a collection of excerpts from team fitzs' filing of june 12, 2007

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UPDATED: 06.13.07 @ noon

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this morning -- the 13th -- team
libby field another pleading
responsive to the government's
position of yesterday (excertped
and analyzed, below). . .

i have read it carefully. early-on
in today's filing, team libby suggests
that they will largely rely on the
claim of an unconstitutional appointment
of patrick j. fitzgerald to establish the
right of scooter to remain free while his
appeals are pursued. . .

uh-huh.

yet, i did not see one line -- not one! -- in
the entire twenty-three page document, in which
team libby addresses -- even indirectly -- the
fact that, as team fitz (and i) pointed out,
libby is arguing for a change in existing
law, as the basis for his bail.

they don't dispute it -- because they can't.

and, that still means scoots is
headed to the hoose-gow. . . and soon.

this is so, because arguing to change
the law is almost never a proper basis
for bail, while on appeal. . .

i won't dignify the any of the
snottiness team libby offers with
any additional response. . .

it is time for judge walton to rule.

c o o l.

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BREAKING LEGAL NEWS

whoa! -- back shortly with
my thoughts on team fitzs'
answer to team libby's latest, and
the gang of 12's grandstanding efforts. . .

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the analysis begins. . .

in footnote 4, on page 6 of team fitzs'
filing, we see the snark, but in a very
sweetly-subtle fashion, appear. one of
team libbys' main arguments was that the
length, and thoughtfulness, of judge
walton's original ruling (from april 2006,
that the special counsel -- fitz -- was
lawfully appointed, and had the power
to bring the case) -- should itself
be evidence of a "close question" justifying
bail while mr. libby's appeals are prosecuted.

that's just. . . bizzare, no?

and, team fitzs' answer sez so:

". . .Defendant contends that it can be inferred from the length of this Court’s written opinion that the legal issues presented constitute substantial issues for appeal. Def. Mot. at 5. It is a strange sort of logic that infers that the likelihood of reversal increases with the thoroughness of a written opinion. . ."

ouch. that's gonna' leave a mark!

now -- i feel particularly proud to have
(earlier) used this very same phrase: "an
argument for a change in the law" does
not make out a substantial, or "close", question
under 18 UCS § 3143(b). and (he he!), team
fitz uses that exact same turn-of-phrase
to dispose of the graybeards -- at foot-
note 11, on page 13 of their filing:

. . .it is incongruous to suggest that a district court or court of appeals could view an argument for a change in the law as a substantial issue. . . Furthermore, it is important to note that under 18 U.S.C. § 3143(b), “[w]hat may be substantial and likely to result in reversal in terms of invoking the mandatory appellate jurisdiction of a court of appeals may well be insubstantial and unlikely to warrant the Supreme Court’s plenary review when one seeks to invoke the discretionary certiorari jurisdiction of the Supreme Court”. . .

and, as the graybeards well know, this
one would have to go up only on a per-
missive grant of cert. -- thus, mister
scoots is lookin' at jail-time. and soon.

that is -- there is no mandatory review
jurisdiction on this case, before the united states
supreme court, under any applicable statute or case law. . .

finally -- team fitz correctly points out,
as did i (earlier), that morrison is
the law of the land, and must be followed,
even by the d.c. court of appeals -- there's
a none-too-subtle-slap, no? check this:

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

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

cool. so: (1) the law is not what
twelve graybeards hoped it would
be, if scalia had the majority --
not the dissenting -- position, way
back when morrison was decided. . .

but, (2) even if scalia's dissent
were the current law of the land,
fitzs' appointment would pass
scalia's test for constitutionality -- as
fitz was/is removable "at will".

well -- game.set.and.match.

it is all over, except for the
shouting about memory-expert
admissabilty -- which i'll likely
not excerpt, save to note that not
much chance exists that those de-
cisions involved an abuse of
discretion at the trial level (and
yes, that is the standard for
evidentiary rulings, on appeal). . .

buckle up for camp-fed, scoots!

[more coming, shortly. . .]

now, here are some of the most-quotable
sections of this eminently-readable
court document supporting the legal pre-
sumption that scooter should begin his
incarceration immediately, and espousing
the none-too-novel notion that most cases,
scooters plainly included, are correctly
decided at the trial level in the federal
criminal justice system -- let's look:

. . .The new presumption of confinement pending appeal “gives recognition to the basic principle that a conviction is presumed to be correct.” S. Rep. No. 225, 98th Cong., 1st Sess. 27, reprinted in U.S. Code Cong. & Ad. News 3182, 3209. The change in the law also reflects Congress’s appreciation that “[r]elease of a criminal defendant into the community after conviction may undermine the deterrent effect of the criminal law, especially in those situations where an appeal of the conviction may drag on for many months or even years.” Id. In other words, Congress has recognized that “harm results not only when someone is imprisoned erroneously, but also when execution of sentence is delayed because of arguments that in the end prove to be without merit.”
Schoffner, 791 F.2d at 589. Consistent with the reversal of the presumption, Congress intended “that in overcoming the presumption in favor of detention, the burden of proof [would rest] with the defendant.” S. Rep. No. 225, 98th Cong., 1st Sess. 26, reprinted in U.S. Code Cong. & Ad. News 3182, 3210. See also id. at 3210, n. 86.

Section 3143(b)(1)(B) requires a two-part inquiry: “(1) Does the appeal raise a substantial question? (2) If so, would the resolution of that question in the defendant's favor be likely to lead to reversal?” Perholtz, 836 F.2d at 555. With respect to the first prong of this test, the D.C. Circuit has held that a “substantial question” must be “a ‘close’ question or one that very well could be decided the other way.” Perholtz, 836 F.2d at 555-56.2 In determining whether the question raised on appeal is a “close” one, the trial court must “return its attention to its own analysis of these issues at earlier stages of the proceedings” and “essentially evaluate the difficulty of the question he [or she] previously decided.” Schoffner, 791 F.2d at 589 (applying the same standard for “substantiality” that is applied by the D.C. Circuit). This function nevertheless has a “predictive character because appeals with more merit have a correspondingly greater ‘chance’ of resulting in reversal.” Id.

Even if a question is determined to be “substantial” within the meaning of § 3143(b), the defendant must also show, as a second step, that a resolution of that question in the defendant’s favor would be likely to lead to reversal or the grant of a new trial. This aspect of the inquiry requires the Court to consider the potential impact of a decision in defendant’s favor in light of the nature or type of question involved. E.g., United States v. Handy, 761 F.2d 1279, 1280 (9th Cir. 1985) (the second prong focuses on the type of question that must be presented). “[H]armless errors, errors that have no prejudicial effect, or errors that have been insufficiently preserved,” which would not result in reversal or a new trial, do not satisfy the applicable standard. See United States v. Bilanzich, 771 F.2d 292 (7th Cir. 1985) (affirming denial of motion for bond pending appeal based on purported illegally seized evidence where, not only was the question of the seizure’s legality not close, but the conviction would not have been reversed in any event because none of the seized evidence was admitted at trial). Similarly, questions that address matters that are not “integral to the merits,” or to which deferential standards of appellate review apply, are substantially less likely to satisfy the second prong of the inquiry required by § 3143(b). See, e.g., United States v. Powell, 761 F.2d 1227 (8th Cir. 1985)(en banc)(substantial question must be “ integral to the merits”); United States v. Day, 433 F. Supp. 2d 54, 56-57 (D.D.C. 2006)(Friedman, J.)(denying motion for bond pending appeal, and noting that evidentiary rulings, which are reviewed for abuse of discretion, are less likely to result in reversal than rulings on issues of law, which are reviewed de novo).3 Thus, while defendant has argued (Def. Mot. at 2-3) that it is not necessary for a judge to predict the probability of reversal in order to grant bond pending appeal, the governing statute clearly requires that the court find that an issue cited by defendant presents a “substantial” chance of reversal. See S. Rep. No 225, 98th Cong., 1st Sess. 27, reprinted in 1984 Code Cong. & Ad. News 3182, 3210 (noting that § 3143 “requires an affirmative finding that the chance for reversal is substantial.”). . .

DEFENDANT’S CLAIM THAT THE DELEGATION
OF AUTHORITY TO THE SPECIAL COUNSEL
VIOLATED THE CONSTITUTION AND FEDERAL
STATUTES DOES NOT CONSTITUTE A
SUBSTANTIAL QUESTION ON APPEAL.

Defendant Libby moved to dismiss the indictment, contending that the delegation of authority to the Special Counsel violated statutory provisions, 28 U.S.C. §§ 516 and 519, and the Appointments Clause of the Constitution, art. II, § 2. In a thorough and carefully reasoned opinion, this Court rejected defendant’s statutory and constitutional arguments and denied the motion to dismiss the indictment. United States v. Libby, 429 F. Supp. 2d 27 (2006). Neither of these arguments present a substantial question entitling the defendant to release pending appeal.

With respect to defendant’s statutory claim, this Court interpreted the relevant statutory provisions and rejected defendant’s argument, finding defendant’s points “unfounded” and “unconvincing” and concluding that the result was “compelled” by the plain language of the statutes and supported by D.C. Circuit precedent. Id. at 33-34. This Court also rejected defendant’s Appointment Clause challenge, carefully analyzing the limits on the Special Counsel’s authority and tenure, including being subject to dismissal at will, before concluding that the case “falls squarely into the mold of Morrison [v. Olson, 487 U.S. 564 (1988)],” which “remains binding authority” from the Supreme Court. 429 F. Supp. 2d at 44-45. The government respectfully submits that the defendant’s appeal from this Court’s denial of his motion to dismiss the indictment does not present a “substantial question” and that the defendant has failed to carry his burden. . .

In his motion for release on appeal, defendant places primary emphasis on his constitutional argument concerning the authority of the Special Counsel. As this Court stated, the question is “whether the Special Counsel is a principal officer requiring nomination by the President with advice and consent of the Senate or an inferior officer subject to independent appointment by the Attorney General.” 429 F. Supp. 2d at 35.8 This Court concluded that the Special Counsel is an inferior officer and that his appointment by the Acting Attorney General was consistent with the Appointments Clause. In doing so, this Court relied on binding Supreme Court precedent concerning when special prosecutors are inferior officers. Morrison v. Olson, 487 U.S. 654 (1988).

Defendant does not argue that under the Morrison decision the appointment of the Special Counsel was unconstitutional. Indeed, the appointment of the Special Counsel presents an easier case than the appointment upheld in Morrison because the Special Counsel can be dismissed by a principal officer at will, while the Independent Counsel at issue in Morrison could only be dismissed for good cause. Rather than making a futile attempt to make a case under Morrison, the thrust of defendant’s argument is that Morrison is no longer good law and has been overruled sub silentio and supplanted by Edmond v. United States, 520 U.S. 651 (1997). Defendant presses this argument despite the fact that in Edmond, a case that did not involve a special prosecutor, the Supreme Court did not overrule Morrison, disavow it, or even suggest that Morrison was no longer good law or that the outcome in Morrison would have been different under Edmond’s formulation of what constitutes an inferior officer. Nevertheless, defendant contends that this issue is “a close one” and that the D.C. Circuit “could easily reach the opposite conclusion from this Court.” Def. Mot. at 5.

Defendant’s contention simply cannot withstand scrutiny. As this Court concluded, Morrison and Edmond can be read to be in harmony. But even if there were any significant “tension” between the two Supreme Court cases, defendant’s contention ignores a fundamental principle that governs the resolution of legal issues by the District Courts and the Courts of Appeals, namely the obligation of the federal courts to faithfully apply Supreme Court precedent in the absence of some clear command to the contrary. This Court’s decision in this case was based upon such an application of binding precedent. The Court of Appeals also is obligated to apply Morrison. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)(“The Court of Appeals was correct in applying [the principle of stare decisis] despite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its precedents.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)(“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of cases, the Court of Appeals should follow the case that directly controls, leaving to this Court the prerogative of overruling its own decisions.”); Tribune Co. v. F.C.C., 133 F.3d 61, 69 (D.C. Cir. 1998)(“The Supreme Court has told lower federal courts in no uncertain terms that we are to leave the overruling of its opinions to the Court itself.”). For these reasons, the chance of reversal by the Court of Appeals is, at best, remote -- certainly not “substantial.”. . .

This [special counsel being removable at will] factor carries even greater weight in this case because the Special Counsel is removable at will; his delegation of authority may be revoked without cause and without further review. As has been pointed out – and it bears repeating – Justice Scalia’s dissent in Morrison explicitly stated that had the Independent Counsel been removable at will, even in his view of the Appointments Clause, the Independent Counsel statute would have passed constitutional muster. Morrison, 487 U.S. at 716 (Scalia, J., dissenting) (stating that if the Independent Counsel was removable at will by the Attorney General “then she would be subordinate to him thus properly designated as inferior.”).

While the removability of the Special Counsel was an important factor, it was by no means the only Morrison factor relied upon by this Court in rejecting the Appointments Clause challenge in this case. This Court also emphasized the following factors: the Special Counsel is empowered only to perform limited duties and is obligated to follow policies and regulations promulgated by the Attorney General; his jurisdiction is limited; and he has limited tenure. 429 F. Supp. 2d at 44-45. Based upon all of these factors – the Morrison factors – this Court concluded that “[t]his case falls squarely into the mold of Morrison.” Id. at 44. The Court’s holding was based on a straightforward application of binding precedent.

Defendant’s arguments based on Edmond do not have sufficient merit to constitute a substantial issue on appeal. . .

Even if Erroneous, the Court’s
Evidentiary Rulings Were Harmless
in Light of the Overwhelming Evidence
of the Defendant’s Guilt.

In sum, none of the issues defendant raises with respect to his memory defense constitutes a “substantial question,” much less one likely to result in a reversal or a new trial. In its rulings on each of the issues raised by the defendant, the Court’s determinations were clear and lacking in equivocation. Moreover, the Court’s determinations on all of these issues were routine, discretionary decisions by the district court based on standard evidentiary rules, thus entitled to substantial deference and unlikely to result in reversal. Finally, the government respectfully submits that, in a case in which the Court recognized at sentencing that the “evidence overwhelmingly indicated Mr. Libby’s culpability, despite the best efforts of counsel,” Tr. June 5, 2007 at 80, it is highly unlikely that an appellate court would find that a different ruling on any of these issues could possibly have led to an acquittal. Thus, it is clear that none of these issues provide a basis for overcoming the presumption in favor of detention pending appeal. . .

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[ed. -- and the coup de gras(!) -- footnote 11, on page 13:]

This Court granted leave to a group of constitutional law scholars to file an amicus curiae brief. Amici’s brief notes calls by some academics for the Supreme Court to revisit the question presented in Morrison and overrule that case. A.C. Br. at 1. To the extent that the amici or the defendant ask this Court to judge the substantiality of the Appointments Clause issue with respect to whether the issue is “ripe for reconsideration” by the Supreme Court, it is incongruous to suggest that a district court or court of appeals could view an argument for a change in the law as a substantial issue.

Furthermore, it is important to note that under 18 U.S.C. § 3143(b), “[w]hat may be substantial and likely to result in reversal in terms of invoking the mandatory appellate jurisdiction of a court of appeals may well be insubstantial and unlikely to warrant the Supreme Court’s plenary review when one seeks to invoke the discretionary certiorari jurisdiction of the Supreme Court.” Stern, Gressman, Shapiro & Geller, Supreme Court Practice 762-63 (8th Ed. 2002). See Julian v. United States, 463 U.S. 1308 (1983)(Rehnquist, C.J.)(“At a minimum, a bail applicant must demonstrate a reasonable probability that four justices are likely to vote to grant certiorari.”). Thus, it is very difficult to establish that a question is “substantial” to the Supreme Court. With respect to the legal issues confronting this Court, the amici add little for the Court’s consideration. The amici insist that Edmond “sets forth a generally applicable test of inferior-officer status.” A.C. Br. at 4. As this Court has observed, the Supreme Court did not supplant Morrison and this Court likely would have reached the same result under Edmond. The amici also attempt to distinguish Morrison from the case at bar. A.C. Br. at 3. First, the amici state that the Special Counsel’s office was not created by Congress. This ignores that the Attorney General, acting pursuant to statute, delegated authority to a Department of Justice attorney holding the statutory office of United States Attorney, subject to revocation at will. Second, the amici state that unlike the Independent Counsel law, no statute requires the Special Counsel to follow Department policies. As this Court concluded, as a member of the Department, the Special Counsel was obligated to follow such policies to the extent possible. Third, amici argue that the Special Counsel was able to expand his jurisdiction, and was therefore not sufficiently limited. This Court properly found that was not the case. Having made attempts to distinguish Morrison in favor of the defendant’s argument, the amici attempt to discount the fact that strengthens the government’s argument under Morrison: unlike the Independent Counsel, the Special Counsel is removable at will. A.C Br. at 5-6. The gist of amici’s argument is that removability alone is not sufficient. That ignores this Court’s analysis of the other limitations on the Special Counsel, Justice Scalia’s dissent in Morrison stating that removal at will of the Independent Counsel would have changed the outcome, and the Edmond court’s conclusion that removal is “a powerful tool for control.” Thus, the amici have not established that there is a substantial question as defined by 18 U.S.C. § 3143(b). . .

Respectfully submitted,
this 12th day of June, by: