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June 21, 2007

Libby: Light at the End of the Tunnel?

By Clarice Feldman
It is always a challenge to describe legal proceedings for a general audience and accurately capture clearly the gist of the arguments without oversimplifying them or making them utterly boring and incomprehensible to non-lawyers. Having said that, I believe that while the clock is rapidly ticking on Libby's effort to remain free pending the resolution of appeal, the papers he filed Tuesday need to satisfy so little and his arguments are so compelling, that I will be surprised if the Court of Appeals does not agree with his position.

As I noted yesterday, there are three general arguments he makes to meet the applicable "substantial" issue test under 18 U.S.C. Sec. 3143(b):
1) The appointments issue;

2) The lower Court's exclusion of crucial evidence on Libby's memory defense because he declined to testify;

3) That court's refusal to allow Libby to examine NBC's Andrea Mitchell who made a "crucial, exculpatory statement in the past, but whose lawyer represents that, were she to testify now, she would disavow the prior statement."
The Appointment of Fitzgerald

The First argument is one I've always found particularly compelling. It is a textbook illustration of the checks and balances built into our Constitution. I have always felt the Judge erred in his rejection of Libby's Motion to Dismiss, which argued  that the appointment was both extra-statutory  and unconstitutional.

In sum, what Libby argues is that Comey had four options available to him under the law when Ashcroft recused himself and delegated the matter to him:
1) He could have allowed regular Department of Justice counsel to continue to pursue the matter, retaining for himself supervisory jurisdiction;

2) He could have designated a Department attorney from outside Main Justice to pursue the matter under his supervision;

3) He could have appointed an attorney outside the Department to do so under 28 C.F.R. Part 600;

4) He could have sought Congressional authority to begin an outside investigation (either by statute or by presidential appointment subject to Senate confirmation).
Comey, however, chose none of these options. He picked an utterly unprecedented option-appointing Patrick Fitzgerald, a Department employee, and granted him "all the authority of the Attorney General." Further Comey directed him to exercise plenary powers independent of any supervision and control by any Department officer.

Libby argues and the 12 law professors who filed an amici brief earlier on his behalf note existing case law and believe, as I do, that at a minimum it suggests whether such an appointment is constitutional is a close question warranting bail pending appeal especially as Fitzgerald-without comment by the trial judge-was expressly released from following DOJ policies.

As we know, he did that respecting subpoenas to reporters. And though the brief doesn't mention it, news accounts earlier sourced to Eckenrode, the FBI agent whose critical notes respecting the Russert initial interview went "missing" at trial,  indicate that at the very outset, Fitzgerald was determined to get around the Departmental policies on such subpoenas.

Even more serious, Fitzgerald was relieved of the obligation to notify the Attorney General of significant matters in the case, including those involving national security matters and was expressly authorized from the outset to pursue all matters "related to the underlying" charges-an unprecedented  and extensive mandate.

While the lower court judge noted that the prosecutor was theoretically removable at will, that was certainly an empty formality as he needn't and apparently didn't report to anyone and it is difficult to imagine removal without being informed of his doings, a task made even more difficult by the secrecy of the grand jury and the Classified Information Protection Act (CIPA).

When he dismissed the motion, the Court accepted Fitzgerald's utterly preposterous suggestion that DoJ officials could supervise his work by reading newspaper accounts of it. The brief doesn't say so, but as we know Fitzgerald prohibited both the leaker, Armitage , and the recipient of the leak, Novak, from disclosing their roles so the point is even stronger, I think.

I cannot believe he would have been allowed to continue this for three years had this basic fact been in the public domain.

The defense points to a particularly troublesome act by Fitzgerald that underscores the perils of investing an "inferior officer" with plenary powers as Comey did. CIPA provides that the functions of the Attorney General under this Act
"may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official".
Among such duties include the power to submit an affidavit objecting to disclosure at trial of otherwise classified information because such disclosure  "would cause identifiable damage to the national security of the United States and explaining the basis for the classification." Yet Fitzgerald himself, under his own name, signed the affidavit in this case, a fact the defense learned only after the trial.

Fitzgerald claimed when this issue was raised in the district court in the bail proceeding, that this was a purely "ministerial" act. The defense points to legislative history and precedent to show this is false, and that precedent is sensible if we are to follow the Constitution's plan of public accountability.

If you think this is but a dry recitation of the Appointments Clause, JOM  poster Cecil best described the practical effect of allowing an inferior officer to make such decisions:
It seems to me, taken as a whole, that Fitz[gerald] used the CIPA procedures to tactical advantage, hiding certain evidence from disclosure and removing potential Defense arguments. That's not the purpose of the statute, which is designed to protect against the release of classified information, and to preclude "graymail." But though Fitz[gerald] repeatedly claimed that was the Defense's goal, there's little evidence to suggest it. And in order to present a defense of faulty memory, they have a legitimate interest in painting a picture of the actual events occupying Libby's time. They were effectively precluded from doing so.

Further, the ridiculous level of detail with which each bit of Plame evidence was scrutinized, along with patently false news stories filled with prejudicial assertions, gave the mistaken impression it was a central issue amongst policymakers. The testimony at trial should have disabused even the most casual observer of this fantasy, but it persists. The evidence suggests the only person who found it exciting was Richard Armitage, who gushed about how "perfect" it was, on tape, to an apparently uninterested Woodward.

Finally, Fitz[gerald] resurrecting the evidence he successfully kept from the Defense in his final rebuttal statement, and then cross-referencing the patently inapplicable leak charge in sentencing, capped the masterful performance of convicting a defendant on a charge of which he is clearly innocent. And CIPA was the mechanism. I find it hard to believe the architects of the act envisioned such a use, or that our system of justice would allow such a result to stand.
How did the Judge decide this clearly weighty argument on the bail hearing in the District Court? Tom Maguire cites to p. 45 of the pdf version, which reports in greater detail than we've had access to, his tortured reasoning:
THE COURT: WOULDN'T THAT UNDERMINE THE PURPOSE FOR WHICH MR. FITZGERALD WAS BROUGHT INTO THIS CASE? AS THE SUPREME COURT INDICATED IN MORRISON, ONE OF THE IMPORTANT  THINGS THAT HAS TO EXIST IN OUR SYSTEM OF GOVERNMENT, IF THE  PEOPLE ARE TO RESPECT OUR SYSTEM OF LAWS, IS THAT EVERYBODY  IS ACCOUNTABLE UNDER THE LAWS OF THE UNITED STATES,  REGARDLESS OF WHO YOU ARE. AND, THEREFORE, IF YOU WORK. IN  THE WHITE HOUSE, YOU ARE JUST AS OBLIGATED TO COMPLY WITH  THE LAW AS ANYBODY ELSE.  AND IF IT'S PERCEIVED THAT THE JUSTICE DEPARTMENT  OR THE INVESTIGATIVE AGENCY IS SOMEHOW LINKED AT THE HIP  WITH THE WHITE HOUSE, OBVIOUSLY, IT SEEMS TO ME THAT THE  AMERICAN PUBLIC WOULD HAVE SERIOUS QUESTIONS ABOUT THE  PROPRIETY, OR THE APPROPRIATENESS, OR THE FAIRNESS OF ANY  INVESTIGATION CONDUCTED BY THE ATTORNEY GENERAL, AS IT  RELATES TO SOMEBODY WHO IS IN A HIGH-LEVEL POSITION, IF THAT  PERSON, WHO IS DOING THE INVESTIGATION, HAS TO REPORT TO THE INDIVIDUAL WHO IS TIED AT THE HIP WITH SOMEBODY WHO IS  ASSOCIATED WITH THE WHITE HOUSE,  I MEAN IF THAT IS, IN FACT, GOING TO BE HOW WE  HAVE TO OPERATE, IT SEEMS TO ME OUR SYSTEM OF GOVERNMENT IS  GOING TO BE IN SERIOUS TROUBLE WITH THOSE PEOPLE WHO ARE THE  AVERAGE JOE ON THE STREET, WHO THINKS THAT THE SYSTEM IS  UNFAIR ALREADY, IF THEY KNOW THAT THE INVESTIGATIVE AGENCY  WHO IS INVESTIGATING SOMEBODY WHO IS CLOSE TO THE  WHITE HOUSE OR IN THE WHITE HOUSE IS GOING TO HAVE TO REPORT  TO THAT PERSON BEFORE THEY CAN TAKE ACTION.
The judge's constitutional law professor undoubtedly has gone into hiding.

On the memory defense issues, the defense cites the judge's failure to allow a memory expert to testify and ordering CIPA substitutions which "materially diluted" the classified information Libby needed. It also notes rulings that it argues deprived Libby of his right to decline to testify. As these last two points are the most interesting and least publicized parts of the trial, I'll concentrate on them.

Precluding the Statement Admitting Relevant Facts And the Morning Briefing Evidence

During the trial, the parties agreed-without reservation-to a number of facts which they concluded were not disputed: Libby's job responsibilities, specific, very important issues he'd been dealing with in the relevant time frame and the Morning Briefing Summaries he'd received from the CIA on the dates on which conversations respecting Plame were said to have occurred. These briefings involved terrorist threats, nuclear proliferation dangers; foreign policy crises which Libby had claimed were far more memorable than the claimed snippets about Plame. When Libby announced he would not testify, the Court refused to allow in the statement of that agreement, even though Libby had at the time it was entered into reserved his right not to testify and the judge precluded introduction of the briefing summaries saying that would leave the jury "unable to resist speculating about the relative import of those matters to the defendant."

Virtually all evidence of intent is circumstantial. In any event, the Judge allowed in far weaker circumstantial state of mind evidence for the prosecution. This is the same judge who allowed the prosecutor to introduce false and highly prejudicial news accounts  found in Libby's assistant's  files with no evidence that Libby had ever even read them, to  establish his "state of mind." A copy of the Joseph Wilson op-ed in the NYT with Cheney's notations which had been in his office, and as to which there was no evidence Libby had ever seen was also allowed into evidence by Judge Walton.

Together these rulings surely allowed the prosecutor to mislead the jury into thinking the Plame information was of far greater significance to Libby at the time than the facts suggest it was.

The defense argues, and I concur:
"The district court's rulings worked an unconstitutional burden on Libby's Fifth Amendment rights and left the evidentiary playing field substantially uneven. Whereas the government got to offer detailed proof of conversation about Mrs. Wilson on specific dates, the defense was generally permitted to offer only generic summaries of events spread out over a span of many months. Whether the Constitution, CIPA and basic rules of evidence permit such a one-sided joist is plainly a ‘close question' on appeal."
The Court's Refusal to Permit the Defense to Call Andrea Mitchell

Andrea Mitchell of NBC was in and around this story from the outset. For example, it was she who first published the leak of CIA referral which brought pressure to bear on the department to appoint someone to investigate and prosecute this matter. The testimony of her boss, Tim Russert, was crucial to every count in the prosecution. He testified that he could not have told Libby about Plame because he learned it only after reading the Novak column. Russert also testified that if Mitchell or David Gregory knew that information, they all would have shared it. David Gregory never testified but the prosecution's key (immunized) witness Ari Fleischer said without contradiction he did tell Gregory. If both Gregory and Mitchell had known, given what Russert had said was the policy of his team, Russert's testimony would have been discredited.

Mitchell had said publicly years before the trial that she did know that Wilson's wife worked at the CIA and that fact had "been widely known" by reporters covering the foreign service community. (She later -not credibly-retracted that statement, saying she'd misspoken.) The defense had sought her testimony to show that she did in fact know about Plame before publication of  the Novak article, but Judge Walton refused to permit her testimony after receiving representations from NBC counsel  that, if called to testify, Ms Mitchell would "disavow " her original statement admitting prior knowledge. In doing so he relied solely on a affidavit by counsel for NBC, even though NBC counsel   had earlier filed a materially misleading affidavit in a related case to the effect that Russert would never cooperate with the prosecution absent a court order, though, in fact, he had done so with the prosecution's knowledge. Judge Walton also relied on a case in which the prosecution was precluded from introducing a prior inconsistent statement to impeach its own witness. His sole legal authority was a far different case where the government called a witness only to impeach him "with a post-arrest, in-custody confession that cast blame on the defendant."

Different rules have been held to apply when the defendant is doing so to impeach a witness. In sum her testimony was critical for the jury to weigh and consider Russert's testimony and "to say the least," the defense argues "this is a ‘close question'."

As I noted yesterday, the time within which the Court must act now appears to be several weeks shorter than earlier news accounts suggested if Libby is to avoid jail.

The brief is not identical to what will be filed on appeal. Here, to prevail he needn't prevail on the merits nor even persuade the Court of Appeals that he will prevail on the merits. He needs only show the case presents "close questions" of law which if the Court rules otherwise will result in reversal of his conviction. I think he made his case.

Clarice Feldman is an attorney in Washington, DC, and a frequent contributor to American Thinker.




on "Libby: Light at the End of the Tunnel?"