Saturday, June 9, 2007

u.s. v. libby: just an off-hand thought here -- on the scant "merits" -- of the bork, et al. friday filing. . .

over at the nexthurrah, i took a minute
to lay out one of the most-telling problems
with the "logic" offered by the gaggle of
amici filing of yesterday. jep noted:

. . .It sounds like these high-dollar lawyers are saying, in a round-about way, that Fitz was too independent of the DOJ, and that the DOJ should have had a bigger hand in the Libby event... which would only have impeded the progress, if not halted it completely.

Which is what they really wanted all along.

Posted by: JEP June 09, 2007 at 09:41

jep: that is EXACTLY what the are
saying! -- not "round-about", though -- here
is "the gaggle o' graybeards'" closer, and
i quote [emphasis above, and below, supplied]:

. . .Because Special Counsel Fitzgerald was directed, in writing, to act “independent of the supervision or control of any officer of the Department,” there is no supervisor to whom he is subordinate and no apparent way to bring him within the test set forth in Edmond. [ed. note: but edmond is not the controlling case law, here -- as most acknowlege.]

“If an official is not appointed by the President, but rather through some other avenue available under Article II for inferior officers, then political accountability needs to be ensured in some other way.” [citations omitted]. With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed “superiors” politically accountable for his actions, and it is at the very least a close question whether themere power of removal does anything to solve the problem. . .

-- bork amici filing: 06.08.07

wow -- that is astonishing, no?

they take some remarks made by laurence tribe,
a good man, and constitutional expert (but,
again, his "remarks" are not law, in any sense), and
stand them on their head to suggest, wrongly of course,
that fitzgerald must be held politically accountable
(through his "superiors") -- for bringing cases against
administration officials -- in order not to upset the
delicate constitutional interests in play, here. . .

quoth sen. sam ervin (circa 1973): "poppycock!"

what professor laurence tribe actually
wrote was far-more-nuanced than the amici
suggest in their conclusion -- in fact, his
most strongly-stated version of this is:
". . .it would not be unthinkable,
in light of our troubling national
experience. . . and Justice Scalia's
[Morrison dissent], for the Court to
revisit the question
. . ."

American Constitutional Law
684 (3d ed. 2000)
Laurence H. Tribe

so, with all due respect to professor
tribe, simply because one professor thinks
a revisiting of the law is "not unthinkable",
does not -- in any manner -- suggest that
the existing law presents a "close question". . .

in common parlance, the phrase "not unthinkable"
would NOT automatically imply the existence of
a "close question" -- thus the bork amici offer
laurence tribe's good name, deceptively, here. . .
for a proposition he likely would not endorse
(else there might have been 13 graybeards!), and
for the well-known political wedge-issue
divisiveness it might engender, on this very question.

[now -- refresh me on this, all you learned-gentlemen-
of-the-law, 12 in number -- what is it that antonin
scalia forever tells us about "political questions"?

that's right! -- political questions are to be de-
cided by the legislative, not judicial, processes. . .


so, to re-state the obvious, then -- that a political
question might be robustly-debated, is not to say,
or decide, that the law already established in
morrison involves a "close question".

it is to say that reasonable people, might
in good faith, argue for a change in existing law. . .

and, as a general rule, arguing for a change
in the existing law
-- even constitutional
law -- will not be the basis for bail, pending
an appeal. . . so, to phrase their argument
the way they have, is to decide that it is
without merit
-- at least as to the question
of mr. libby's continued freedom, while his
appeals are prosecuted. . .

and that is no close question. . .

here endeth my rant.


Liberality said...

And in common layman terms, Fitz did his job and did it well and it pisses them off. Your point is well taken that the law, and its enforcement, is separate from political control. No one can control Fitz politically and that is all well and good but they gotta figure out a way to end that still functioning part of our democracy, no?

nolo said...

it is sad, lib -- that these
men would use their estimable
skills to now reverse a course
many of them helped to chart,
in the first place -- robert
being chief among them.

it was bork who, under nixon, famously ordered archibald cox,
then solicitor-general, to fire
elliott richardon [appointed to
ivestigate watergate]. . .

cox, of course refused -- and re-
signed -- and thus, from bork's
own over-reaching hand, sprang
the independent counsel pro-
cedures and later, laws. . .

some times the truth is even
stranger than any fiction. . .

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