According to Novak, Bush is losing 2x with the R's, on both Gonzales and Libby

the r's think it's outrageous that bush isn't pardoning libby and even more outraged that he's retaining gonzo... at least they're thinking straight on that last one... tough shit, george... just add 'em to the list of people who hate you...

novak in the wapo today...

Washington lawyer Victoria Toensing: "If the president can pardon 12 million illegal immigrants, he can pardon Scooter Libby."

[...]

In contrast, Republican insiders are enraged by Bush's retention of Gonzales, whom they consider a political and governmental disaster.

and so, simply put, here's what novak says the r's want (never admitting, of course, that it's what HE wants too)...

[T]wo possibilities are talked about in Republican circles: Let Gonzales go, and pardon Libby. That might push Bush's approval ratings even lower, but it sure would hearten his base.

good god, the man is so out of touch...! first of all, if the r's REALLY wanted gonzo gone, they wouldn't be ready - as they are at this very moment - to scuttle the gonzo no-confidence vote... and even though george, via tony snow, said yesterday that gonzo's going to stay no matter what, they could at least go on the record strongly in opposition to keeping him... but, as i've said, they're not going to do that because they know intuitively that, like jericho, if they cut the cord now, the walls will definitely come a'tumblin' down (see previous post)...

i won't go in to the pardoning of libby other than to say that doing so would be a complete perversion of our justice system... but the other thing that blows me away is the suggestion that bush should try to appease his base even if it means he falls further in the polls... who the hell IS the base these days...? the religious right has pulled away, rightly so after being dumped by the side of the road, so novak must be referring to the likes of fouad ajami, or robert bork and his 8 other constitutional lawyers politically-connected elite buds, who not only can see themselves in libby's shoes, but are also preparing the ground for possible similar action on cheney's behalf... what novak doesn't mention, either because it hasn't occurred to him or because he's blind to the degree to which this elite "base" will try to game the system, is that bush, by pardoning libby, might also be assuring a pardon for himself later on...

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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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