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Libby's First Defense

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  • Libby's First Defense

    I just read this interesting article. I'm sure that if the courts do decide to toss out this indictment it will be seen as the result of stacking the courts, but there's an interesting legal argument to consider here too.

    The argument is that the indictment should be dismissed "on the ground that it was obtained, approved and signed by an official - Special Counsel Patrick Fitzgerald - who was appointed and exercised his powers in violation of the appointments clause of the Constitution."

    The appointments clause resides in Article II of the Constitution, which enumerates the powers of the president. It says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

    The appointments clause, in other words, divides up the executive branch into principal officers - who require Senate approval - and "inferior officers," who do not. Mr. Fitzgerald was not confirmed by the Senate as a principal officer, so he isn't one. But he is not accountable to the attorney general or to any other Justice Department official, so he isn't an inferior officer, either. He is, not to put too fine a point on it, an illegal, extra-constitutional prosecutor.

  • #2
    Re: Libby's First Defense

    It's irrelevant at this point.

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    • #3
      Re: Libby's First Defense

      how so?

      Comment


      • #4
        Re: Libby's First Defense

        Originally posted by AMosely
        It's irrelevant at this point.
        Wow, what a compelling argument.

        Comment


        • #5
          Re: Libby's First Defense

          It's a valid legal argument but it's irrelevant to the case - that Libby purjured himself in grand jury testimony. The whole case is irrelevant in my mind because Fitzgerald couldn't prosecute the real crime that was committed (purposeful leaking of an undercover operative's name).

          It also won't stand up in court. An almost identical claim was brought before the Supreme Court in 1998, Morrison v Olson. The court rejected it by 7-1. Cheney's lawyers are taking a long shot and they know it.

          The most interesting aspect of this case, in my mind, is how it uncovered the innerworkings of White House staff and their press contacts - something that obviously is always going on. The Washington Post wrote an excellent article on this when the indictments were first announced, bringing up examples from watergate and other presidential administrations use and control of information.

          Comment


          • #6
            Re: Libby's First Defense

            There are a few important differences between this motion and '98's Morrison v Olson. At the top of page two of this article you would have read

            In the 1988 case of Morrison v. Olson the Supreme Court upheld the constitutionality of the independent counsel statute against an appointments clause challenge. Justice Scalia - whose wing of the court now includes Justices Thomas, Roberts, and Alito - was, famously, the lone dissenter. Yet not only does Mr. Fitzgerald have more power than the independent counsel upheld in Morrison, as the motion to dismiss points out, in Morrison the court was reviewing an act of Congress that is entitled to deference. As the motion to dismiss points out, "Here, however, Congress has made no such determination. Instead the Office of Special Counsel in this case was created through the unilateral action of a Deputy Attorney General."
            So in the former case, the independent Counsel law was in effect whereas in this case it's not. In the former case the court had a different composition, too. We'll see.

            The most interesting aspect of this case, in my mind, is how much liberals and the MSM care about national security when an non-covert non-agents name makes it into the press from a republican administration and how little they care when Sandy Berger shoves secret documents in his pants or some tool reveals a secret program to listen to al queada phone calls. Where is the hue and cry to send that person or persons to jail for revealing national secrets to the press?

            Once again, that which is expedient rules the day.

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