MSNBC: Libby prosecutor's authority questioned

[Coexist]

WASHINGTON - What happens when a dozen prominent law professors from across the legal spectrum - from Robert Bork to Alan Dershowitz - petition the judge in the Libby case to give credence to the concept that Special Counsel Patrick Fitzgerald's constitutional authority in prosecuting the case is in question?

U.S. District Judge Reggie Walton will have to address the issue next week when he has been asked by Libby's attorneys to consider releasing their client on bond pending appeal of his conviction for perjury and obstruction of an FBI investigation of the leak of CIA agent Valerie Plame's name to reporters.

The 12 professors write, in a joint amicus brief, "The constitutional issue to be raised on appeal is substantial."

"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors," the professors wrote.

the rest...

Link to the filing - please help me find out about these signatories. I know about Bork and Dershowitz - but the rest - not so much.

From the filing:

ARGUMENT

THERE IS A SUBSTANTIAL, CLOSE QUESTION ABOUT THE
CONSTITUTIONALITY OF THE APPOINTMENT OF A FEDERAL PROSECUTOR
WHO WAS NOT APPOINTED TO THE RELEVANT POSITION BY THE PRESIDENT
AND TAKES NO ORDERS FROM A DEPARTMENTAL SUPERIOR, EVEN IF
THAT PROSECUTOR IS REMOVABLE AT WILL

Patrick J. Fitzgerald has been duly appointed by the President,with the advice and consent of
the Senate, to serve as United States Attorney for the Northern District of Illinois. As this Court has recognized, however, that appointment was to an inferior office within the meaning of the
Appointments Clause, and “he cannot be given duties that would elevate himto a ‘principal officer’”
without a separate presidential appointment and Senate confirmation. 429 F. Supp. 2d at 43-44 n.15;
see U.S. Const. Art. II, § 2, cl. 2.

The dispositive constitutional question, then, is whether the office of Special Counsel to
which Mr. Fitzgerald was appointed is that of a “principal” or “inferior” officer. Unless Special
Counsel Fitzgerald is indistinguishable in allmaterial respects from Independent CounselMorrison,
that question cannot be answered by reference to Morrison v. Olson alone. The reason is that the
Supreme Court itself has clarified (in a unanimous opinion) that “Morrison did not purport to set
forth a definitive test for whether an office is ‘inferior’ under the Appointments Clause.” Edmond v.
United States, 520 U.S. 651, 661 (1997); see also Akhil Reed Amar, supra, 112 Harv. L. Rev. at 811
(“Morrison gives us a doctrinal test good for one day only”).

Will this legal I-don't-know-what-to-call-it affect this case at all? Would the verdict be overturned?

Fitz has until Tuesday to respond, and Walton scheduled the hearing for Thursday.

I have lots of faith in Scary-smart man to win the day - but exactly how serious might this be legal minds.

[alcibiades_mystery]

1. Puh-leeez...Fitzgerald was appointed because of obvious conflict of interest

Pack of neo-con Federalist Society douchebags making up arguments post hoc.

[Coexist]

2. So you think this will be just another failed attempt to free Scooter?

[jimshoes]

3. If they would have put

a tenth the effort into saving New Orleans after Katrina, there might not have been the devastation we all saw happen. But it's par for the course for the bush mafia.

[mrdmk]

4. The universities they represent are all very conservative

Especially Pepperdine, Ken Starr is the Dean there.

I forgot the following
From O.P. link
<snip>
But U.S. District Judge Reggie B. Walton last year rejected the same argument, saying then that Fitzgerald's powers are limited because he can be removed by the Justice Department.
<end of snip>

It is rehash of old arguments (i.e. crap).

[Coexist]

7. so this is just a partisan act of desperation?

I hope so. I saw that headline on my homepage and thought "oh man, NOOO!"

I was hoping as much.

[Richard Steele]

5. Oh, give me a frackin BREAK. That dog won't hunt...and the hunt is long over anyway. nm

[H2O Man]

6. This very issue

was considered and rejected already. The lawyers in question have an agenda, and it has nothing to do with justice.

[Coexist]

8. REALLY! Thanks H2O man.

When did they try this before?

[H2O Man]

9. Oh, about a year ago.

Team Libby challenged Mr. Fitzgerald's authority, based on "constitutional concerns" regarding his appointment and the scope of his investigation and "supervision." But Mr. Comey had fully addressed that concern. Judge Walton considered the concerns, and rejected them. This is a show, nothing more.

[Coexist]

10. I should have known you were the one to ask.

Thanks so much. I feel much better now.

[Disturbed]

11. RWingers view the Law as optional.

They screamed bloody murder when Bill Clinton lied and pushed mightily to have him fired. Libby lied and obstructed Justice but they want that to be excused. Two Americas indeed!

[H2O Man]

16. Exactly.

They have a sense of entitlement that goes beyond mere double standards.

[Swede]

12. Won't this add to the legs of this story?

It could stir up more shit than these clowns want.

[AndreaCG]

13. Alan Dershowitz has become a douchebag

He's the legal equivalent of Dennis Miller.

[H2O Man]

15. Sadly

I must agree.

[mohinoaklawnillinois]

17. You've literally "hit the nail on the head" re Mr. Dershowitz. n/t

[peacetalksforall]

19. That's perfect. I once called him (his office) to thank him for some

appearance and what he said. Now, I'm repulsed by how he has morphed. I have the feeling you get when someone really lets you down and you know there won't be any ressurection of respect.

[mrdmk]

14. What I find strange about this charade is who wrote the piece

By Joel Seidman
Producer
NBC News producer

[MissWaverly]

18. Ho-Hum, the above the law argument

Funny how hard the Supremes were on Bill Clinton, oh wait, he had a "D" after his name, hmmm, wonder if he had changed his party
registration during Monicagate, if it would have made a difference. Compared to the escapades we have seen from the GOP, Bill
Clinton would be eligible for Sainthood in the Greedy Old Pirates Party.

[Missy Vixen]

20. Shorter law professors

"Scooter can't go to prison! Waaaaa! We'll fix that guy in the rumpled gray suit!"

Considering the fact that the judge in question has been through this exercise at least twice now, he's not amused, and he released a statement this afternoon highlighting that fact.

Julie
president for life of the PFEB

[Peace Patriot]

21. "...across the legal spectrum - from Robert Bork to Alan Dershowitz..." ???

That's like saying "across the political spectrum from George Bush to Alberto Gonzales."

What tripe.

From the School of Tortured Legal Arguments, that brought you, well...torture, and the Unityranny Executive.

[The Velveteen Ocelot]

22. I googled the guys who wrote the amicus brief:

Aside for a couple of strictly academic types whose allegiance isn't patently obvious (Amar; Maltz, who wrote a book about Rehnquist), they're all quite apparently conservatives and/or Republicans:

Bork and Dershowitz, we know about them. Viet Dinh was W's assistant AG, the chief author of the PATRIOT Act; Merrill was deputy solicitor general under Poppy Bush; Pushaw clerked for a Reagan judge; Barnett is a libertarian and the advisor for the law school's Federalist Society; Parker testified before Congress in favor of a constitutional amendment against flag-burning; Lawson clerked for Scalia and is a member of the Federalist Society; Kmiec worked in the Reagan and G.H.W. Bush administrations; and Nagel writes articles for the Weekly Standard, the Wall Street Journal and the National Review.

So -- I think it's fair to say the position they take in their brief is not especially balanced or objective. They're just trying to spring Scooter.

[Me.]

23. The Article Might Have Had A Smidgen Of Credibility

If the writer had included Judge Walton's response, which was a real smackdown to 'sour grapes' Bork and all the rest.

[Me.]

24. The Smackdown

www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x1073265

[Garbo 2004]

25. Fitzgerald was appointed to the Plame investigation pursuant to USC 510 which reads:

"The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." http://www.law.cornell.edu/uscode/28/usc_sec_28_00000510----000-.html

Comey was Acting AG in regards to the Plame matter since both Ashcroft and Gonzales had to recuse themselves from the investigation. Comey appointed Fitzgerald and oversaw the investigation in that capacity. Before Comey left the DOJ he named David Margolis to oversee the Plame investigation.

So the AG, or Acting AG in regards to the Plame matter, has the authority to delegate his authority as was done. And oversight was provided within the DOJ for the Plame investigation and judicial proceedings.

On Viet Dinh, one of the signatories to the filing: http://www.sourcewatch.org/index.php?title=Viet_Dinh There's more, but sourcewatch should provide a hint.