Live Blogging on FDL: Libby's sentencing. Part one

11:27 AM The lawyers are getting set at their tables. Blue suits rule the day, but I can’t see Fitz yet, or if he’s in his gray one. I know this is very important stuff!Court now in session. Fitz begins. Looks like blue or dark green, but I’m watching on camera and it’s a little tricky on the color.Walton: Exlpaining again his reasoning for 30 months sentence. Citing the guidelines and the concurrent service of sentences for different counts.Fitz: Says concurrent 30 month sentences are okay.

Walton: I’m told I don’t have to do concurrent sentences according to the guidelines but it seems this current ruling is appropriate.

Fitzgerald: Agrees.

Walton: Disclosing that he has received many angry letters in response to the sentencing, wishing bad things to him and his family. He had thrown away a few, but then decided he had better begin to save them, in the event someone were to act on these threats, a record would need to remain.
Robbins (for Libby): Assks to reserve 5 minutes for rebuttal.

Walton: Asks for clarification on reply, clarification of footnote in defense brief. Is the argument that I am obligated to offer release on a white collar case just because other judges have done so? Just throwing out these names does not override the law, that’s not being suggested here, is it?

Robbins: We agree. The point of footnote 1 is these cases illustrate that how close the question is on appeal is important.

Walton: But the footnote does not identify the issues, and just because these people cited are high profile people, this does not mean judge should override the law.

Robbins: These others recognize reasonable people can disagree if question is close.
Walton: I understand that.

Robbins: This is our argument. We argue there are three close questions. The first is the appointments clause question. I have six points on this one.
Number 1: If we’re right, this is reversible error.

Number 2: If the court says Edmonds is controlling, then this will be overruled.

Walton: But Morrison is still good law.

Robbins: We don’t argue it overrules Morrison, but it clarifies. But we argue that we prevail under either Morrison or

Edmond. But we believe Edmond is controlling. Edmond is most complete SCOTUS statement of the appointments clause. Fitzgerald was relieved of supervision and control by any officer of the department, according to his original authorizing language. This court rules previously that the question is far closer under Edmond, the most recent SCOTUS case. If this is the most applicable case, then it establishes not inferior officer.

Walton: But Edmonds does not state it overrules Morrison.

Robbins: DC Circuit will seek to review both. Edmond does not overrule Morrison, but they will see Scalia’s opinion that supervision is necessary, and comparing this from the appinting letter by Comey, Fitzgerald was insulated from direction and supervision at DOJ.

Walton: Several circuit courts who have reviewed this do not come out where you are regarding the harmonizing of Morrison and Edmond.

Robbins: I think DC Circuit will reconcile them differently.

11:45 AM

Walton: But the law will require review of individual factors of each case and situation, and in the context of each case, Edmond versus Morrison, which fact situation is most applicable to this case. Edmond related to military and is not as clearly applicable. Also, re: Scalia, if we had a situation where the special counsel could be removed at will, this would have changed his position regarding Morrison.

Robbins: Well I doubt that since I was there when Scalia read his opinion. But let me move to whether Fitzgerald must comply with all internal DOJ rules and regulations. Your honor concluded Fitz has to comply with all such rules, but I believe this decision was incorrect. If I’m right, then DC Circuit will agree thjat Morrison factors do not make Fitz an inferior officer.

Mr. Fitzgerald, in the clarifying letter by Comey, includes a sentence at variance with this court’s previous ruling. “I don’t want my reference to the word special counsel to be understood as meaning your position and authorities were limited by 28cfr600 (check reference)”

This means Fitzgerald is not defined or limited by rules and regs.

These are the rules of special counsel, but these rules require compliance with DOJ policy and require reporting of significant events to superiors. And yet Comey states these do not apply to Fitzgerald in his clarifying memo. This means Fitzgerald was expressly exempted from 28cfr600, and these include exemption from making prosecutorial reports. This is unprecedented. Respectfuly, there is no part of this court’s past decision that reckons with this sentence. We submit DC Circuit may view this as significant.

Next point: We do not suggest Mr. Fitzgerald could not be removed. But re: Morrison, the ethics in government act required Morrison to follow DOJ policies, and one of those policies means keeping AG posted on significant events in the prosecution. The power to remove without the power to supervise is all shell and no chocolate.

Walton: Wouldn’t that undermine the purpose of this statute, that everyone is accountabvle under the laws of the US?

If you work in the WH you still have to follow the law. If the investigative agency is linked tb the hip with n investigation, then the public cn hve no confidence tht investigation is fair and just. If we have to operate this way our system of government loses significant credibility with the average Joe on the street, who already thinks the system is unfair.

Robbins: This I believe is a red herring. I don’t think anyone believes Morrison was not sufficiently independent.

Walton: I recognize Weinberger had a significant job, but this case deals directly with the WH. Regarding following

DOJ policy I think that’s crucial.

Robbins: This includes reporting significant events. But the ultimate vehicle of accountability is that the president has to stand before the voters every four years. This is the way the Constitution provides for accountability.

Mr. Fitzgerald has the broadest delegation of responsibility that has been done before. Your honor’s previous ruling does not reckon with this. This is not the situation in Morrison.
12:00 noon.