Law Profs for Libby
On June 7, a dozen of the country's most venerable constitutional law scholars, including Alan Dershowitz and onetime Supreme Court nominee Robert H. Bork*, filed a friend of the court brief (below and pages 2-7) in the case of I. Lewis "Scooter" Libby. Libby was convicted in March of lying to the FBI and a grand jury in connection with Special Prosecutor Patrick Fitzgerald's Plamegate investigation. In the brief, the lawyers argued that Fitzgerald's appointment (under Justice Department regulations that replaced the post-Watergate independent counsel statute after Congress permitted that law to expire in 1999) was, constitutionally, a "close question." (See Page 3.)
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StumbleUponThe law professors teach at Harvard, Columbia, Hastings College of the Law,* University of Colorado, Pepperdine, Georgetown, and Boston University law schools. But Judge Walton, whose own path to law school included weapons, street fighting, and scrapes with the law, found their argument "not persuasive" and compared it unfavorably to the work of "a first-year law student." In oral arguments, the judge said he believed the academics' brief was designed to intimidate him. "It appeared to be produced" he grumbled, "for the sole purpose of throwing their names out there so somehow I'd feel pressure."
"When twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom … to provide their legal expertise," Walton wisecracked in a footnote to an order on the brief, it is a "reflection of these eminent academics' willingness in the future to step to the plate" for "numerous litigants" who cannot "articulate the merits of their legal positions." (See Page 8.) For a response to Walton by Slate's Christopher Hitchens, click here.
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*Correction, June 18, 2007: An earlier version of this column inadvertently linked to a bio of Bork's son, Robert H. Bork, Jr. Return to the corrected sentence. An earlier version of this column misidentified Hastings College of the Law as "University of California at San Francisco." Hastings is part of the University of California, and it is located in San Francisco, but it is not affiliated with U.C.S.F. Return to the corrected sentence.
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Remarks from the Fray:
I don't understand the argument that the amici are making. The basic position seems to be that there is an appointments clause problem because Fitzgerald was not supervised on a day-to-day basis and wasn't subject to DOJ regulation. But the reason for that was that DOJ officials decided that he shouldn't be. In other words, Fitzgerald's discretion was a creature of DOJ operating procedures, rather than a creation of Congress.
Likewise, rather than having his jurisdiction described by statute, it was governed by the decisions of the Attorney General. To me, that makes him more likely to be an inferior officer than Independent Counsel Morrison. Surely the AG can decide that certain cases ought be handled by people who have special "independence" from the main reporting line; the point is that if the AG so decides, it's still the AG's decision and so the officer remains "inferior" for appointment clause purposes. At very least, the officer is more inferior than Independent Counsel Morrison
There's a bigger picture oddity in their argument as well. They implicitly question the ongoing value of Morrison v. Olson and refer to Justice Scalia's oft-cited dissent. But the point of Justice Scalia's dissent was that the Independent Counsel (Morrison) was unconstitutional because it was a congressional encroachment on executive power. So to argue, as they do at the top of page 3, that the fact that Fitzgerald's office wasn't created by Congress makes it less constitutionally sound gets things exactly backwards. The fact that Fitzgerald's office is solely under the DOJ is what, in Justice Scalia's framework, makes it constitutionally superior to the Independent Counsel.
All in all, it seems to me that the amici get hung up in the details of Fitzgerald's discretion without stepping back to examine the source of his discretion, which is solely from the DOJ. To my mind, that means he presents much less of an appointments clause or separation of powers concern than Morrison, where Congress got involved in guiding the show.
--LuxLawyer
(To reply, click here.)
It is becoming readily apparent to me that after the Martha stewart case, Clinton's impeachment and now this investigation involving Scooter Libby that most people feel the laws concerning perjury and obstruction are particularly harsh. Change the Law in three ways. First unless you are under oath lying is not a felony (Martha Stewart only lied to investigators NOT while under oath). Secondly if a lie is told concerning a civil litigation limit the penalties to civil ones (in this case Clinton lied concerning issues brought up in a civil law suit) and thirdly if one lies and the prosecutor cannot demonstrate or present a strong argument that the lies prevented a criminal indictment then as with the case of Libby the crime should only be a misdemeanor.
--dan-51
(To reply, click here.)
(6/22)