Ah, I see you navigated your way through the entirety of the Government’s pleading. I had to stop for lunch about halfway through; needed the nourishment to continue. Despite it’s length, a pretty fine piece of work. This is exactly why I have been so repetitively commenting on the Amici Illuminati’s failure to distinguish Morrison. Contrary to the efforts of the defense and friends, there seems to be very little straining to make the requisite legal arguments; they flow naturally from the law and facts, a hallmark of Fitzgerald and his team. The one issue I might take with is your last statement regarding the potential for testimony by Cheney and Libby. I am positive he was perfectly prepared for it, but I find it hard to believe that Fitz really thought they would take the stand. Nice turn of a phrase that â€Amici Illuminatiâ€.

bmaz

Oh, I’m not suggesting that Fitz ever thought Cheney would take the stand. No chance. If he had, Conyers would be firing up the impeachment bus, as we speak. But regardless of whether the bid to put Cheney or Libby on the stand, the claim they were going to do so made the government (both Fitz and Reggie) spend a lot of time they shouldn’t have spent.

Also, as I re-read the Defense brief and the Amici Illuminati brief, I kept thinking of your argument that the A.I. brief was a journal article. I haven’t checked, but if I had to guess, I’d guess that they took an Akhil Reed Amar article and rewrote it. Did Vikram borrow his brother’s work for a brief he wouldn’t support?

Jodi, Thank you as always for informing us of the official far right talking point. For those of you who don’t know, Jodi is our beloved troll, and, in my opinion, more than one person. Please don’t feed her.

Hee hee – That lovely little appellation was my invention. Interesting thought on the Amars. You would think it would be the other way around between the two of them; but it could be. I’ll prowl around a bit tonight (assuming I remember) and see if I can find the genesis. I am not sure about that thought I had, but it sure does strike me that way.

Advice to any newbies out there, this community can be lethal to the reputation of crooked public officials

to any crooked public officials who might read this:

if â€emptywheel and friends†get on your case, you’re roped. Plead guilty and save yourself the slow torture of exposure

you couldn’t sneak a crumb of evidence past this crowd

reading bmaz and ew expose the history of the AI brief (heh) I get the idea that the children of the people around here had a very miserable childhood

if you didn’t take the cookies, why are your fingerprints all over the cookie jar, and why do you have crumbs on your shirt, and is that a chocolate smear on your face, and isn’t that your footprint in the dust on the floor by the cookie jar…

I got visions of children tramatized by parents with binder full of overwhelming evidence

It’s almost enough to make me feel sorry for scooter, if scooter were a child …

well … maybe not

props to Ishmael too

I think the term we’re looking for here is PLAGERISM

try that shit at the local junior college and you’ll be out on your ass

I hear it’s like that at most academic institutions

cept at regency law school, where you could probably qualify for an â€Honors†degree this way

Jodi–EVERY case is appealable. There is an appeal as of right to the Court of Appeals. The question is whether the appeal is winnable.

The argument against Fitz’s appointment sure has holes. Thanks, EW.

bmaz: I can tell you from first-hand experience that Silberman is still in heavy rotation. And now we have not just him and Sentelle and K.L. Henderson — but the hacktacular Kavanaugh and J.R. Brown to boot. I shudder to think, but the wheel could yield some really bad panels — and I think that Wells has telegraphed that he’s going to try to get some super-expedited review of Walton’s bail ruling. Too bad for Team Libby: the judges have already begun their summer recess. I’m sure there is some provision for emergency appeals (i.e., death sentence cases, injunctions in cases involving massive irreparable harms), but I’d like to think that the court will not consider one wealthy and well-connected convicted felon’s effort to avoid serving so much as a day of his sentence to be a true emergency.

Sebastian

Can you say more about the impact the recess might have on a Libby appeal? IIRC Judge Walton said it’d take the BOP 45 days to â€process†Libby. Will they be able to get to Silberman before then?

and that final order — i think — can
come as early as thursday at 1:40 p.m., right?

i do much admire the crystal-clear
road-map team fitz has laid out — listen up,
d.c. circuit appeals panel (or, en
banc) — you have no authority to
over-rule the united states supreme court’s
controlling precedents in this case, just
to get to the result you might favor — the
actual quote:

â€. . .defendant’s contention ignores a fundamental principle that governs the resolution of legal issues by the District Courts and the Courts of Appeals, namely the obligation of the federal courts to faithfully apply Supreme Court precedent in the absence of some clear command to the contrary. This Court’s decision in this case was based upon such an application of binding precedent. The Court of Appeals also is obligated to apply Morrison. . .[ed. note: and even if scalia’s dissent in morrison were the law applicable, note the following:]

. . .it bears repeating — Justice Scalia’s dissent in Morrison explicitly stated that had the Independent Counsel been removable at will, even in his view of the Appointments Clause, the Independent Counsel statute would have passed constitutional muster. Morrison, 487 U.S. at 716 (Scalia, J., dissenting) (stating that if the Independent Counsel was removable at will by the Attorney General ’then she would be subordinate to him thus properly designated as inferior.’). . .â€

nolo

I agree–Fitz wrote this to the Silbermans of the world as much as he did Reggie (Reggie’s going to do what he will do, and pestering him at this point is just going to make him cranky).

That said, I’m sure the Silbermans of the world are talking to the folks upstairs as much as Reggie was during the trial. I’m not convinced they’ll use the Appointments Clause (bc against the background of the DOJ scandal, it’d invite a Special Investigator law). But they’re dreaming up their reason to overturn now, I’m sure.

EW — i do think the supremes may look
for a reason to overturn — and will
very likely grant cert. on some issue — but,
thank godesses(!), judge walton has carefully
crafted as near-a-bullet-proof record at
trial as one might ever wish for, given
the complexity of proving this particular
federal criminal case. . .

i just want — with all the pieces of
my heart! — to see scooter do at least
some jail-time for what he did to
valerie plame, and for criminally
obstructing justice, with his pro-
tection of the sitting vice president. . .
who allegedly master-minded this
whole sordid, awful, disgraceful affair. . .

and may i say — such a great
set of posts, here, today!

well-done!

bmaz – was there any reason why the original appointments ruling couldn’t have been certified as a collateral order for interlocutory? I don’t do crim and this has always bugged me. Back when I did civil lit work, if you had an issue that went to whether or not you should have to have a trial at all (generally jurisdiction – I’d guess with crim maybe something like competency) you could get it certified for appeal – maybe not a stay pending, but sometimes that.

Mary – Can’t give a definitive answer; but that is a very interesting point for discussion. As a general rule, as I am sure you are aware, interlocutory appeals are frowned on in Federal court, but that has never stopped anyone from trying if it was a critical issue they cared about. Such as jurisdictional issues, as you note. It is semi-painless for the court; I have never seen it held against a party for having tried. I have made the attempt just to seed the thought process of an appellate court early; I think that was in a state court though. I wonder if there was a tactical pow wow on this among the defense. If you take the appeal on the front end and win, no jeopardy has attached and the government would have leave to fix the problem and pick up where they left off. My guess is, for that reason, they quickly decided not to take it up as an interlocutory issue.

[isn’t it just like lawyers to
want to hedge every bet? you say
you want to see how walton rules.
with the amended terms, below, i
am plainly accepting the risk that
walton could grant scoots a pass. . .

not a big risk, i know. . . now:]

okay — bmaz — let me make the
terms more. . . erh, appealing,
for you: if any court, anywhere,
has freed scooter before he serves
at least one full day of jail
time — you win.

this — obviously — does not
give you a â€winâ€, if a pardon
comes, and some court ultimately
sustains the pardon, before scoots
hits the doors of camp fed. . . so,
in the event of a pardon — it is a
â€push-betâ€, unless scoots is already
incarcerated when the pardon comes.

then, i win.

[i’ll note that i agree with your
thinking about team libby choosing
strategically against filing inter-
locutory appeals on these issues. . .
and, for exactly the reasons you suggest. . .]

thus, i say the next judicial order
to â€liberate†scooter will come only
after he has been incarcerated — for
at least one full day.

so — do we have an accord?

Fitzberald is doing what prosecutors do.
Posted by: Jodi | June 12, 2007 at 16:52

Fitzgerald is doing what great prosecutors do. He’s kicking ass… again. Fitz won the argument in Walton’s court and he’s getting a head start on winning the argument in the 9th circuit on appeal. He’s right, right and right. Libby’s only prayer is a quick pardon and frankly I don’t care if he gets it. Libby is a convicted felon. If he gets a quick pardon he’ll be a convicted felon with a quick pardon.

Is there anything going on to clear up that cloud over OVP? Oh yea, this.

Dismayed,

I am curious why you think I am more than one person. I don’t post that much.

Mimikatz,

I only mean that Libby’s lawyers has a few good points with the memory expert, Andrea, etc., and now Fitz’s appointment has been brought up. I don’t presume to say that any are rock solid grounds for reversal. I think I indicated that I was going by other people’s judgements.

Neil,

yes, but then I tried to indicate that the defense was also doing what they are supposed to do. So why does this group get so excited about that or by other people’s talk about pardons?

And a question to anybody-

If Libby is sent to jail, and the appeals work, then what happens? Does Libby get to sue somebody?

Does Walton and Fitzgerald have to apologize? That situation would at the very least seem embarrassing for those gentlemen.

yo, Neil:

the shit stain tries to make her posts easy to skip over

just another free service provided by the resident troll of the best blog in the innertubes

smart people and polite trolls

the shit stain is one of a kind, by what shit stain isn’t one of a kind ???