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June 8, 2007
Prominent Law Professors Question Fitzgerald Appointment (updated)
A dozen prominent law professors are questioning whether Special Counsel Patrick Fitzgerald had constitutional authority in the CIA leak trial that this week sentenced former White House aide I. Lewis "Scooter" Libby to prison.
The push comes as Libby's lawyers, who are making the same argument, prepare to appeal his 2 1/2-year sentence.
"The constitutional issue to be raised on appeal is substantial," conservative Robert Bork, liberal Alan Dershowitz and 10 other professors wrote in their nine-page brief, filed Thursday at U.S. District Court in the District of Columbia.
"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors," the professors wrote.
The professors argue Fitzgerald may have been given too much power, with too little accountability, since he was not appointed by the president or approved by the Senate. Moreover, they say, Fitzgerald was exempted from complying with Justice Department policies - even thought he was appointed by the attorney general.
"It appears to be undisputed that there is no day-to-day supervision of Special Counsel Fitzgerald by anyone, and no way short of removal even to assure that he complies with the policies of the Department of Justice or the Executive Branch," the professors wrote.
Update: Tom Maguire has kindly posted the amicus brief on Libby's behalf filed by 12 very prominent law professors, including Judge Bork and Alan Dershowitz
The remaining professors joining the brief were Vikram Amar of the University of California Hastings, Randy Barnett and Viet Dinh of Georgetown, Douglas Kmiec and Robert Pushaw of Pepperdine, Richard Parker of Harvard, Gary Lawson of Boston University, Thomas Merrill of Columbia, Earl Maltz of Rutgers, Robert Nagel of the University of Colorado.
The legal question centers on whether a 1988 Supreme Court decision, Morrison v. Olson, which upheld the constitutionality of a now-expired independent counsel statute, renders Fitzgerald's appointment lawful. Fitzgerald was appointed to resolve potential political conflicts of interest in the Justice Department. He was subject to removal by the acting Attorney General, but was not under the department's day-to-day supervision.
Look at this snarky and injudicious footnote by Judge Walton in response to the request to file the motion:
Update: Really injudicious. I am certain all of them do pro bono work. I now truly believe he wanted to deny bond so that the president would be forced into an early pardon and his decision would not be subject to judicial review. Clarice
"It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.