Thursday, June 7, 2007

BREAKING!: scooter's "best chance" to be free on appeal -- is not a very good one. . .

let me start by saying i've not yet
read all the cases that team libby has
offered to try to keep scooter out
of jail while his appeals are pending,
but i have read the most-salient ones.

and, i don't think he has a very good
, at all. many others had
speculated that his main suggestion
of error at trial would relate to the
non-admission of his proffered "memory
expert" testimony (as did i, and he has
made that argument) -- yet, it is plain that
his best hope may be challenging the
prosecuting special counsel's authority
to bring the case, in the first place.

let's take a look -- as ever, click
to enlarge [what is set below mostly
appears on pages 6, 7 and 8 of the
libby motion]:

now -- that may be his best argument: that
judge walton himself made reference to "a
" between two cases on the issue of
patrick fitzgerald's authority under the
special counsel statute -- but it is not
a particularly momentous one.

if an appellate court were to rule there
was no authority to bring the case, mr.
libby would be home free, true enough -- but
to say so, would be, as a policy matter, to
say that there is effectively no law that
the president, the vice president, or their
respective staffs, could break, that could
result in any proper criminal investigation,
indictment and/or conviction -- at least, and
most-importantly, where (as here) the normal
channel -- the DoJ -- is "conflicted" out.

and -- note to EW -- not even
silberman is going to be willing to
rule in favor of that proposition. . .

so -- now that i've excerpted his "best
" above, let me also point out that
his esteemed legal team uses "would" where
"might" should have been the operative phrase,
in the penultimate line of the image -- again
exhibiting a hubris that brought them "strange
" the last go-'round, on this issue. [that
is, it is never wise to tell an appellate court,
or a trial judge, how another court "would" rule.]

as i look at the cases on the other side, tonight,
and tomorrow -- and certainly, after team fitz
delivers their rejoinder authorities -- i'll have
some more clarity, and commentary, here. . .

but my strong sense is that his memory-expert
(and other non-admmission lines of argument)
"issue" is "a dog that won't hunt".

nor will this one, in my estimation.

so -- buckle up for camp-fed -- scooter!

LATER. . .

i've looked back at team fitzs' earlier
filings on the issue of special counsel
appointment authority -- and it seems
the defense is hoping for a scalia miracle
(antonin scalia wrote a dissenting opinion
in one of the cases team libby wishes could
be/would be over-turned -- un-huh -- not.):

. . .In Nixon, the Supreme Court considered the Acting Attorney General’s appointment of a special prosecutor pursuant to 28 U.S.C. §§ 509, 510, 516, 515, 533, the same legal regime under which Special Counsel Fitzgerald was appointed. In the aftermath of the firing of Special Prosecutor Archibald Cox, the Acting Attorney General, under the authority of the statutes in Title 28, issued a regulation under which a new Special Prosecutor, Leon Jaworski, was appointed. The regulation “delegated the authority to represent the United States in these matters to a Special Prosecutor with unique authority and tenure.” Nixon, 418 U.S. at 694. The regulation gave the Special Prosecutor plenary authority to investigate and litigate concerning matters including “offenses arising out of the 1972 Presidential election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility” and “allegations involving the President, members of the White House staff, or Presidential appointees.” Id. at 695 n. 8 citing 38 Fed.Reg. 30739 as amended by 38 Fed.Reg. 32805. The regulation further provided as follows:
In exercising this authority, the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General’s statutory accountability for all matters falling within the jurisdiction of the Department of Justice. The Attorney General will not countermand or interfere with the Special Prosecutor’s decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit his independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President’s first consulting the Majority and Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and the House of representatives and ascertaining their consensus is in accord with his proposed action. Id.

The Court in Nixon found that under this delegation by the Attorney General the Watergate Special Prosecutor was a subordinate officer. Id. at 694-96. The Court in Morrison stated that the conclusion in Nixon that the Watergate Special Prosecutor was a subordinate officer was consistent with its conclusion with respect to the Independent Counsel in the case before it, since the two prosecutors had similar authority. Morrison, 487 U.S. at 673. In dissent in Morrison, Justice Scalia disagreed with the majority’s reading of Nixon, stating that the key factor that supported the Nixon Court’s finding that the Special Prosecutor was a subordinate officer was the fact that, “in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority.” Id. at 721 (Scalia, J., dissenting).

Justice Scalia’s narrow reading of Nixon highlights the substantial weight accorded an Attorney General’s (or President’s) at-will removal power in determining a special prosecutor’s subordinate status. Even with the elaborate charter given the Watergate Special Prosecutor and the regulation’s broad grant of jurisdiction and detailed measures to assure independence, the ultimate power to revoke the regulation and fire the prosecutor resulted in subordinate status. Indeed, Justice Scalia reinforced this point in another portion of his dissent in Morrison in which he discussed the fact that the Independent Counsel was only removable for good cause. Justice Scalia flatly stated: “If [the Independent Counsel] were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior. . . .” Id. at 716 (Scalia, J., dissenting). Of course, the majority in Morrison held that the Independent Counsel was an inferior officer notwithstanding that she was removable only for good cause, and thus made clear that it is not necessary for a special prosecutor to be removable at will to be an inferior officer.

However, the Court’s analysis left no doubt that the ability of an Attorney General to remove a special prosecutor at will strongly supports a determination of inferior status because the power to remove officers is a powerful tool for control by principal officers. Bowsher v. Synar, 478 U.S. 714, 727 (1986); Myers v. United States, 272 U.S. 52 (1926).

The D.C. Circuit’s decision in In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987), is fully consistent with this view. In re Sealed Case was decided before the Supreme Court upheld the Independent Counsel law in Morrison. In In re Sealed Case, the court considered an Appointments Clause challenge to the Attorney’s General’s issuance of a regulation governing the appointment of Lawrence Walsh as “Independent Counsel: Iran/Contra.”

Walsh previously had been appointed to investigate the Iran/Contra matter under the Independent Counsel statute, 28 U.S.C. § 591 et seq., but to hedge against challenges to the Independent Counsel statute, the Attorney General acted under his authority pursuant to statute and regulation to independently appoint Walsh to investigate Iran/Contra under terms almost identical to his original appointment as Independent Counsel, including requiring good cause for removal by the Attorney General. In re Sealed Case, 829 F.2d at 52-53. In concluding that the Attorney General had statutory authority to “create an Office of Independent Counsel virtually free of ongoing supervision,” id. at 55, the court noted that the Supreme Court in Nixon “presupposed the validity of a regulation appointing the Special Prosecutor, a position indistinguishable from the one at issue here.” Id. at n. 30.

The court then went on to analyze the claim that the Attorney General’s appointment of the “Independent Counsel: Iran/Contra” violated the Appointments Clause. The court rejected the claim, stating:
The crucial difference is that the Independent Counsel: Iran Contra serves only for so long as the March 5, 1987, regulation remains in force. Subject to generally applicable procedural requirements, the Attorney General may rescind this regulation at any time, thereby, abolishing the Office of Independent Counsel: Iran/Contra. As a result, we must conclude that the Independent Counsel: Iran /Contra “is charged with the performance of the duty of a superior [i.e., the Attorney General] for a limited time and under special and temporary conditions.” United States v. Eaton, 169 U.S. 331, 343. . . (1898). As such, “he is not thereby transformed into the superior and permanent official,” id., but rather remains an “inferior official” whom the Attorney General as “Head[] of [a] Department[],” may appoint under the express terms of the Appointments Clause. See id. at 343-44.

In re Sealed Case, 829 F.2d at 56-57 (footnotes omitted). . .

. . .In re Sealed Case, 829 F.2d at 55. The court stated:
“While these provisions do not explicitly authorize the Attorney General to create an Office of Independent Counsel virtually free of ongoing supervision, we read them as accommodating the delegation at issue here.” Id.

The court noted that the Supreme Court in Nixon “presupposed the validity of a regulation appointing the Special Prosecutor, a position indistinguishable from the one at issue here.” Id., n.30.

The defendant apparently believes that In re Sealed Case reached the wrong result because the court failed to take account of Sections 516 and 519, which give the Attorney General the authority to direct and supervise all litigation. The defendant views the delegation to the Special Counsel in this case as an abdication of the Attorney General’s duty to supervise and direct litigation. Sections 510 and 515, the defendant argues, “in no way suggest that the Attorney General may renounce entirely all supervision and direction.” Of course, the defendant ignores the plain language of Section 510 allowing the Attorney General to delegate any of his functions to other officers of the Department of Justice. . .

The defendant’s argument assumes both that the duties described in Sections 516 and 519 are not subject to delegation under Section 510 and that the terms “supervision” and “direction” require ongoing, active monitoring and oversight by the Attorney General. The defendant appears to state that the supervision by the Attorney General under 28 CFR Part 600 is the minimum required and that no lesser a degree of supervision is consistent with the Attorney General’s statutory obligations. There is no basis for that view. This view would, among other things, prevent the Attorney General from using his authority to address potential conflicts of interest by delegating authority to special prosecutors “virtually free of ongoing supervision.” In re Sealed Case, 829 F.2d at 55. The Attorney General may well conclude that the public interest warrants such a delegation. Under any such a delegation pursuant to Section 510, the Attorney General retains the ultimate authority to revoke or modify the delegation, so the ultimate power to direct and supervise litigation is at all times vested in the Attorney General. The delegation of authority to the Special Counsel was in conformity with Sections 508, 510, 515, 516 and 519. . .

so -- it would seem that when judge walton
indicated there was a "tension" between
these two cases, he was simply being scholarly,
and deferential, to the authors of both decisons. . .

that is, it seems a rather straight-forward
construction of the statute very-effectively
ends the challenge team libby suggests -- but
team libby gives it a much larger, featuring role,
simply because the team would so like
for scalia's reasoning to carry the day. . . but
since it didn't in morrison, it likely won't
here, either. . .

moreover, even if the appellate courts conduct
a de novo review of the law related to fitzs'
authority to bring the case, they will start by
looking at the plain meaning of the statute, on
its face. and once one starts there -- instead
of deep in the whimsical-brigadoon-mists of
scalia's dissent in morrison -- one ends there,
as well
. . . fitz was delegated appropriate,
but not unlimited, authority by james comey(!),
pursuant to the independent/special counsel
provisions of applicable federal law.

and so -- here, effectively endeth team
libby's realistic hopes for scooter's fredom,
at least while the appeals progress. . .

shorter nolo -- buckle up, scoots -- it's
jail for you, during the appeals-process. . .

just my $0.02.

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