Libby Loses Liberty
Walton: As a prelude to my ruling, the fact that I’ve written lengthy decisions does not suggest I think an issue is close. We are expected to give significant consideration to what we do. My effort is to try to get it right, so this is why I take my time so length does not suggest I believe something is a close issue.
This issue today is a significant issue. No matter what I do, an appellate court could see things differently. That’s our system. I don’t buy the proposition that somehow Edmond altered Morrison on how appointment clause issue should be addressed. Two of four factors in play in Morrison were not in play in Edmonds and so other scrutiny and review was required based on the fact situation.
Edmonds says inferior officers are directed and supervised at some level, and the author here was Scalia who authored dissent in Morrison. Scalia says if Morrison were removable at will then she is inferior. Here there is no question that Fitzgerald was removable at will by AG or DAG despite authority he was given. So based on Scalia, if we have the situation we have here, removable, Scalia I assume would have concluded inferior official and therefore he would have been part of majority in Morrison case.
That being the case, I will apply the four Morrison factors to this case. Subject to removal? Yes, even more than was Morrison. Second: were his duties limited? Was there a limitation on jurisdiction? Defense suggests the use of the term “related” makes for unlimited. But government points out Morrison case was to specific individual. But Fitz could only investigate and eventually prosecute related to leak, so this is a limitation on jurisdiction. Re limitation on tenure, while there was no specific date, there is a limit because once the investigation is done then his tenure expires.
So, these four factors are met and any differences are not large enough to be of note. This case seems further from a violation of the appointments clause than Morrison was. This is not a close issue in my view. I’ve already indicated my view on the other issues, and it is my view those are not close issues.
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 [boilerplate notification of right to appeal].
1:34 PM Court Dismissed
Okay, so now the process goes to Bureau of Prisons, which will likely take six to eight weeks to process the matter and require Libby to report so he can begin serving his sentence.
1:43: No press conferences. Both Fitz and Libby are gone. Libby exited the court room escorted by marshalls through the door the judge uses to enter from chambers. That’s a wrap, but I’ll have an audio summary of the day later on.