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Friday, February 24, 2006

Libby Hearing Today, More Motions

There is a hearing today in the Libby matter, according to reporting from the AP (via NYTimes).
Defense lawyers and Mr. Fitzgerald are to appear in Federal District Court here on Friday to argue defense requests for classified records and evidence gathered by the prosecution about reporters who learned about Ms. Wilson from officials other than Mr. Libby.
I haven't been able to confirm a time for the hearing, but as soon as I hear anything on this -- or results from whatever arguments occur today, I'll be sure and let everyone know.

Beyond that, Team Libby filed more motions yesterday, this time claiming that Patrick Fitzgerald was improperly appointed and that the indictment ought to be dismissed as a result. As I've said countless times here, the job of defense counsel is to protect their clients' interest, and that includes the filing of motions that may not have a snowball's chance in hell of actually winning -- but they must be filed, to make a record on every potential argument for appeal should Libby be convicted. If you don't make the record with a paper trail, or via oral argument in court on the record, then you lose the issue for appeal -- and no lawyer wants to do that, no matter how slim the margin for success might be.

I had actually prepared to do a lengthy post on the latest Libby filing (which can be read here), but this morning I was alerted to a post from Andy McCarthy at the NRO Corner (h/t to reader moi in the comments for bringing this to my attention) which sums things up nicely, so I'm going to excerpt a couple of points here (sorry, I'm not linking, because the last time I did the return traffic brought with it hateful e-mail spam in my mailbox for three weeks (and one troll who still e-mails once a week), and I just don't have the time to spend hitting my delete button all day long and play with my child -- but it's the National Review Corner Online, in case you want to google it):
Libby’s premise is flawed. Fitzgerald is not a “principal officer” for purposes of the case; he is an “inferior officer.” The defense attempts to cast him as a principal officer by portraying his warrant as broader than that of Judge Starr, who was held an inferior officer as the Lewinsky independent counsel in Morrison v. Olson (1988). But this fails for at least three reasons.

First, Pat’s jurisdiction is comparable to Starr’s – it’s different in some respects, but it’s not materially broader, and its differences are, as I’ve previously suggested, less constitutionally strange than the construct prescribed in the lapsed independent counsel statute. Second, and more importantly, Libby is misreading Edmond v. United States (1997), which, like Morrison itself, makes quite clear that Starr’s jurisdiction in no way marked the outer limit of “inferior officer” terrain beyond which “principal officer” status (and its confirmation requirements under the Appointments Clause) is triggered....Finally, and relatedly, Fitzgerald’s authority fits well within the parameters of “inferior officer” under Edmond....

Suffice it to say that Libby is exaggerating the purported limitlessness of Pat’s powers. The delegation of authority to Pat could have been withdrawn at any time by the Attorney General....

Moreover, going back to first principles, for the first 80 years of the Republic, when there was no Justice Department, it was a commonplace for the Attorney General to delegate his authority to private attorneys. While, as Mark points out, there is now a statutory framework, and such an arrangement might not suffice under it, there was no constitutional defect in it.

I’m also constrained to observe that during the Lewinsky controversy, we looked with disdain on these hyper-technical legal maneuvers (like Clinton’s risible attempts to create new evidentiary privileges) whose unabashed purpose was to derail the prosecution. Back then, we used to say the important public interest was to resolve whether public officials had lied and obstructed justice. Now, such maneuvers somehow seem worthy, and we are apt to find the prosecutor, rather than the defendant, to be stonewalling (as in Byron’s column of yesterday, which, with due respect, is based on an elementary legal error which I hope to have more to say about today). I guess it all depends on whose ox is being gored.
I hope that Andy doesn't mind my pulling an extended excerpt, but this was very well argued and exactly on point with what I have been thinking and what my research was telling me. And, frankly, it's nice to see someone stand on principle and facts rather than just parroting the team talking points, and I find it nice to highlight that where I find it on all sides these days.

I've said this previously, but it is worth repeating: prosecutors and law enforcement investigators get incredibly annoyed with people who lie to them or otherwise obstruct their case -- precisely because the lying and obstruction is designed to derail a criminal investigation and thwart justice. We are a nation of laws, and no one should be exempt from accountability for breaking them. Period. Justice is blind for a reason -- and trying to cheat her is conduct for which one should pay a penalty.

Carol Leonnig hits some of the same notes as McCarthy in her coverage in the WaPo, including:
Several legal experts said yesterday that the Libby defense team was making a valiant and appropriate effort to defend its client, but said they doubted that the central argument for dismissing the charges would gain traction with the court.

"I think it's a nice try, but I don't give it much chance of success," said Scott Fredericksen, an associate independent counsel during the Reagan administration who helped investigate scandals at the Department of Housing and Urban Development.
She also reports this interesting nugget, which I thought was worthy of mention here this morning:
Other documents released with their filings show that by August 2004, eight months after beginning his investigation, Fitzgerald had amassed a large amount of evidence suggesting that Libby was lying to investigators. Libby's accounts of conversations with administration officials and reporters about Plame conflicted with others offered by virtually every administration official and reporter questioned by Fitzgerald's investigators.
Thanks again, Team Libby, for bringing even more interesting information about your client, his lies, and the reasons therefor to our attention. Publicly. (See several of the exhibits attached to the motion here.)

For even more information on the recent Libby filing, SusanG had a great diary on this at dKos yesterday evening.

Keep in mind that there will likely be a whole lot more motions to follow in this pre-trial arguments process. It is common, and it is necessary for both sides to clarify a lot of complex legal arguments in this matter. But in some cases, it is building the official record on behalf of your sides' interests for appeal in case you lose -- which is exactly the thing that lawyers are supposed to do -- and to also argue on the merits those issues which you feel you must in order to protect your client's interests, be that client Scooter Libby or the citizens of the US.

There will hopefully be more news today as we get updates on the hearing, and we'll bring it to you when we hear it. There will be some public portion to the hearing (so we hear, anyway), but the bulk of the arguments will likely be closed-door if they get into the specifics on the classified materials. Also, be forewarned that judges don't always rule immediately from the bench on motions arguments but, instead, take time to do their own, independent review of the law (via their clerks' and their own research) and the facts, and then the judge issues a ruling at a later time. We may get some rulings from the bench today, and some delays while the judge does some legal review -- but whatever happens, I'll try to interpret for everyone as I get the information.

Also, Jeralyn has more at TalkLeft. Looking forward to more of her thoughts on the memory issues, because it is a very complex, very difficult subject to do well -- and Libby, in my opinion, is going to be skating the razor's edge with this as his main defense.