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Judge Walton's Footnote:

Like others, I was initially struck by the footnote in Judge Walton's order granting the motion for leave to file an amicus curiae brief on whether Scooter Libby should be released on bail pending appeal.

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

"Ouch," I thought. Yet the footnote's sting subsides dramatically upon reading the actual motion in question. The snark hardly seems justified given that the amici law professors seek to address a serious constitutional question well within their academic expertise in a high profile case. More here.

CollegeProf:
I think the procedural context is important. Judge Walton had already decided the constitutional issue; the issue at this stage was only whether the defendant should be released pending appeal. Given the procedural posture of the amicus brief, I gather Judge Walton questioned whether the authors' primary concern was reallythe future direction of constitutional law.
6.10.2007 1:34pm
tbaugh (mail):
Nonetheless, the "snark" strikes me as completely unjustified. "The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it." This question or one like it is likely to arise frequently? If so, a judge can call on (order?) legal scholars to file briefs as amici? I'm not sure why this bothered the judge, but it looks like one of those things one might write and then strike out on editing.
6.10.2007 1:40pm
PersonFromPorlock:
Is Libby still a 'defendant'? It seems to me that if he's anything, it's 'the convict, Libby'. Whether he ought to be is another question, of course.
6.10.2007 1:45pm
scote (mail):
CollegeProf sums it up nicely.

This amicus brief should have been filed long ago were it really about constitutional issues pertaining to the appointment of Special Counsel Fitzgerald. Instead it was filed June 7th as a way to suggest Libby should be free pending appeal.

The snark seems well deserved given the timing. I'm sure Judge Walton has had other defendants equally deserving of aid from a dozen top law professors--defendants who didn't also have the advantage of a multi-million dollar defense fund. From a populist view, the appeal represents special treatment for Libby as a dozen top law professors line up for free in an attempt to get Libby off on a technicality--the appeal does not address the evidence or guilt of Libby, only an argument about the appointment of Special Counsel Fitzgerald.
6.10.2007 1:45pm
frankcross (mail):
I'm shocked, shocked, to discover that high profile clients with money get better legal representation.

The criticism should not be aimed at the amicus signers, though. It should be addressed to all whose lawprofs who are taking a vacation, or working on research, or sleeping late, instead of devoting every available minute to helping the disadvantaged. After all, they are selfishly pursuing their own private interests in leisure or work when they could be contributing to justice for deserving defendants.
6.10.2007 1:50pm
anonVCfan:
I'm with CollegeProf on this.

The amici don't ask Walton to release Libby because his prosecution was unconstitutional; rather, their request is based upon the fact that there's an academic debate out there on the subject.

If they were truly interested in the direction of constitutional law, the profs who think that unconstitutional happened could submit a brief to the D.C. Circuit. The profs who disagree could submit a separate brief, making the opposite argument.
6.10.2007 2:03pm
Kazinski:
CollegeProf and AnonVCfan:
The amicus brief contends that Libby has significant enough hopes of prevailing on the issue that he should be allowed bail while appealing. That is more than an academic debate to Libby. And the fact that such high powered academics are taking Libby's side in the matter makes it harder for Walton to contend that Libby doesn't have much of a chance of succeeding.

Walton may have decided the constitutionality of the issue during the trial, but the point of the amicus brief is that he was wrong. Thus the snark.
6.10.2007 2:24pm
CollegeProf:
Kazinski,

To my knowledge, the academics were weighing in with an argument already made quite strongly in Libby's own brief (including with citations to Amar, etc.), both originally on the merits and later in the motion for release pending appeal. It's not like the argument was new. Judge Walton's snark seemed to be all about the rather odd context, not the argument itself.
6.10.2007 2:51pm
Harry Eagar (mail):
At least as a brief it was public.

We had a child rapist of local prominence convicted, and about 150 of the local prominenti, including several lawyers and a judge, wrote the trial judge asking him to, to be blunt about it, let him loose.
'
The judge -- one of two best in my experience -- thought long and hard before he let me read the file, but he let me.

I published the juicy bits, and I'd like to think that child rapists get a more even shake in this jurisdiction these days.

From feedback, I learned that quite a few of the letter writers didn't expect to have their names attached to a child rapist that way.

Your MSM at work.
6.10.2007 3:04pm
Joe Bingham (mail):
Suppose that they weighed in because they think Libby is particularly deserving, or because they are personal friends with him.

So what? That gives a judge leave to be snarky? (I hate to reuse the word, but I also hate to use any other fitting-but-out-of-line terms President Bush might've been caught on tape using...) It's absurd to suggest that (a) these scholars haven't or wouldn't help other needy or deserving defendants or that or that (b) their contributing in this case, even if they have a special motive like affection for Libby makes them specially liable to ethical criticism for not engaging in other pro bono work.

Seriously, what a jerk. No wonder he gave the guy 2.5 years. He has Scalia's sarcasm without the sense of humor.
6.10.2007 3:04pm
RSF677:
I think that Randy Barnett would probably object to the characterization of the motives of the signers' (including him) of this motion. I also think that his previous activism on behalf of the politically unpowerful (Raich) suggests that Walton's attack is deeply misguided.
6.10.2007 3:06pm
Gabriel Malor (mail):
I agree with frankcross. How dare these law professors offer their legal knowledge in this case when "numerous litigants" would also benefit from their help. In fact, unless they've brought enough candy for the whole class, they can just shut up.

I also note the sarcastic use of "these luminaries" which the judge applies to the professors. Deliberate antagonism? To what end?

And finally, CollegeProf and anonVCfan, if the judge really wanted to note that the question had already been answered, he could have. Instead he chose to make fun of the amicus professors.
6.10.2007 3:09pm
Erasmus (mail):
I don't see the problem. Yes, it would be nice if these "luminaries" were to offer their free time to poor criminal defendants, but I guess if it's either rich criminal defendants or no one, I'd prefer the latter to the former.

PersonFromPorlock, even on appeal, the defendant is referred to as the defendant. And when the defendant's attorneys write his appellate brief, they will refer to what "allegedly" happened, even though it has been proven beyond a reasonable doubt.

Scote, how does being prosecuted in an unconstitutional way constitute a "technicality"? Perhaps the Government views constitutional protections as mere technicalities, but I'd like to think the rest of the free world does not.

anonVCfan, the standard to be released on bail pending appeal is whether your direct appeal will raise a "close question." Given that there is this academic debate out there -- an issue which law professors could certainly speak authoritatively on -- that's good evidence that this is a close question.
6.10.2007 3:11pm
Joe Bingham (mail):
RSF677,

I hope I didn't leave the impression that I was questioning the ethics of the professors' motivations. My point is that no matter what their motivation is, it's absurd to criticize them for filing the brief. Even if the judge is right that they're not completely disinterested in submitting the brief (who is?) that's completely irrelevant.

It's discouraging (if unsurprising) that someone in the federal judiciary is so unprofessional and so unthoughtful.
6.10.2007 3:15pm
Public_Defender (mail):
The snark hardly seems justified given that the amici law professors seek to address a serious constitutional question well within their academic expertise in a high profile case. (bold added)

The key words are "high profile." High profile cases attract filings from attention-seeking attorneys. If the amicus attorneys really cared about the issues in their pleading, they would have filed it in a case where the defendant could use a boost of outside legal talent.

It's amazing that conservatives have suddenly discovered that the sentencing guidelines are unreasonably harsh, and even more unreasonably harsh for defendants who dare to assert their right to a jury trial. (Yeah, I know Dershowitz isn't a conservative, but he's a publicity whore.)

Where were these so called "friends of the court" the last time Judge Wilson sentenced someone to even more time than Libby got for mere pot possession?
6.10.2007 3:16pm
scote (mail):

(link)
Joe Bingham (mail):
Seriously, what a jerk. No wonder he gave the guy 2.5 years.

Or, perhaps it had something to do with the federal sentencing guidelines and Libby's total lack of contrition...Libby didn't ask for the mercy of the court because he still doesn't admit he has done anything wrong. That isn't the kind of circumstance that leads a judge to waive sentencing guidelines in one's favor.
6.10.2007 3:18pm
Erasmus (mail):
I like the irony here though. This judge was one of dubya's first judges appointed to the bench. And like a lot of Dubya's "tough on crime" judges, he's a compassionless dick.
6.10.2007 3:24pm
scote (mail):

Scote, how does being prosecuted in an unconstitutional way constitute a "technicality"? Perhaps the Government views constitutional protections as mere technicalities, but I'd like to think the rest of the free world does not.

You'll note that my characterization was specifically labeled as a Populist view. I think to average people, including myself, that an argument over arcane issues of the nomination of the prosecutor as opposed to substantive issues regarding the actual guilt of Libby would count as a technicality. You can argue that such issues are important and that we shouldn't be dismissive of "technicalities" but I don't think that means that the brief isn't about a technicality, even if it may--or may not be--a constitutional one.

The sheer audacity of a a key member of the Bush Administration, which has unilaterally suspended Habeas Corpus, to complain about highly debatable constitutional issues is galling. Obviously Libby does not believe what's good for the goose is good for the gander.
6.10.2007 3:27pm
Armen (mail) (www):
And for about ten years before that he was a judge on the DC Superior Court. And before that? An adviser on crime to another Bush.

Ever wonder if he's seen other criminal defendants who face even harsher penalties when they have even more legitimate constitutional or other defenses? Good for the judge. I presume the amici are members of the DC bar. Haul them into court to defend a coke head next week.
6.10.2007 3:33pm
anonVCfan:
We're debating the propriety of the snark, not anything else. Judge Walton did accept the brief, and he did acknowledge that "the views expressed by the Amici in their brief may assist the court in addressing the issue raised therein."

His observation in the footnote is fairly apt. If you're a federal court judge, you see lots of shoddy work and probably wonder how many parties, criminal defendants in particular, might have a chance if they lawyers good enough to spot meritorious issues. The fact that these profs chose this particular issue, at this particular procedural juncture, and chose to submit a brief saying "we don't know/agree what the answer is, but there's enough doubt that Libby should be set free," well, I'll just say that I can understand Judge Walton's frustration.

He didn't strike the brief. He didn't call the amici unethical. Under the circumstances, there's nothing wrong with a little snark.
6.10.2007 3:45pm
Jim Rhoads (mail):
Judge Walton's footnote is not likely to be well received by the DC Circuit (or SCOTUS) if he denies Libby bail pending appeal.

The footnote may well be considered some evidence of abuse of discretion.

And it was unnecessary.
6.10.2007 3:52pm
Jim Rhoads (mail):
Also, I would be interested in anyone with a substantive argument that the question addressed in the brief is not a close question of constitutional law.
6.10.2007 3:55pm
Laura S.:
Guys, I think we're forgetting that the issue of release-pending-appeal hinges around whether the judge believes there are genuine issues which may tend to reverse the decision.

The brief isn't oddly timed; its just right. The fact is that this trial moved swiftly. The defense did challenge the constitutionality of the independent prosecutor (albeit unsuccessfully) so that is a valid point on appeal. The next step of course is to file that appeal. These legal luminaries will then have a chance to brief the appellate case. Still there was an important question _now_: whether Libby should be locked up immediately.

This snark from the judge actually draws into question his impartiality and suggests prejudice. In itself, he's furnished evidence for a successful appeal.

It seemed clear during the trial that the judge accepted as fact that a crime and cover-up had taken place. Yet we know that this belief is counterfactual: there was neither a crime nor an intentional cover-up. A fact which makes Fitzgerald's protestations for a maximum sentence rather unsettlingly delusional and the entire trial a breach of properly exercised discretion on behalf of the prosecution.
6.10.2007 4:05pm
Bruce Hayden (mail) (www):
I am obviously not an expert in this field, and those notables are. Nevertheless, I do find the question quite interesting: how can Fitz be an inferior officer, given how much discretion he was granted? This whole idea of two levels of officers of the government, one having discretion and needing confirmation, and the other lacking discretion and not needing confirmation, is interesting, and is not something that I, at least, had much time to comptemplate in law school.
6.10.2007 4:14pm
scote (mail):

This snark from the judge actually draws into question his impartiality and suggests prejudice. In itself, he's furnished evidence for a successful appeal

That would seem to be the largest issue of consequence.

Yet we know that this belief is counterfactual: there was neither a crime nor an intentional cover-up.

That statement is counterfactual. The fact that Fitz choose not to peruse a case does not mean no crime was committed and Libby's conviction was for a deliberate coverup not for a faulty memory.
6.10.2007 4:14pm
Public_Defender (mail):
I suspect that the outpouring of high-level support for Libby backfired. At sentencing, judges want to make sure that the gravity of the offense is understood.

Huge parts of the Washington establishment spoke out forcefully for Libby arguing that what he did wasn't a crime or wasn't that bad. The judge may have felt that he needed to impose a higher sentence to make a point that lying to a grand jury really is bad.

Yes, I know the memo was about how was selected and supervised, but the effect was pretty much the same. If the signatories to the brief really wanted to help Libby, they would have submitted a Word version of their amicus to Libby's counsel, who could have then incorporated the arguments into one of Libby's own filings.

The only value in filing the arguments as an amicus was to give the signatories a chance to thump their chests.
6.10.2007 4:15pm
OrinKerr:
Laura S.:
This snark from the judge actually draws into question his impartiality and suggests prejudice. In itself, he's furnished evidence for a successful appeal.
Laura, are you claiming that this one footnote is enough to get Libby's sentence overturned? If so, what case would you cite for that? (I'm not sure if you are saying that the footnote is part of a broader argument or is "in itself" enough.
6.10.2007 4:17pm
Jim Rhoads (mail):
I hope, Public Defender, that while you are defending, you don't adopt the Word incorporation technique when you have the opportunity to get a stellar Amicus team to carry your water on a highly technical constitutional question.

If you do, it would be well for you to keep your malpractice insurance paid up.
6.10.2007 4:21pm
scote (mail):

I hope, Public Defender, that while you are defending, you don't adopt the Word incorporation technique when you have the opportunity to get a stellar Amicus team to carry your water on a highly technical constitutional question.

Clearly the fancy names help the Libby team. I can't imagine the same brief being accepted in this case if it had been authored by a random lawyer of no specific repute. It is kind of too bad that is the case. The legal argument should hold water on its own rather than on the star power of its authors. But then, reality is often disappointing...
6.10.2007 4:32pm
(mail):
"If the amicus attorneys really cared about the issues in their pleading, they would have filed it in a case where the defendant could use a boost of outside legal talent."

How would they have done that? The issue they are concerned with is one that by its very nature arises ONLY in cases involving prominent, connected defendants, and in the current period only with respect to Libby.

Of course, it is true that the professors, even if not choosing (or able to choose) who to help among defendants to whom the issue applied, did choose which issue to address. I guess one might suspect that they choose an issue because it helped Libby rather than some run-of-the-mill defendant.

But that doesn't really seem very plausible here. Practicing lawyers tend, at least the good ones do, to be interested in whatever issues happen to affect their clients. But the signatories to this case are academics, and they can choose what subjects to be interested in. Is there a plausible case that an ivory-tower type would be interested in this particular issue. You betcha. Morrison v. Olson, or at least the dissent, has got to be up in the top 5 or so of the most read constitutional opinions of the last quarter century. It frankly is no stretch to assume that professors would be interested in this case no matter who the defendant. (Plus, aren't some of these professors at least, more constitutional law professors than criminal law professors? That may also have some explantory power why they would choose to get involved in this issue -- which has importance beyond this particular criminal law setting -- but not in other criminal law issues.) In short, while I can't rule out the possibility that these professors have chosen Libby to help, I have little or no trouble believing the alternative, and to my mind sufficient, explanation that these professors would have been interested in briefing this issue in ANY case.

"Clearly the fancy names help the Libby team. I can't imagine the same brief being accepted in this case if it had been authored by a random lawyer of no specific repute. It is kind of too bad that is the case. The legal argument should hold water on its own rather than on the star power of its authors."

I'm not following this point. What's wrong with the brief that, had it been submitted by a less known attorney, would have got it rejected?
6.10.2007 4:45pm
Joe Bingham (mail):
Also, I would be interested in anyone with a substantive argument that the question addressed in the brief is not a close question of constitutional law.

Romantically interested? :)

Clearly the fancy names help the Libby team. I can't imagine the same brief being accepted in this case if it had been authored by a random lawyer of no specific repute. It is kind of too bad that is the case. The legal argument should hold water on its own rather than on the star power of its authors. But then, reality is often disappointing...

How absurd. Clearly, the fact that a significant number of reputable and intelligent scholars think this is a close constitutional question is relevant to the judge's decision about whether it is such, even if you disagree with their argument.
6.10.2007 5:01pm
Steve Lubet (mail):
amici are supposed to have an "interest" in the outcome of the case. that can include the correct resolution of a legal question -- the rationale for most law prof amicus briefs -- but i don't see how it can possibly include a determination that something is a "close question." if you read the "interest" section of the brief, you'll see that they only assert that they disagree about the constitutionality of fitzgerald's appointment. but so what? why do they have an interest in the court's recognition that law professors disagree? allowing libby to remain free pending appeal will not resolve anything one way or the other, and the appellate court will have to address the question whether libby is free or behind bars. walton should have rejected the brief (sans snark).

i am friends or friendly with many of the luminaries (and i think libby should stay out of jail pending appeal), but this was not an occasion for an amicus brief.
6.10.2007 5:08pm
scote (mail):

I'm not following this point. What's wrong with the brief that, had it been submitted by a less known attorney, would have got it rejected?


I certainly can't say that would be the case but star power does have advantages. Can you say that reputation has no influence on the acceptance of amicus briefs? Joe Bingham argues in this thread that it would be "absurd" to disregard the brief of eminent scholars "even if you disagree with their argument.

I'd say that you could make a case that the same amicus would be less likely to be accepted were it to be submitted by a less well known attorney. And, in contradiction to my point, one can argue that the relevance of the amicus is directly related to the eminence of the scholars since the degree to which a point can reasonably be seen as contentious depends on who believes the issue is contentious. My point was that it is too bad that the legal arguments can't stand on their own but that reality often dictates that we give merit to legal argument based on who gives the argument not just on the the argument itself.
6.10.2007 5:18pm
scote (mail):
Addendum:

In light of Steve Lubet's point that the scholars involved in the amicus have at best a tenuous "interest" in the outcome of the case I'd say that it is even more likely than I'd thought that same amicus would be less likely to be accepted were it to be submitted by a less well known attorney. One can believe that the number and eminence of the scholars involved had something to do with the overlooking of a lack of clear interest in the case.
6.10.2007 5:23pm
Joe Bingham (mail):
"if you read the "interest" section of the brief, you'll see that they only assert that they disagree about the constitutionality of fitzgerald's appointment."

If you read the interest section of the brief, you'll discover that they don't assert that. They assert that it is "at least a close constitutional question."

They may well disagree about the constitutionality of Fitzgerald's appointment, but they didn't assert that in the brief.
6.10.2007 5:44pm
anonVCfan:
I suppose the import of this passage is arguable:

Amici have widely divergent views on a variety of
subjects, including some that may be at issue in this very case. Amici are united, however, in their
view that the question whether the appointment of Special Counsel Patrick J. Fitzgerald comported
with the United States Constitution presents at least a close question, one that could very well be
decided the other way.

I read the first sentence as asserting disagreement on the answer, but I guess that's not really what they said.
6.10.2007 6:00pm
Steve Lubet (mail):
okay, they might or might not disagree on the merits -- but they still can't have an "interest" in whether it's a "close question," that being a strictly temporary issue.
6.10.2007 6:08pm
Erasmus (mail):
scote, amicus briefs are routinely accepted by courts. In fact, denying amici the ability to file a brief would be exceptionally rare. So yes, I think anybody could tell you that the professors "reputation [had] no influence on the acceptance" of their amicus brief.

Steve, the professors have an interest in not seeing somebody jailed by what they believe is an incorrect interpretation of the law. If I believed a judge were going to jail somebody based on a somewhat unusual issue that I felt I had expertise on (and if I had time), I would certainly want to file an amicus brief on that person's behalf. Wouldn't you?
6.10.2007 6:09pm
Steve Lubet (mail):
i dont' question the amici's motivation, but an amicus brief is supposed to do something other than advocate for one party -- that's defense counsel's job.
6.10.2007 6:18pm
Erasmus (mail):
Steve, now you're splitting hairs. Amici may file a brief whenever they are an "interested person." Professors who are concerned that somebody might be jailed based on an incorrect interpretation of the law -- an usual area of law that they have expertise in -- are interested. Whether you want to couch that in terms of advocating for a party or advocating to ensure that a miscarriage of justice doesn't take place, they meet the standard.

A judge should be happy whenever he or she receives an amicus brief that is helpful to the issue before the Court, which this judge apparently believes this brief is. Why he would want to discourage future amici from filing briefs in his court is something I don't understand. My speculation, as noted above, is that he's like a lot of Bush II appointees -- i.e., a "compassionless dick."
6.10.2007 6:31pm
BruceM (mail) (www):
The constitutional issue is not being brought up late, and is higly relevant to whether Libby should get an appeal bond. In Federal Court, one of the factors (one of the most important ones, too) a court weighs in granting an appeal bond is the defendant's likelihood of success on appeal. A bunch of well-respected law profs saying there is a constitutional issue wrongly decided against the defendant and likely to be found in his favor on appeal is VERY relevant to whether an appeal bond should be granted.

On a side note, is there any law professor anywhere who would not be delighted at a federal court's invitation to write an amicus brief? I'm only a lawyer, not a law prof, and if a federal judge asked me to file an amicus brief in a criminal case pro bono, I'd be more than happy to do so, especially if it were regarding a topic about which I consider myself to be knowledgable. I can't imagine any law professor would turn down the ego trip.
6.10.2007 6:46pm
scote (mail):

A bunch of well-respected law profs saying there is a constitutional issue wrongly decided against the defendant and likely to be found in his favor on appeal is VERY relevant to whether an appeal bond should be granted.


Actually, that is not what they are saying. What they are saying is that they disagree over whether the appointment of Fitz was appropriate. The "amici submit that the constitutionality of Special Counsel Fitzgerald's appointment presents a close question."

That is hardly evidence that it is likely that this issue will be found Libby's favor.
6.10.2007 7:03pm
David Sucher (mail) (www):
Is there any significance that "The Twelve Amici" did not file their brief during the trial? That would seem to be the time for full-fledge assault of the Prosecutor's jurisdiction.

Or is that just one of those SNAFUs?
6.10.2007 7:14pm
scote (mail):

Is there any significance that "The Twelve Amici" did not file their brief during the trial? That would seem to be the time for full-fledge assault of the Prosecutor's jurisdiction.

Well, color me ignorant but an amicus that says "we disagree" doesn't seem to be good for anything except for arguing for bail while waiting for appeal.
6.10.2007 7:24pm
Public_Defender (mail):
I hope, Public Defender, that while you are defending, you don't adopt the Word incorporation technique when you have the opportunity to get a stellar Amicus team to carry your water on a highly technical constitutional question.

If you do, it would be well for you to keep your malpractice insurance paid up.


Trial court sentencing is one of the times I generally would not want high-powered amicus help. Arguing that "my client shouldn't even be here" is almost always counter-productive at sentencing. But that's pretty much what this amicus team did. Yes, the motion was post-sentence and part of a stay effort, but my point stands. The motion probably reinforced the judge's confidence in his sentence.

Sentencing is about persuading the judge to give a lower sentence. You generally need to show mitigation without minimizing the offense. Where possible, you need to show that your client accepts the wrongfulness of his actions.

Constitutional issues are nifty to preserve for appeal, but it's a really rare case in which they will persuade a trial judge to lower a sentence.

I stand by my point--the general outpouring of high-level support probably hurt Libby. It could have convinced the judge that he needed to impose a higher sentence for deterence purposes.
6.10.2007 7:27pm
CaseyL (mail):
Libby was convicted by a jury of multiple counts of perjury and obstruction of justice.

The amicus is supposedly raising issues that it believes will reverse the verdict on appeal. But the brief doesn't address any factual issues of the case itself: it does not claim that Libby didn't commit perjury and obstruction of justice.

The brief seeks to overturn the verdict on a technicality - that Fitzgerald wasn't properly appointed to the investigation in the first place. That has nothing to do with the crimes alleged that Libby was convicted for committing.

I thought conservatives hated seeing criminals get off on technicalities.

Guess I was wrong.
6.10.2007 7:40pm
scote (mail):
OT

I stand by my point--the general outpouring of high-level support probably hurt Libby. It could have convinced the judge that he needed to impose a higher sentence for deterence purposes.

I'm a little baffled by all of the letters of support for Libby which tout his high moral character and public service. It would seem that the higher the public trust the bigger the betrayal. And it would seem that such letters could be counter productive given Libby's lack of contrition--a lack of contrition which is so counter productive one could think it borders on incredible stupidity unless one believed one had a pardon coming one's way. And speaking of pardon's, the fight to keep Libby out of jail while appealing is largely one to allow Bush time to pardon Libby at a more politically convenient time, should such a pardon be forthcoming.
6.10.2007 8:11pm
Public_Defender (mail):
I thought conservatives hated seeing criminals get off on technicalities.

Guess I was wrong.

Silly you, the constitution only applies to rich, well-connected White guys. Do you notice how conservatives didn't discovered the evils of racial discrimination until White people were discriminated against? Same thing with the criminal justice system.
6.10.2007 8:11pm
Joe Bingham (mail):
Actually, that is not what they are saying. What they are saying is that they disagree over whether the appointment of Fitz was appropriate. The "amici submit that the constitutionality of Special Counsel Fitzgerald's appointment presents a close question."

Please, go read the brief.
6.10.2007 8:16pm
Joe Bingham (mail):
I'm a little baffled by all of the letters of support for Libby which tout his high moral character and public service. It would seem that the higher the public trust the bigger the betrayal.

I'm not sure I follow; I suspect a non sequitor. This is what your syllogism looks like:

(1) If someone has held more public trust, any betrayal he commits is more egregious.
(2) These letters cite his high moral character and public service.
(3) Therefore, these letters make his betrayal appear more egregious.

That only works if "held public trust" and "possesses high moral character and has done lots of public service" mean the same thing. They don't.
6.10.2007 8:34pm
David Sucher (mail) (www):
Scote,
It's my understanding that the subject of the amicus brief -- seemingly a threshold question -- was raised by the defense during trial. Just curious why the brief was not submitted (with detailed argument) during the trial. Perhaps the defense suspected it would lose on the substance and an amicus submitted after trial in the context of bail-only would be more effective.
6.10.2007 8:45pm
Public_Defender (mail):
I'm a little baffled by all of the letters of support for Libby which tout his high moral character and public service. It would seem that the higher the public trust the bigger the betrayal.

And it would seem that such letters could be counter productive given Libby's lack of contrition--a lack of contrition which is so counter productive one could think it borders on incredible stupidity unless one believed one had a pardon coming one's way. And


Those letters might work as part of a strategy that explained Libby's perjury as momentary aberations by an otherwise morally upright public servant. But since Libby still says he didn't lie, I think you are right, they very well might have hurt him more than helped him.
6.10.2007 8:47pm
scote (mail):

That only works if "held public trust" and "possesses high moral character and has done lots of public service" mean the same thing. They don't.


I'm not sure can by syllogized that way. Perhaps my wording was insufficiently precise and I should have said, "It seems to me that the higher the public trust the bigger the betrayal." And that the letters of praise emphasized the high level of personal and public trust people have in Libby, thus emphasizing the level of his betrayal of that trust.

While you can argue that "held public trust" does not necessitate "possesses high moral character and has done lots of public service" and vice versa, I don't think my point rests on such an absolute and literal equivocation. I do think that if some one is in public service and if people think he has high moral character that that is generally someone we would consider to have high public trust.

While I can see your logical attack on the semantics of my argument what I don't see is a refutation of the idea that Libby's betrayal was all the worse for his high position of trust and that the letters exhorting his fine character may inadvertently help emphasize that point.
6.10.2007 8:56pm
Joe Bingham (mail):
If the judge is unreasonable, it might.

Hopefully, however, that argument--that the better a person's general character is, the worse any particular offense is--would be seen through by someone who is himself in a position of public trust.
6.10.2007 9:00pm
scote (mail):
Errata:
"I'm not sure my point can be syllogized that way"
6.10.2007 9:02pm
scote (mail):

Hopefully, however, that argument--that the better a person's general character is, the worse any particular offense is--would be seen through by someone who is himself in a position of public trust.

Perhaps this is more of a philosophical question. The greatest Greek tragedy, indeed the definition of "tragedy", are about the fall of a great man. The greater the man the greater the fall. Were Libby not such a fine man, who would care? But should that let him get off more easily than a man who does not have the advantage of many rich and powerful friends to write pleasant letters on his behalf? Should a good, but private and friendless man, get a harsher sentence? I think not.

I'm not sure that philosophically I support leniency based on someone's character, either good or bad. I do support greater punishment for betrayal of the public trust. A high ranking government official committing perjury is a greater injury to society than a 19 year old drug suspect.
6.10.2007 9:11pm
Public_Defender (mail):
Since we've moved off the point of the amicus and onto Libby's sentence generally, he was screwed because he made one of the worst arguments you can make at sentencing--"I didn't do it."

There are a couple worse arguments. First, "I did it, and I'll do it again I get the chance."

Second (paraphrased from one of my clients before he was my client): "This was a horrible crime. You should really hammer the guy who did it."
6.10.2007 9:16pm
Jim Rhoads (mail):
Public:

Unless I am mistaken, it is now too late to persuade the trial judge to lower his sentence, or to convince him that it was too severe.

The only question now before the court is whether Libby will begin serving his sentence pending appeal, and if not, the conditions for bail pending appeal.

That in turn depends on a number of statutory provisions.

18 USC Section 1343 is the major statute that applies.

It provides in pertinent part:


(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142 (b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—
(i) reversal,
(ii) an order for a new trial.

***


The case law in the DC Circuit holds that a "close question" of law that could result in acquittal or a new trial is necessary to show a "substantial question" of law.

The amicus brief seems to support that standard.
6.10.2007 10:17pm
Laura S.:

(I'm not sure if you are saying that the footnote is part of a broader argument or is "in itself" enough.


Orin, I don't believe it "in itself" is enough. I do believe, however, that rulings during the trial suppressing questions of whether an underlying crime took place were unduly prejudicial to the defense.


That statement is counterfactual. The fact that Fitz choose not to peruse a case does not mean no crime was committed and Libby's conviction was for a deliberate coverup not for a faulty memory.


scote, I don't make my remark on the basis that no further prosecution has taken place. Fitzgerald has clearly taken the position that there was an underlying crime (witness his Brief arguing against leniency); however, we know a great deal about this case now and on the basis of the facts such a position is untenable:
a) Plame was not a covert agent under the meaning of the act
b) We've seen no evidence that any one give her name to the press knowing she was a covert agent (this is a material condition of the statute).
c) Political enemies of the core bush team (albeit ones within the administration) happened to be original source of the leak

So I stick by my position that any claim to an underlying crime is counterfactual.

You have a reasonable point that Libby's conviction means that a "coverup" did occur. Certainly for the purposes of the court that is true, and it may be true in fact as well; however, upon following Fitzgerald's prosecution I do not believe he established the requisite intent necessary for conviction. i.e., Libby and others took the initial reporting of the scandal in the press very credulously. They presumed their own guilt by way of ignorance of the law and the facts (who started the leak). But then, how could they be so stupid? This is the point at which Fitzgerald failed to convince me.

For the record, I think Perjury is a serious crime.
6.10.2007 10:54pm
Charlie (Colorado) (mail):
The amicus is supposedly raising issues that it believes will reverse the verdict on appeal. But the brief doesn't address any factual issues of the case itself: it does not claim that Libby didn't commit perjury and obstruction of justice.

Come on, Casey, I'm not a lawyer, but even I know better than that. The question at issue isn't whether Libby will prevail on appeal, but whether the issue is close; if it's close, according to the whole list of precedents --- and common sense, since we'd not like to see someone imprisoned unjustly --- then Libby ought to be allowed to remail free on appeal.
6.11.2007 1:01am
Deagle (mail):
Pure and unadulterated bias by Judge Walton! I am ashamed that he actually has a judgeship.
6.11.2007 1:24am
PAUL VIRKLER (mail):
Thnks you Jim Rhoads for explaining thw question to those who are not thinking like a lawyer. The appointment of the special posecutor in this case is unique and does not follow the statutory system. It seems strange how many poster question whether the constitution applies in this case
6.11.2007 1:26am
Waltlaw (mail):
Judge Walton's comment will offend those sympathetic to Bush's mess of an administration as well as those with a diminished tolerance for frivolity. The law students of the future, however, will be grateful for the distraction, as am I.
6.11.2007 3:45am
scote (mail):

a) Plame was not a covert agent under the meaning of the act

That is not a fact. The CIA says she is. A few still claim she isn't. At best it is a contested issue, certainly not a fact.
6.11.2007 4:19am
Al Maviva (mail) (www):
Scote, it's not a "fact" because it was not found to be a fact during the trial. This 'factfinding' is a non-occurrence because Fitzgerald claimed that he wasn't asserting that Libby had violated the Act at trial, annd did not present such a claim at trial. (Interestingly, some of the jurors convicted Libby of this crime by finding him guilty of other crimes, per their post-trial interviews).

Fitzgerald has now done a neat 180, and is asserting this "fact" at a time when there is no real danger of rebuttal by the court or a jury. This isn't my area of the law, but I have a suspicion that some permutation of Apprendi might discourage this prosecutorial practice in the future - it seems to me that if sentencing enhancements are to be invoked, that the prosecutor should have to present the facts substantiating those enhancements to the jury.
6.11.2007 10:49am
Philistine (mail):

it seems to me that if sentencing enhancements are to be invoked, that the prosecutor should have to present the facts substantiating those enhancements to the jury.


You'd thinks so, wouldn't you.

The Courts (with very few exceptions) disagree. Heck, if you wanted to see some real fireworks, it would have been interesting if Walton had used conduct in sentencing for which Libby had been acquitted.

I would be happy to see this dissatisfaction with the harshness of the Sentencing Guidelines, and with the utter disproportionate punishing ofa Defendant who chooses to go to trial, continue on after the Libby case is finished.

I would also be shocked if it did.
6.11.2007 11:18am
TDPerkins (mail):
<blockquote>The CIA says she is.</blockquote>

Elements of the CIA will say anything to make Bush's administration appear less competent than they are, and the CIA has offerred no evidence she was a covert agent.

Assertions are not evidence, though I'm sure you think it's a "slam dunk."

Yours, TDP, ml, msl, &pfpp
6.11.2007 11:58am
Philistine (mail):
On the whole issue of was she a "covert" agent under the Statute—has amyone who would have knowledge of the three questions at issue (CIA employee, employment classified, served outside US w/in 5 years) said she is not "covert"?

Surely the first issue John Ashcroft would have investigated would have been was she "covert" under the statute. It's a readily ascertainable question by someone with the security clearance.

And yet, nobody—not Ashcroft, not Cheney, not Hayden, has come forward and said she did not fit the statute.

That doesn't prove she's covert, certainly, but it sure casts doubt for me, on the claim that she wasn't—especially in light of the statements made by Fitzgerald and Plame, herself.
6.11.2007 12:19pm
Laura S.:

a) Plame was not a covert agent under the meaning of the act
That is not a fact. The CIA says she is. A few still claim she isn't. At best it is a contested issue, certainly not a fact.


scote, you're wrong. The CIA said she might be when the issue was first invented. The issue is no longer contested. It is false.

a) your identity must be "affirmatively" concealed by the CIA--covert agents are not "assigned to Langley" as a matter of practice.
b) you must be actively engaged in covert operations in a foreign country or had done so within the last first years. Her last overseas assignment ended in 1997.

Don't you find it funny that when Congress asked Plame if she was a "covert agent" she answered "I don't know". Seems to me that the first step to taking affirmative action would be inform the agent that they were covert and should keep a low-profile.

You don't respond to my other points, so I assume you agree. No evidence has been presented that anyone knowingly outed a covert agent which is a requirement of the act.
6.11.2007 12:27pm
Philistine (mail):

a) your identity must be "affirmatively" concealed by the CIA—covert agents are not "assigned to Langley" as a matter of practice.


Actually, the definition of "covert" has nothing to do with the CIA taking active steps to conceal. In order to have liability under the Act, the CIA must take active steps to conceal the "covert" agent's identity—but that does not effect the issue of whether the person is "covert."


b) you must be actively engaged in covert operations in a foreign country or had done so within the last first years. Her last overseas assignment ended in 1997.

Don't you find it funny that when Congress asked Plame if she was a "covert agent" she answered "I don't know".



That's not what the Intelligence summary said. It said dealing only with her career since 2002, she travelled overseas 7 times for the CIA. And don't you find it funny when Congress asked Plame if she had travelled overseas on secret missions for the CIA in the 5 years prior to the hearing, she said that she did?
6.11.2007 12:50pm
Robert Lutton:
Jonathon Adler says;

"Like others, I was initially struck by the footnote in Judge Walton's order granting the motion for leave to file an amicus curiae brief on whether Scooter Libby should be released on bail pending appeal."

but the brief says:

"Amici take no position ... on whether this Court should grant or deny bail pending appeal."

You lawyers crack me up.
6.11.2007 3:22pm
scote (mail):

LauraS writes:
You don't respond to my other points, so I assume you agree.

Assume away, Ms S, since that seems to be your standard of evidence.
6.11.2007 3:30pm
r78:
It isn't a snark. It is a recognition that somebody wrote this brief and then 10 or 11 other people put their name on it.

The story I read was that the brief was filed within 72 hours. No 12 attorneys I know (let alone law professors) could agree on where to order breakfast within 72 hours, let alone actually participate in writing a brief.
6.12.2007 2:27pm