{"id":4688,"date":"2007-06-14T19:38:05","date_gmt":"2007-06-15T02:38:05","guid":{"rendered":"http:\/\/www.bradblog.com\/?p=4688"},"modified":"2007-06-15T03:30:04","modified_gmt":"2007-06-15T10:30:04","slug":"judge-denies-libby-release-on-bail-defendant-will-self-report-when-directed-by-bureau-of-prisons","status":"publish","type":"post","link":"https:\/\/bbnewdb.webbyspice.com\/?p=4688","title":{"rendered":"Judge Denies Libby Release on Bail; Defendant Will Self-Report When Directed by Bureau of Prisons"},"content":{"rendered":"

*** Special to The BRAD BLOG<\/a>
\n*** by Libby\/CIA Leak Trial Correspondent Margie Burns<\/a><\/em><\/p>\n

From Prettyman Courthouse, DC, for the bail hearing today of I. Lewis “Scooter” Libby, where I sat in on the hearing on motions for his pending appeal. Those motions, to keep him free on bail, were unsuccessful as the judge ruled against the defendant.<\/p>\n

Approximately 11:30 this morning, U.S. District Court in DC, Judge Reggie B. Walton: \u00e2\u20ac\u0153In the interest of full disclosure,\u00e2\u20ac\u009d Walton says quietly, \u00e2\u20ac\u0153and this may be a sign of the times we live in,\u00e2\u20ac\u009d in the wake of his ruling which sentenced Libby to prison, \u00e2\u20ac\u0153I have received a number of angry, mean-spirited phone calls and letters regarding the sentence\u00e2\u20ac\u009d \u00e2\u20ac\u201c \u00e2\u20ac\u0153including wishing bad things on me or my family.\u00e2\u20ac\u009d \u00e2\u20ac\u201c \u00e2\u20ac\u0153At first I threw them away, but then I got more letters, even more hateful than the others.\u00e2\u20ac\u009d So now, \u00e2\u20ac\u0153I\u00e2\u20ac\u2122m preserving them \u00e2\u20ac\u201c in the event that something does happen [some harm to the judge, presumably]\u00e2\u20ac\u009d \u00e2\u20ac\u201c the perps can be caught.<\/p>\n

The times we live in, indeed. Chalk another smarmy mark up for the noise machine.<\/p>\n

On to the bail hearing today: the judge refers to a lengthy footnote in the most recent defense motion which lists a number of convicted criminals who are out on bail \u00e2\u20ac\u201c \u00e2\u20ac\u0153that list of people out on bail, in white-collar crime cases\u00e2\u20ac\u009d [everybody from Martha Stewart on down, out on bail while pursuing appeal] \u00e2\u20ac\u201c \u00e2\u20ac\u0153I hope that footnote is in there not just because of some assumption that people released pending appeal will include all white-collar defendants.\u00e2\u20ac\u009d \u00e2\u20ac\u201c \u00e2\u20ac\u0153I can\u00e2\u20ac\u2122t buy in on that,\u00e2\u20ac\u009d Walton says, taking the position that white-collar defendants should be treated the same way as blue-collar defendants, and neither kind of defendant should count automatically on being released on bail pending appeal…<\/p>\n

<\/p>\n

Two new attorneys are introduced on the Libby defense; they will lead the appeal: Lawrence Saul Robbins and Mark Thomas Stancil.<\/p>\n

The judge\u00e2\u20ac\u2122s position sounds reasonable to me, and maybe to the defense too: Robbins responds that the point of said footnote is \u00e2\u20ac\u0153only to show that reasonable judges can disagree.\u00e2\u20ac\u009d<\/p>\n

Robbins, for the defense, says three main issues will be brought up on appeal, only one of which he will go into at length, the other 2 only briefly. The lengthy one is the Appointments clause question, already the topic of an amici brief and an earlier BRAD BLOG article<\/a>, where several law professors argued in their friend of the court brief to Walton, that Special Counsel Fitzgerald’s appointment may have been unconstitutional because he was not properly overseen by a controlling authority.<\/p>\n

The judge points out, among other things, that according to the precedent, you have to look at the particular circumstances that apply in a particular case.<\/p>\n

Robbins argues that 1) \u00e2\u20ac\u0153the power to remove w\/out the power to supervise\u00e2\u20ac\u009d shows that Special Counsel Fitzgerald was not controlled; 2) the Special Counsel had \u00e2\u20ac\u0153the broadest delegation\u00e2\u20ac\u009d of authority he\u00e2\u20ac\u2122d ever seen, or words to that effect; 3) \u00e2\u20ac\u0153what happens when someone has no supervisor is that sometimes things go wrong.\u00e2\u20ac\u009d<\/p>\n

Robbins, by the way, takes a somewhat personal tone in the argument, different from that of defense attorneys Wells and Jeffress during the trial: \u00e2\u20ac\u0153nobody who\u00e2\u20ac\u2122s just AG for a day\u00e2\u20ac\u009d should do such-and-such; \u00e2\u20ac\u0153he thinks he\u00e2\u20ac\u2122s the AG\u00e2\u20ac\u009d; etc; regarding the Special Prosecutor Fitzgerald.<\/p>\n

The 2 much weaker issues, all sides seem to agree, for appeal are a) the exclusion from trial of the testimony of a credentialed memory expert; and b) the exclusion of testimony from NBC reporter, Andrea Mitchell. Robbins spends very little time on both.<\/p>\n

Then Robbins wraps up his Appointments clause argument by bringing up the amici<\/em> brief, already posted about: twelve prominent law professors, Robbins points out, all legal experts in constitutional law, all are in agreement on this point (about the Appointments clause).<\/p>\n

For the record, here, from the US Constitution, is ‘the Appointments clause<\/a>‘ — Article II, Section 2, Clause 2.<\/p>\n

Judge Walton says that he saw the amici<\/em> brief, and says \u00e2\u20ac\u0153that submission was not something I would expect from a first-year law student\u00e2\u20ac\u009d \u00e2\u20ac\u201c i.e. it was not very good, thorough \u00e2\u20ac\u201c and suggests that it looks as those eminent \u00e2\u20ac\u0153names are thrown out there\u00e2\u20ac\u009d \u00e2\u20ac\u201c pretty much in the hope that he would feel pressured to rule as they wanted him to, \u00e2\u20ac\u0153just because they said something.\u00e2\u20ac\u009d \u00e2\u20ac\u201c Robbins gamely responds that these are all people in good faith, \u00e2\u20ac\u0153twelve law professors who usually can\u00e2\u20ac\u2122t agree on the best way to make change for a nickel,\u00e2\u20ac\u009d disagreeing on other issues, but all agreeing on the appointments clause.<\/p>\n

Judge Waltonn: \u00e2\u20ac\u0153maybe if I\u00e2\u20ac\u2122d received something of more substance from them\u00e2\u20ac\u009d the amici<\/em> brief would have had more impact, he says about the very brief 5-page brief. Robbins answers that the amici<\/em> authors probably just didn\u00e2\u20ac\u2122t want to repeat all the arguments already made by the defense.<\/p>\n

It is now the government\u00e2\u20ac\u2122s turn to respond. Special Counsel Fitzgerald, rising first, points out:<\/p>\n

    \n
  1. re the clarification letter of Feb 6, 2004<\/a> from Comey, cited by Robbins: Fitzgerald says that \u00e2\u20ac\u0153I was not leaving my job\u00e2\u20ac\u009d; \u00e2\u20ac\u0153I was bound by the rules of the DOJ.\u00e2\u20ac\u009d \u00e2\u20ac\u201c In other words, he was still an \u00e2\u20ac\u02dcinferior officer\u00e2\u20ac\u2122 as the term is used. \u00e2\u20ac\u0153In Chicago, in NY, Assistant US Attorneys conduct CIPA proceedings,\u00e2\u20ac\u009d Fitzgerald says; you can\u00e2\u20ac\u2122t say they\u00e2\u20ac\u2122re not inferior officers.<\/li>\n
  2. Re that argument that the Special Counsel was let loose on a wide range of encompassing \u00e2\u20ac\u0153related\u00e2\u20ac\u009d matters \u00e2\u20ac\u201c giving him too broad a power, — Fitzgerald says \u00e2\u20ac\u0153I wasn\u00e2\u20ac\u2122t asked to investigate a person, I was asked to investigate a crime,\u00e2\u20ac\u009d \u00e2\u20ac\u201c and not under just one statute. \u00e2\u20ac\u201c He was appointed to investigate violations of law regarding the leak of classified information, and the investigation and prosecution were conducted under that assignment.<\/li>\n
  3. \u00e2\u20ac\u0153the notion that people didn\u00e2\u20ac\u2122t know what we were doing?\u00e2\u20ac\u009d \u00e2\u20ac\u201c \u00e2\u20ac\u0153everybody in the world knew about it,\u00e2\u20ac\u009d Fitzgerald remarked. \u00e2\u20ac\u201c \u00e2\u20ac\u0153I\u00e2\u20ac\u2122m firable at will. Nobody fired me afterward.\u00e2\u20ac\u009d<\/li>\n<\/ol>\n

    Debra Bonamici, up next for the govt, ably summarizes and clarifies the main points:<\/p>\n

    In regard to 2 cases cited, Morrison and Edmonds, Supreme Court precedent in both involves the \u00e2\u20ac\u0153circumstances in each particular case.\u00e2\u20ac\u009d And \u00e2\u20ac\u0153being removable at will was a crucial, crucial factor,\u00e2\u20ac\u009d Bonamici adds \u00e2\u20ac\u201c \u00e2\u20ac\u0153or being removable at all.\u00e2\u20ac\u009d<\/p>\n

    On the question of supervision, Bonamici argues politely but firmly that the Special Prosecutor was not relieved of \u00e2\u20ac\u0153any obligation\u00e2\u20ac\u009d to follow DOJ policy and procedure \u00e2\u20ac\u201c the notion is \u00e2\u20ac\u0153ridiculous,\u00e2\u20ac\u009d Bonamici says, that a US Attorney assigned to another investigation is somehow removed from all DOJ regs and policies.<\/p>\n

    The idea that neither George W. Bush, nor the Attorney General knew about progress of the case is also \u00e2\u20ac\u0153ridiculous,\u00e2\u20ac\u009d she adds. The two big issues in Morrison are removability (of the officer), and obligation to comply with DOJ regulations. \u00e2\u20ac\u201c Personnel from the executive branch were witnesses, testifying in the investigation and even in the trial, she points out; \u00e2\u20ac\u0153the idea that they didn\u00e2\u20ac\u2122t know what was going on is made up.\u00e2\u20ac\u009d The defense team is \u00e2\u20ac\u0153broadening\u00e2\u20ac\u009d \u00e2\u20ac\u201c to say that the Prosecutor had no obligation to comply with \u00e2\u20ac\u0153any\u00e2\u20ac\u009d regulations because of some exemptions; also it is artificially broadening, in a case where you\u00e2\u20ac\u2122re investigating conduct rather than a particular crime, to broaden this to mean that Special Prosecutor Fitzgerald was absolutely unsupervised, free of all regulations and policies, is again \u00e2\u20ac\u0153ridiculous.\u00e2\u20ac\u009d<\/p>\n

    Judge Walton agrees with both sides in effect that neither the exclusion of the \u00e2\u20ac\u0153memory\u00e2\u20ac\u009d defense nor the exclusion of Andrea Mitchell are ‘close questions,’ i.e. likely shots on appeal. \u00e2\u20ac\u201c The judge points out that the jury was agreed on 4 of 5 counts from very early on in their deliberations, with no big problems re the testimony by Tim Russert, which is the part of the trial that Andrea Mitchell’s testimony would pertain to \u00e2\u20ac\u201c leaving as the only conceivably \u00e2\u20ac\u02dcclose question\u00e2\u20ac\u2122 the Appointments clause.<\/p>\n

    Bonamici summarizes one final point, that for now the Morrison case is the binding precedent, and the Morrison case emphasized 4 factors re defining an \u00e2\u20ac\u02dcinferior officer\u00e2\u20ac\u2122: removability, limited responsibility, and no power to make policy, as well as the duty to report.<\/p>\n

    After a short break, the judge comes back: As a \u00e2\u20ac\u0153prelude\u00e2\u20ac\u009d to his ruling, Walton says, to suggest that because he has written lengthy opinions in support of his rulings (on the memory defense, etc), the length of the ruling is a reflection that the question is therefore \u00e2\u20ac\u02dcclose\u00e2\u20ac\u2122 is not true. \u00e2\u20ac\u0153As judges, including as trial judges, we have an obligation to try and get it right.\u00e2\u20ac\u009d While acknowledging that an appellate judge might see it differently, Walton says, \u00e2\u20ac\u0153I don\u00e2\u20ac\u2122t buy the proposition that somehow Edmonds altered what Morrison said\u00e2\u20ac\u009d regarding the Appointments clause.<\/p>\n

    Walton concludes that it is appropriate to apply Morrison\u00e2\u20ac\u2122s 4 factors in defining an inferior officer at some times and Edmonds\u00e2\u20ac\u2122 2 factors at other times, depending on the circumstances of the case, and mentions Scalia\u00e2\u20ac\u2122s dissent saying that if Morrison had been removable, she would have been an \u00e2\u20ac\u02dcinferior officer.\u00e2\u20ac\u2122 \u00e2\u20ac\u0153I don\u00e2\u20ac\u2122t think there\u00e2\u20ac\u2122s any question that Mr. Fitzgerald was removable at will by the Attorney General or the Deputy Attorney General.\u00e2\u20ac\u009d<\/p>\n

    The defense motion for release pending an appeal (release on bail) is denied.<\/p>\n

    Libby will be permitted to \u00e2\u20ac\u0153self-report.\u00e2\u20ac\u009d The Bureau of Prisons has to make its report, telling him when and where to show up.<\/p>\n

    Robbins rises again, to request a stay while the defense appeals the ruling denying release pending appeal. This motion is also denied.<\/p>\n

    1:35 p.m. \u00e2\u20ac\u0153All rise.\u00e2\u20ac\u009d<\/p>\n","protected":false},"excerpt":{"rendered":"

    *** Special to The BRAD BLOG *** by Libby\/CIA Leak Trial Correspondent Margie Burns From Prettyman Courthouse, DC, for the bail hearing today of I. Lewis “Scooter” Libby, where I sat in on the hearing on motions for his pending appeal. Those motions, to keep him free on bail, were unsuccessful as the judge ruled […]<\/p>\n","protected":false},"author":61,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[],"tags":[],"class_list":["post-4688","post","type-post","status-publish","format-standard","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=\/wp\/v2\/posts\/4688","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=\/wp\/v2\/users\/61"}],"replies":[{"embeddable":true,"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4688"}],"version-history":[{"count":0,"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=\/wp\/v2\/posts\/4688\/revisions"}],"wp:attachment":[{"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4688"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4688"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/bbnewdb.webbyspice.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4688"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}