The Amici Curiae brief filed on behalf of Scooter

first, the intro to the brief (PDF)...



note this in particular...

...amici submit that the constitutionality of Special Prosecutor Fitzgerald's appointment presents a "close question."

[italics added]

it's worth noting that the entire 9-page brief is devoted to questioning the constitutionality of fitz's appointment... it's also worth noting that the 9 signatories on the brief identify themselves as current or former professors of constitutional law... failed supreme court nominee robert bork is one of the signatories...

marcy wheeler/empty wheel at the next hurrah has some observations...

How appropriate that Robert Bork would weigh in on the Libby conviction to assert that Fitzgerald's appointment might not be constitutional. Over thirty years later and he's still trying to fire the guy investigating the Republican Administration.

she also highlights judge walton's counter argument...

Walton explains the reason for the necessary legality of the Special Counsel: Because if we can't have a Special Counsel free of direct oversight of the AG, then there is no way to investigate those who occupy high levels of DOJ or those who have direct responsibility for it.

most importantly, she emphasizes precisely WHY this is so critical and WHY she thinks these heavy-hitters are coming down so hard on the issue...

[I]f Fitzgerald's appointment is unconstitutional, Walton was arguing, we can't hold Alberto Gonzales or Dick Cheney or George Bush to account.

That's not really a constitutional argument, mind you, it's a pragmatic one. But it really underscores the importance of this issue. Because Bork is not just trying to get Fitzgerald fired. He's trying to get the next Special Counsel--the one investigating BushCo constitutional violations--fired.

now, THAT'S a truly worrisome perspective, one i think judge walton is no doubt very well aware of...

later on, she has another interesting observation...

Jeebus! They sure pulled this together quickly, with 12 fancy lawyers agreeing on a brief within 72 hours. You think maybe they had this in the works ahead of time?

then she wonders if trying to full-court press judge walton is necessarily the wisest strategy...

I'm reminded of Judge Walton's face when Ted Wells insisted on reading the letters from Wolfie et al before the sentencing. He was staring up at the ceiling with his lips pursed, a look of disgust that Team Libby insisted on carrying out their big show regardless of any effect it might have on Walton. Walton was just a prop, it seemed, in Ted Wells' circus.

And from the look of things, Walton isn't any happier about this latest stunt. I'm not so sure that the Bork brief is as easy to ignore as Wolfowitz' letter. But Team Libby sure seems prepared to piss off Walton to get what they want out of him.

she was reacting to a footnote judge walton appended to his order [PDF] allowing the submission of the amici curiae brief, and it's a doozy...

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.

marcy doesn't think that leaves much doubt about where judge walton stands and i would wholeheartedly agree... she says...

Ouch! You think maybe he didn't appreciate the heavy-handed intervention into his case? You think maybe he didn't appreciate having 12 fancy lawyers suggest he can't make his own decision in this matter?

what i absolutely do not want to happen is to have a precedent set that would further insulate bush/cheney from prosecution... no way, no how...

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