Live Blogging on FDL: Libby's sentencing. Part 2

Fitz: AUSA’s handle CIPA material, so this notion that the alleged technical violation of CIPA was an issue of whether courtroom should be closed. These were issues that AUSA’a could have argued.

Walton: But if you signed something that you may arguably not have had the authorityto sign, does this go to you being a superior officer? One could infer you presumed such authority.

Fitz: If the defense thought this was an obvious error we could have dealt with it then. If there was a violation that I signed under one authority versus another authority, this is waiver and harmless error if it is error. We can’t turn around for filing on 6a and go through a whole trial and bring this out later.

Re, Morrison, her mandate was a person specific mandate, but I was authorized to investigate a specific crime. I was not authorized to investigate on a specific statute, which was the question at the time. It was not limited to a person, but to crimes related to the disclosure. Defense is comparing apples to oranges.

I was not authorized for any related matter, just to the disclosure.

Walton: re: reporting issue?

Fitzgerald: the idea that people did not know what I was doing, everyone know. Mr. Gonzales was recused. The idea that I should report to someome who had been in WH while the crimes were committed is wrong. I was subject to being fired at will.

We can make very serious charges without required reporting.

Walton: re 28cfr600, is three anything else in writing that requires reporting to AG?

Fitz: urgent matters AG should be aware of. We don’t seek permission, we notify. We have one of these in Chicago for Monday. It is not a matter of getting authority to charge, but we notify so they will not be surprised.

Walton: did the delegation of authority here relieve you of this obligation?

Fitz: I told Mr. Margolis before we returned the indictment.

Walton: whether or not you did, did the delegation of authority relieve you of this duty?

Fitz: I did not feel obligated but I did. If I can indict someone for a charge with life without parole as an AUSA, that’s still being an inferior officer. I could still be fired. They had the power to revoke me at will. That can’t be the test for what an inferior officer is. I can’t imagine any reading of the case law that would bring another reading.


12:32 pm ET.

Bonamici: Emphasized Fitzgerald removable at will. Re relief from followng DOJ policies and regs, he still had the obligation. There’s not other way to conduct a fair and honest investigation when there is possible wrongdoing at the highest level of US govt. No way, as in Morrison, the DC Circuit will ignore this.

There was an enormous amount of information about this case in the public domain on this case. . .

Walton: Is that relevant if at the time of the delegation there is relief from compliance?

Bonamici: Two points under Morrison. One is removability, and to this point, information in the public domain is relevant. Right of removal not illusory as defense argues. The issue of whether the appropriate officers have access to the information, no matter how obtained. But also, every part of this case involved the executive branch, every witness almost, every document. The idea that principle officers in this case did not know what’s going on is made up. Removability was an ever present consideration and all in the special counsel office were aware of it every day.

On issue of obligation to comply with DOJ regs, the language which applies to a person, as written, who is outside the DOJ. But Mr. Fitzgerald was already part of DOJ, so it clear he was bound by DOJ regulations. Authority to investigate any related laws to the initial disclosure, not the broad authority to investigate anything related.

Because this issue of 26cfr510 versus CIPA, this is 11th hour.

Walton: isn’t CIPA more specific?

Bonamici: wrt to classified information yes, but not more specific as to potential conflicts. This delegation was done specifically not to avoid a conflict. But none of these issues were addressed at the time. The mere signing of the document is not evidence that Fitz was a superior officer. There was not dispute from the defense. It did not even require a lot of discretion. It’s not weak evidence, it’s not even evidence. It was based on reasonable and undisputed situation.

Re: Mitchell, we agree with your honor entirely.

12:43 pm ET

Walton: Jury based on their deliberations were clear on defendant’s guilt. So even if I did make error re: Mitchell, given the jury deliberations and leaps of inference it required, it would be harmless error given the view of Russert’s testimony by jury. [lengthy recitation here] On the record that existed in this case, I had no choice but to act in my responsibility as gatekeeper. I’m conviced this is no close issue. I do have to grapple with the appointment clause issue.

Bonamici: Morrison is powerful and Circuit will not find this argument meets burdens under Morrison.

Robbins: We prevail under Morrison.

Walton: What about the related case limitation argued by government?

Robbins: he’s authorized to eamine any violations related. . .

Walton: But isn’t it limited by the leak?

Robbins: you can imagine anything. . .

Walton: Related to the leak?

Robbins: This is what Alexia Morrison sought and was denied.

Walton: But her authority was limited to person.

Robbins: She wanted to go to any related violation.

Walton: But if she found another conspirator violation?

Robbins: She could not prosecute. She sought it and was denied. He filed a 6c2 and claims it was a mere ministerial act, but this is not the case, and it’s not the role Morrison had, it’s much more broad. It related to national security.

The fact that Mr. Fitzgerald may have talked to the AG from time to time does not matter. He was not required. When Walsh was asked to sign the very same kind of thing, he went to the AG to get this authority. Fitzgerald assumed this authority.

Walton: Can I assume that Mr. Comey knew he was not acting in compliance with CIPA when he issued his memo? If Fiztgerald did something conceivably in violation of CIPA, how do I conclude he was in fact authorized to do so?

Robbins: Comey said Fitz had all the plenary authority of the AG. Fitz thought he had all this power.

Walton: I’ll take 5 minutes and let you know if I will rule today or later.

12:56 pm ET. 5 Minute Break. [Walton may want to take more time to review the arguments. We may not have a decision today, apparently. He’s consulting with law clerk.

1:13 PM ET. Still in break.