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.
Libby has suffered a political lynching and that’s the truth. Fitzgerald and Walton should be shamed that their ideology trumped their expected lawful behavior. Is there no oath that attorneys take that requires them to follow the law and tell the truth, no matter what?
Wow, this judge does deserve a butt-kicking and the DC Circuit just might give it to him.
George W. appointed this guy because he kicks ass when it comes to sentencing.
We need judges who will punish criminals severely.
What amazes me is that he didn’t give Libby 37 months.
Incredible. That's this judge's response to some of the most prominent professors of law in our country raising serious legal issues?
Would it be appropriate for the 12 individuals to respond to this snarky note? Or are they above this fray? And, who knows what the next step is in this whole process? Does Fitzy file a response to Team Libby brief on the appeals process? When will the judge rule on this issue?
I doubt that Walton will allow Libby to be free on bail pending his appeal, his rulings throughout this case have been favorable to the prosecutor. He clearly does not like Libby, and has allowed personal prejudice to affect his rulings, or so it seems, especially with this little footnote.
Judge Reggie Walton was appointed by non-other then our once beloved President George W. Bush. I guess he was trying to out-do his old man and the Souter appointment.
Maybe he will be the judge if and when William Jefferson goes to trial.
Walton sure is an arrogant p****.
Just in case you haven’t seen this..
Jefferson is being tried in another district—Alexandria, Va
If he doesn’t there will be an immediate appeal to the Ct of Appeals on the issue of bond pending appeal.
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