I too found it hard to see any sensible justification for Judge Walton's footnote. Brief background:
Twelve current or former constitutional law professors — mostly conservatives, but also a libertarian (our own Randy Barnett) and two liberals (Vik Amar and Alan Dershowitz) filed an amicus brief arguing that (1) there are serious constitutional problems with special prosecutor Patrick Fitzgerald's appointment and (2) Scooter Libby thus has serious grounds for an appeal. This is relevant to the decision whether Libby should be let out on bail pending appeal, though the brief doesn't take a stand on this ultimate judgment, only on the inputs to that judgment (which is whether there's a close question about the appeal's merits). Four of the amici (Amar, Barnett, Dershowitz, and Judge Bork) also sign the brief as the lawyers.
Judge Walton allows the filing of the brief, but writes this odd footnote:
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.
Yet this makes no sense. The point of amicus briefs is to express the signatories' views on some matter that they especially care about, in which they have a special interest or on which they have special expertise. A pro-abortion-rights organization, for instance, may file such a brief in an abortion rights case. Constitutional law professors who believe the Constitution, properly interpreted, supports abortion rights may do the same. No-one pretends that it's an "impressive show of public service," except insofar as any not terribly difficult action on behalf of a legal view that you think is the right view is a form of public service.
Such amici (whether advocacy groups or professors) surely incur no professional or moral obligation to start helping other litigants who raise other issues about which the amici don't are, or on which they lack expertise. Would you demand that a pro-abortion-rights professor who filed a pro-abortion-rights brief also file a brief in an assisted suicide case? Would you demand that he file such a brief even in an abortion rights case that raises a different issue? I would hope not — there's just no reason to think that because someone cared strongly about issue X he must now express his views about issue Y, or even that his views about issue Y would be helpful. The same applies here.
Now perhaps Judge Walton was suggesting that these amici would somehow have to file this brief only in cases that raise the same issue — the constitutionality of independent counsel. But while that's one way of interpreting his reference to "similar questions," it's not consistent with the rest of his footnote, in particular the preceding sentence: He's referring to "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" — but independent counsel prosecutions are not "numerous" (especially "throughout the courts of our nation"), and generally do not tend to involve litigants "who lack ... financial means to fully and properly articulate the merits of their legal positions." That's why I doubt that Judge Walton was only talking about the amici's supposed duty to file similar briefs only in independent counsel cases.
Yet even if he did mean this, what's the point of the sarcasm? I take it many of the signatories would be happy to express the same view in a future case raising the same issue. Some might not — and according to standard professional conventions, they are entitled to decide which litigants to speak on behalf — but many might. (Why would Amar or Dershowitz, to take the most obvious examples, treat a future Democratic special prosecutor target any worse than a future Republican?) The snideness thus seems at the very least premature.
Finally, as I understand it courts do have the power to require members of their bars (which may well not include many of the twelve amici) to represent some litigant, though that is a power that is rarely used today. But I doubt they have the power to require anyone to file a brief in his own name, a brief in which the person expresses his own view rather than just advocating on behalf of counsel — such a requirement would, I think, be a violation of the right to be free from speech compulsions.
And it seems to me that it would be unconstitutional for courts to require someone to shoulder an extra burden as punishment, retaliation, or other reaction to that person's past constitutionally protected actions, here the filing of a brief before the court. (The filing of briefs before courts is generally protected from retaliation by the Petition Clause, at least so long as the briefs comply with the proper court rules.) So if the court is threatening, or even sarcastically pretending to threaten, that he will "call for" assistance in a mandatory sense — rather than just suggesting he would offer a nonbinding invitation — then that strikes me as threatening to do something the court is not allowed to do.
Thanks to Leibowitz's Canticle for first pointing me to this.
UPDATE: Thanks to commenter Leo Marvin for pointing out an error in my original post; I wrote that the brief urged that Libby be let out on appeal — in fact, the brief declined to express a view on the subject, though the likely and probably intended (by many signatories) effect of the brief is to support the claim that Libby be let out on appeal.
Related Posts (on one page):
Court's certainly do appoint amici to provide detached input on legal issues. I don't see a problem with that, so long as the amicus's ultimate opinion is not dicated by the court.
Again, imagine this was a case involving the constitutionality of some abortion restriction, and various law professors chimed in with their views of the constitutional right to abortion. Why would we be upset that they didn't also say something in other cases involving drug defendants?
As Walton points out all this prominent people came together all with their individual thoughts about having something to say about this issue in a couple days.
I am not accusing these people of misrepresenting their views. I am willing to give them the benefit of doubt that they actually believe what the brief said, but I seriously doubt being heard on the issue was their motive for all signing up in just a couple days.
Except that the amicus in no way comments on or raises doubts about the guilt of Libby or the facts of the case.
The only thing the amicus raises is the issue of the appropriateness of the appointment of Fitz--and on that point they disagree.
If he wanted to dismiss their views he could have rejected the brief, especially since they didn't fulfill the requirement of setting out an interest distinct from the defendant's.
In any event, Walton is a Republican appointee (Bush 43) who also served as an advisor to Bush 41 (not to mention his appointment to the National Security Court by CJ Roberts). He is no partisan. Nor is Patrick Fitzgerald, who is also a Republican appointee.
Eugene, please, these are law professors. There are plenty of constitutional, statutory, and other interesting legal issues in EVERY federal criminal case, especially once guidelines calculations come into play. If motivated, they would all have intersting things to say with respect to any ongoing criminal prosecution. Where were their amici briefs on the continuing validity of the Almendarez-Torres case post Booker in the dozens of cases where that issue came up in front of Judge Walton over the past year?
Seriously - I have some pending criminal cases with constiutional issue that I'd love to have a dozen internationally known and respected law professors write an imici brief (or even just ONE of them to write an amicus brief) in favor of an issue helpful to my client. Next time a constitutional issue comes up, can I get Randy Barnett to write an amicus brief? It might be for a lowely misdemeanor in Texas state court, or for an uknown defendant in the Southern District of Texas. I have a case on appeal at the Texas Court of Criminal Appeals RIGHT NOW on which I could use an amicus brief from Alan Dershowitz regarding the legal propriety of the prosecution calling an active district judge as a witness against the criminal defendant (not the presideing judge, but a "witness in a robe" so to speak). Where are all the lawprofs for my usually unknown clients?
To be fair, I've never written a Eugene Volokh or Alan Dershowitz to solicit an amicus brief. Is that a proper thing to do? If such professors are inundated with 10,000 requests for amicus briefs, they'll just ignore them all or only pick the high-profile ones, which is no different than the status quo.
Perhaps even closer, suppose a person makes a donation for the cure of a disease in which they have interest, perhaps because it afflicted a family member. Would it be appropriate to attack that person for not giving that charity to a different disease that affected more people or perhaps poorer people?
Law professors, like everybody else, have no duty to devote their efforts to the people that a judge (or society) considers most worthy. They will contribute on matters that they subjectively choose. Which is better, presumably, than no contribution at all.
Somehow, in their minds, since law professor's cannot submit amicus briefs in every case, they shouldn't be able to write one in this case with a defendant they hate so much.
The appropriate response: "Certainly, judge. Just give us a call the next time you author an opinion that you think will likely be overturned on appeal, and we'll be happy to file an amici brief to let the defendant out on bail in the interim."
Take it up with the commenter Eugene was responding to. I'll assume you merely overlooked that.
I only really see one reason for the sarcastically worded footnote, and that's to poke fun (or perhaps openly insult) at the professors filing the briefs.
Further, I only see meaning one of two things depending on exactly why he thinks they're filing the amicus briefs.
1. He's poking fun because he's of the opinion that these "prominent and distinguished" law professors are only hastening to jump to the defense of Libby for political reasons.
2. He's poking fun at the same professors because he's of the opinion that they're only doing it to gain notoriety for themselves, and get themselves into the media.
The first seems more likely to me. I can easily see how a judge, even a conservative one, would take quite a bit of umbrage at what they see as meddling with the criminal justice system for purely political reasons, and he's merely snarkily pointing out that they wouldn't be doing this if it were some John Doe who had an equally serious constitutional question at issue in his case.
Is it justified? who knows. There are issues with the constitutionality of special counsel. But there are equally serious questions regarding why this wasn't done earlier. I won't speculate about their motives in filing.
Which is exactly why lay people like me are livid at the abuse that Fitzpatrick made of his special counsel powers. It politicizes a mechanism that is, even when treated carefully, fraught with potential conflict of interest and misuse. Fitzpatrick's apparent tone deafness on this disturbs me greatly.
And no, I wasn't happy about the impeachment of Clinton either.
Wow, I would love to see Prof. Barnett respond to this. I'm offended, and I don't even know any of these professors beyond reading what they've written. I honestly can't believe someone said this here, where he's had opportunity to become acquainted with Prof Barnett a bit.
I agree with Ben Pollitzer that the first reason is the most likely. If so, though, that reflects some pretty shocking ignorance on the part of the judge, who presumes he knows their politics when it's clear he doesn't.
For me, the bottom line is that judges should never ridicule anyone in judicial opinions because the person they are mocking have no way of meaningfully responding.
This was already rehashed in the other thread, but I have no idea why Judge Walton would want to discourage the filing of useful amicus briefs in his court. If I were considering filing an amicus brief in his court, I would certainly think twice because I wouldn't want the judge to decide, for whatever reason, that I should be ridiculed.
I am not Prof. VOlokh, but - From the brief it seems that some of these profs (Amar) have published articles about the issues surrounding independent prosecutors. So yes, I can seriously believe they have relevant expertise and a professional interest.
It makes sense to me that that would be their motive. The issue is one that obviously does interest constitutional law profs and has done so for years.
WTF? I didn't pay attention in professional responsibility but I vaguely recall something about duty to serve the indigent and not declining appointments by a court. That's precisely what Judge Walton is referring to. As members of the bar, and presumably the D.D.C., the profs have certain obligations that others don't. I could be wrong, it could just be important legal issues that require the quick thinking talents of 12 law profs only arise in cases where the defendant has the political clout and financial resources of Solomon.
libby sentencing
I was disappointed (and somewhat surprised) to see
Prof Barnett's name on the list of signatories. This
brief smells of political opportunism and
protecting powerful friends. I guess Judge Walton
thinks so too given his footnote. Prof Volokh's
sudden lack of understanding regarding the footnote
is not entirely surprising though.
She is being punished for violating her probation for DUI by being caught driving on a suspended license **twice**. She doesn't have to drive since she can afford a full time driver, unlike ordinary humans, and has no excuse for driving on a suspended license.
I agree that she shouldn't be punished more than a regular person under identical circumstances, but I also think that "home confinement" is a punishment that is inherently unequal across economic lines. Heck, I'd serve her time for her in her $3,000,000 mansion with all of her money to have servants bring me anything I desire and the ability to work or party as I please at home. Well, if I had to hang out with Nicole Ritchie, maybe not...
(1) Which "powerful friends" are Amar and Dershowitz being called on to defend?
(2) How can you argue that the two professors at Pepperdine--where Ken Starr is dean--are just trying to help their careers by complaining that special prosecutors are unconstitutionally empowered?
Here's Judge Walton's point, I think: there's nothing about the arguments the amici raised which Libby's own counsel couldn't have raised himself (did they?). This case didn't need outside voices to boost the arguments of someone who could afford to pay for whatever arguments were needed. It's in the smaller cases where their lawyering could make a difference on behalf of someone ill-represented by the system.
Again: when determining whether a constitutional question is "close," the opinion of leading scholars in the field is relevant.
If Judge Walton were on the D.C. Circuit, I would think his footnote was a bit strange. I wonder whether, from his perspective as a trial court judge, it might have made more sense to ask "why this, why now?"
Walton might as well ask why Dershowitz chose to be a Harvard Law Professor instead of spending his life doing legal aid.
For all those who critique the signers, please post how you spend all your time, so that we may critique whether we find it to be socially optimal.
I find it hard to believe that all twelve actually participated in developing the arguments and writing the brief. So I conclude that just maybe there is a bit of grandstanding going on here. Could that be Wlaton's beef?
Libby does not lack for paid counsel; has Kissinger et al. writing letters on his behalf (not to mention checks); and yet this amply-lawyered lawyer has amicus briefs filed on his behalf as well?
As Bruce M noted early in the thread, the judge was evidently struck by the contrast with the poor s.o.b.'s with public defenders they met 5 min. before sentencing.
Could a judge like him really contact some of these professors and require them to submiit a brief in an unrelated case?
Prof. Volokh, how about a thread some time about mandatory pro bono? Can lawyers really be forced to work for people they don't agree with or detest? Should someone with no practical experience be forced to practice? Of all libertarian topics, involuntary servitude should be among the most important.
A footnote in Libby's own brief, citing to the current literature, could accomplish that. C'mon.
To the poster who suggested that there really wasn't an issue about the statutes under which Libby was convicted, I would agree. However, there is little if any evidence that any underlying crime was committed, and if Fitz had been bound by usual USDOJ rules, this prosecution probably would not have happened in the first place.
Part of the problem here is that prosecutors, under normal circumstances, have to husband their resources for what is determined to be important. Like drug dealing, white collar crime, and maybe even immigration violations. So, the DoJ has guidelines so that effort is not wasted on de minimis prosecutions.
Indeed, if prosecutors were allowed to prosecute everyone who lied to them, their investigators, or a grand or petite jury, they would do nothing else. Of course, those who lie are violating the law. And, of course, the laws are valid. But the prosecutors would end up with he says/she says cases, like this one, that suck resources, and don't do anything to keep drugs off the street or the RIAA in control of their content.
Still, I am not sure what the effect of having Fitz found to have exceeded the amount of discretioh that could be given him absent Senate confirmation would have on the case. He is, after all, a U.S. Attorney, who has the legal ability to prosecute crimes in the name of the U.S. Yes, he may have violated DoJ rules (the question really is whether he can or not), but so what?
I wouldn't hesitate to file anything out of fear of being ridiculed by a fellow who wears a black gown to work.
That said, I think the footnote was out of order. Some folks, with considerable knowledge in the area, raise an interesting constitutional point. There is no reason to believe they give a hoot about the fate of one Scooter Libby per se, have been set up by powerful buddies to raise the point, are seeking the limelight, etc.. For the judge to jump to any one of those conclusions without any good reason to believe it, I'd say, out of line.
It's likely that he had no knowledge who the amici were, and thus may not have appreciated it. But that makes his comments all the more out of line.
Why would you assume that Eugene would want to respond to the obvious implication of the remark when pretending not to understand it and replying to all sorts of other things is so much more fun?
While I am sure the constitutional issues are very, very exciting to all the professorial types out there, it seems to me that at this time, those issues are largely irrelevant.
Duffy Pratt- The statute says that bail should be given if there is a close issue to be decided. Do you have problem with constitution?
But Like Omar Shanks, what caught my attention was the remarkable idea that anyone considers Alan Dershowitz a liberal. In what moral universe indeed! What are his liberal credentials, and if he has any, are they relevant anymore? All he seems to care about is Israel. Which explains why he wrote a letter defending a neoconservative.
Incidently, before writing this, I spent a few minutes trying to find out what is or was Dershowitz's position on Iraq. I couldn't find anything. I wonder if he has one. Although he has a new book entitled Preemption, it seems to be more about Israel than Iraq. If he has a position on the war, I wonder if it has changed since 2003.
For God's sake, so were David Souter and John Paul Stevens. Is anyone seriously going to try and claim they're somehow conservtive? Or even non-partisan?
The lawyers can line up after the jurors...
Which is why the worked so quickly last week to get the brief ready in time for his bail hearing rather than for his appeal--oh wait, that doesn't make sense. Hmmmm......
An outcome in their favor will do nothing to advance the issue that the amici claim to be interested in. It won't have any precedential effect. All it will do is keep one guy free for a short period of time. So the amici are filing a brief to advance an interest that cannot possibly be advanced by any decision on the motion at hand.
I have many problems with constitution, but none of them are relevant here.
He self-identifies as a liberal. That's good enough for me, though apparently not you. Liberal credentials? Since when do you need credentials to identify your own political beliefs and affiliation?
I realize that there’s a vocal bloc of anti-war liberals who wish they could disown Joe Lieberman (90%+ liberal voting record), while their pro-war conservative counterparts nourish the same fantasy about Chuck Hagel (90%+ conservative voting record). If it were within their power, these factions would probably get together and work out some kind of prisoner swap to rid themselves of the stench of ideological impurity.
The idea that I find remarkable is how desperate some groups are to purge their ranks of anyone who dissents from party-line orthodoxy, even if it means handing the margin of victory and control to their opponents.
Isn't there, or oughtn't there to be, a general acceptance of a duty to be snide about Dershowitz?
Put Bork and Dershowitz together and you have a compelling state interest in snideness.
Is Deshowitz actually respected among academics or Washington politicos? I'm a liberal criminal defense lawyer, and I've always considered him to be nothing more than a blowhard.
And while Bork is a hero of the right wing of Republican lawyers, he is thought of as a kook (a very smart kook, but a kook nonetheless) by pretty much the rest of the world.
That might help on the DC Circuit, but it didn't seem to impress Judge Wilson.
" . . . Which is why the[y] worked so quickly last week to get the brief ready in time for his bail hearing rather than for his appeal--oh wait, that doesn't make sense. Hmmmm......"
If the view they put forth has not already been fully and (more or less) equally well expressed by Libby's attorneys -- a point that I don't know -- then I would think it a service most district judges would appreciate to be able to see, and get a first chance to rule upon, grounds that will be urged in the court of appeals for reversal.
"I really don't understand the criticism. Let me try an analogy. Suppose a person makes a large donation to the arts or her alma mater. Is the appropriate response to attack her for not making the charitable donation to "needier" causes? "
In this case, a better analogy might be somebody making a large donation to a university, the year before their non-outstanding son or daughter applies for admission.
He is ordering them to give free services to Dem voter base criminals as penance.
Sorry, but I think that vastly oversimplifies the vagaries of the appointment process. Presidents appoint various judges based on more than just their (the judge's) ideology. For starters, it often proves impossible to even know what someone's ideology is, let alone guarantee it. Then there is the little matter of getting that person through Congressional hearings....
It is just pointless to act like saying "President Bush appointed him" is some unrebuttable proof that he must be a partisan ally.
In this case-- when put in the context of his extreme sentence of Mr. Libby-- it is perfectly clear that he is announcing that he is no "friend" of these "amici." Not that that's particularly surprising. What is a bit breath-taking is the superfluous nastiness of it all. You would imagine that a judge of Judge Walton's experience would think twice before thumbing his nose so blatantly at this group of prominent colleagues. For instance, what would have been wrong about saying nothing?
But then, I suppose, we wouldn't be talking about him, eh?
Earle Warren was appointed by a Republican. Does that make him a conservative as well? Nonpartisans can be at least as overzealous as any partisan, often with more tone-deafness than a partisan who knows his actions will be closely monitored.
Had Libby, like Rove, taken advantage of his being called back before the grand jury to amend his previous answers and come clean, there would have been no prosecution.
The judge gets an amicus brief-probably for the first time ever-when the convicted criminal is one of the high and mighty;
the VC deigns to post on the Libby trial - one of the few times ever - merely to castigate the judge for a footnote.
The judge's complaint is that these people are stooges, pimping out their reputations for money. They probably didn't even write the amicus brief (hence the "only several days") -- it was written by the lawyers for the parties, and they just signed off on it.
Here, the court was reminding them of their obligation. And it is an obligation. And he CAN enforce it, at his discretion.
These attorneys are supposed to be "friends of the court." Not "friends of themselves," or "friends of their own intellectual curiosity," or "friends of the rich and powerful." For anyone in the trenches of the criminal-justice system, this waste of legal talent, where Libby is already well-represented, is a travesty.
If these people really are friends of the court, they'll do what the court REALLY needs: represent the indigent. But they're not friends of the court. They're friends of their own egos. They're friends of their own press. They're friends of the rich and powerful.
I thought the judge went easy on them.
Yes, I want every politician to pay who supports the war. It has nothing to do with ideological purity. It has to do with some issues being more important than others.
As for Alan Dershowitz, he is not a politician, but identifying himself as a liberal does not make him one. Private persons may self-identify as liberals and conservatives, but Dershowitz is a public figure with a public record on many issues, so it is legitimate to ask what his liberal credentials are. Being in favor of civil liberties is not enough. That applies to libertarians also.
Where exactly is this obligation to work pro bono? And in which jurisdictions?
This sort of bunker mentality is extremely useful for deflecting any and all bad news, and kudos to the brave conservative who decided to foster it.
Don't burn bridges that you may later need. Judge Walton may one day find out just why hubris is a fatal flaw among heroes.
I suppose you could be referring to pissing off the Eminent Professors, but it sounds more like a Republican shakedown. "Nice courtroom you got here. Sure be a shame if something were to happen to it...."
Either open the door and let 'em in, or close it and keep 'em out... and explain either if you must. But other than that... STFU, YOUR EMINENCE.
Put your blindfold back on, and address the law here. Rich guys sometimes find or manufacture a break in court... so tell me something I don't know. But if you don't have something original to say, then just email your wonderful footnotes to the 12 guys, and leave your editorial comments out of my taxpayer-funded writings. Or you can have them published in the local paper, if you'd like.
And by the way, this independent counsel nonsense IS pretty much a joke, as your open door to them seems to imply. It too is severed from the mainstream of prosecutors' conduct of investigations in this country, as was mentioned above. Ditching it forever just MIGHT be in the public interest, and maybe these guys just MIGHT be doing a public service for us, eh?
Where is all of the outrage at some of Justice Scalia's unfootnoted snark?
Where was all of the outrage concerning the constitutionality of special prosecutors during the Clinton inquisitions?
This is simply small minds grasping at even smaller straws and feeling upset that the merest breeze will blow all of the straws away.
There was plenty of outrage, including perennial questions concerning the role of the special prosecutor on legal, moral, practical and political grounds.
As to inquisitions and outrage more generally, there were certainly excesses and much to disagree with and disavow, but the discovery issue (e.g., Juanita Broaddrick's rape), to further substantiate a history of similar activity, hardly represented an "outrage" or "inquisition."
Then again, she was merely a woman who had been raped and when compared to the importance of Bill Clinton, what is one woman and violent rape? Better to dismiss such concerns with "it was only sex" than more seriously confront the realities and the legal issues involved. And Broaddrick's story was in point of fact more than a little compelling and it was certainly germane to the discovery issue.
If Bill Clinton raped Juanita Broaddrick, he should be in prison. If he didn’t, the accusation is a vicious smear. Broaddrick’s story convinced some but not others, the latter including the FBI. Unless you know of compelling evidence undisclosed to the FBI, your depiction of the alleged rape as fact is reprehensible.
Does any thinking person really imagine that the only reason anyone might be less than perfectly unbiased about any topic is whether they're R or D?
As to your reply, again, hers was compelling testimony in the eyes of many and not merely those who engaged in anti-Clinton agendas for their own sake - very much to the contrary. Too, nothing you have to say invalidates what was stated: it was an ongoing investigation, in substantial part, for discovery purposes.
(And the notion it all reduces to a blank and white scenario, an either/or - either Bill Clinton is in prison or it was a "vicious smear" - is positively risible. Same hold true for O.J.? Pathetic.)
What makes you think I disagree with that?
I didn't say that one either. I said either Clinton did it or he didn't. If he did, he belongs in prison. If he didn't, calling him a rapist is a vicious smear.
I said it was reprehensible for you to call him a rapist because you don't know what happened, and you don't have sufficient basis for reaching a definitive conclusion. I find it reprehensible to say something you know has any meaningful chance of being a vicious smear.
By the way, not that it should matter, but I also criticize calling President Bush a liar without evidence of his state of mind, as well as all the other logical leaps into character assassination that seem to define so much of our public discourse nowadays.
Perhaps my last comment on this subject. Perhaps I misunderstood, but I emphasized the discovery aspects of the legal process, the investigation as such, rather than simply, in an unqualified sense, labeling Clinton "a rapist."
I do, as do many, tend to believe Broaddrick, in large part due to the compelling quality and the totality of her interview and the larger story, also due to attendant evidence, nonetheless what I emphasized was that the discovery issue was a perfectly warranted endeavor, in contrast to any "outrage" or "inquisition," as characterized by a prior commenter. You're not paying close attention to what was said. (Quote me if you believe otherwise.)
To address and discuss such things, seriously, is not at all to engage in a "vicious smear."
Consequently, it is mroe than a little facially unseemly for this distinguished group to be stepping in for the first time at the post-trial, post-verdict, "please let Scooter free on bail until a pardon is less politically damaging to the President" stage of the proceedings. If these folks truly cared about the supposed constitutional principle at stake, they would have filed at the motion-to-dismiss stage or at least at the motion-for-judgment-as-a-matter-of-law stage (if they weren't particularly attentive to the case). If one truly believed, on principle, that the appointment of this prosecutor was unconstitutional — or substantially likely to be found unconstitutional by a reviewing court, why on earth would one wait until after a denial of the dispositive motion, a trial, a jury verdict, and a sentence? If one really cared about the constitutional pricniple, why would one (or a dozen) allow that lawless prosecutor to exercise his non-existent power to indict and try a defendant before raising so much as a peep? I'd wager that a considerable part of what is annoying Reggie is the tardiness of the intervention, which suggests that it is more about keeping Scooter out of jail than it is about constitutional principle.
2. The day that Randy Barnett or Viet Dinh do ANYTHING out of the goodness of their hearts rather than out of shameless self-promotion will be a cold day in Hell.
If only the conservatives would apply this logic to someone who merely overstayed a student visa or something. Afterall I would think that lying to cover up potentially illegal activity on behalf of the federal government to be much more serious of an offense than running across the border to pick strawberries of $2/hour.
Try telling that to all the people who are trying claim bush a) is not a conservative and b) is a liberal. If more people used your logic political discourse would be much more civil now.
The judge may also be having an adverse (and, in my judgment, entirely understandable) reaction to the waves of sympathy that Libby's situation has evidently generated among the political and media elite. I heard one journalist, not a Republican or a conservative, decry what a harsh sentence Libby had received in light of the fact that he has two young children and will miss an important part of their childhood.
I have no doubt that this will be very tough on Libby and his family, but I can't help but think of the thousands of military fathers who will never see their children, thanks to the ill-advised decisions that Libby played a key role in making. Libby's friends seem much more stoic about these sacrifices among the "lower" classes.
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.
The brief was filed as an act of grandstanding, and the court recognized that.
Douglas Kmiec, one of the signatories of the amici brief, handled it nicely in stating, as reported in the WaPo, that he was "constitutionally grateful" that there have been so few prosecutors such as Fitzgerald who enjoyed "such unsupervised independence and that has been solely aimed at investigating a single incident of highly political origin and that has been so concentrated upon one person."
"Constitutionally grateful" being succinctly on-point. Too, in all of this, Armitage's and Wilson's mendacities, in addition to the mendacities originating from the press and from other quarters still, are swept under the rug.
Clarice Feldman at American Thinker has written extensively and more conscientiously than most on the Libby case.
In sum and w/o exaggeration, political operatives, the press and the judicial system are vastly more culpable in terms of mendacities, individually and in concert, than Libby, who's sentence is a reflection of Judge Walton's own malign self-indulgence.
A more fitting response would have been "I read the amicus brief carefully, and saw nothing which persuaded me that the questions on appeal are close." That would have been doing his job. There are good and bad trial judges all across the political spectrum. A big part of the art is being able to decide without involving the judge's own ego and personality in the case. A judge who can't do better than this ought to consider going back to defending DUIIs.