" by not disclosing the fact that he folded faster than a cheap suit? For that matter, did Fitzgerald prop up Rove's public image by never disclosing that Rove inexplicably and over a long period of time failed to come clean on the fact that he volunteered extensive information about Plame - not caveated as journalistic rumor - to Cooper? Was he helping Bush 2004? Please.

Second, Fitzgerald has been, as Walton himself said, very appropriate with discovery, but why on earth would he give away stuff to potential and then actual defendants before he had any responsibility or obligation to do so? Indeed, would it not have been extremely irreponsible as an investigator to publicly disclose the fact that a key witness had contradicted a central subject of the investigation in the very midst of a secret grand jury investigation?

Third, all the stuff was sealed, until some of it wasn't. See one and/or two above.

With that, here we go, we pick up with Wells, then Fitzgerald:

The waiver was everything. And then Mr. Russert
3 says, well, he kept it confidential because the FBI wanted
4 him to keep it confidential. Well, if the waiver issue had
5 been briefed, nothing would have been confidential. Perhaps
6 this waiver, I believe, had more value than any other part of
7 the agreement, because that was what permitted Tim Russert to
8 repeatedly go around on T.V. and talk about how he fought the
9 subpoena without saying anything to the public about the fact
10 that he had discussed it freely with the FBI.
11 So in terms of value, I would rank this number one
12 on the things that he got from the Government, the fact that
13 because they decided it was not, they won't say it was a
14 waiver, it was totally kept out of the public record.
15 Mr. Russert took great advantage of that.
16 MR. FITZGERALD: I would point out two things. The
17 filings were under seal, Judge. It was a motion to quash in
18 the Grand Jury for a brief. It was argued under seal. So
19 the notion -- you know, and then the affidavit we did
20 actually disclose and the sealed filings ex parte we
21 disclosed the fact of the interview. So to construct this
22 notion that something Mr. Russert we, in fact, believe never
23 heard about was this overwhelming desire to be part of the
24 structure of how the brief is is just fiction.

There are other places too. But that at least hits the basic factual point.

Also, let me mention, folks, you shouldn't be abusing Tom Maguire. (Some of his commenters at JOM, maybe, but not old Tom.) He knows more about this case than the overwhelming majority of us, and without doubt more than anyone else on the right. And he's an honest arguer, at least most of the time (and who can do better than that after all?).

And Tom, a special for you: guess which NBC news guy who is a full foot or so taller than me I literally almost ran into the other day and refrained, from politeness or timidity, from asking, "So, did Fleischer leak to you or not?" I kid you not.

not to wax all pedantic about it, jeff,
but if tom is so well-versed in libby-
lore, and so fair-minded, why on earth
would he suggest that admitting dick
cheney's hand-written notes, for the pro-
secution meant that mrs. andrea mitchell-
greenspan's rumor-mongering statements
should likewise have been admitted
into evidence by judge walton, for the defense?

he may be a nice guy and all, in real
life, but that one is simply laughable. . .

p e a c e

nolo

I'm not sure you get the argument you try to use to illustrate your point quite right, but anyway, it's one thing to think it's wrong, another to think it's so ludicrous as to be evidence of bad faith. (And I have no idea what Maguire is like is real life, nice guy or otherwise.)

Also, while I have you on the line, could I request that you post comments like the rest of the world and not all poetry style. It's rather annoying reading through a post that could be a couple of inches in length but that takes up almost a foot.

yo Jeff:

I don't offer respect to ANYBODY who tries to explain the law without actually KNOWING the law to begin with

the question of relevance is a SIMPLE issue, and yet tom maguire tries to explain the issue in a way that either proves tom is an idiot or a slod out hack

so let's say it in plain fucking language:

andrea mitchel had NO INFORMATION that was relevant to the trial of scooter libby

if andrea mitchel HAD any relevant information, scooter libby had ample opportunity to bring that information out, under oath, in a court of law, and scooter chose NOT to do so (the question of presenting the evidence to the jury revolves around relevance, and andrea just wasn't relevant)

if tom maguire can't admit that, he is either an idiot or somebody is paying him to mold his opinion

nuff said ...

". . .As noted above [re Mitchell], that contrasts nicely with the Wilson op-ed marked up by Cheney. Libby never saw it, we don't know when Cheney marked it, the prosecution never called Cheney to establish those points, yet it was allowed in. Whatever. And yes, I recall Addington's interplay there with the wife and the documentation of a CIA trip. . ." [emphasis supplied.]

Posted by: Tom Maguire | June 23, 2007 at 11:02

jeff -- that is what he said. now, it is obvious -- to any lawyer passingly familiar with the case -- that cheney's handwritten notes are admissable as substantive evidence, under the contemporaneous written records exception to the rule against hearsay -- fed. rules of evidence 803 (6) -- let me quote it here:

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity. . . [emphasis supplied.]

contrast with: andrea mitchell's out of court, subsequently recanted, oral passing on of a rumor she once heard. . . yep! it is quadruple hearsay -- and inadmissable, even for impeachment -- unless scoots takes the stand and sez he believed he heard the rumor from her -- and, even then, it might be deemed inadmissable, as being so untrustworthy that its prejudicial effect might (would!) outweigh its probative value. . .

so, well, yeah -- that was laughable, to me -- and i don't even follow the case very closely. but, really -- to each his own, i guess. . .

p e a c e

ps: -- to all -- a tnh referendum: does my other style hurt your eyes? that is, would you prefer i post without carriage returns here -- let me know.

Thanks cboldt for the format info. I'd appreciate it much if cboldt or someone could show me how you make a hyperlink to a url by name it whatever you want--i.e. the way Nolo is naming hyperlinks to his site in the context of what he wants to say in the sentence or the way he wants to characterize the hyperlink. Sorry I can't figure it out on my own.

Quick lesson by example, where the link is to further HTML information ...

<a href="http://www.w3schools.com/html/html_links.asp">How to make HTML Links</a>

How to make HTML Links

Thanks much cboldt. Sorry it took me so long to realize that it's simple html.

Thanks for the guide.

nolo - I've come to adore your trademark narrow column comments, please don't change the format!

radio

Whew! All that lawyer stuff.

I am just sitting here, eyes wide, wondering if I could use some of that spiel next time I go to traffic court.

freepatriot you should be quiet and let the grownups talk.

Whew! All that lawyer stuff.

I am just sitting here, eyes wide, wondering if I could use some of that spiel next time I go to traffic court.

freepatriot you should be quiet and let the grownups talk.

Posted by: shit stain | June 24, 2007 at 14:41

don't assume that others are confused just because you can't keep up with the conversation shit stain

that fact that we're talking "Over Your head" finally registered, huh ???

some people don't listen to the grownups

mostly it's people like you, shit stain

and when the shit stains like you ignore the grownups, I take over

nothing pisses a shit stain off like a good slap to the head

we could interact non-violently, or violently

doesn't matter to me which way you choose to be treated

act like a shit stain and ya get treated like a shit stain

unlike you, shit stain, I got some consistency in my actions

and I ain't afraid to slap people up side the head occasionally ...

ain't that right, shit stain ???

Jeff, Tom Maguire and Nolo - I have been away all weekend and this is late for this thread, but nolo has it right on the Cheney marked up aticle/Andrea Mitchell analogy. One was a record from a government file for which the foundation for admissibility was presumptive and then supported by a custodian of records. The context and limited purpose for which it was then admitted before the jury made it relevant and beyond heresay problems. Mitchell, on the other hand, had no presumptive veracity or admissibility as she is not a government record kept in the regular course of business. On top of that, as nolo indicated, any potential Mitchell testimony appeared to involve multiple levels of heresay; and one level is enough, absent an exception, to disqualify it from presentation to a jury. Quite frankly, without a formal proffer and written affidavit by Team Libby as to why and how Mitchell was relevant and admissible under the circumstances, it was incredibly generous and liberal of Walton to offer a hearing on the record without the jury. The fact that the defense declined this offer tells you all you need to know about Mitchell's potential testimony, i.e. it did not hold up to the objections and was simply an attempt to confuse and sidetrack the jury.

I'm still hoping to hear from Tom whether, in light of the stuff from the trial I quoted, he's prepared to give up his claims about Fitzgerald hiding from someone or other the fact that Russert was indeed interviewed by the FBI in fall 2003. But meanwhile, to the others, all I'm saying is that it's perfectly possible for Maguire to be entirely wrong, for instance on a matter of law, without being an idiot and so forth. Let me assure you that just about everyone here periodically gets completely elementary factual claims about the case flat wrong; but I don't think they're a pernicious idiot worthy of abuse because of that.

"When the boat misses the harbor, it is seldom the harbor's fault."

The issue here isn't one of fact - we can concede that the facts will wash clean to both sides with enough discussion. Instead, the issue is which way the facts are being steered.

Tom is taking the Bush Apologist tact and bravely quibbling over the details of an overwhelming felony conviction for the non-trivial, points-at-treason crime of obstruction of Justice - most likely undertaken by Horseholder Libby on behalf of his two bosses, Bush and Cheney.

But, gee, Tom, you know, that inferior officer point has some truly serious implications. Until we get to the bottom of that, it just wouldn't be right to think that Libby covered-up the outing of a Covert CIA Spy and her ME WMD-monitoring front company, Brewster-Jennings, at the behest of his bosses - the Leakers themselves, would it?

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