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Libby Sentencing Six


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Mr. Libby’s status. Only issue is whether appeal would raise substantial questions of law or fact.

Wells: Our position that based on number of extensive opinions your honor could rule form bench that there are substantial issues.

Walton: I think all those opinions are correct.

Wells: WRT to appointments clause issue, tension between Larson and Edmond, this issue is clearly one that raises novel issues for which there is no controlling case law. Similarly, wrt memory expert, in your honor’s extensive opinion, your honor recognized was question of first impression. Those two issues by themselves.

Those by themselves would justify bail pending appeal. Other opinions your honor recognizes novelty. To the extent your honor would briefing, we could have briefing by eod Thursday. On those two issues alone, we meet the standard. We don’t have to establish with caselaw there is a probability, we only have to prove there are substantial questions, wrt to those alone, the court recognizes that the court was going into uncharted territory.

Walton Govt

Fitz: Your honor, we’d disagree, either wrt appointments clause or memory expert. It is not unique to deny expert memory, done after full and fair hearing.

Walton On issue of memory expert, I have no question. Testimony presented by witness was totally lacking both factual and from a legal perspective, if on that record, we’re not being gatekeepers as Doubert would require, if that were admissible, we could never keep out anything. I don’t see any basis for any potential reversal.

Walton: as far as appointment clause, the question is the extent to which there is appropriate supervision over Mr. Fitz and his operation. He was obviously confirmed by senate, occupies a position in Chicago as USA, he was tasked to conduct this investigation, even though AG, and DAG, have recused themselves, there was no indication they had recused themselves wrt supervisory issues if he did not conduct himself according to rules and regulations of DOJ.

Otherwise it seems to me that people who occupy high levels of DOJ, it would mean people who have direct responsibility for DOJ couldn’t be brought in.

[note, this is relevant to the USA purge]

Jeffress: your honor said tension between these cases. Your honor spent 29 pages resolving that. You didn’t do it bc it was an easy question. You recognize there is no case directly on point. I have no doubt that your decisions are correct. Release pending appeal does not require judges to correct their own errors. What is required is that there be a close issue, one that could be decided the other way.

There are numerous issues on which your honor submitted lengthy opinions. The court should allow us to resolve a brief on this issue. Release pending appeal does not require you to say that you were wrong. Judge Friedman, on releasing Safavian. We’d like to submit a brief on this.

Walton: I have fully rethought those decision. I think I’m right.

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Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.