EW–Thank you for all you have done to bring us to this moment. You are incredible–fast, smart, insightful, thoughtful, etc. Of course Fitz and his team and Walton had something to do with it, but you cleared the brush for many of us. Thank you.
P.S. Is it beer thirty yet?

Well, I have a conference call in two hours. Soon as that is over, I do believe it will be beer:30.

Oops. Oh, no, I didn’t. I wrote clearing brush but I didn’t mean GWB weed whacking. I meant finding the path, clearing the trail, in some ways, walking point. No offense intended.

Hi EW.

Looked for you over at FDL this am, and see you let someone else’s fingers do the walking this time around. Your not-a-transcripts of the trial were an incredible gift to the rest of us, btw. I can type fast enough to do that kind of thing — I just can’t listen fast enough to keep up.

WRT:

But, as Fitzgerald and Bonamici pointed out, it’s not something the Defense has every objected to, raising the real possibility that they’ve effectively waived their right to appeal on the issue.

If TeamLib is using it in their defective appointment argument, I don’t it’s something that has to be preserved in an objection at trial.

Robbins: Well I doubt that since I was there when Scalia read his opinion.

That’s one of the stupidest — and most arrogant — things uttered by a lawyer in court that I have ever heard (which is saying a lot). Unless the idea was to goad Reggie into saying something injudicious (a sleazy move), I see no percentage in it at all.

Actually reminds me of Toensing’s testimony before Waxman, that she knows everything about whether Valerie Plame was covert because she (Toensing) wrote the law.

Ishmael and Dangerfield – don’t you think there is a real question whether or not respite is still viable in light of Congress having specifically occupied the area of law since the last time (during or prior to WWII) the concept of respite was attempted to be used by a president through passage of 18 USC 3143(b) mandating a presumption of remand pending appeal.

bmaz — the bet — restated:

look — bmaz — i respect your opinion,
but do you really think the supremes are
going to set briefing — and more impor-
tantly — oral argument, on this, ahead
of the already-accepted docket? c’mon.

that would evince naked politics — and
i personally believe they are too smart
to do that. . .

my guess — it will be heard late fall at the
earliest before the supremes. . .

and so, i propose another nexthurrah wager:

i will pay you (via a shipping method of
your choosing!) one completely-humble-apple-
pie, if the supremes have freed scooter
before he self-reports, or is ordered in,
by judge walton. . . deal? and, now, will
you put your pie where your pen — erh, key-
board — has been?

that is — will you offer the same, in return?

if so, done.

~~~~~~~~~~~~~~
AMENDED TERMS:
~~~~~~~~~~~~~~

[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?

Bmaz – I am not an American lawyer (New blacroynm -IAMAUSL) but on basic principles, I agree that respite is problematic as a result of Congressional legislative action, but I do think that the specific constitutional grant of clemency powers to POTUS would trump the general rule of interpretation that Congress has occupied the field. I’m not sure Shrub can avoid feeding the base by freeing Scooter temporarily given the immigration hits he has taken with them – plus, as there is no pardon (yet), Scooter can still take the 5th before Congress if he is subpoenad.

EW

Could this arrogance be in part because they really are confident of getting an overrule from the 4th Circuit?

Jay

No no.

bmaz owes you a keyboard. I stole it from him (and have been making liberal use of it ever since).

nolo – Wife put me on a diet. Desert tray at your place looks tasty. Here is the deal. Sebastian Dangerfield, over at FDL earlier, spelled it out just right. I think most people thought he was joking about having someone in the room to run file the appeal on the spot. I know for a fact he was not. If I were Libby’s lawyer, I absolutely would have come to court armed with a prepared Notice and Application For Bail/Remand Review; Request for Prompt/Expedited Determination, all necessary copies to be conformed by the Circuit Clerk, and a blank check for appellate filing bond (just in case, but should not be necessary for the remand issue alone). All of this would be in a folder in the hand of one of my clerks or paralegals who would be sitting in the rear of the courtroom; the second Walton announced his decision I would nod or point to them and they would head immediately to the Circuit Clerk’s office. No joke; i have done this before. When I did it, it was not a high profile case, so I personally took the papers to the appellate clerk, but same difference. Because of all the press, Libby’s attorney would have an aide quietly slink off and do this. I would imagine the Circuit court then sets a 10 day response interval, and if I was up against Libby’s self surrender date, I would likely waive reply time. Probably no oral argument needed. My bet was simply that this can all be done before Libby surrenders; irrespective of what the decision of the Circuit court is; there will be a decision before surrender. If it is your bet that I am wrong, you are on. Ummmm. Pie!

The headline is actully â€No delay in Libby Sentence†on MSN.com

Ishmael: Actually, an application for bail pending appeal is one of a handful of things that are decided by the circuit justice on his or her own. If you fail in the court of appeals, you seek relief from the circuit justice, who has the power to grant it.

bmaz: I’m not entirely sure I understand your question, but insofar as I think i do, I’d say â€no.†Setting a new, less convicted-defendant-friendly standard for granting bail pending appeal has nothing to do with the jurisdiction of the court of appeals and the circuit justice to decide the question. Stated otherwise, I don’t think there can conceivably be any pre-emption of jurisdiction, if that’s what you’re getting at.

Damn. Now I got Sebastian AND myself confused. I don’t recall saying anything about jurisdictional pre-emption; only that I think there is a decent argument that this theory of â€respite†is not a formal modality of clemency or pardon and, therefore, congress passing 18 USC 3143 means that respite is not available to Bush. Respite wouldn’t apply to the Circuit Court, they if so inclined, simply overrule Walton.

â€that would evince naked politics — and
i personally believe they are too smart
to do that. . .â€

Before the Felonious Five issued Bush v. Gore, I would have said the same thing, but now? Naked politics is what they do best.

SD – Nixon released Calley pending appeals, but I was asking yesterday if this was due to Calley’s military status and Nixon being CIC of the Armed Forces – but then again perhaps this could be another useful way for Shrub to continue his quest to be CIC of Everything.

Sebastian – Yeah. I think that hack is David Frum who trotted out this antiquated theory of â€respite†and said under respite, Bush could merely order that Libby not be incarcerated pending appeal, but that it is not an act of either clemency or pardon. This is what I am saying I think 1343 may supersede.

From Wiki: â€Respites delay the imposition of sentence but in no way modify a sentence or address questions of due process, guilt or innocence. Historically, presidents have granted most respites for periods of 30 to 90 days and have renewed (extended) such delays when it seemed necessary.[2] The most common public explanations for respites have been to:
delay executions (for a variety of reasons)
alllow additional time to study clemency applications
await the outcome of an appeal
allow full executive review of a sentence affirmed in the appeallate processâ€

Sebastian – Also note that I don’t necessarily think I have a winning argument hear in light of the open nature of pardon under the Constitution, respite just seems like a tacky and cheap way out for Bush, therefore I don’t like it and want to try to counter it with something, anything.

Ah-HAH! Now I really do understand. That’s fascinating about Lt. Calley. That’s a part of that sordid story I did not recall. Nixon may well have been exercising some kind of non-Pardon Clause, Commander-in-Chiefish power when he did that, but it’s truly fascinating. For my lights, that looks less and less like the exercise of a pardon and more like just plain interference witha pending case. But, no sooner did I type my last that I further reflected that even if I’m right — that a temporary release order from the Pres. is not contemplated by the Pardon power — if the Pres. did purport to grant release pending appeal under the aegis of the Pardon Clause, who would stand in the way? Given the extreme deference the courts give to the president when exercising Pardon Clause power, and given further that Grossman and other cases talk about â€conditional†pardons, I’m not convinced you’d hear a peep out of the courts.

I signed over all rights on AI to Ms. Wheel. No more attribution to me is warranted or desired. Unless t-shirts are printed and money is to be made; then it’s mine.

KLynn:

â€I realize the appeal goes to the DC circuit but it seems odd to go with this blatent inference as though he knows for sure that they would rule differently.â€

Saying â€I think the DC Curcuit will reconcile differently.†is just lawyer speak for â€I think you are soooo wrong†which is not exactly a politic choice. Robbin’s remark about hearing the Scalia opinion was about as in your face as an appellate legal eagle is going to get. I doubt he ever expected a friendly ruling from Judge Walton and I’d wager he just didn’t want to flesh out his actual appeal for the Prosecutor’s office.

JMHanes says:

Saying â€I think the DC Curcuit will reconcile differently.†is just lawyer speak for â€I think you are soooo wrong†which is not exactly a politic choice. Robbin’s remark about hearing the Scalia opinion was about as in your face as an appellate legal eagle is going to get. I doubt he ever expected a friendly ruling from Judge Walton and I’d wager he just didn’t want to flesh out his actual appeal for the Prosecutor’s office.

So the opporative word here is â€thinkâ€?

But he clearly meant to infer more than â€you are wrong†with his line of argument and repsonses to Walton.

His boldness on this matter was shocking (yet expected).

KLynn:

â€So the opporative word here is â€thinkâ€

Pretty much.

â€But he clearly meant to infer more than â€you are wrong†with his line of argument and repsonses to Walton.â€

Well, yeah. In order to get bail for Libby, Robbins had to persuade Judge Walton that the DC Circuit might look at the questions Walton addressed in his Opinion and come up with different answers. That was Robbin’s legal burden here — in other words, that was Robbins’ job.

Folks

A couple of things about Robbins. First, he apparently walked onto this case, like, yesterday. To his credit (not that I’m rooting for him, but just to point out he’s smart) he found one possible basis for appeal (the CIPA/Appointments issue) that Libby’s lawyers hadn’t found.

Now, he obviously made a choice to be a jerk about this with Walton. That may be bc he misplayed Walton, it may be bc he knew he was working from behind, or it may be bc he hasn’t yet figured out what it means to have a liveblog going, with your language repeated instantly in a way it normally isn’t (though, since he spends so much time before SCOTUS, that SHOULDN’T be a problem).

That said, it is his job to try to get an appeal. He doesn’t know the case that well–he walked onto it this weekend. So there may be a lot of reasons for his approach, not least that he was compensating for under-preparation with nastiness.

Or he may just be an arrogant, holier than thou pompous ass, which is a common character set among many high priced appellate specialists. I have no problem with him making the arguments he did; that indeed is his job. The â€I have ESP into Scalia’s mind because I was there†bit simply has no innocent explanation. I am going to leave Robbins in the Arrogant Illuminati clan absent a good reason to remove him from the same.

Or he may just be an arrogant, holier than thou pompous ass

Same difference. To the manor born, that is….

Sebastian – I would assume, because its what I would do, that Team Libby talked to the court reporter and Walton’s assistants ahead of time about getting an accelerated transcript from today’s proceedings, which shouldn’t be to problematic as it didn’t last very long. Its pretty easy to get fast transcripts (assuming you are willing to pay the ante) these days because the chicken scratch automatically goes into transcript draft form live as it happens. Quite possible they could have the transcript lodged by tomorrow unless I am missing something here.

EW may have posted this before, but here’s the Scalia Dissent in Morrison, in case anyone might be interested in reading it themselves.

Now we’re deep into spin I assume, and I wonder how it’s going. Earlier of course I was lazily tracking the traction of Walton’s comment about the AI.

But I forgot to add at that point that it will be interesting to see if the Robbins addition gets any recognition at all. There wasn’t anything in the NYT story, for instance. Flawless ew blog superhero effort that we’ve come to expect (goddess of her personal side of the blogosphere, surveying it from on high) alerting us to the fact that LDT (Libby Defense Team) added an expensive big time free agent right before the next round of the playoffs. Knowing who Robbins was and what he was doing made the whole Pach liveblog experience today intelligible. And it allows us to speculate now about the inner workings of the LDT. But what about the MSM coverage and everybody who means well but is trying to keep up? They’re going to have to dig a little to get to the Robbins level, I expect. Then again, how many people know about Wells crying and Fitz yelling in the last round (I even forget for the moment what he said, scorched unit that I am), although the â€cloud over the vice president’s office†has gotten really good traction. Let’s hope (HS–you know what that means!) that Walton’s first year law student smackdown of the AI is the longterm takeaway from today.

Tell Congress: Send Scooter Libby to Guantanamo

http://actforchange.workingass…..u9a6kte8k?

If anyone deserves to be housed in Guanatanamo, it is Scooter Libby. He betrayed the national security of this country by outing Valerie Plame, who was working to to stop the spread of weapons of mass destruction. Even former President George H. W. Bush called those who reveal the names of covert operatives â€the most insidious of traitors.†Hundreds of prisoners at Guantamo have not even been accused of crimes, but are still being held without being convicted. Scooter Libby has already been convicted. If Guantanamo isn’t good enough for Libby, then it isn’t good enough for anyone.

yo, shit stain, are you STILL clinging to that piss weak argument ???

just because â€some guy†said so on television ???

even Pat Buchannan admits that scooter is a luing fuck who deserves to go to prison

and I would say that Judge Walton was more â€INSULTED†than â€upset†about the pathetically weak brief submitted by your new hero

so, when the Appeals Court confirms Judge Walton’s ruling, and we learn that douchbagowitz and your new hero don’t know what the fuck they’re talking about, what straw will you cling to then, shit stain ???

life must suck for you shit stains right now

how do you deal with being so consistently wrong about this stuff ???

Wow, Jodi, if that’s the best Kmiec can do, I hope the defense is not paying him anything to help out with the appeal. Both of those points were convincingly addressed at the trial and/or during sentencing phase.