Friday, June 22, 2007

patrick fitzgerald's june 22, 2007 response motion -- to deny libby release, pending appeal

on-time, and on-target, patrick
fitzgerald and his team of assistant
united states attorneys, acting as
special counsel, have filed a response
to lawrence robbins' motion of june 19,
on behalf of scooter libby.

[h/t to EW for the filing!]

i'll focus my commentary on the argument
that has received the least attention to
this point -- in no small part because
mr. libby's trial lawyers never bothered
to raise the point before, during or after
the trial, instead raising it for the first
time at the second sentencing hearing before
judge walton -- the so-called c.i.p.a. § 6
missing-signature "error".

so -- here is footnote 12, on page 14
[click to enlarge, as ever. . .]:

team fitz here lucidly-explains that because c.i.p.a.
§ 6(e) contemplates a breath-taking foreclosure -- of
what would otherwise be an unconstitutional abridging
of a criminal defendant's right to present exculpatory
information, in his own defense -- due to what must
be highly unusual national security considerations -- mr. robbins is. . .

. . .looking at the wrong set of cases -- cases
that interpret § 6(e) -- not cases that interpret
the far-more mundane, and ministerial §§ 6(a) or
(c) c.i.p.a. motions to close courtrooms. . .

and, that's kinda' embarrassing for mr. robbins, no?

it seems the idea of pissing-off judge walton by
stomping about in his court-room, spouting dis-
missively high-handed nonsense like "i was there
when [supreme court justice antonin scalia] read
his dissent
. . ." [in morrison] is already coming back
to bite mr. robbins -- note that much of team
fitzs' latest filing, tonight, does borrow from
judge walton's memorandum opinion filed only
, but back-dated -- nunc pro tunc -- to
june 14, 2007. thus robbins will have to use his
reply brief (due on tuesday the 26th) to answer
both team fitz, and judge walton, just as i had
. . . [it is never wise to burn a brigde
before any judge one might ever appear before, again.

and that is every judge. the world is that small. and
smaller by the day. . .]

he he! -- here endeth the sermon. . .

even later. . .

a good discussion of the c.i.p.a.
§ 6 issues is underway over at the
nexthurrah -- as follows:


nolo - I hate to say it, but I don't buy Fitzgerald's 6(a)& (c) vs. (e) argument. Yes, the issue in (e) is more drastic, but I think it is a hard argument to say that decisions as to how to handle this kind of national security information in the court room and in litigation, even under the lesser issues presented in 6(a) and (c), goes beyond mere minsiterial acts - all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. The fact that, in this paricular case, the USAtty handling the case has more credibility than the AG and all the delegees listed in the CIPA statute doesn't mean, IMO, that you can minimize the importance of what is intended to be highest levels of DOJ involvement in CIPA decisions, beyond ordinary classified info and getting to national security considerations. I like Fitzgerald's arguments on the whole, and I would have made the same argument as he did as a part of a phalanx of counterarguments (I like arguing the string and not picking out a pearl), but I'm not sure how good an idea it is to try to get a court to rule that the AG's CIPA involvement in 6(a) and (c) settings is merely ministerial - that would bother in the long run if it held the day. But that's just a personal take.

Posted by: Mary | June 23, 2007 at 00:48


mary wrote:
". . .all of CIPA is a weighing and balancing of defendants rights and information protection and there are policy issues interwoven throughout. . ."

mary -- all you wrote makes good sense. permit
me to suggest, however, that just because national
security is in play, it does not a priori mean
that none of it can be ministerial. as fitz correctly
notes, assistant u.s. attorneys (i.e., ones not appointed
by the president, with the advice and consent of the senate)
often sign the sort of filing only now -- belatedly -- complained
about (more on that, in a second) by team libby.

thus, a look at the intent of separating § 6(a) or § 6(c)
from § 6(e) is illuminating, here. note that (e) forecloses a
defendant's right to present exculpatory evidence -- and, that
plainly runs down the middle of the sixth and seventh
amendments' fairways. . . closing the courtroom to the
public, on the other hand, is a very commonly-employed
device (think mob-RICO trials, here), that in no manner
reads upon the defendant's constitutional rights. that
is plainly so, because the the right to witness trials
is a "public" right -- it is the public's right to
know, not the accused's right to be watched -- in
play at that moment, generally speaking.

now, if that does not persuade, mary, let me suggest,
as team fitz/team USA did, that the whole c.i.p.a. issue
has been waived by team libby. all of these matters
were filed with the court, via pacer, at the time, pre-
trial, and the law deems scooter's lawyers to know every-
thing filed in the case. specifically, fitz points the
court of appeals to the well-settled case-law that holds
a defendant must make plain the basis upon which -- with
particularity -- he assigns error to any portion of his
trial and conviction, in order to preserve the issue for
appeal, and allow for remediation, if possible, during the
trial. . . so, while i don't like waivers much, regarding
what may turn out to be a contentious issue -- i think the
court will actually likely rule not on the merits of the
c.i.p.a. claim of error, but instead will hold that the time
to complain about so easily-remediated a matter was over
a year ago -- when a simple second signature would have
evaporated any perceived infirmity.

in sum, i am no longer worried at all about the c.i.p.a.
issue -- such as it is -- being the basis for a release
while on appeal, nor ultimately, a remand or reversal.

nolo -

I'm not saying that, overall, I don't like Fitzgerald's arguments. Personally, I am quite certain he is an inferior officer and that is because the investigation was in-housed with a delegation that was not in any manner irrevocable or subject to any constraints on the delegor with respect to subsequent with respect to amendment or modification - I don't think Fitzgerald wants to go there, though, bc it undercuts the whole premise that DOJ can conduct thorough investigations without interefence.

Still - I don't buy the 6(a) & (c) v. (e) arguments (and you don't have to buy them for the inferior officer argument to prevail).

While you sever out, for constitutional reasons, the 6(e) aspects on the right to present exculpatory evidence, I think the whole issue of national security aspects does present, a priori, a different situation. AsstUSAs can request closed hearing and the like with respect to normal classified information. But there is no question but that they do NOT have that ability under CIPA.

If Fitzgerald had wanted to act under something other than CIPA, too, the Judge has different rights and duties vis a vis his independent determinations on classified info. OTOH, when national security is implicated, you are talking immediately about an area where the court is pretty much required to give more deference. When you have, not only the existing case law and the Executive's positions that there should be special handling of national security info, but also have Congress weighing in and saying that ONLY a very select group in DOJ is supposed to make determinations about the handling of national security information in the judiciary, I think it is artificial to pull out the 6(e) separately and that statute makes no effort to do that.

Keep in mind that the appointment objections were made before the CIPA rulings, but there is a very different issue of waiver on the actual CIPA issue presented (that there was improper authorization under 6(a) and 6(c) - and Walton seems to pretty much decide that Fitzgerald did violate statute there) than there is on the CIPA violation as evidentiary of the original appointments violation. I don't think Team Libby has to re-raise their appointments objection every time something happens that they think is further evidence of their rejected appointments claim. Their claim as originally timely made and I think that preserves all they need, but the case law could be to the contrary on that.

What you basically have, on the Constituional front there, is not the constitutional issue of the impact on Libby's 6th amendment rights, so much as the constituional issue of: if the AG (here the acting AG) delegates to a USA powers that Congress said, in CIPA (for national security/policy reasons) can only be delegated to a small group that does not include USAs or Spec. Prosecutors, or if a Special Pros assumes the right to act without statutory authority to act, then is this merely a statutory violation or is it evidentiary of a violation or intent to violate the appointments clause? There, it seems the principal element is whether the power delegated is on that can arguably only be held by a principal officer. You have the Deputy AG, Associate AG, and Assistant AGs as the possible recipients under the statute and so one of the main questions is - are THEY principal officers?

All of them? I'm going to bet there is not a lot of authority out there, but also that it would be a hard way to go to show that none of them are subject to "meaningful supervision" by the AG. If so, and Fitzgerald makes the argument that at least Assistant AGs are inferior officers, then the statutory violation pretty clearly does NOT implicate the appointments clause. So whether Comey violated the statute by impermissibly delegating, or Fitzgerald violated the statute by acting without authorization under it, if the statute allows the AG to delegate to INFERIOR OFFICERS and the screw up was either a delegation to the wrong inferior officer or an inferior officer acting without receiving or being entitled to receive delegation - it really has nothing to do with the appointments clause.

I think Walton (and/or an excellent clerk or so) does a nice job with the statutory/constitutional dichotemy in his opinion, even though he had very little time to get it out. If Sec 14 allows delegation to inferior officers (and I'd have to agree with Fitzgerald's argument - although assistant AGs go through confirmation who would say they are not subject to meaningful supervision?) then it is really just an issue of statutory violation. Of course, the Spec Pros crew isn't going to want to be in that situation either if they can help it (violating statute) so there will be argument on the rest of it - ministerial acts, ability of AG to delegate this kind of power to a Spec Pros bc of 510 even though not specified in CIPA, etc.

But to me, the winner is that the CIPA delegation has to be to a small group, but that small group include inferior officers. So the statutory violation isn't really - despite the good try at the argument by Robbins - evidentiary on the principal/inferior officer issue.


Posted by: Mary | June 23, 2007 at 13:25


well-put, mary. we disagree only
about the minor details, not the
broad outline here -- so i will note,
quoting now from team fitzs' filing
of june 12, 2007:
. . .[team libby] ignores the fact that in
the § 6(c) proceedings, the Court [judge walton]
actually adopted the “lens” proposed by the
defendant[-libby], rejecting the government’s
view that national security interests should
be considered when assessing the adequacy of
substitutions. The defendant also ignores the
fact that the Court’s § 6(c) determinations,
like its § 6(a) determinations, are evidentiary
determinations not rulings of law. . .
[ed.: and thus should be accorded great
deference on appellate review. . .]
See United States v. Rezaq, 134 F.3d 1121, 1142-1143 (D.C. Cir. 1998). . .

. . .The admission of this substitution, like
the admission of the other substitutions provided
by the government during the § 6(c) process, was
conditioned on the § 6(a) relevancy determinations
made by the Court, e.g., without the foundational
predicate establishing the relevance of the information
that was being substituted, the substitution itself
certainly could not be relevant.

During trial, the defendant sought to introduce the
Statement despite the fact that he had not taken the
stand. The Court excluded the Statement in its entirety
under Federal Rules of Evidence 401 and 403 as both
irrelevant and unduly prejudicial without the
defendant’s testimony, stating that “it could
not require the government to stand by a
substitution of evidence that it agreed to
with the understanding – and in light of this
Court’s rulings, based on the same understanding – that
the defendant himself would testify.” Libby,
475 F. Supp. 2d at 86. The Court added:
Admitting [the Statement’s last three] paragraphs in the absence of the defendant’s own testimony would have provided the government no opportunity to cross-examine him on the extent and nature of his concern about these issues, with the result that the jury would have been presented an entirely one-dimensional, one-sided portrayal of the defendant’s state of mind with respect to those issues. Neither Rule 403 nor the basic principles of fairness underlying the Federal Rules of Evidence . . . would permit the defendant to put [those paragraphs] before the jury in such manner. . .

. . .The defendant claims that the Court’s exclusion of a portion of the testimony from the briefers presents a substantial question. This claim likewise lacks merit. The decision to exclude a portion of the briefers’ testimony was, like the exclusion of the Statement, based on the fact that the relevance of that testimony was predicated on testimony from the defendant regarding the importance he attached to the information the briefers provided him. “Without the defendant’s own testimony, he could not present through the briefers evidence suggesting what matters were allegedly consuming his time or attention beyond when the briefings were conducted, or the relative importance of those matters he was tasked to address at a particular time.” Libby, 475 F. Supp. 2d at 89. . .

. . .In permitting the defendant to admit some testimony from the briefers, while excluding other information whose relevance was specifically predicated on the defendant’s testimony, the Court struck a careful balance under Federal Rules of Evidence 401 and 403. As with its decision regarding the Statement, nothing about this ruling presents a “close question.” The defendant’s citations to this Court’s statements that it was “not sure” whether to exclude a portion of the testimony or that it was “a tough call” must be put in context. These statements were made in the context of a district court’s routine and discretionary evidentiary determinations under Rules 401 and 403. They are highly fact specific, based on the district court’s assessment of relevance, and of what the defendant was able, through other evidence, to put before the jury. These statements also preceded the district court’s thorough analysis in its March 1, 2007 opinion as to why a portion of the briefers’ testimony was justifiably excluded at trial, an analysis that offered no equivocation on the issue:
The government was correct that, as was true of the Statement Admitting Relevant Facts, the Court’s § 6(a) rulings pertaining to the defendant’s intelligence briefings, and the level of detail the Court deemed admissible, hinged on its assumption that the defendant himself would lay a foundation establishing their relevance. Likewise, as with the Statement, the Court was cognizant of the potential for prejudice that would have arisen if the defendant had been permitted to portray his own state of mind without allowing the government any effective means of challenging it through cross examination.

And there was indeed a significant danger that if presented with details of national security issues and suggestions by those who worked with him that the defendant himself was personally concerned about those issues, the jury would have been unable to resist speculating about the relative import of those matters to the
defendant. . .

so -- while i will concede that there may be
some tenuous basis to suggest that the c.i.p.a.
§§ 6(a) and (c) substitutions were some evidence
of fitz acting beyond the statute -- too indepen-
dently -- i think it a stretch to manufacture the
rich and hearty soup of release, from this warm,
but ultimately-watery, gruel. i submit that these,
like the admission or non-admission decisions are
evidentiary, and would not present a question -- "close",
or otherwise -- likely to result in a reversal.

libby loses this round. and decidely so.

later. . .

i found some excellent background on c.i.p.a.
from cornell's l.i.i., via Professor Ronald K. Noble,
Assistant Professor of Law, New York University
School of Law. J.D., 1982, Stanford Law School;
B.A., 1979, University of New Hampshire
. . .

here's a snip:

. . .In the area of national security, however, the mission of the Attorney General is arguably just as sacred. The Attorney General is largely concerned with safeguarding national security, either by prosecuting those who endanger it or by discharging his CIPA duties. In cases that do not involve the interaction of CIPA and the IC Statute, the Attorney General often must decide between the public disclosure of classified information and the dismissal of charges against a defendant.

The Independent Counsel's and Attorney General's interests may compete as they did in North and Fernandez. The Independent Counsel is appointed to worry more about a successful prosecution than about preventing the disclosure of classified information that may compromise national security. The Independent Counsel, unlike the Attorney General, is not part of the Cabinet. This ensures insulation from political bias, but on the other hand, it may mean narrowness of goals and vision. Finally, the factual information that guides the Attorney General's and the Independent Counsel's respective analyses is likely to be different because their investigative resources and access to relevant information are often unequal. The Independent Counsel may not have access to information that would show how serious a threat to national security the public disclosure of certain classified information could pose while the Attorney General and other cabinet members would. Moreover, the Independent Counsel will ordinarily not be privy to the Executive Branch's foreign policy goals, which may affect the seriousness of a classification.

The Attorney General on the other hand might be overly concerned about the potential threat to national security presented by a CIPA case. This might be the result of the intelligence agencies' tendency to over-classify and the deference that the Attorney General might pay to the experts in the intelligence agencies. In a CIPA- [568] IC Statute case, the Executive's loss of exclusive control over these prosecutions might cause it to be more conservative in the positions that it takes relating to classified information. Once it decides that information can be publicly disclosed, the Independent Counsel alone makes the determination on the part of the Executive Branch whether the prosecution ought to continue.

Because the Attorney General and the Independent Counsel ultimately do not have entirely the same goals, some conflict concerning the use of classified information is inevitable. Indeed, even if the interests of the Independent Counsel and Attorney General completely coincided-if, for instance, both were concerned with balancing national security interests against prosecutorial benefits-it would still be very likely that the Independent Counsel and the Attorney General would disagree in many classified information/ national security cases. Disagreements are inevitable, if only because balancing the competing considerations in these complex cases is an imprecise science. More than one reasonable analysis or balance is almost always possible, and any two reasonable lawyers are bound to disagree about the judgments that have to made in difficult cases. . .


Anonymous said...

hey nolo - a small request for when you post at the next hurrah - any chance you could format your ' cut and paste ' to fit the comment box at tnh ?? i skip over your comments as they are hard to read ( plus they tend to push the other comments further on down due to the formatting issue ).

many thanks !!!

nolo said...

erh, sure, there, anonymous --

though sometimes, i admit,
i am cutting and pasting
with the formatting embedded,
so my choices include (1) not
to make the comment, or (2) spending
extra time re-formatting the
already-written comment, simply
to fit the nexthurrah text-box.

it will not offend me if you don't
read my comments
-- so, with your
permission, i'll likely continue
making comments where and when i
feel that i have something to add,
and let people "scroll on by" if mine
hurts their eyes. . .

p e a c e

ps: were anon. EW, my opinion,
and my answer, might (would) differ.

it would be rude to ignore that
request, in the host's house.

Anonymous said...

well, it is not just me ( and i am just a reader at tnh ) asking you ...


Also, while I have you on the line, could I request that you post comments like the rest of the world and not all poetry style. It's rather annoying reading through a post that could be a couple of inches in length but that takes up almost a foot.

Posted by: Jeff | June 24, 2007 at 00:40

nolo said...

erh -- jeff -- i am conducting a poll over at tnh on this. . .

but i will tell you that when
i cut and paste from something
i already wrote here, or elsewhere,
editing the returns out is not
worth the time -- so my choice is
whether i add something i perceive to be relevant, but in a format
you plainly do not prefer, or
not add it at all. . .

in all honesty -- i'm not really
inclined to re-edit everyhting i
write to suit the visual design
preferences of a few.

but we'll see how the poll
comes out, over at tnh.

seriously, i do appreciate
the input here -- let's see.
p e a c e

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