April 28, 2006
Judge Walton Rules Against Scooter LibbyBy Clarice Feldman
Judge Reggie B. Walton yesterday rejected the defense Motion to Dismiss filed by Lewis Libby. His opinion is deeply flawed, and I think the arguments made by Libby's counsel are compelling, so I hope a special interlocutory appeal is allowed before the end of the trial.
Criminal cases generally are not subject to appellate review 'until after conviction and sentence.' [See Flanagan v. United States, 465 U.S. 259, 263 (1984); United States v. Pace, 201 F.3d 1116, 1118 (9th Cir. 2000).]
Courts, however, have carved out a small class of cases from this jurisdictional bar under the "collateral order doctrine." [Pace, 201 F.3d at 1119]
Criteria for an interlocutory appeal
An interlocutory appeal of this ruling of Judge Walton may be a possibility under the guidelines set in U.S. v. Nixon: Under 28 U.S.C. � 1291.
To fall within this exception, the appealed order must
Libby's arguments are very substantial, unlike the Court's rejection of them.
The statutory responsibility
Libby argued that the Special Counsel's appointment in this case violates the Attorney General's statutory duty to direct and supervise all litigation in which the US is a party and, further, that it violates the Appointments Clause of the Constitution. (I have discussed his arguments in greater depth here.The opinion is available in pdf format here)
In his letter of appointment, Acting Attorney General Comey abdicates all of the authority of the Attorney General:
It is ludicrous to say that "independent" of all direction and supervision is not abdication of direction and supervision responsibilities. Following Congress' refusal to continue the independent counsel provisions, Special Counsel regulations—ignored here—were adopted. The Court indicates the Attorney General isn't bound to follow those either. The Court finds in the general delegation powers of the Attorney General the power to delegate all his powers to a non—statutory special counsel.
After reading the delegation powers so broadly, the Judge argues that delegating all power does not violate the Attorney General's responsibility to direct and supervise all litigation. Of course, it does. It nullifies entirely the obligation of the Attorney General set forth clearly in law.
The Appointments Clause argument
The Constitution requires that principal officers must be confirmed by the Senate. The Supreme Court's decision holds that the guiding question respecting whether a person is a principal or an inferior officer is whether the officer is subject to direction and supervision by a properly appointed supervisor. On the Appointments Clause argument, the judge is forced to stretch yet again to find a superior officer. For if there is none, the Appointments Clause is violated in the appointment of Fitzgerald.
Judge Walton finesses the point by saying the appointment is akin to the appointment of an Independent Counsel, okayed in Morrison v. Olson, 487 U.S. 654 (1988). In so ruling, he ignores the fact that the Independent Counsel approved in Morrison had to report his activities regularly to a three judge panel and Congress retained the ability to cut off his funding at any time. Instead, he maintains that like the Independent Counsel, the Special Counsel can be removed at any time. But this fails to note the political firestorm such a termination would involve, and ignores the statements made by Comey that such a move would be difficult.
In fact it would be impossible to terminate the Special Counsel precisely because there is no information flowing upward, so little means of knowing what the Special Counsel was doing in the absence of supervision.
Judge Walton also ignores the later Edmonds v. United States, 520 U.S. 651 (1997) case, which if it does not entirely override Morrison, certainly limits its application and makes Libby's argument so persuasive. The Court virtually admits ignoring Edmonds which would compel a different result.
Well, so does Edmonds, a later—decided case.
The Court does, however, reject out of hand the Comey and Fitzgerald affidavits contending the two had an undocumented, unstated understanding of limits on Fitzgerald's power.
It is interesting that the Judge relies on the two delegation letters from Comey I have quoted the heart of the first letter above. The second letter, on February 5, 2004, says in the relevant part:
The first letter authorized Fitzgerald only to investigate and prosecute the alleged unauthorized disclosure of a CIA employee's identity. The second letter(dated Feb 6) allows Fitzgerald to pursue other violations of law.
Why is this particularly key? Because without consultation and with no supervision, Comey was in the dark when he expanded Fitzgerald's delegation of authority. That seems to me further proof that Comey granted Fitzgerald carte blanche to do whatever he wished.
Fn 13 p 25 seems utterly circular:
This comes after a footnote about the Fitzgerald press conference in which the Judge said:
We are perplexed... and running in circles.
Especially as that is followed (p. 25) with this:
Or the Court's contention (fn 13) that
Further, while the Court notes that Fitzgerald hasn't the authority to ignore substantive or procedural policies and regulations, the Court ignores that supervision would bring other policy considerations, not codified in policies and regulations, to bear. There is a cost/benefit analysis to be made. The likelihood of classified information having to be disclosed, for example. Or the effect of compelling journalists to testify narrowly in the grand jury proceedings when the requirements of a fair trial may compel they reveal more of their sources than ever before has been the case.
In other words, the practical effect of no supervision is a casting aside of all the discretionary considerations that would be brought to bear were this being handled in—house or were the Independent Counsel provisions in effect and the prosecutor answerable to a judicial panel. The Constitution's Appointment Clause embodies real wisdom, in addition to being the law of the land.
Clarice Feldman is an attorney in Washington, DC.