Tuesday, June 26, 2007

more on the "merits" of team libby's june 25, 2007 reply. . .

do see installment one, on libby's final
reply -- i posted it earlier today -- it covers the
weakness of team libby's c.i.p.a. §6 final reply. . .

well, finally, the truth outs. . .

mr. robbins, along with team libby, seems
to believe that morrison does not control
these facts, because -- wait. . . wait. . .
wait(!) for it -- the united states
attorney for the northern district of
illinois was appointed solely by the
executive branch. . .


i guess mr. robbins missed fitzs'
confirmation hearing -- and i guess
"with the advice and consent of the
. . ." is just a meaningless
constitutional phrase -- some sort of
vestigal appendix. . . a burp, jefferson,
or hamilton, emitted entirely by accident.

ooh -- clever rhetoric, no?

no. take a look. click it to enlarge:

well -- that certainly clears it up.

not. thanks.

erh -- perhaps this is too much short-hand;
allow me to elaborate, ever so slightly. . .

patrick fitzgerald is a united states attorney.

in that respect, he is unlike either morrison or
edmond. to become the u.s. attorney in illinois,
he had to be nominated by the president, and confirmed,
with the advice and consent of the senate. that makes
his appointment a joint-executive/legislative one, by
all the prevailing legal conventions of the day. and, mr.
robbins simply ignores this critical fact.

the whole reason for this notion of inferior
officers is to make certain that no independent,
special, counsel, ends up going off like a loose
cannon. where -- as here -- the special counsel
is charged with all the rules applicable to u.s.
attorneys, it is hard to imagine how he could be-
come a loose cannon. so -- whether the letter penned
by james comey was perfect, or slightly less-than,
is of no moment. it was not a loose cannon that,
in some heretofore unexplained way, caused lewis
libby to repeatedly lie, under oath, before a grand
jury empaneled to establish whether enough evidence
existed to charge people in the c.i.a. leak case.

such a leap would be fantasmagorical. . . so, instead,
mr. robbins argues that, because mr. fitzgerald investigated
the c.i.a. leak case (and thus the lewis libby lies about it)
under an appointment letter from james comey, acting in the
stead of john ashcroft -- ashcroft had recused himself -- and
not pursuant to an appointment from congress, directly, edmond
should control. that is, at best, an argument for a change in
the understanding of existing law. thus, it simply cannot be
the basis for a "close question" that would "likely lead" to
a reversal of his conviction. his motion should fail.

so -- libby loses this round. all we
are waiting on, now, is either (1) a date for
argument (perhaps next week), or (2) an expedited
(probably memorandum) opinion from the three-
judge d.c. appeals court panel.

um, see ya' on certorari, scoots -- that
seems to be all you're gonna' have left. . .

june 29, 2007


interestingly, paul d. clement, the
solicitor general, had this to say,
in a letter of june 27, 2007, about
"advice and consent" -- with regard to
the power of the executive branch to
apoint united states attorneys -- in defense
of the white house stone-walling of
judiciary committee efforts to review
documents, and hear testimony in its
role of oversight -- from his footnote (1):

See, e.g., Public Citizen v. Department of Justice, 491 U.S. 440,483 (1989) (Kennedy, 1., concurring) ("[T]he Clause divides the appointment power into two separate spheres: the President's power to 'nominate,' and the Senate's power to give or withhold its 'Advice and Consent.' No role whatsoever is given either to the Senate or to Congress as a whole in the process of choosing the person who will be nominated for [the] appointment."); Myers v. United States, 272 U.S. 52, 122 (1926) ("The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal."). . .


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