Luck Of The Draw
Team Libby has filed its motion for appeal with the DC Circuit today. I just got a copy of the filing notice in my in-box, and it contains information regarding the assignment of the three-judge panel that we talked about earlier. Libby has drawn Judges Sentelle, Henderson and Tatel as his assigned three-judge panel.
I have been wondering if this would happen — since Sentelle, Henderson and Tatel had already been immersed in prior filings in this matter, and Federal judges generally give some priority to assigning judges who have a history of past work on a matter for judicial economy reasons, so that someone else won’t have to go back over the same ground all over again needlessly. (See here for the general rules that govern assignment of federal circuit judges to matters at bar.)
As a bit of a recap on the prior work that Judges Sentelle, Henderson and Tatel have done on this case, I’m going to take you back briefly to a prior post of Jane’s:
Just to recap a bit: On February 15, 2005 Judges Tatel, Henderson and Sentelle handed down a decision saying that Judy Miller and Matt Cooper could not claim journalistic privilege and refuse to testify in the CIA leak case. Eight pages were redacted from Judge Tatel’s concurrence, and people have been speculating wildly ever since about their contents. Dow-Jones filed a motion saying that the eight pages should now be released, and Fitzgerald is agreeing to release certain sections.
For a copy of the prior order in that matter, which was delivered by Judge Sentelle, with concurring opinions filed by all three judges on the panel, you can read here.
Yes, this is the same Judge Tatel who wrote in his concurring opinion about “the plot against Wilson” in those eight redacted pages that we waited so long to see.
And these are the same three judges who ordered that Matt Cooper (then of Time) and Judith Miller (then of the NYTimes) go to jail if they were unwilling to reveal information about the identities of the government officials who were trying to use them to launder their political payback disguised as information about a political critic’s wife’s job with marginal news value and what those officials said to them regarding the case under investigation.
For a copy of what Libby’s appellate counsel, Lawrence Robbins, was proposing to be filed as of this morning, you can take a peek at it directly from his firm’s website. (PDF) (H/T to TiredFed for the link on this one.) I have not yet pulled the final copy off PACER as filed, but will do so as soon as The Peanut goes to bed.
There will be a lot more to come on this one as I have time to read everything, and as Jane and I dig into the meaty bits and the implications thereof. But it looks like the luck of the draw on this one, at first glance at least, has to go to Team Fitz. But there is a lot more digging and argument to come, and the one thing that I have learned in my years of legal practice is to never, ever try and second guess a judge.
Team Fitz has to respond to the Motion For Release Pending Appeal and other motions no later than 4:00 pm ET on Friday, June 22nd. Any reply to such response from Team Libby must be filed no later than noon ET on June 26th. Curiously, in the filing notice, there is a notation about a motion for leave to file a brief amici curae which was denied — would love to know what that is about, and will try to dig something up on it as well. Looks like we’ll be spending some quality time with the highlighters and red pens for the forseeable future.
(Cardplay photo via frogmuseum2.)