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Judges Sentelle and Henderson Are Anti-Bush Hacks, Dersh Says:
Over at Huffington Post, Alan Dershowitz makes the case that the D.C. Circuit judges who denied Libby's appeal — a panel that included Federalist Society favorite David Sentelle and solid conservative Karen LeCraft Henderson — are anti-Bush political hacks who only denied Libby's appeal for partisan political reasons.

  Now, I know what you're thinking — the court's order was only two sentences long. How could Dershowitz know what the judges were thinking? The answer seems to be that Dersh just knows. He writes:
That judicial decision was entirely political. The appellate judges had to see that Libby's arguments on appeal were sound and strong — that under existing law he was entitled to bail pending appeal. (That is why I joined several other law professors in filing an amicus brief on this limited issue.) . . .

But the court of appeals' judges, as well as the district court judge, wanted to force President Bush's hand. They didn't want to give him the luxury of being able to issue a pardon before the upcoming presidential election. Had Libby been allowed to be out on appeal, he would probably have remained free until after the election. It would then have been possible for President Bush to pardon him after the election but before he left office, as presidents often do during the lame duck hiatus. To preclude that possibility, the judges denied Libby bail pending appeal. . .

[T]hat was entirely improper, because judges are not allowed to act politically. They do act politically, of course, as evidenced by the Supreme Court's disgracefully political decision in Bush v. Gore. But the fact that they do act politically does not make it right. It is never proper for a court to take partisan political considerations into account when seeking to administer justice in an individual case.
  I love Dershowitz's reason why the two-sentence order shows that these two very conservative judges (together with Judge Tatel) acted out of partisan political animosity against Bush: Libby's arguments were so strong that it's the only explanation. Of course.
ngh:
Of course they're politically motivated. That's what any judge who makes a decision you don't like is. Either that or "activist".
7.3.2007 8:15pm
ATRGeek:
You have to imagine this is the sort of thing that makes Luttig glad he saw the writing on the wall and got out while he still could.
7.3.2007 8:19pm
Dave N (mail):
Unlike this blog, I have never felt compelled to take anything on the Huffington Post seriously, including Dershowitz's comments.
7.3.2007 8:19pm
Francis (mail):
Has Dersh always been this crazy or is it a new phenomenon?
7.3.2007 8:24pm
Morat (mail):
What's sad -- that's probably the best-reasoned "pro-Libby" thing I've read.

And it's flamingly stupid.
7.3.2007 8:26pm
Nathan_M (mail):
Dershowitz has been a joke for awhile, but this is the icing on the cake.
7.3.2007 8:27pm
wt (www):
Weird. It's just so . . . uncharacteristic.

Alan Dershowitz has always seemed persuasive and grounded to me. Does anyone else think his HuffPost account might have been hacked?
7.3.2007 8:28pm
Morat (mail):
Francis: Dersh was one of the people that 9/11 broke. It changed him, and not in a good way. He's declined steadily since.

Some people never got over their fear, no matter how unreasonable it was. So they did what they felt they had to, to keep in under control.

They weren't helped by the fact that Bush chose to fan that fear -- and still does, with his constant invocation of terrorism and Al-Qaeda -- in order to shore up his political support.

We needed a President who would tell the country "There's nothing to fear but fear itself". Instead we got one that told us "There's nothing to fear, unless I need somethin, then SUPPORTING ME IS THE ONLY WAY TO FIGHT THE TERRORISTS WHO WANT TO KILL YOU AND YOUR CHILDREN!".
7.3.2007 8:29pm
Litigator:
Have I gone mad, or did the original version of the post have a picture of the judge and some snarkiness...?
7.3.2007 8:32pm
Litigator:
WT-- Don't forget that he signed the brief that the judge later referred to as something he wouldn't expect from a first year law student. Wounded pride, and all that. I seriously doubt it was hacked.
7.3.2007 8:33pm
abw (www):
To play devil's advocate: Could it not be argued that the two sentence ruling is evidence they never seriously considered the appeal? Why not do at least a full page justifying the decision?
7.3.2007 8:40pm
OrinKerr:
Litigator,

No, you're not mad. I just changed my mind right after posting it as to whether the extra snarkiness was appropriate. So I took it out.
7.3.2007 8:41pm
Grumpy Old Man (mail) (www):
Dershowitz is an increasingly pathetic figure.

I think Libby was a victim of a prosecutor gone amok and a political use of the criminal justice system, but also of the ridiculous federal sentencing guidelines. However, the legal question before the DC Circuit was whether there was a reasonable probability of success on appeal. There wasn't.
7.3.2007 8:42pm
Martin Ammorgan (mail):
The brief sucked.
7.3.2007 8:47pm
courtwatcher:
abw,
Federal appellate courts issue very short decisions all the time, especially on criminal procedural issues that they believe are meritless. If this were evidence that they weren't seriuosly considering the merits of a case, there would be many, many cases involving drug laws, immigration violations, and other violations that would be implicated. No one, to my knowledge, has ever raised that objection in those cases as a matter of public policy or in a writ of certiorari to the Supreme Court, though to be sure many defense lawyers have found it frustrating not to have a decision that explains judges' reasoning.
7.3.2007 9:04pm
LM (mail):
What bothered me was what also seemed to get Orin's attention. Dershowitz made his conclusory allegations of political motive and its purported objective (i.e., forcing Bush's hand before late '08 when he could issue a cost free pardon), but he offered no evidence for what therefore has to be taken as mere naked (wishful?) speculation.

Did he think he would convince anybody with that? I just don't get it.
7.3.2007 9:06pm
otto (mail):
IIRC Sentelle at least was an appointer/backer of Ken Starr in the Clinton impeachment process - and thus unlikely to be a political opponent of Bush's.
7.3.2007 9:08pm
courtwatcher:
I agree with Orin's post (and surely there is nothing in Dershowitz's writing here that explains the basis for his opinion that the decision was political or partisan), but it is a sad commentary on our lack of faith in our judiciary that we rely on the conservative leaning of the judges as the evidence that the court did not act in a partisan way. Had three Democratic appointees reached the same conclusions (wait -- is there even a possible panel of three Democratic appointees there?), surely many more VC commentors would be screaming that the decision was partisan or political -- and in previous posts on related topics many commentors seem to be saying that about Judge Walton despite the fact that Bush appointed him. Federal courts are designed to make decisions that are apolitical and that people may find unpopular -- they are uniquely insulated from the political process because of life tenure (there may be drawbacks from life tenure, and judges may inject their personal views into their decisions, but their structural insulation from partisan politics is simply a fact). I disagree with many court decisions coming out of the DC circuitbut am baffled by people's inclination to attack either the court system as an institution or the integrity of individual judges.
7.3.2007 9:12pm
mls:
Dershowitz, party of one!

The decision is "partisan" in that it goes against the Dershowitz Party's brief.
7.3.2007 9:17pm
Alex R:
I'm a non-lawyer with a couple of legal questions on this whole thing.

(1) Suppose for a moment that Bush's motivation for the commutation was to allow Libby to complete his appeal without going to jail. Would it be possible for him to commute his sentence from "30 months in jail" to something like "x months in jail, but sentence only to begin after all appeals have been exhausted"? In other words, could Bush have used his reprieve power to effectively reverse the decision of the court that said his sentence could not be delayed, without actually overturning the jail sentence entirely?

(2) I've seen speculation on a number of blogs, and in the comments here, that the reason that Bush did not pardon Libby is to protect Bush and Cheney from future testimony by Libby -- the idea being, I think, that Libby would lose his Fifth Amendment right to avoid self-incrimination if he were pardoned for this offense. Without assessing Bush's motivation, is this argument legally plausible?
7.3.2007 9:18pm
Randy R. (mail):
It was ole Abe who once said that you can fool some of the people all of the time, or all of the people some of the time, but not all of the people all of the time.

Bush has fooled us all some of the time, but we got smart. Dershowitz falls into the category of 'some' people who are fooled all of the time. Fortunately, Americans are much wiser, as recent polls have suggested, especially on this whole Scooter fiasco.

I recall being on Martha's Vineyard, and Dersh was there lecturing his new book on why torture is a good thing, and the only way to deal with those terrorists and pesky palestinians.
7.3.2007 9:23pm
theobromophile (www):

Has Dersh always been this crazy or is it a new phenomenon?


Well, if you want an answer to that question, try to read his "Letters to a Young Lawyer." I got a migraine about ten pages into it. (Really, the best part is when he rips apart law students who do the math on how much they make every year, per hour, after they are done with confiscatory taxes, student loans, and living expenses. Apparently, doing math is "greedy.")

I find Dershowitz's logic to be insane. Nothing he presents is even disprovable or testable. One could just as easily say that two very conservative judges made their decision this way to make poor, persecuted Mr. Libby look like the victim of a justice system run amok, which would set the stage for a pardon that would be supported by Americans.

It is absolutely illogical to go from "judges could act politically" to "they certainly did act politically."
7.3.2007 9:25pm
Crust (mail):
Well said courtwatcher that "it is a sad commentary on our lack of faith in our judiciary that we rely on the conservative leaning of the judges as the evidence that the court did not act in a partisan way [in prosecuting another conservative]."
7.3.2007 9:30pm
paul lukasiak (mail):
To answer Alex R's questions:

1) yes. That is the definition of "reprieve"... basically the delay in the execution of a sentence.

2) yes. sort of. If order for a pardon to have effect, it must be accepted by the individual being pardoned. The president does not have the power to overturn guilty verdicts, merely to pardon those who are guilty. In essence, accepting a pardon is an admission of guilt -- a waiver of Fifth Amendment rights. However, this waiver does not actually compel Libby to tell the truth, Libby could again be brought in front of a grand jury, asked the same questions, give the same answers, and be tried and convicted on NEW perjury and obstruction charges.
7.3.2007 9:44pm
Public_Defender (mail):
I have repeatedly said here that Dershowitz is nothing but a blowhard. He may have had some glory days decades ago, but I have never heard a criminal defense lawyer cite to anything he has written (except for the Libby motion, and those weren't compliments).

What makes some people think that this hack is an expert on criminal law? He thinks that a decision must be political because he disagrees with it? What a loon.
7.3.2007 9:51pm
paul lukasiak (mail):
re: Dershowitz....

I'm about as lefty as you get, but even I'm appalled by some of the moonbattery that shows up on the Huffington Post. Dershowitz's commentary represents a an hitherto unnamed phenomenon... I'd like to suggest that Dershowitz be given the honor of being named the first official wingbat... the unholy spawn of moonbat logic and wingnut arguments.
7.3.2007 9:54pm
Adam J:
Crust and Court;

It's not so much the issue that a democrat judge or prosecutor would be partisan, it's more about how ridiculous it is to claim that a republican judge or prosecutor was partisan. If the prosecutor and judge were democratic it would at least be concievable (but weak) argument, but what Dershowitz is arguing is just preposterous.
7.3.2007 9:54pm
Ella (www):
In my undergraduate days in the not too distant past, I believe that Professor Dershowitz used to teach a Moral Reasoning course with two other Harvard professors. He and his colleagues were affectionately referred to as "the three egos". I'm not sure what brought that to mind.
7.3.2007 9:54pm
TCO:
I think you go a bridge too far in speculating on Dersh's thinking. Something can be political in the sense of public pressure on the courts rather than partisan in the sense of helping one's team.
7.3.2007 10:03pm
Mark Field (mail):
Can we here, left and right, libertarians and socialists, wingnuts and moonbats, put aside our differences to face the common enemy that is Dershowitz?
7.3.2007 10:13pm
paul lukasiak (mail):
There is something really incoherent about this passage


But the court of appeals' judges, as well as the district court judge, wanted to force President Bush's hand. They didn't want to give him the luxury of being able to issue a pardon before the upcoming presidential election.


Now, it would make sense if Dershowitz was arguing that the courts didn't want to give Bush the luxury of a pardon after the presidential election. Bush always has the "luxury" of issuing a pardon at any time -- Bush's "hand is forced" only if he is denied the "luxury" of knowing that Libby won't spend any time in jail prior to the election.
7.3.2007 10:20pm
Q the Enchanter (mail) (www):
Alan Dershowitz: Felix Frankfurter Professor of Law. Harvard. Law School. Holy crap.
7.3.2007 10:45pm
Adam J:
TCO,

Federal judges aren't generally influenced much by public pressure- since they are appointed by the president for life. Thus, they have no real incentive to choose public opinion over fairly applying the law- in fact the judges would be far more likely to be swayed by the political opinions of their party- since that could assist them in getting appointed to a higher court. Your argument has nearly as much merit as Dershowitz's.

What I found most interesting was Dershowitz's attack on Bush v. Gore, thus making his post pretty unpalatable to both partisan conservatives and partisan republicans- clearly he's not likely to win many friends with this post.
7.3.2007 10:46pm
mistermark:
Mmmm, Frankfurter....

Anyway, my mind was wandering. What an embarrassing post from Dershowitz. Did he even look to see who the judges were on the panel? I actually hope he didn't. It would make me feel better to think he was just sloppy and mouthing off without looking into things than to think he actually believes Sentelle, et al, are a bunch of anti-Bush hacks.
7.3.2007 10:58pm
Alex R:
If paul lukasiak's answer to my first question is correct, then those arguing (as Dershowitz does) that the President's hand was forced by the judge's decision to jail Libby pending appeal is baloney -- the President could simply have given Libby a reprieve of his sentence until his appeals were exhausted, insisting all the while that he did believe that obstruction of justice should be punished...
7.3.2007 11:05pm
LM (mail):

I think you go a bridge too far in speculating on Dersh's thinking. Something can be political in the sense of public pressure on the courts rather than partisan in the sense of helping one's team.

That's the problem with Dershowitz's post. It's so thin, resort to speculation is all you've got.

Now, it would make sense if Dershowitz was arguing that the courts didn't want to give Bush the luxury of a pardon after the presidential election.

That's what I assumed he meant. If it wasn't sloppiness, and he did mean before the election, then he just must be off his medication.
7.3.2007 11:09pm
Jack S. (mail) (www):
I lost all respect for Dersh back when Rehnquist died and he was moaning about the CJ's 1970's property purchase in Maine or somewhere thereabouts still being subject to a covenant barring sale of the property to Jews. Dersh was fully aware of Shelley v. Kraemer, decided in 1948, as I'm sure Rehnquist was too when he bought the property over 20 years after the fact. Rehnquist probably just shook his head at the historical and sad anachronism. Dersh used it as a personal attack against the deceased CJ.

I was never a big fan of Rehnquist but I found Dersh's argument/attack to be quite pathetic.
7.3.2007 11:09pm
Litigator:
Prof Kerr: Thanks for confirming. It's good to know that my tenuous grip on reality has yet to completely slip.
7.4.2007 12:04am
Kieran (mail) (www):
Just get Alan over to one of those judges with his bunsen burner and packet of needles and he'll extract the reasons for the order in good post 9/11 fashion.
7.4.2007 12:12am
Dilan Esper (mail) (www):
Shorter Alan Dershowitz:

The Court of Appeals disagreed with me, the great Alan Dershowitz. Ergo, they couldn't have been honestly interpreting the law.
7.4.2007 12:38am
TCO:
I agree that Dersh's post is thin and would welcome him developing his thhoughts nore in future longer essay. He might still be wrong. But at least we would know what he was thinking. I'm not convinced that we do at this point. So to join battle now on uncertain premises is not so fun.
7.4.2007 12:47am
Dave Hardy (mail) (www):
Dersh was one of the people that 9/11 broke. It changed him, and not in a good way. He's declined steadily since.

I think he lost it long ago, at least in the sense of being able to judge what goes on in a courtroom, When I lived in DC decades ago, and that fellow was busted for spying for Israel, and fled to the Israeli embassy, and was ultimately turned over ... at his sentencing, Dersh argued he ought to get probation on the condition of his giving up his US citizenship and moving elsewhere, that that would be a terrible punishment.

uh... apart from some question as to whether that could be done, the judge pointed out -- wasn't that just what your client was trying to do? Flee to another jurisdiction, and give up hope of returning to the US?

I read that and figured that, whatever his ability to write might be, this was not a person you'd want handling your parking ticket...
7.4.2007 12:57am
Meh (mail):
I will preface this by saying that I haven't followed the Libby case at all. However, surely a better point must be advanced than Orin's remark that Dershowitz "just knows."

What Orin ignores is that Dershowitz is basing his opinion on his brief ("Libby's arguments on appeal were sound and strong — that under existing law he was entitled to bail pending appeal. (That is why I joined several other law professors in filing an amicus brief on this limited issue.")), the merits/demerits of which Orin does not address.

If, as Dershowitz apparently believes (and I make no comment on it one way or the other, for I really have no clue and am not inclined to spend the time necessary to get up to speed), Libby's "arguments on appeal were sound and strong," then yes, it is entirely reasonable to suppose, notwithstanding Orin's sarcasm, that a contrary finding was motivated by political animus.

Again, I don't know any of these people and I don't care about Libby, but Orin is not being overly straight about this.
7.4.2007 1:31am
Meh (mail):
To amplify my point, would Orin have a problem if, next time he expressed a political opinion, someone noted that he failed to cite any authority for this opinion and that Orin "just knows" what he's espousing?

Point is, it sounds to me like a cheap attempt to make a point (after a strong initial condemnation of the commutation).
7.4.2007 1:42am
therut:
OH please. Is not Henderson the one with the nutty opinion in Parker. You guy and gals of the laweyer profession are sick. Our system is sick. If Judges are to pass judgement on the merits of which party picked them then all JUSTICE is dead. Good Grief. And the Justices wonder why the little people like me hold THEM in contempt. Sad.
7.4.2007 2:12am
OrinKerr:
Meh, if you read the amicus brief Dershowitz signed I suspect you'll have a rather different view.
7.4.2007 2:15am
Colin (mail):
Dersh was one of the people that 9/11 broke. It changed him, and not in a good way. He's declined steadily since.

I think this is true. I was in Professor Dershowitz's 1L crim law class in Fall 2001. I did not know Dershowitz before the class, and not personally afterwards, but my impression was that he did change, and not for the better. He immediately began advocating torture, assassination, and collective punishment for a variety of evil people. I think he chose these causes because they were outrageous and conspicuous, not out of careful consideration and reflection.

Some of his arguments were at least interesting, such as his advocacy for torture and assassination warrants - even people who disagree with the idea can find something there to discuss profitably. But some of the ideas, like collective punishment, were so clumsy and ridiculous that it was embarassing to watch him advance them in serious panel discussions.

My impression of the man is that he does well under pressure, and thrives on conflict. 9/11 "broke" him, I think, by giving him a variety of issues on which to create that conflict. Unfortunately, he's done so by championing some very poor ideas. This editorial looks like another attempt to blow fire into a debate on behalf of an underdog, whether or not there are facts to support his position.

For what it's worth, he was an effective teacher. It was a fun, stimulating, and educational class; one of the better 1L courses I had. He's been teaching crim law for so long that he was mostly on autopilot, and I hope that's still true - it would keep his class relatively isolated from his unfortunate side projects.
7.4.2007 3:53am
dearieme:
What's the modern term for what used to be called a "mental breakdown"?
7.4.2007 5:38am
HLS:
If it makes you feel any better, he's not respected much at the law school either. He's too busy pumping out low quality books to even pretend to care about teaching (one of his courses this term had an exam whose response could be no longer than 3 pages, double-spaced).
7.4.2007 6:28am
Public_Defender (mail):
Q the Enchanter wrote: Alan Dershowitz: Felix Frankfurter Professor of Law. Harvard. Law School. Holy crap.

HLS wrote: If it makes you feel any better, he's not respected much at the law school either. He's too busy pumping out low quality books to even pretend to care about teaching (one of his courses this term had an exam whose response could be no longer than 3 pages, double-spaced).

Proof that some big-name professors are washed-up has-beens coasting on long-gone glory days.
7.4.2007 7:37am
advisory opinion:
Thanks for the blog pimpage, Kieran.

Do Conspiracists also blog pimp on Crooked Timber?
7.4.2007 8:57am
Ray Fuller (mail):
In defense of Alan Dershowitz: Decades ago, Professor Dershowitz was my instructor at HLS, and he was a truly inspiring and effective teacher. (He argued that the mentally ill should not be relieved of their moral and societal responsibility for criminal acts. Since then, things have only gotten worse in the criminal justice system: The crazier [i.e., more severe mentally ill, as diagnosed by overpaid medical experts for the defense], stupider [i.e., more retarded on paper], or younger [i.e., "underage"] the accused criminal is, the less severe the punishment, if indeed he cannot obtain outright evasion of any personal responsibility for victimization of other people, no matter how serious or serial the criminality. I am a civil libertarian by inclination, but no fool about what incentives are being given to certain types and groups of predatory criminals by these judicial rulings.) I do doubt that the good professor was "broken" by 9/11. I am a pacifist by nature (being officially certified as such by Selective Service during the Vietnam War). But I also recognized even then that WWII was a difficult case for a pacifist, between the sneak attack at Pearl Harbor and the holocaust. But it took 9/ll to change me from an absolute pacifist to a "common sense" pacifist. When your country is attacked on its own soil by terrorists targeting civilians for mass murder, the choice is between succumbing in a modern day equivalent of going silently to the gas chambers, or fighting the enemy as lethally and as nastily as necessary in order to preserve your society and its ideals for your children and their offspring. While I still would not lift a finger to save my own life from a murderer, I resolved with my very first child that I would have to defend her life at all costs, even if that act violated my principles and condemned me to hell. Likewise, I am willing to kill the terrorists (and even "torture" their leaders as absolutely necessary), not to protect my life, but the lives of my countrymen and a future for our country. Dershowitz really sounds no different. Finally, I find it contemptable that fellow law professors are so cruel in their criticism of one of their own, regardless of politics. Disagree without being disagreeable. Stop the ad hominem attacks. Stop reflecting the current abominable state of the American legal profession: vicious, arrogant, petulant and uncharitable.
7.4.2007 9:43am
srg:
Orin,

As far as I am aware, you have not explained why you think the amicus brief was unconvincing.
7.4.2007 12:19pm
DG:
In light of recent events, perhaps Dersh was right on target with assassination and torture warrants. He has never gotten credit for saying "this stuff is going to happen, its inevitable, considering the circumstances. Lets bring it under judicial review". He was right - it did happen and it happened in an out-of-control fashion. Even for targeted killings of terrorists (which we do engage in), we have JAGs sitting in to make sure its all "legal". And of course, there's the whole spectrum of coercive interrogation mechanisms, from lying to waterboarding, to pulling out fingernails (yes, waterboarding is in the middle, not the extreme). Dersh was right that it was going to happen, inevitably, and that some sort of judicial oversight could have kept things under control.
7.4.2007 1:01pm
Anderson (mail) (www):
As far as I am aware, you have not explained why you think the amicus brief was unconvincing.

Well, in the sense of "failure to convince," it's failed to convince one district judge and three circuit judges thus far. 0 for 4 sounds "unconvincing" to me.
7.4.2007 1:14pm
Charlie (Colorado) (mail):
Orin, since Randy Barnett was one of the amici, I think you should come straight out and debate this with him.
7.4.2007 1:19pm
hdhouse (mail) (www):
Thank goodness that our court system is completely divorced from the political free for all. It improves our standing as the world's fairest nation.
7.4.2007 1:45pm
elChato (mail):
This is par for the course for Dershowitz-- in almost every TV appearance I've seen him make, he attacks someone by claiming to know their (of course impure) motives. This time he was dumb enough to say it in writing. He appears to be at least occasionally unable to respect people who disagree with him. You can't help wondering if that hurts his effectiveness as an advocate in court.

(one of his courses this term had an exam whose response could be no longer than 3 pages, double-spaced)

Knowing nothing but this about the course in question, the idea is actually intriguing-- it goes against the grain of law school and forces the student to distill everything down to a few words? Talk about pressure! But courts have page limits on briefs, which in certain cases will drive you mad. The idea does not seem unsound (so long as it's not just a byproduct of laziness).
7.4.2007 2:19pm
anonVCfan:
I'm inclined to forgive Dershowitz for falling into the same trap that many egotistical lawyers do when they fail to persuade judges of something...
7.4.2007 2:50pm
Public_Defender (mail):
I'm inclined to forgive Dershowitz for falling into the same trap that many egotistical lawyers do when they fail to persuade judges of something...

Fair point. Dershowitz is just another egotistical lawyer who blames his audience when his arguments are unpersuasive. But I thought Harvard expected more from full professors in chairs named for eminent Supreme Court justices.
7.4.2007 4:52pm
Harvard 2L:
I had Dersh for crim last semester. Even wide-eyed 1L's, who err on the side of deference to their towering professors, recognized Dersh as a complete joke. He is the naked emperor.
7.4.2007 5:13pm
Dilan Esper (mail) (www):
srg:

The argument made by the amicus brief was that the issue of whether Libby's conviction could be reversed because Patrick Fitzgerald was not properly appointed as special prosecutor. Essentially, some people believe that all prosecutors have to be directly accountable to the President, and that independent counsels and special prosecutors violate the Constitution.

The problem is, the Supreme Court, by an 8-1 vote, rejected this in a case called Morrison v. Olson. And Morrison involved a prosecutor, Ms. Morrison, who was far MORE independent than Fitzgerald, who is clearly part of the executive branch. Thus, there is almost no chance that Fitzgerald is going to be found to be illegally appointed. Further, since that Supreme Court case is controlling authority, the District Court and Court of Appeals were bound to follow it even if they disagreed with it.

There was a narrow case, later decided, limiting Morrison in the context of military prosecutions. But that case doesn't apply here, and the Court was clear that they were not overturning Morrison.

So, with that context, the amicus brief was only 5 pages long, and basically ignored Morrison, cited the military case as if it was the only controlling law, and then cited a bunch of law review articles making the argument that Morrison rejected.

I might add as well that even if the District Court were willing to disregard the law and find Fitzgerald illegally appointed, that doesn't necessarily mean Libby's conviction could be reversed, because the error was nonprejudicial (because it doesn't go to Libby's guilt or innocence) and was almost certainly cured by the jury's verdict. (There is only a very narrow class of errors that are reversible even if they didn't affect the result of the case.)

You can draw your own conclusions as to why this brief was really filed. But the argument it made was close to frivolous, and Judge Walton might have even been within his rights to impose a monetary sanction against the lawyers for filing it. That's how bad it was.
7.4.2007 5:16pm
JosephSlater (mail):
This goes beyond normal lawyer egotism. Sure, sometimes lawyers think judges just don't get the brilliance of the lawyer's arguments. And sometimes lawyers think that the reason judges rule the way they do is because of the judge's political leanings. And sometimes, lawyers are even right about one of these things being true.

But the obvious problems with Dershowitz's argument here is (i) as Dilan Esper explains, the brief really wasn't persuasive, at least not for the purpose it was offered (with all due respect to Randy Barnett, a very smart guy); and (ii) as Orin points out, TWO OF THE THREE JUDGES WERE SOLID CONSERVATIVES.

In Dershowitz's case, this may have been partly a result of ego (I don't know, I don't know him). Beyond that, though, this once again points out the almost deranged mental gymnastics the dead-end few that defend the Bush administration mechanically on all "war on terror" issues have to go through. Not only did the prosecutor appointed by Republicans, the entire jury, the judge, and three judges on the court of appeals, two of whom were conservative all get it wrong, they got it wrong out of partisan hatred for a conservative Republican.
7.4.2007 5:47pm
I Can't Remember My Registered Name/Password (mail):
Orin—Hugh Hewitt pointed out an error (probably just sloppy short-cut) in your post: the DC Circuit judges did not deny Libby's appeal. They merely denied his motion to remain at liberty pending his appeal. If this is correct, an update may be appropriate.
7.5.2007 3:35am
Public_Defender (mail):
Ray Fuller wrote: Finally, I find it contemptable that fellow law professors are so cruel in their criticism of one of their own, regardless of politics. Disagree without being disagreeable. Stop the ad hominem attacks. Stop reflecting the current abominable state of the American legal profession: vicious, arrogant, petulant and uncharitable.

Wow. Writing about collegiality in defense of Dershowitz is like, well, metaphors fail me this early in the morning. But Dershowitz doesn't deserve it.

Remember Norm Finkelstein, the son of Holocaust survivors? Dershowitz launched a Jihad against Finkelstein's tenure at DePaul because Dersh thought Finkelstein was insufficiently pro-Israel. And why should a Harvard law professor care about gets tenure as a political science professor at DePaul?

According to the NYT, Dersh even tried to get a publisher to pull Finkelstein's book. The same article says that Dersh put anti-Finkelstein scrawl's on his personal website: "The Most Despicable Things Finkelstein Has Said," "The 10 Stupidest Things Finkelstein Has Said," etc.

As others have pointed out, Dershowitz's debating tactic is to demonize his opponents. The comments here are, at worse, Dershowitz-level attacks.

And the examples you give of his positions--more criminal liability for the mentally ill, legalized torture--don't back up the "liberal" label many put on him. When he filed the brief in this case some of the coverage lauded the supposed intellectual diversity of the panel by saying that the "liberal" Dershowtitz had joined right wingers like Bork.

Finally, you wrote that he was your professor "decades ago." I assume that Dershowitz showed some intellectual vigor back then. That's probably how he got tenure. My point is that it looks like he's been coasting on his long-gone glory days for, well, decades.

I feel sorry for the current students who pay huge sums of money to take his classes. I'm glad you got to take his class when he was still an intellectual force.
7.5.2007 7:48am
uh clem (mail):
Dershowitz made his conclusory allegations of political motive and its purported objective ... but he offered no evidence...

Did he think he would convince anybody with that? I just don't get it.


I have no doubt that he will convince some people. To paraphrase LBJ, "No, I don't really think my opponent is having sex with goats, I just want to see him stand up and deny it."

That is, meritless arguments, repeated often are a recipe for shaping public opinion. Desh knows this better than anybody. And for Libby's defenders, meritless arguments is all they have: "Armitage was the original leaker." "There was no underlying crime." "Plame wasn't covert." "Fitzgerald was motivated by pure politics." "The judges were biased."

Heck, you've even got the National Review describing Libby as a "political prisoner". The idea is to throw a lot of crap and hope some of it sticks. Sadly, it works.
7.5.2007 10:34am
ATRGeek:
uh clem,

I'm not entirely sure the Administration's standard damage control procedures will work in this case. Yes, the "loyal Bushies" will faithfully echo their talking points, but I think this issue is so straightforward that extremely few people outside of the loyal Bushies themselves are going to buy their spin. And it doesn't help their cause that this time, at least, national security concerns put a finger on the scale against the Administration.
7.5.2007 11:35am
Anderson (mail) (www):
since Randy Barnett was one of the amici, I think you should come straight out and debate this with him.

Barnett does not, we've seen, care for the rough-and-tumble of comment threads -- incompatible with his libertarian sympathies, I suppose.

So we're reduced to guessing. My guess is that Barnett doesn't like any kind of special prosecutor and was happy to sign on to the amicus brief on that basis.

I do not, however, think he drafted any of it; he seems much smarter than that. To judge by the wounded sensibility, it may've been a Dershowitz production.
7.5.2007 11:42am
ATRGeek:
Given Randy's constitutional views, I also assume he is well-accustomed to having his legal views rejected by judges of both parties (which is not an insult, of course).
7.5.2007 11:53am
Kelvin McCabe:
I had the unfortunate experience of being given a book Dersh wrote, called "The Genesis of Justice" which apparantly he authored for a seminar course he taught at Harvard Law. Essentially, attempting to find the root of today's idea of "justice" from some selected stories/parables found in the first book of the bible. I assume the students had to buy the book for the seminar.

By far the most ridiculous piece of legal history/origin theory i have ever read. And to boot, it was written for what appeared to be a 3rd grade audience, at best. Must have been the easisest of easy A's at Harvard Law. I now have no respect for the man, or his opinions. The only saving grace is his willingness to fight an uphill battle for an unsavory client. But i now wonder if he does it out of principle, or for some hideous self-aggrandizement type personality disorder thing. After this most recent episode, i am suspecting the latter.
7.5.2007 5:20pm
tsotha:
clem,

I find all those arguments have merit except the last two. I'm not sure at all why you think it's settled.
7.5.2007 6:51pm
LM (mail):

I had Dersh for crim last semester. Even wide-eyed 1L's, who err on the side of deference to their towering professors, recognized Dersh as a complete joke. He is the naked emperor.

As troubled as I am by the absence of even a serious attempt by Dershowitz to support his Libby views, I think a modicum of perspective is in order.

Dershowitz never had many friends on the Right, and over the last decade or so he's managed to alienate most of his liberal allies with his advocacy for Israel, OJ, institutionalized torture and now Libby. Add to that his often less than winning personality and, well... to say the least he's a challenging public relations case.

No disrespect to Harvard 2L, but the way I recall 1L's (circa 1985), the lowest common denominator wasn't deference but insecurity. And one of the preferred ways to discharge overcompensating aggression without inflaming jangly nerves all around was to target common enemies outside the herd, none better than loud-mouthed professors on high pedestals with political views that offended everyone.

Anybody as famous as Alan Dershowitz with so little constituency is a very easy target, and I don't dispute that his best days as an effective advocate and instructor may indeed be behind him. I guess it just strikes me as at least a little odd for this site that there is so much piling on (I've done my share) against so little resistance.
7.5.2007 7:09pm
LM (mail):
OJ doesn't belong in that list. Why is proofreading so much easier after you hit the "Post" button?
7.5.2007 7:14pm
edhesq (mail):
Since the judges haven't explained, can anyone here explain why the district court's refusal to allow the defense to call Andrea Mitchell to testify (1) was appropriate under US v. Johnson and (2) not likely to be grounds for a successful appeal?

Am I to understand Mitchell was able to avoid testifying in court by means of denying out of court what she'd say in response to certain questions if they were to be asked in court?

I find the inability of Libby's defense to question Mitchell on the witness stand before the jury rather Orwellian, especially after her (i) Imus interview, (ii)characterization of info sharing at NBC news, and (iii) the of centrallity of Russert's testimony.
7.5.2007 7:15pm
Peter Young:
Never did I have Dershowitz as a professor, but on my last day at law school back in 1968, he kindly gave me some valuable free legal advice about how to deal with my draft board, which was trying to take away my fatherhood deferment because of my anti-war activities. After I followed up on his suggestions, I never heard from my draft board again.

He was busy arranging to leave town that day for his summer break, but rather than leave me uncounseled, he had me traipse along on his last-minute errands in and around Harvard Square as we talked. I went banking and dry cleaning with the Dersh.

So I have a soft spot for Dershowitz. At the time he was the prodigy, always praised for being so bright at so young an age--first in his class at Yale Law School, youngest full professor ever at Harvard Law School and the like. As he grew older, he seemed to become ever more extreme and ever more strident in an effort to remain the center of attention. He is more a celebrity than an academic, more a political figure than a lawyer. Anway, that's my shamateurish psychoanalytical take on Dershowitz.

Being the Dersh means having a healthy regard for one's own opinions no matter what, but soft spots go only so far. He lost me as an admirer long ago. Fortunately, there is only one Dersh. But I'm still glad there is a Dersh. And if he didn't exist, most of the commenters here wouldn't have him to kick around, would they?
7.7.2007 10:35am
Mark Bahner (www):

Barnett does not, we've seen, care for the rough-and-tumble of comment threads -- incompatible with his libertarian sympathies, I suppose.


Pardon me? What in the world do "libertarian sympathies" have to do with "the rough-and-tumble of comment threads"?
7.8.2007 12:28am