Judge Walton denied the application of Lewis Libby to remain free on bond pending appeal. Tom Maguire cites to a live blogging of today's hearing and reflects the views of the JOM plamemaniacs when he says:
"Well. Walton's ruling is no surprise. A greater surprise will be if an appeals court does not grant Libby relief pending a full review of his appeal."
MORE FOR THE LAUGHTRACK: Walton's explanation of his [Andrea]Mitchell ruling is comedy gold (punchline emphasized):
Walton: Problem was asking the jury to draw inference upon inference upon inference that would have, in my view, been rank speculation absent evidence. She would have testified her statement on Imus was off the wall and she would disavow it, and then she would have been impeached. Then your client wanted to say jury should conclude maybe she's not being truthful, maybe she did know about Plame. If she did, it's conceivable she would have told Russert. Therefore Russert could have heard as your client supposed. If that's the chain of inferences then we may as well throw out rules of evidence. That cannot be the law. If the government had tried to make this kind of case it clearly would be reversible.
Hint to judges everywhere - the American system of jurisprudence is not predicated on the notion that defendants and prosecutors get absolutely equal treatment. This is a trial that might send a man to prison, not a basketball game; defendants routinely get treatment that would not be allowed a prosecutor, starting with "innocent until proven guilty", running past "the right to confront witnesses", and including the right to imply the prosecution witnesses are hiding something even if the incurious prosecutor has not bestirred himself to examine that possibility. Cites to the defense and amici brief and a discussion of them are here: Links to the Government's response and a discussion of it are here: Libby's reply brief and an analysis of his argument in it are here and here:
The Judge was prickly at today's hearing and said , per the live blogging, of the amici brief filed by twelve top constitutionsl scholars:
Walton: With all due respect, these are intelligent people, but I would not accept this brief from a first year law student. I believe this was put out to put pressure on this court in the public sphere to rule as you wish.
Robbins: These 12 scholars believe this is a close question.
Walton: If I had gotten something more of substance from them, maybe.
Libby's new counsel, Lawrence Robbins, an appellate expert with substantial expertise on criminal law set forth the Libby arguments simply given the summary nature of this proceeding, saying of the prosecutor's claim that the fact that he could be removed (absent any supervisory structure) was sufficient to avoid the constitutional question respecting his appointment:
Walton: But the law will require review of individual factors of each case and situation, and in the context of each case, Edmond versus Morrison, which fact situation is most applicable to this case. Edmond related to military and is not as clearly applicable. Also, re: Scalia, if we had a situation where the special counsel could be removed at will, this would have changed his position regarding Morrison.
Robbins: Well I doubt that since I was there when Scalia read his opinion. But let me move to whether Fitzgerald must comply with all internal DOJ rules and regulations. Your honor concluded Fitz has to comply with all such rules, but I believe this decision was incorrect. If I'm right, then DC Circuit will agree that Morrison factors do not make Fitz an inferior officer.
Mr. Fitzgerald, in the clarifying letter by Comey, includes a sentence at variance with this court's previous ruling. "I don't want my reference to the word special counsel to be understood as meaning your position and authorities were limited by 28cfr600 "
This means Fitzgerald is not defined or limited by rules and regs.
These are the rules of special counsel, but these rules require compliance with DOJ policy and require reporting of significant events to superiors. And yet Comey states these do not apply to Fitzgerald in his clarifying memo. This means Fitzgerald was expressly exempted from 28cfr600, and these include exemption from making prosecutorial reports. This is unprecedented. Respectfuly, there is no part of this court's past decision that reckons with this sentence. We submit DC Circuit may view this as significant.
Next point: We do not suggest Mr. Fitzgerald could not be removed. But re: Morrison, the ethics in government act required Morrison to follow DOJ policies, and one of those policies means keeping AG posted on significant events in the prosecution. The power to remove without the power to supervise is all shell and no chocolate.
I anticipate that the defense will quickly file a request for an expedited appeal to the U.S. Circuit Court for the District of Columbia. Should that fail, Libby can try the U.S. Supreme Court.
And if that is unavailing--which I do not believe it should be--the President can respite his sentence (hold it in abeyance pending appeal); substantially commute it, reducing the outrageous sentence but leaving him enough to appeal the conviction, or pardon him altogether and put this outrage to bed.