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Saturday, June 23, 2007

A prediction: The D.C. Circuit will reverse Judge Walton and order him to grant Libby bail pending appeal

I've now read both Team Libby's application for release pending appeal (warning: 122 .pdf pages because of the exhibits) and Team Fitzgerald's reply (21 .pdf pages). I'm much less impressed by the Team Libby's second and third arguments than I am by their first. 

Nevertheless, I'm going to go out on a limb — on record (at least here on my own bandwidth), and consistently with my prior leanings — and predict that Team Libby is going to win this particular battle in the D.C. Circuit. It's a hunch, and I may be proved wrong in short order. But I think that's what the D.C. Circuit ought to do, and I have no particular reason to think that it will do the opposite.

Note first that Team Fitz has to run the table — which is to say, if any one of Team Libby's three points is deemed by the D.C. Circuit panel to raise a substantial question, then Libby must be permitted to stay out on bail (or more likely, on a continuation of his personal recognizance bond) pending appeal.

I'm not quite ready to blog in detail about why I think Team Libby has the better of the argument on this "manner of Fitzgerald's appointment" issue. If and when I do so, it will be a chore: This is a very arcane legal argument whose components run the gamut from history through precedent through statutes through DoJ regulations through documents and facts (albeit mostly undisputed ones) very specific to the Libby case. If Libby ultimately has his conviction reversed on this point, his opponents (which is to say, opponents of the Bush-43 Administration) will scream that he's been vindicated on a technicality, and his supporters (many of whom no longer support the Bush-43 Administration) will scream that he should have been vindicated on something other than a technicality. And I actually only think part of Team Libby's first argument is particularly attractive, but it's probably enough by itself. I may well wait until I've read the complete briefs during the appeal on the merits before trying to make sense of them here in the educated layman-friendly language to which I aspire.

Nor do I think it likely that this D.C. Circuit panel will write at much, if any, length, whether it grants Libby's application or not. A different three-judge panel will hear the merits of the appeal in due course and after much more briefing and argument. This panel knows that, and it is likely to want to avoid prejudging issues — beyond simply deciding (as they must, at least among themselves) whether those issues raise "substantial questions" or not. So the most likely result is a short, per curiam (unsigned) order either granting or denying the application without much further (if any) explanation. Writing something like "On the unique circumstances of the facts of this case and the current status of the law as briefed, we think Libby has raised at least one 'substantial question'" would leave essentially no footprint in the sands of precedent, and would likewise leave the regular panel entirely free to either affirm or reverse Libby's conviction on the merits.

Various other pundits have commented on the fact that Team Libby's emergency application has drawn, at random, a three-judge panel identical to the one that rejected Valerie Plame's and Matt Cooper's appeal — which I scored as "Prosecution 34, Journalists 0" at the time. [Correction: It probably wasn't drawn at random; see comment below. — Beldar] But the three members of the panel — Circuit Judges David Bryan Sentelle (Reagan/Reagan), Karen LeCraft Henderson (Reagan/Bush-41), and David S. Tatel (Clinton) — although unanimous as to that result, wrote three very different opinions to explain their reasoning. If anything, I tend to think that may help Libby here: Especially if the panel declines to write an opinion, then any one of the three appellate judges who finds that any one of the three arguments from Team Libby raises a "substantial question" is probably likely to be able to persuade the other two to at least keep Libby free for the time being. Or two of the three could be persuaded by different reasons, and yet still vote to keep Libby free. Or one might find one reason entirely persuasive, and another might find three reasons half-persuasive (the latter of which wouldn't be entirely kosher, but these rulings typically get made over a conference call or, perhaps in D.C. where they're all together, over a cup of coffee).

Posted by Beldar at 10:58 PM in Law (2007) | Permalink

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Comments

(1) Carol_Herman made the following comment | Jun 23, 2007 11:59:57 PM | Permalink

Well, either between Tatel, Sentelle, and Henderson they come up with two votes favoring Libby OR President Bush jumps in with a "partial pardon." One where Libby, the good citizen stays out of jail, while this case meanders through the court system. For however long it takes.

The shorter version is if these 3 judges see that Fitzgerald's appointment is missing the US Constitution's blessings; in which case? Fitz loses the powers he held over people. People who stayed silent so that their stories wouldn't come out. And, in the confusion everyone would notice it. EVEN WITHOUT A MEMORY EXPERT!

Your memories do not improve with time.

And Libby was denied a fair trial.

People were terrified of Fitz.

And, Alan Greenspan's INVISIBLE HAND worked wonders on the process to keep his darling, Andrea out of harm's way. Would you expect any less?

Of course, if it falls to the President to see to it that Libby is free UNTIL this garbage gets tossed up to the Supreme-O's, then people would notice the entire judiciary failed. And, the Executive Branch had to do the rescue.

And, Chief Justice Marshall would be spinning in his grave.

(2) Patterico made the following comment | Jun 24, 2007 3:04:32 AM | Permalink

Are you it's random? I think in the Ninth Circuit at least, it's common for related appeals from the same case to go back to the original panel.

(3) cboldt made the following comment | Jun 24, 2007 10:57:30 AM | Permalink

The number of 3-part combinations taken from a 10-population pool (no senior judges in the pool) is 120. If the pool is 12, the number of combinations increases to 220. The CADC has 10 judges and 4 senior judges, and if all of them are in the pool, the number of combinations is 364.

While it's possible the panel was selected at random, I doubt it was a random choice.

(4) cboldt made the following comment | Jun 24, 2007 11:04:35 AM | Permalink

I wonder the same thing at this step as I did at the District Court level. If the Circuit COurt revers the denail of bail pending appeal, will Fitzgerald move for an en banc rehearing, and if he loses there, would he appeal to SCOTUS?

(5) cboldt made the following comment | Jun 24, 2007 11:38:58 AM | Permalink

The defective appointments issue was litigated below, with a ruling unfavorable to the defense. There is no evidence of any discussion of taking an interlocutory appeal, and as far as I know, it's up to the losing side of the issue to move for such - as opposed to it being the burden on the Court to sua sponte call for an interlocutory appeal of its own ruling.

I assume this procedural history is irrelevant as a matter of law, seeing as how Fitz didn't bring it up. But my, how much better it would have been to settle the question of appointment early, rather than subject the defendant, witnesses and judicial system to the burden of conducting a trial.

The defense is certainly within its rights, but I wonder if the Circuit Court will take the previous "indifference" or "inaction" into account. I think it should NOT, because the most important principle in this case is fair/objective adjudication of the charge, and judicial economy, while a laudable point, is unimportant in comparison with fundamental fairness.

(6) clarice made the following comment | Jun 24, 2007 12:10:43 PM | Permalink

I imagined he'd take an interlocutory appeal, too. OTOH by waiting he has a better record on which to show the consequences of that appointment--i.e. the CIOA argument.

(7) clarice made the following comment | Jun 24, 2007 12:35:07 PM | Permalink

**CIPA***

(8) cboldt made the following comment | Jun 24, 2007 2:06:41 PM | Permalink

-- OTOH by waiting he has a better record on which to show the consequences of that appointment--i.e. the CIOA argument. --

I think the consequences of the defect in CIPA signature are nil, in the evaluation of the impact on "fairness of the trial." Any substantive error in the CIPA process, as it impacted the trial itself, is Walton, for accepting the substitutes as sufficient.

OTOH, regardless of the consequences of the defect on the trial, Fitz's taking of a CIPA authority reserved for enumerated officers, if it is "rightfully" taken, can be used to bolster the contention that Fitzgerald is a principal officer.

(9) boris made the following comment | Jun 24, 2007 2:32:35 PM | Permalink

consequences of the defect in CIPA signature are nil

Only based on the jury in this case. Neither Fitz nor the judge are in a position to fairly balance national security against Libby's defense. His defense was unfairly constrained. One sould not have to convict Walton or Fitz of malice to establish the point.

(10) cboldt made the following comment | Jun 24, 2007 4:13:19 PM | Permalink

-- Neither Fitz nor the judge are in a position to fairly balance national security against Libby's defense. --

Agreed the judge isn't in a position to fairly balance national security against Libby's defense, but who rules as to the adequacy of substitutions?

The judge's role is to conclude the substitutions represent an adequate defense. If Libby says the substitutions are inadequate, then his beef on that point is with the judge.

(11) boris made the following comment | Jun 24, 2007 5:32:31 PM | Permalink

If Libby says the substitutions are inadequate, then his beef on that point is with the judge.

The point is an unbiased supervisor may have allowed more originals and better substitutions for the judge to conclude as adequate. Unless your claim is the judge would have balked at allowing Libby too much defense.

(12) cboldt made the following comment | Jun 24, 2007 7:01:50 PM | Permalink

-- The point is an unbiased supervisor may have allowed more originals and better substitutions for the judge to conclude as adequate. Unless your claim is the judge would have balked at allowing Libby too much defense. --

Walton had "the originals." (he knows all of the data that is being diluted via substitution). My claim is that objections to the substitutions are objections to Walton's decisions. If Walton says the prosecution substitution is adequate for a fair trial, it's his call to defend.

(13) boris made the following comment | Jun 24, 2007 7:35:05 PM | Permalink

If Walton says the prosecution substitution is adequate for a fair trial, it's his call to defend.

Which does not address the point that substitutions are not originals.

So Walton says substitution X it adequate for original Y ruled out by the prosecution. It's the rule out that constrains the defense in the first place.

That was not Fitz's call to make. Walton is irrelevant to that point.

(14) cboldt made the following comment | Jun 24, 2007 7:45:39 PM | Permalink

-- So Walton says substitution X it adequate for original Y ruled out by the prosecution. It's the rule out that constrains the defense in the first place. --

Walton is free to reject "the rule" (the proposed substitution) on the grounds that it does not admit a fair defense. Walton is responsible to give the defendant a fair trial.

My point is that CIPA deficiencies play out in the difference between the original classified information evidence and the substitution, and as regards deciding what constitutes a fair substitution (one that does not compromise a fair trial), Walton is the entity with the power to lay down the law as it plays in the trial.

(15) boris made the following comment | Jun 24, 2007 7:56:31 PM | Permalink

Walton is free to reject "the rule"

But unlikely to since that authority was placed (unfairly) with Fitz. Again, had the process been done fairly it seems unlikely that Walton would have balked at allowing Libby too much defense.

Walton SHOULD have decided Fitz was NOT the proper authority to make those calls and required a less biased authority. But then, Walton thinks ever so highly of Fitz that in his mind it was as if Fitz was bestowing manna from heaven.

(16) cboldt made the following comment | Jun 24, 2007 8:22:26 PM | Permalink

-- But unlikely to since that authority was placed (unfairly) with Fitz --

The authority as to adequacy of substitution is, by statute (and by the principle of assigning "fair trial" to the judicial branch), placed with the court. Fitz can argue whatever he wants, the decision is with the court.

(17) boris made the following comment | Jun 24, 2007 8:30:20 PM | Permalink

the decision is with the court

But the selection was by Fitz. A fair selection should have been provided and Walton failed to ensure fairness in this regard. The improper agent of unfairness was Fitz, not Walton.

If a nearby police officer allows the hijacker to steal your car, he may not have node his job properly but he didn't steal the car.

(18) boris made the following comment | Jun 24, 2007 8:31:17 PM | Permalink

**done his job properly**

WTF? node = done???

(19) JM Hanes made the following comment | Jun 24, 2007 8:37:06 PM | Permalink

Beldar:

"But I think that's what the D.C. Circuit ought to do, and I have no particular reason to think that it will do the opposite."

Alas, my policy is to prepare for disappointment on the "ought to do" front. A denial would still be pretty devastating, nonetheless. I can only hope that Walton's opinion on close questions is an example of why appellate courts exist.

(20) JM Hanes made the following comment | Jun 24, 2007 8:43:10 PM | Permalink

cboldt

"I think the consequences of the defect in CIPA signature are nil, in the evaluation of the impact on 'fairness of the trial.'.... "

While I'm not convinced that the CIPA issue has no fairness implications, the fairness question is mooted entirely if Fitzgerald's appointment is found to be defective. You seem to be conflating an appointments defect with trial error. The "consequences of a defect on the trial" would be nullification right back to, and including, the original indictment itself. As argued by TeamLibby, to date, the CIPA signatures are primarily framed as concrete, documentary evidence of Fitz excercising the powers of a principal officer. They are particularly significant because they allow Libby to go statute to statute with Fitzgerald on the functions issue, which means he doesn't have to rely on a regulations-based specificity argument to carry the day on its own.

At the moment, Fitzgerald is the one who has to argue fairness WRT CIPA. His legal argument is sophistry of the 1st order, because he essentially has to argue simultaneiously that his CIPA authority was both "rightfully" taken but not, in fact, delegated. As a result, he ends up arguing the merits backwards. Since there is only harmless error here, his signatures can only be ministerial in nature, and as such, without appointments clause implications. His argument on timely objections similarly presumes that the question at issue is error, not defect.

(21) cboldt made the following comment | Jun 24, 2007 8:57:03 PM | Permalink

-- A fair selection should have been provided and Walton failed to ensure fairness in this regard. The improper agent of unfairness was Fitz, not Walton. --

The operative phrase there is "Walton failed to ensure fairness." It's his courtroom, not Fitzgerald's.

Fairness in CIPA substitution is for the court to determine. Read the statute. Grok balance of powers.

(22) boris made the following comment | Jun 24, 2007 9:04:13 PM | Permalink

-- You seem to be conflating an appointments defect with trial error. --

So much for my efforts to separate the two notions in the realm of CIPA, where I've pointed out that I think CIPA is a more valuable point (for the defense) in the realm of appointment [trial is a nullity] than in the realm of admissibility.

At any rate, I'm not trying conflate appointment defect (Comey/DOJ/constitutional error) with matters of judicial discretion. To the extent people take my prose that way, it's either my lack of skill in expression, or the reader's prejudice.

(23) JM Hanes made the following comment | Jun 24, 2007 10:11:36 PM | Permalink

"To the extent people take my prose that way, it's either my lack of skill in expression, or the reader's prejudice."

Such a limited range of options! Of course, that's why False Dilemmas are so popular, no?

(24) MJW made the following comment | Jun 25, 2007 3:44:48 AM | Permalink

Not that this will probably have any influence on the appeals court, but Walton had disapproved of Fitz's CIPA substitutions till Fitz filed an interlocutory appeal; then Walton suddenly seemed to see things Fitz's way. A reasonable conjecture (at least reasonable to me) is that Walton didn't want to get the trial off schedule, so he caved.

(25) David Walser made the following comment | Jun 25, 2007 4:05:40 AM | Permalink

The operative phrase there is "Walton failed to ensure fairness." It's his courtroom, not Fitzgerald's.

Fairness in CIPA substitution is for the court to determine. Read the statute. - cboldt

Cboldt, please help me better follow your reasoning. You seem to be arguing that Fitzgerald's role in the CIPA substitutions was wholly irrelevant. Why, then, does the statute prohibit the delegation of making CIPA substitutions to US Attorneys? Congress seemed to think the role Fitzgerald assumed was VERY important.

Here's the problem I have with what I understand to be your view: Walton's job was to ensure Libby a fair trial. If Walton found that the substitutions made by Fitzgerald were sufficient for a fair trial, no harm was done to Libby's interests. The problem with this approach is twofold: First, Walton seemed more concerned about the Government's right to a fair trial than he did with Libby's right to a fair trial. (Walton repeatedly refused Libby's motions on the grounds it would prevent the government's right to a fair trial -- a right that does not exist. Perhaps Walton was just being inarticulate, but his actions in this case do not allow me to trust Walton was properly balancing the interests of the parties at trial.)

Second, Walton was put in an awkward position by the CIPA process. He either had to accept Fitzgerald's offered submissions or he had to dismiss the charges against Libby on the grounds Libby could not obtain a fair trial. Judges are loathe to toss a case on such grounds and are apt to try to find a way to allow the case to proceed. This "all or nothing" approach makes it critical that someone not directly involved with the trial craft the submissions -- so (to the extent humanly possible) the submissions are crafted ONLY taking into account national security issues and not reflecting concerns about winning the case against Libby. Since Fitzgerald was wearing two hats -- vetting national security concerns and trying to obtain a scalp -- we (and Libby) have no way of knowing whether the PROPER CIPA process might not have provided Libby with more material to use at trial. Indeed, Libby may have received ALL he asked for had prosecution strategy not polluted the drafting of the submissions.

In short, Congress had good reasons for saying the AG could not delegate CIPA decisions to local prosecutors. To the extent those reasons included a concern for the defendant's ability to receive a fair trial, the fact Fitzgerald did not follow Congress' established procedures is prima facie evidence that Libby's interests in obtaining a fair trial were harmed.

(26) cboldt made the following comment | Jun 25, 2007 6:19:59 AM | Permalink

-- You seem to be arguing that Fitzgerald's role in the CIPA substitutions was wholly irrelevant. --

Not wholly irrelevant, as others have pointed out, Fitzgerald proposed the substitutions, but Walton accepted the substitutions are adequate for a fair trial. And Libby (or any reviewing Court) can compare the raw classified information that Libby proposed to present at trial, with the substitution that Walton approved and deemed sufficient for a fair trial.

-- If Walton found that the substitutions made by Fitzgerald were sufficient for a fair trial, no harm was done to Libby's interests. --

Walton's finding(s) of sufficiency in substitution can be attacked. That's my point, in a nutshell, that it's the finding of sufficiency that matters, and that finding is Walton's finding. The argument is that that Walton's findings resulted in an unfair trial. This analysis of sufficiency proceeds without any regard to Fitzgerald's "wrongful" taking of CIPA authority, because the analysis is simply comparing the raw classified information (which, from a CIPA point of view, Libby says WOULD have been enough for a fair trial), with the substitution.

-- we (and Libby) have no way of knowing whether the PROPER CIPA process might not have provided Libby with more material to use at trial. --

That issue is one of Court judgement as to the difference between the classified information that Libby proposed to use at trial, and the substitutions that Walton accepted as adequate for a fair trial. The trial Court record fully shows the divergence that Walton ruled was adequate - and an appellate Court can come to an independent judgment on the same fully developed record.

While in one sense Fitzgerald "held things back," that sense being that he proposed substitutions, in another sense he couldn't hold back any of the raw classified information that Libby proposed to use. He can't - it's Libby who brought the raw classified material into the proceedings, for the purpose of mounting his preoccupation defense. It was Libby who created the volume of material, and he could have brought more.

-- In short, Congress had good reasons for saying the AG could not delegate CIPA decisions to local prosecutors. To the extent those reasons included a concern for the defendant's ability to receive a fair trial, the fact Fitzgerald did not follow Congress' established procedures is prima facie evidence that Libby's interests in obtaining a fair trial were harmed. --

In a CIPA proceeding where evidence is being morphed or excluded (by the prosecutor) in order to protect classified information, the responsibility to limit that exclusion and morphing in order to obtain a fair trial is the trial Court's. The prosecution can and does argue that certain substitutions are "enough," but the prosecution is not the decision-maker as to what is "too far" to result in a fair trial.

Of course the CIPA law intends to promote the fair administration of justice. My point is that the "fairness" aspect is in Walton's lap.

One interest that I see being protected by requiring AG signoff is to have accountability for letting defendants off by refusing to admit evidence, when the court finds that evidence is necessary for a fair trial. In the Libby case, it was pondered that the WH could have let Libby off by having agencies stonewall substitutions to the point that the Court concluded there could not be a fair trial.

(27) boris made the following comment | Jun 25, 2007 6:49:49 AM | Permalink

it was pondered that the WH could have let Libby off by having agencies stonewall substitutions

Ah yes the “My BDS” defense.

One rather ponders that the WH would have let Libby defend himself better with the originals.

(28) boris made the following comment | Jun 25, 2007 7:07:52 AM | Permalink

the "fairness" aspect is in Walton's lap

No it's not.

An unqualified surgeon performs your bypass. You die. The unqalified surgeon was assigned to your case by the hopital administration on the basis of faked credentials.

The imposter surgeon faked his credentials. The imposter surgeon botched your operation. The administration was fooled. Who's to blame?

The administration? Give me a frakking break cboldt.

(29) cboldt made the following comment | Jun 25, 2007 7:20:44 AM | Permalink

A bit of a curiosity regarding the contention that Congress intended "trial fairness" to be accountable personally to the AG, I observe that under CIPA 4, the United States (i.e., any AUSA) can limit discovery.

Sec. 4. Discovery of classified information by defendants The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

Note the statutory language says it is the court that authorizes the deletion and/or substitution of classified information, but any AUSA is empowered to argue the details ex parte and in camera. This was a big deal at that point in the Libby proceedings, but limits in discovery doesn't limit Libby's ability to mount a preoccupation defense, because his preoccupation represents his personal state of mind.

(30) boris made the following comment | Jun 25, 2007 7:30:23 AM | Permalink

The clear unfairness in this case is the agent regardless of the content. That agent was Fitz who deluded the court into accepting his (improper) authority to make those substitutions.

Continue to argue on the basis of "harmless content" till you're blue in the face. It's not working.

(31) cboldt made the following comment | Jun 25, 2007 7:33:09 AM | Permalink

Re: the surgeon "parallel:" that's the defective appointment argument. Besides the point that if the appointment is defective, the entire trial is a nullity, defective appointment doesn't probe the detail of whether or not the substitutions were adequate.

If the case is thrown out because the appointment is defective, there isn't any need to look at trial fairness.

So, Comey is the imposter surgeon who botched the assignment, and Ashcroft is the hospital administration who gave Comey his fake credentials.

Blaming Fitzgerald for being on the receiving end of a defective appointment? Be my pest.

(32) cboldt made the following comment | Jun 25, 2007 7:34:41 AM | Permalink

-- Continue to argue on the basis of "harmless content" till you're blue in the face. --

I haven't argued "harmless content."

(33) cboldt made the following comment | Jun 25, 2007 7:53:29 AM | Permalink

-- Why, then, does the statute prohibit the delegation of making CIPA substitutions to US Attorneys? --

The statute does not do what you say here.

(c) Alternative Procedure for Disclosure of Classified Information. - (1) Upon any determination by the court authorizing the disclosure of specific classified information under the procedures established by this section, the United States may move that, in lieu of the disclosure of such specific classified information, the court order -

(A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or

(B) the substitution for such classified information of a summary of the specific classified information.

The court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information. The court shall hold a hearing on any motion under this section. Any such hearing shall be held in camera at the request of the Attorney General.

The power reserved to the AG in this section (and in 6(a)) is to take the session in camera. The statute does not reserve the substitution authority to the AG.

Here is the reservation to the AG at 6(c)(2)

(2) The United States may, in connection with a motion under paragraph (1), submit to the court an affidavit of the Attorney General certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information. If so requested by the United States, the court shall examine such affidavit in camera and ex parte.

The United States has the power to have the affidavit examined in camera and ex parte, that power is not reserved to the AG. It's the very presence of the (optional) affidavit that is at risk.

(34) boris made the following comment | Jun 25, 2007 7:59:23 AM | Permalink

Don't play dense. Comey is the forger who gave Fitz his fake credentials.

Walton is the administrator fooled by them into letting Fitz botch Libby's defense.

(35) boris made the following comment | Jun 25, 2007 8:07:10 AM | Permalink

I haven't argued "harmless content."

You claim that Walton is ultimately responsible for the content when content is not the issue at hand.

Arguments on the basis of substitution content and where that content is produced appear to be disingenuous. The need for them is the issue and that definately is reserved.

(36) cboldt made the following comment | Jun 25, 2007 8:15:22 AM | Permalink

-- Comey is the forger who gave Fitz his fake credentials. --

A pretty good forgery (if forgery it is), because Fitz and every court involved accepted them as genuine. Even President Bush thought the investigation was serious and legitimate.

-- You claim that Walton is ultimately responsible for the content when content is not the issue at hand. --

No, I claim that Walton is responsible for the content when content is the issue.

If content is not the issue (and content is not the issue if the appointment is defective), the ultimate responsibility lies with the entity that crafted the defective appointment - the DOJ acting through Ashcroft and Comey.

(37) boris made the following comment | Jun 25, 2007 8:33:37 AM | Permalink

and content is not the issue if the appointment is defective

Separate argument.

This one is the unfair constraint placed on Libby's defense by an improper agent. The harm would be by content (there is no proof that the surgeon's incompetence was the cause of death) but that is not the issue being argued.

(38) boris made the following comment | Jun 25, 2007 8:39:44 AM | Permalink

Again, arguments on the basis of substitution content and where that content is produced appear to be disingenuous. The need for them is the issue and that definately is reserved.

Clearly you are loath to remove your focus from content arguments so you can continue to hold Walton responsble for Fitz's improper constraint of Libby's defense. Still not working.

(39) boris made the following comment | Jun 25, 2007 10:50:06 AM | Permalink

To clarify my argument with cboldt ...

An unqualified surgeon performs the patient’s bypass. The patient dies. The surgeon was allowed to perform the operation by the hospital administration on the basis of faked credentials provided by the unqualified imposter.

The possible causes of death:

  • Deliberate homicide;
  • Accidental mistake;
  • Surgeon incompetence;
  • Disease too advanced to survive operation.

No confident cause has been determined and may not be possible. Nevertheless the patient did not receive the procedure by qualified surgeon he was entitled to.

The analogy is not directed at Fitzgerald’s defective appointment, it is directed to the improper constraint on Libby’s defense that Fitz exercised without authority to do so. The administration (judge Walton) in the analogy is not blameless for allowing an unqualified surgery, however the agent that denied the patient a proper operation (fair trial) was the imposter (Fitz).

Cboldt apparently wants to make cause of death the issue or negligence by hospital administration acceptance of fake credentials. My issue is denial of the patient’s rightful entitlement by an unqualified imposter.

(40) Beldar made the following comment | Jun 25, 2007 5:04:10 PM | Permalink

Patterico (and others): Libby's emergency application for release pending appeal probably was indeed referred to the Miller panel as a "related" case.

From my long-ago clerkship days (1980-1981), my recollection of the Fifth Circuit's local rules and practical procedures is that if any litigant suggested that a new filing was "related" to a previous Fifth Circuit matter, or if the Clerk's office made that determination on its own, then the Clerk's office would forward it to the judges who were on the previous panel.

Occasionally those judges would conclude that the connection was only superficial, and that there really was no good reason for the new matter to short-circuit the normal random assignment system, and so they'd send the case back to the Clerk. Some judges thought — and I agree — that they needed to be alert for the possibility of litigants effectively using the "related case" theory as a way to "forum-shop" for panels.

The rationale for the "related case" short-circuit in the first place, of course, is whether it will serve overall judicial economy because there are similar facts and/or law at issue. I'm dubious about whether this particular application by Libby — as distinct from his appeal on the merits — has enough in common with the Miller litigation, which after all was a civil contempt proceeding in which Libby himself wasn't directly involved. Certainly the focus of that appeal doesn't have much to do with the focus of this emergency application, even though both involve the question of someone's short-term freedom.

But the D.C. Circuit panel is apparently comfortable with the random-assignment process having been short-circuited, and that's the sort of discretionary decision that I certainly can't quibble with.

I may write more later in response to other comments on this and/or my previous Libby post (about the comparison of Fitzgerald and Nifong).

(41) Beldar made the following comment | Jun 25, 2007 5:55:28 PM | Permalink

Okay, I've now at least skimmed all the comments — which are fabulous, both in content and tone!

Re the CIPA issue in particular, and the appointment issue more broadly:

One thing I can say with absolute certainty is that the D.C. Circuit panel will not look more skeptically at these arguments based on some theory that Team Libby should have brought them to the D.C. Circuit sooner. As cboldt noted when he raised the question, Team Fitz has not argued to this D.C. Circuit panel that Team Libby has waived its rights or otherwise delayed improperly in bringing this argument to the D.C. Circuit. (Team Fitz has argued that Team Libby waived some of their specific CIPA complaints by not making a timely and specific objection before Judge Walton, but that's a different question than whether Team Libby could or should have gone to the D.C. Circuit sooner.) The explanation is that interlocutory appeals are the rare exception in the federal system, and definitely not the rule of thumb — especially in criminal cases. And there was no exception available by which Team Libby could have tried to get to the D.C. Circuit sooner on the appointment issue.

Judge Walton's original determination on the appointment issue did result in a detailed written opinion that was duly published at 429 F. Supp. 2d 27 (D.D.C. 2006). But it was not an "appealable order" at that time under the normal statute creating appellate jurisdiction, 28 U.S.C. § 1291. Team Libby had no automatic right, in other words, to appeal from that ruling because it didn't finally determine anything. Instead, despite all the formality, it remained an "interlocutory order" that Judge Walton, on his own or at anyone's urging, was free to reconsider and indeed reverse at any time during the remainder of the pretrial and trial proceedings.

There is a statute, 28 U.S.C. § 1292(b), that permits some interlocutory appeals in civil cases when the trial judge has certified that there's a "controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Even then, the appellate courts can, and frequently do, disagree and refuse to exercise their discretion to hear those appeals. That statute doesn't apply in criminal cases, however. Nor could Libby have appealed that pretrial ruling based on the "collateral order" doctrine of Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), because that doctrine only applies when "the order [has] conclusively determined the disputed question, resolve[d] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment." To the contrary, Libby's challenge to Fitzgerald's appointment is reviewable as part of the rest of his appeal, now beginning, from his final judgment of conviction.

So now is the appropriate "first time" for Libby to be raising this issue before the D.C. Circuit. And even now, the D.C. Circuit panel is supposed to confine its consideration of that argument to a fairly prelminary one — i.e., does it raise a "substantial question" for purposes of Libby's release pending appeal? This panel may decide that it does raise a "substantial question," but then Libby may still ultimately lose on the issue during the appeal "on the merits," after full briefing and argument.

As to what happens after the D.C. Circuit rules on this emergency application: The losing side could seek rehearing by the entire D.C. Circuit en banc, and might do that if, for example, there is a split decision with a written dissent from the panel. More likely, however, the losing side would consider going directly to the "Circuit Justice" for the D.C. Circuit — in this case, new Chief Justice of the United States (and former Circuit Judge of the D.C. Circuit) John Roberts. He could, but need not and typically would not, refer the application to the full Supreme Court for consideration; more likely, he'd grant or deny it on his own.

As a practical matter, however, it would be very unusual — bordering on unseemely — for Team Fitz to seek either en banc or SCOTUS review if the panel overturns Walton on his bail pending appeal ruling. For the same reasons that Team Fitz didn't seek to have Libby's personal recognizance bond revoked — i.e., it would be bloodthirsty overkill — it would likely abide quietly were the D.C. Circuit panel inclined to let Libby remain free pending appeal.

Team Libby, by contrast, can be expected to seek further redress if the panel rules against it. The odds of that being granted, though — unless, for example, there's a split decision and a dissent from the panel — are almost vanishingly remote.

Statistically, for that matter, the odds of this panel granting Libby's application are very small. My prediction, like their application, is based on a long-shot hunch, but I knew that when I made it.

(42) clarice made the following comment | Jun 25, 2007 6:26:28 PM | Permalink

Thanks for clearing up that question on interlocutory appeals--when we discussed it on JOM ages ago I hadn't realized it was unavailable in criminal cases. Years ago I used it successully in a civil case and hadn't realized there was a difference.

(43) JM Hanes made the following comment | Jun 25, 2007 11:43:02 PM | Permalink

Beldar:

Many thanks for the substantial update!

"Statistically, for that matter, the odds of this panel granting Libby's application are very small."

If they do turn Libby down, will that be the kind of harbinger of doom (major) that I'm assuming it would be?

(44) Carol Herman made the following comment | Jun 26, 2007 12:11:05 AM | Permalink

IF this "related" panel turns Libby down, I think it will mean the coin they tossed in the air, came down and rolled on the floor.

Now, to turn the case back to Walton, can only mean it goes back there so he can set a more reasonable time for the sentencing. Perhaps? They'll note Walton can wait till 2008, before he has to "sentence, again," if ever?

No, that's not legal terminology. But then black robes aren't real clothes, either.

The stage, however, is set, again. And, again, Tatel can do something foolish. What's that? His signature stinks on the forms that put Judith Miller in jail FOR NO REASON AT ALL!

Quite the political mess, here, to boot.

And? If 12-Amigos who don't share political philosphies on the same page; like Bork and Dershowitz. Got together to send up a "dulchay mia" Amici, "am I kissing you now?" It must be a pretty thick group that sits, benched for life, in DC. It means they can't figure it out. And, the justices will get the lack of respect, they've already earned, ahead, too.

Who'd want to sign another person off to prison, after Judith Miller's turn?

And, in my book? Libby doesn't go to prison, because Dubya can offer RESPITE. This just makes Chief Justice John Marshall's body rotate in his grave. How so? It takes the judiciary branch down a peg. ANd, re-asserts Executive Powers. BRING. IT. ON.

(45) clarice made the following comment | Jun 26, 2007 12:58:25 AM | Permalink

Interestingly, early in these proceedings Fitz filed an interlocutory appeal but that was to challenge Walton's CIPA ruling and CIPA makes specific provision for an interlocutory appeal by the govt in such cases.

Interlocutory Appeal
APPEAL FROM INTERLOCUTORY ORDER


Section 7(a) of the Act provides for an interlocutory appeal by the government from any decision or order of the trial judge authorizing the disclosure of classified information, imposing sanctions for nondisclosure of classified information, or refusing a protective order sought by the United States to prevent the disclosure of classified information. Section 7 appeals must be approved by the Solicitor General. The term "disclosure" within the meaning of section 7 includes both information which the court orders the government to divulge to the defendant or to others as well as information already possessed by the defendant which he or she intends to disclose to unapproved people. Section 7(b) provides that the court of appeals shall give expedited treatment to any interlocutory appeal filed under subsection (a). As a matter of fairness, the policy of the Department shall be that the defense be given notice of the government's appeal under section 7.

(46) Patrick R. Sullivan made the following comment | Jun 26, 2007 8:40:46 AM | Permalink

'..it would be very unusual — bordering on unseemely — for Team Fitz to...'

That is the nature of the case so far. Just on the matter of sending Libby to prison immediately, say. If Fitz and Walton are so confident the conviction will be upheld, why rush Libby into serving NOW?

Their actions only make sense from the perspective of parties who think they're going to see the conviction overturned. They want him to do some time before the Appeals Court frees him.

(47) Beldar made the following comment | Jun 26, 2007 9:13:48 AM | Permalink

Mr. Sullivan: I disagree, and I'm fairly confident of this.

Team Fitz had to oppose release pending appeal. Otherwise, they'd be conceding that one or more of Team Libby's appeal points raised a "substantial question." No prosecutor ever agrees to bail pending appeal for exactly that reason, regardless of whether the appeal points really are "substantial questions" or not. They just can't concede that point while still being advocates for upholding the conviction.

But Team Fitz did not change their position to argue that, for example, Libby is a flight risk. They made no more than a perfunctory (one-sentence, indirect) argument that Libby's appeal points wouldn't result in a significant change in his sentence or a reversal (and that was in the opening sentences of their D.C. Circuit brief, when they pointed out that there's a two-step test, and then never thereafter mentioned the second step, which Libby wins in a no-brainer).

If you were right — if Team Fitz "knows" the conviction is going to be reversed and is acting out of malice — they'd have also asked for Libby's personal recognizance bond to be revoked immediately, rather than letting the normal post-sentencing mechanisms play out with Libby not in custody. Even Judge Walton wouldn't have bought that.

You're projecting emotions onto them that are not only improper and highly unusual, but inconsistent with their other actions, when there are un-emotional and proper and utterly commonplace explanations for what they have done.

Only very, very stupid prosecutors over-argue. They lose credibility when they do. Team Fitz hasn't lost a major fight yet, either in the district court or the D.C. Circuit. I'm predicting they're about to lose this one, but it really isn't a major fight — not in the long run — and it's one they simply couldn't not argue at all. Trying to get his personal recognizance bond revoked, or (probably) asking for en banc or Circuit Justice review if they lose on the current release-pending-appeal motion would subject them to the risk of being perceived as over-arguing. I just don't think you'll see that happen.

(48) Beldar made the following comment | Jun 26, 2007 9:35:39 AM | Permalink

Mr. Hanes: If this panel rejects the release pending appeal motion, that would be a bad omen, especially if the appeal on the merits ends up going to this same panel. (And it might — if this panel thinks this motion is closely enough related to the Miller appeal, they may well think the same thing of the appeal on the merits.)

It's possible that Team Libby might lose this motion and yet still persuade the panel after more briefing and argument. It's somewhat more plausible that they'd lose on the appeal on the merits with this panel (i.e., the panel that found no "substantial question" would adhere to that during the merits appeal), but that wouldn't preclude a different view by the en banc D.C. Circuit. "Harbinger of doom" may be a bit strong, but not by much, in other words.

(49) Beldar made the following comment | Jun 26, 2007 9:46:09 AM | Permalink

Clarice: I wasn't familiar, either, with the CIPA interlocutory appeal provision, but that may explain something that I saw Tom Maguire comment upon elsewhere (he saw a PACER or docket sheet indication of some appeal being "dismissed," and maybe it was that).

There are a few other special-purpose interlocutory appeals like this that various legislatures have created. Some states, including Texas, for example, permit interlocutory appeals in certain defamation cases against media defendants, recognizing that a very high percentage of plaintiffs' verdicts are reversed and rendered on appeal; the interlocutory appeal is supposed to help offset the chilling effect that loosely-scrutinizing trial courts and run-away jury verdicts might otherwise have. I'd think that the CIPA rulings might have qualified under the "collateral order" doctrine anyway, even without the express statutory option; there are some collateral order appeals on privilege determination rulings, for example, where you can't effectively "unring the bell" via normal appellate review. But in any event, as you acknowledge, this was something only available to Team Fitz, and not to Team Libby, even on the CIPA stuff.

(50) clarice made the following comment | Jun 26, 2007 10:04:29 AM | Permalink

As JOM poster, cathyf notes, Beldar, this Statute allows the prosecutor to file such an interlocutory appeal only with the approval of the Solicitor General? Did he have such approval? I see no sign of it, and surely he'd have noted that in his appointment defense if he did.
Since he withdrew it he might say no harm no foul, but IIRC, Walton backed off some CIPA rulings after this apparently unauthorized appeal was filed.

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