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Tidying Up: Walton Decision, G/J and Other Bits


There has been a lot of discussion about whether or not Fitzgerald or members of his legal team are meeting with the Grand Jury this morning.  I’ve been on the phones and have not been able to confirm anything, one way or the other — but thought this was a good time to reiterate a couple of things. 

They are using a regular grand jury — not a special designated grand jury that would be used solely for the leak investigation and nothing else — so the regular grand jury can also be used by other federal prosecutors in the DC Circuit.  They have a regularly scheduled meeting time for Wednesdays and Fridays, but that doesn’t mean that they will always be meeting with Fitzgerald or, frankly, that they will even be meeting that day.  What it does mean is that the space within the federal courthouse is reserved for them and, if they are needed, they will be available for US Attorneys for presentation of evidence.  (See here and here for past posts on how this works.)

Sometimes I think that reporters miss that, and just keep getting excited about the schedule.  I try not to work everyone into a lather unless and until I can confirm that actual jurors, Fitzgerald and/or a member of his legal team have been spotted entering or exiting the building at a time where both groups would have had an opportunity for discussion or presentation of evidence.  Or if a big witness has been spotted in the area.  You know — real facts that I can report to you guys.  I find that a refreshing way to do business.  (Take that, Howie.  Ahem.)  That said, just because no one will confirm anything for me, doesn’t mean they aren’t meeting — grand juries meet in secret for a reason, and we’ll hear an announcement at some point if there is any news to announce.  (Unsatisfying, yes, but imagine being the person roasting on the "will I or won’t I" indictment spit?  Have a nice weekend, Karl.)

Tom MaGuire was nice enough to put up a PDF of the latest opinion in the Libby case and, having had an opportunity to read through the whole opinion, I have to say it is nice to see a judge and his clerks write so clearly, concisely, and with a nod to common sense.  Refreshing — and the fact that they dismissed Team Libby’s dismissal motion entirely made it all the better. 

Pages 1 through 3 of the opinion go through a recitation of the chronology and history of how Fitzgerald came to be appointed Special Counsel in the first place.  Ashcroft, conflict of interest, Deputy AG Comey, etc., etc.  Plame-a-holics will know the details, but it’s a concise review for the newbies out there.

Pages 3 through 12 then run through the arguments on the statutory authority challenge from Team Libby to Fitzgerald’s appointment.  I’m going to take a moment to brag here that the judge’s reasoning somewhat tracked my own here — but only a very small moment, since it’s really basic lawyering 101 that you go first to statutory language and construction and follow the plain meaning of the words used therein.  (I mean, honestly, if you didn’t learn that your first few weeks in law school, you were in a coma.)

There is a discussion that I wanted to highlight which starts on page 7 regarding recusal of the AG — because this discussion is really spot on in terms of the common sense of this whole idiotic attempt at dismissal.  Of course there has to be some means of replacing the AG where there is a conflict of interest — otherwise you’d have no means whatsoever to investigate wrongdoing where the AG had a conflict, unless you went to the extreme step of firing your AG every time that happened.  (And if you think Congress takes a while on the advice and consent on appointments now…hoo boy!  Imagine the stalling tactics that would be employed to prevent an appointment to enable an investigation of criminal wrongdoing in your own party.  Sheesh.)

Pages 10 through 12 really get to the heart of the statutory argument on this — discussing the Congressional failure to make changes in the law under Sections 509, 510 and 515 of the AG’s provisions (the parts that enable him to designate someone to perform some of the AG’s duties where needed).  Because Congress left those parts entirely entact and unchanged when they repealed the Independent Counsel laws, the Court argues that legal precedent says that they meant for those provisions to carry full weight.  (And legally, I think this is sound reasoning, based on prior precedents on this.)

The judge then moves to the Appointments Clause portions of the arguement, which was really going to be where any action on this motion would ever have been — unfortunately for Team Libby, they gain no traction here, either.  From page 12 through to page 30, the judge meticulously details why Fitzgerald’s appointment was apporpriate under the laws.  He starts with a great history of the Appointments Clause, for those legal history buffs out there it’s quite well done.

On page 20, fn. 7, the judge is absolutely correct in pointing out that after-developed writings (both by Team Libby and via the Fitz and Comey affadavits filed with the response brief on this) have no real standing in terms of interpretation and analysis.  A judge must make these sorts of determinations based on what was in the minds of the parties at the time of the appointment  (the two Comey letters detailing scope of authority, for example) — anything written after the fact or said after the fact is just window dressing for legal purposes.  Counsel for both sides know this, but you always file whatever you can to bolster your case anyway — because you never know when you’ll get a judge who is willing to look beyond the contemporaneous information (especially if the judge finds it to be unclear).

Again, though, we go back to the plain language — this time, that used in the letters from Comey detailing the scope of Fitz’s investigative powers.  (See p. 22 for this.)  The judge sets out a lengthy explanation of the facts and statutory applications thereto to explaint he rationale for his decision — essentially making a very full record as a means of insulation from higher appeal and also to give a roadmap on his thought process to judges above his pay grade, should they choose to accept an appeal on this issue.

On page 26, fn. 14 and again on page 27, the judge compliments Fitzgerald (and by extension his team of lawyers on this) for comporting the Special Counsel’s office within the proper bounds of their limited authority.

This ought to be a dead issue at this point, but we’ll see if Team Libby wants to try and kick this up the chain.  This was always going to be a very long shot for them with little chance of being granted — and the detail of the judge’s opinion on this makes it even less likely that it will go further up the very busy appeals chain.

The NYTimes is reporting that a decision will be made in the next two or three weeks to charge Rove — so Libby might be getting some company in the former employee’s of Bushie corner.  We’ll see.  Since this is almost assuredly speculation coming from Team Rove and friends, I’m taking everything I read with an accompanying shaker of salt.

(This is a Tom Toles cartoon (from November of 2005) that someone sent me a while back — sorry, forgot to make a note of who it was.  I try not to use cartoons, but this one was so perfect for today, I couldn’t help myself.  Very, very funny stuff.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com