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June 12, 2007

Comments

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

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

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

Yo EW, you ARE my muse

now for some troll biskets:

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

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

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

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

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

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

bmaz

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

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

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

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

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

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

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

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

to any crooked public officials who might read this:

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

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

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

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

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

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

well ... maybe not

bmaz

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

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

Ishmael

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

props to Ishmael too

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

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

I hear it's like that at most academic institutions

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

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

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

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

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

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

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

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

Sebastian

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

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

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

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

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

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


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

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

nolo

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

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

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

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

no, cert. will be discretionary only, here.

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

save, of course, a pardon.

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

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

can you say "mmmmmm-peach-ment?"

i can. you can too.

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

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

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

well-done!

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

bmaz - was there any reason why the original appointments ruling couldn't have been certified as a collateral order for interlocutory? I don't do crim and this has always bugged me. Back when I did civil lit work, if you had an issue that went to whether or not you should have to have a trial at all (generally jurisdiction - I'd guess with crim maybe something like competency) you could get it certified for appeal - maybe not a stay pending, but sometimes that.

. . .Libby could have an answer from the Supremes before he ever has to self report for incarceration. . .

look -- bmaz -- i respect your opinion,
but do you really think the supremes are
going to set briefing -- and more impor-
tantly -- oral argument, on this, ahead
of the already-accepted docket? c'mon.

that would evince naked politics -- and
i personally believe they are too smart
to do that. . .

my guess -- it will be heard late fall at the
earliest before the supremes. . .

and so, i propose another nexthurrah wager:

i will pay you (via a shipping method of
your choosing!) one completely-humble-apple-
pie, if the supremes have freed scooter
before he self-reports, or is ordered in,
by judge walton. . . deal? and, now, will
you put your pie where your pen -- erh, key-
board -- has been?

that is -- will you offer the same, in return?

if so, done.

[do you want any of
this action, EW? he he!]

do tell.

Mary - Can't give a definitive answer; but that is a very interesting point for discussion. As a general rule, as I am sure you are aware, interlocutory appeals are frowned on in Federal court, but that has never stopped anyone from trying if it was a critical issue they cared about. Such as jurisdictional issues, as you note. It is semi-painless for the court; I have never seen it held against a party for having tried. I have made the attempt just to seed the thought process of an appellate court early; I think that was in a state court though. I wonder if there was a tactical pow wow on this among the defense. If you take the appeal on the front end and win, no jeopardy has attached and the government would have leave to fix the problem and pick up where they left off. My guess is, for that reason, they quickly decided not to take it up as an interlocutory issue.

Well nolo, I will think about that. I don't see that there would be oral argument set for the remand issue; especially if accepted on an expedited basis. So, there is no doubt they could tackle this that fast; the question is whether they will. If you check out my comment above you will find that I didn't say they would do it; only that they could. I will ponder the bet after the ruling by Walton. In some ways, I think a bet on the Supremes is moot, because I don't believe they would take a different position than the DC Circuit; but that is just a hunch.

[isn't it just like lawyers to
want to hedge every bet? you say
you want to see how walton rules.
with the amended terms, below, i
am plainly accepting the risk that
walton could grant scoots a pass. . .

not a big risk, i know. . . now:]

okay -- bmaz -- let me make the
terms more. . . erh, appealing,
for you: if any court, anywhere,
has freed scooter before he serves
at least one full day of jail
time -- you win.

this -- obviously -- does not
give you a "win", if a pardon
comes, and some court ultimately
sustains the pardon, before scoots
hits the doors of camp fed. . . so,
in the event of a pardon -- it is a
"push-bet", unless scoots is already
incarcerated when the pardon comes.

then, i win.

[i'll note that i agree with your
thinking about team libby choosing
strategically against filing inter-
locutory appeals on these issues. . .
and, for exactly the reasons you suggest. . .]

thus, i say the next judicial order
to "liberate" scooter will come only
after he has been incarcerated -- for
at least one full day.

so -- do we have an accord?

Is Silberman a definite to review the Scooter appeal? I am sure they will move heaven and earth to get him. How many other wingnuts on that court and are there any non-ideological judges on that court who believe in the law?

How likely is this scenario - Walton orders Scooter to start serving his sentence within the next 45 days - Scooter appeals to Silberman, et al who overturn the conviction? What happens next? Fitz goes to the Supremes and is Scooter still skating?

Fitzberald is doing what prosecutors do.
Posted by: Jodi | June 12, 2007 at 16:52

Fitzgerald is doing what great prosecutors do. He's kicking ass... again. Fitz won the argument in Walton's court and he's getting a head start on winning the argument in the 9th circuit on appeal. He's right, right and right. Libby's only prayer is a quick pardon and frankly I don't care if he gets it. Libby is a convicted felon. If he gets a quick pardon he'll be a convicted felon with a quick pardon.

Is there anything going on to clear up that cloud over OVP? Oh yea, this.

US Attorney Fitzgerald Wants Libby Imprisoned Now

http://www.huffingtonpost.com/huff-wires/20070612/cia-leak-trial/

so do many of the citizens of the United States of America.

Dismayed,

I am curious why you think I am more than one person. I don't post that much.

Mimikatz,

I only mean that Libby's lawyers has a few good points with the memory expert, Andrea, etc., and now Fitz's appointment has been brought up. I don't presume to say that any are rock solid grounds for reversal. I think I indicated that I was going by other people's judgements.

Neil,

yes, but then I tried to indicate that the defense was also doing what they are supposed to do. So why does this group get so excited about that or by other people's talk about pardons?


And a question to anybody-

If Libby is sent to jail, and the appeals work, then what happens? Does Libby get to sue somebody?

Does Walton and Fitzgerald have to apologize? That situation would at the very least seem embarrassing for those gentlemen.

I'm not blind. Enough with the bold.

yo, Neil:

the shit stain tries to make her posts easy to skip over

just another free service provided by the resident troll of the best blog in the innertubes

smart people and polite trolls

the shit stain is one of a kind, by what shit stain isn't one of a kind ???

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