Is that the sound of an iron door closing behind Scooter that I hear?

the appeals panel evidently sees things the same way that reggie and fitz do...

happy 4th of july, scooter...

"In an order handed down Monday, a three judge panel wrote Libby 'has not shown that the appeal raises a substantial question' that regular appeals court will consider when its next term begins in September."

The Federal Bureau of Prisons has not set a date for Libby to report to jail. CNN added that Libby could still seek relief from the Supreme Court.

now we get to see if george is going to cave to the elites who fear the same fate and grant him a pardon...

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Scooter to go to jail

reggie walton rules on scooter libby...

He is not a flight risk or danger to the community, but I don’t see the issues raised as close, so I deny his request to be released pending appeal. I will allow him to self report, but unless I am overruled, he will have to report.

I will rule on the obstruction charge sentence to 30 months, to perjury 24 months, to false statements 6 months, all to run concurrently.

Robbins: Ask for a stay the surrender pending filing motion.

Walton: Denied. Mr. Libby, you have right to appeal.

judge walton, obviously pissed, had an interesting comment on the amici curiae brief...

Robbin: Going back to appointments clause. Your honor has received an amicus brief.

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.

you do the crime, you do the time...

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BTD at TalkLeft demolishes the Libby Amici brief

big tent democrat over at talkleft develops a strong argument for why the amici curiae brief (PDF) filed by the 9 "concern troll"* constitutional lawyers (see my previous post here), contending that fitzgerald's appointment as special prosecutor was unconstitutional because it was, in legal terms, a "special office" that required presidential appointment and senate confirmation, is groundless...

from Weiss v. United States, 510 U.S. 163 (1994)...

[O]fficers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed.

it seems perfectly clear to me, even as one who doesn't know law from a bag of apples... as btd states...

Fitzgerald was already an appointed and confirmed United States Attorney when Acting Attorney General Comey appointed him as Special Counsel to investigate the Plame leak matter.

[...]

Fitzgerald was carrying out the exact role for which he was appointed and confirmed. There is nothing new in what Fitzgerald did in the Plame investigation that he did not do every day in his role as U.S. Attorney for the Northern District of Illinois.

The discussion of whether Fitzgerald was appointed to an office requiring appointment is a red herring. The very cases that the amici cite for their argument demonstrate this. Fitzgerald would not need a second appoint and confirmation process to act as Special Counsel.

In short, the amici, who couch their brief in language of law professors expressing Constitutional concern, have merely rehashed a bad argument made by Libby's principal attorneys in poor and incomplete fashion. It is a bad piece of work.

one thing you can go to the bank on... if judge walton rejects this argument, these 9 trolls will seek a higher review...

* i'm deviating from the original definition of the term as contained in dKosopedia...

"Concern Trolls". Marginally more clever, they pretend at being progressive Democrats, but at every turn seem to suggest the most obviously damaging or boneheaded or offensive thing they can. These are easier to catch than you might imagine: since it hardly matters whether someone is an obvious concern troll or just an unmitigated idiot, sometimes it doesn't pay to think about it too hard.

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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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Larry Johnson's take on the Pace dumping

i confess, i didn't think of this angle, but that's why we read other bloggers with more insight and experience that we have, right...?

Let there be no doubt -- Perfect Peter Pace has been shown the door because of his letter to Judge Walton pleading on behalf of Scooter Libby. That letter was the final straw demonstrating his incompetence and political tin ear as Chairman of the Joint Chiefs of Staff.

How can you call upon troops to conduct themselves with honor and integrity when you make lame excuses for the conduct of a convicted perjurer and obstructer of justice like Scooter Libby? Pace's Libby letter was the tipping point. His status, already shaky with the debacle of Iraq and a six year record of failure, became toxic with that letter.

makes sense to me...

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Libby: "No admission of guilt, no statement of remorse."

marcy wheeler in the guardian...

At his sentencing hearing, Scooter Libby stood up to say a few words to the judge. In the American justice system, this is when those about to be sentenced voice their regret, a key part of any leniency from the judge. They admit their crime and their remorse for having committed it, and in return, the judge considers a lighter sentence.

But Scooter Libby did no such thing. Instead, he thanked the court for how nicely they treated Libby and his family during the trial. He named those who had been kind: Judge Walton's staff, court administrators, the US marshals, court security officers, and the probation office. He recognized, he said, that it was time for the court to decide on a punishment. And he simply asked that the court consider his entire life. "Thank you, your Honor," he said.

No admission of guilt, no statement of remorse.

[...]

Libby succeeded in serving as a firewall, and he apparently has no regrets or contrition for doing so. That act, it seems, merits celebration just like Libby's other notable characteristics: his kindness, his intellect, and his willingness to take the fall.

libby is still serving as a firewall in much the same way as gonzo... the difference is that gonzo hasn't been indicted - yet...

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What if? What if Libby isn't pardoned? What if Libby goes to jail? What if Libby talks?

robert parry poses some very interesting what ifs...

[I]f U.S. District Judge Reggie B. Walton orders Libby to start his jail term in July while his appeals proceed – as it now appears the judge will – Bush will be faced with the prospect of Libby serving more than half his sentence before November 2008 and a risk that Libby finally might cooperate with special prosecutor Patrick Fitzgerald.

If Libby, who was Vice President Cheney’s chief of staff, were to start talking, he could explain the full role of Bush and Cheney in orchestrating the smear campaign against Iraq War critic Joseph Wilson, which set the stage for Libby and other administration officials to leak the identity of Wilson’s wife, covert CIA officer Valerie Plame, in summer 2003.

Libby also had a front-row seat to the White House cover-up that followed the revelation in September 2003 that the CIA had sent a criminal referral to the Justice Department, complaining about the security breach and prompting the start of a formal investigation.

The evidence from Libby’s trial makes clear that Bush and Cheney had authorized a media campaign to discredit former U.S. Ambassador Wilson, who undertook a CIA fact-finding trip to Niger in 2002 and accused the White House in July 2003 of “twisting” intelligence about Iraq’s alleged pursuit of uranium in Africa to justify going to war.

At minimum, the evidence shows that Bush selectively declassified parts of a National Intelligence Estimate to undercut Wilson, and Cheney ordered Libby to share the information with friendly reporters.

and...? and...? go on... i'm all ears...

From the start, Bush and Cheney appear to have sensed that they could make the cover-up work if they transformed it into a political spat. To a great extent, they have been proven correct in that assumption.

Now, their last remaining Plamegate concern is that “Scooter” Libby might calculate that he stands a better chance of reducing his time in jail if he tells the whole story rather than trust that his loyal silence will be rewarded by a pardon from a thankful President Bush.

as molly ivins - rest her dear soul - used to say, i'm serious as a heart attack... i would give the left portion of an important part of my anatomy if scooter would sing like a canary, and bring down the whole filthy mess right on top of george and dick... nothing, and i mean NOTHING, would give me greater satisfaction than to see those two driven from office in disgrace so we could get about putting things in the united states to rights... bastards...

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Jeffrey Toobin, CNN legal analyst, boo-hooing over Scooter

i'm watching cnn pipeline and jeffrey toobin, cnn's "legal analyst" is practically in tears over scooter's sentence... "small children," "not indpendently wealthy," "two and a half years is a REALLY long time"... c'mon... get real... what about scooter's "legal defense fund"...? surely, THESE people can help insure that scooter doesn't end up pushing a shopping cart down k street... besides, the charges are very serious... perjury and obstruction of justice related to an investigation of OUTING a covert cia agent isn't exactly a shoplifting conviction...

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Judge Walton sticks Scooter with 30 months and a $250K fine

good... and walton makes a key point...

Former White House aide I. Lewis "Scooter" Libby was sentenced to 2 1/2 years in prison Tuesday for lying and obstructing the CIA leak investigation.

Libby, the former chief of staff to Vice President Dick Cheney, stood calmly before a packed courtroom as a federal judge said the evidence overwhelmingly proved his guilt.

"People who occupy these types of positions, where they have the welfare and security of nation in their hands, have a special obligation to not do anything that might create a problem," U.S. District Judge Reggie B. Walton said.

[...]

Walton fined Libby $250,000 and placed him on probation for two years following his release from prison. Walton did not immediately address whether Libby could remain free pending appeal.

mmmm-hmmmmm... "overwhelming evidence"... "special obligation"... "not do anything that might create a problem"... well, i hope libby's still feeling good about taking the fall for darth...

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