23 Feb 2006

The Kafkaesque Libby Case

Clarice Feldman is superb as always, and delivers a thoroughly devastating critique of Fitzgerald’s case. A must read.

A comparison illustrates the fatal flaw. Fitzgerald could not convict Scooter Libby for lying about what he had for lunch a year ago, if the investigation in which he made that statement had no relationship to his lunch that day. For exactly the same reason, he cannot win a conviction of Libby for lying to prosecutors while they are in effect on a fishing expedition, rather than pursuing evidence of an actual crime…

The details are a bit complex, so the antique media have not lavished much attention on the flawed nature of the prosecution. For most of them, Dick Cheney’s former chief of staff is far from a sympathetic figure, and they relish his indictment as symbolic of The Larger Truth — the imagined corruption of the Bush administration…

..I think it apparent that it is Fitzgerald who tried to throw sand in our eyes.

I doubt that he will be able to pull off this trick a second time in Court. Simply, Fitzgerald could not find a violation of the only relevant law because the necessary predicates for its application did not exist. And, even assuming for the sake of argument that the factual assertions he made in the indictment of Libby are true, they could not have impeded his inquiry, for it was always about conduct manifestly not covered by any federal criminal statute.

How can someone impede the due process of justice when the inquiry itself is a make-believe one? That is the key question in the Libby case. For it is clear that there was only one statute available to deal with the Plame situation; the facts of the case never fit it; and it was an error to proceed with a full bore investigation and grand jury when the prosecution knew or—with prudent inquiry- should have known that.

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Meanwhile Byron York at National Review Online reports that Libby’s lawyers have delivered a potentially fatal brief challenging the constitutionality of Fitzgerald’s appointment.

Fitzgerald’s authority comes from a December 30, 2003 letter from Deputy Attorney General James Comey in which Comey — after the recusal of then-Attorney General John Ashcroft — “delegated to Mr. Fitzgerald all the authority of the Attorney General with respect to the Department’s investigation into the alleged unauthorized disclosure of a Central Intelligence Agency employee’s identity.” In that letter, Comey told Fitzgerald, “I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.”

Libby’s motion to dismiss argues that that is a unique, and constitutionally unsupportable, grant of power:

Acting without any direction or supervision, Mr. Fitzgerald alone decides where the interests of the United States lie in an investigation that involves national security, the First Amendment, and important political questions. He alone decides which individuals to subject to investigation, what evidence will be obtained or not obtained, and whether or not continued investigation and prosecution are warranted. He is subject to no oversight and has no obligation to comply with Department of Justice policies and regulations that constrain the exercise of law enforcement powers in all other federal cases. Furthermore, he has unilateral authority to expand his jurisdiction and the power to say when, if ever, his office should be terminated. It was limitations on those powers that led the Supreme Court to uphold the independent counsel provisions of the Ethics in Government Act. It is the absence of such controls that violates the Appointments Clause in this case.

Motion of I. Lewis Libby to Dismiss.

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