Posted on 06/08/2007 6:43:29 PM PDT by the Real fifi
June 08, 2007 Prominent Law Professors Question Fitzgerald Appointment (updated) Clarice Feldman
Early on in this case I described the Libby challenge to the constitutionality of the extra-statutory appointment of Fitzgerald. Now a number of prominent legal scholars have joined in on his side of the issue. They are doing so as the Judge must decide if Libby's appellate issues pose significant possibility of success to allow him to remain free pending his appeal. AP via SFGate.com: A dozen prominent law professors are questioning whether Special Counsel Patrick Fitzgerald had constitutional authority in the CIA leak trial that this week sentenced former White House aide I. Lewis "Scooter" Libby to prison. The push comes as Libby's lawyers, who are making the same argument, prepare to appeal his 2 1/2-year sentence.
"The constitutional issue to be raised on appeal is substantial," conservative Robert Bork, liberal Alan Dershowitz and 10 other professors wrote in their nine-page brief, filed Thursday at U.S. District Court in the District of Columbia.
"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors," the professors wrote.
The professors argue Fitzgerald may have been given too much power, with too little accountability, since he was not appointed by the president or approved by the Senate. Moreover, they say, Fitzgerald was exempted from complying with Justice Department policies - even thought he was appointed by the attorney general.
"It appears to be undisputed that there is no day-to-day supervision of Special Counsel Fitzgerald by anyone, and no way short of removal even to assure that he complies with the policies of the Department of Justice or the Executive Branch," the professors wrote.
Update: Tom Maguire has kindly posted the amicus brief on Libby's behalf filed by 12 very prominent law professors, including Judge Bork and Alan Dershowitz
Update: The NY Sun has more: The remaining professors joining the brief were Vikram Amar of the University of California Hastings, Randy Barnett and Viet Dinh of Georgetown, Douglas Kmiec and Robert Pushaw of Pepperdine, Richard Parker of Harvard, Gary Lawson of Boston University, Thomas Merrill of Columbia, Earl Maltz of Rutgers, Robert Nagel of the University of Colorado.
The legal question centers on whether a 1988 Supreme Court decision, Morrison v. Olson, which upheld the constitutionality of a now-expired independent counsel statute, renders Libby's appointment lawful. Libby was appointed to resolve potential political conflicts of interest in the Justice Department. He was subject to removal by the acting Attorney General, but was not under the department's day-to-day supervision. Look at this snarky and injudicious footnote by Judge Walton in response to the request to file the motion: "It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.
Ping
When Bork agrees with Dershowitz perhaps there is something of substance here.
Read the first lines of the last paragraph very carefully-—then send it to an editor.
Does anyone have a current figure on what this case has cost us so far?
This is very interesting. Thanks.
” renders Libby’s appointment lawful. Libby was appointed to resolve potential political conflicts of interest in the Justice Department. He was subject to removal by the acting Attorney General, but was not under the department’s.”
I had to read it a couple of times. Hehehehe. Someone did not do a good job of proof reading.
Yes, the NY Sun made a typo..makes bloggers who operate on their own on a volunteer basis feel good..
bump
You’re welcome—do what you can to get it around.
“The Court trusts that this is a reflection of these eminent academics’ willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.”
Wow. So because he is not poor he is not entitled to a friend of the court brief? Constitutional scholars can only chime in for poor defendants and are chided for weighing in on Libby? What kind of judge is this?
That snark is just another example.
It appears he’s a class warrior—and he did himself no good with this remark. Foolish .
He’s an a$$hole.
O.K., Judge Walton wears panties under his robes. So why can't he retreat to chambers and de-wad them as necessary?
Sounds like this judge isn’t interested in following the law, just agendas.
Was that a “veiled threat” and a “Screw You” from Judge Walton I just read?
Looks like it to me—And of course I know that Dershowitz and certainly the others spend a great deal of time on pro bono and civic work. The judge seems pissed they aren’t handling drug cases for the poor but the truth is they handle cases for the poor but their best use is on those pro bono cases which require extraordinary talent , not run of the mill stuff, and the judge surely knows that. He seems outrageously biased against the rich and prominent, doesn’t he?
This was not a smart move on his part, and it certainly may explain what observers said was his hatred of Libby and his counsel.
It's an uncalled for accusation. These law professors have spoken because they see an infringement of the constitution. This is a matter of concern to all citizens of the country and not one rich guy or the next poor defendant.
For Walton not to show a little humility in the face of reasoned arguments from 12 of his peers is just galling! What a prick!
Perfect description.
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