How to Unmask a Covert CIA Agent for Political Gain, Obfuscate the Truth, and Make Sure No One Goes to Jail
Published by BG on Thursday, June 14, 2007 at 2:56 PM.There are a lot of arguments surrounding the Scooter Libby perjury/obstruction conviction, and most of them are largely bunk. For example, the thought that the investigation should have stopped at Armitage when there were clearly other reporters (Judy Miller, for one) who received leaks from other sources is particularly glaring. It remains inarguable though, that despite having access to top defense lawyers for his case, it was ruled that Scooter Libby perjured himself and obstructed justice to the satisfaction of a jury.
Whether or not you agree with the degree of justice done in this instance isn't relevant to the argument Libby's attorneys are focusing on for their appeal. Ed Brayton at Dispatches From The Culture Wars wrote yesterday about a bipartisan amicus brief filed on Libby's behalf earlier this week:
Dispatches from the Culture Wars: Brief Controversy in Libby Case
The distinction is this: if he was operating in his investigation under the granted powers of a principal officer, then he should have been confirmed by the Senate to hold those powers. If not, he was operating unconstitutionally. There is an obvious moral answer to the question of whether DOJ appointees should be vested with powers reserved in the constitution for those that must receive nomination and confirmation by congress, and that answer should be clear to anyone no matter what side of the ballot you choose to mark.
Now, I don't pretend to be a constitutional scholar, and I don't pretend to try and tell you that Ed's breakdown of Libby's appeal strategy will or won't pass muster. All I am saying is this: this smells really funny all of a sudden.
Yes, it reeked before, I'll grant you that. But with all the grasping at straws ("No one ever said 'covert under IIPA!' Free Scooter!") that has taken place since the perjury/obstruction allegations were leveled, why does this come up now? Why was this brief fired out after the conviction and just before the hearing as to whether or not Libby remains free pending appeal?
The difficulty with that question lies with the signatories on the amici curiae (PDF) (I've always wanted to use that term correctly in a blog post) filed on this issue. They represent a left-to-right representation of the political spectrum, and certainly cannot be assigned a "neocon" tag or GOP-loyalist accusation. While it seems that the brief was filed specifically to keep Scooter out of jail pending appeal, and while that seems to be a partisan issue on the surface, it's really a little more complicated than that.
But only a little.
If this issue of constitutionality is the basis for appeal, and if it really does represent any sort of positive chance for Scooter Libby to get his conviction overturned, then he shouldn't go to jail pending that appeal. As much as I think he's a despicable toadie who stood as a firewall between a despicable action and the actors who executed it, it is from within the canon of long-standing American ideals that this thought arises. It's not a new ideal. It's a long standing legal principle which any reasonable person should get behind: so long as there's a valid appeal, the appellant should remain free to wage that appeal in the courts. It really is that simple.
Again, why is the constitutionality of Patrick Fitzgerald's appointment as Special Prosecutor being challenged now? Why wasn't someone smart enough at the beginning to recognize that this was (going to be) a problem? I'm not smart enough to parse the argument to determine whether the problem was in the appointment or in the assumption of power by Fitzgerald that ran extra-constitutionally to that appointment, nor do I want to assume or speculate as to which of those two issues is at the root of this argument. All I know, is that if it's the former which lies behind the appeal, then it's going to smell an awful lot like a setup. With a single party in power controlling both branches that mattered in this issue, it won't be a long leap of conspiracy to believe that the DOJ (under the Executive Branch) "mistakenly" gave a Special Prosecutor extra-constitutional authority, only to have the challenge card played at the absolute last minute possible before the only real prosecution to arise from the case occurs.
Here, then, is the sketch of your conspiracy theory timeline:
1) Cheney asks Libby, Rove and Armitage to leak Valerie Wilson's covert status to discredit Joe Wilson's debunking of the Niger yellow cake debacle.
2) The leak eventually gets traced back to the White House, and public pressure demands a grand jury investigation.
3) The DOJ, filled with "loyal Bushies*," is brought in to conduct the investigation, but given explicit instructions to construct a house of cards. In other words, give the appearance of legitimacy to the investigation, but make sure the logistics of setting it up are able to be effectively challenged in court at a later date.
4) Have everyone interviewed from the WH by the Special Prosecutor play dumb, but have one guy lie and obfuscate, thereby clouding the IIPA-prosecutable "intent to disclose" narrow reading of the applicable law. When the prosecutor can't get a story straight, but knows he found a perjurer, he'll drop everything to get that handled.
5) Have the perjury trial take place. If Libby wins, you don't play your constitutional challenge card you swiped from the deck. If he loses? You play the card.
6) Get a sympathetic judge on the DC circuit to hear the appeal and overturn the conviction.
7) Since now the lack of constitutional authority by the Special Prosecutor has been established, this essentially voids any and all responsibility any of the leakers may have had (although they weren't forced to take responsibility anyway), and essentially frees the perjurer on a technicality.
8) Crack a big bottle of champagne and drink heavily at how clever you were to get away with your lies. Don't forget to spill a little on the shredded remains of the constitution sitting in charred embers on the floor of your office.
*#3 is really a stretch, especially knowing what we do now about James Comey who made the Fitzgerald appointment. This is where the conspiracy theory falls apart entirely, I think. Still a fun thought exercise though. (Do JFK next! Do JFK next!)
I don't know whether Scooter Libby gets out of jail free with this appeal or not. All I know is that whenever something big like this gets tossed on a technicality, it bears asking why the people who were responsible for putting it together didn't understand how to keep it constitutional in the first place. So do I think Scooter goes free? Yup. Do I think the reason he might go free is legit? Yup. Do I put it past this administration to have put all this together so it would fall apart at their demand later? Nope, not in a million years.
Whether or not you agree with the degree of justice done in this instance isn't relevant to the argument Libby's attorneys are focusing on for their appeal. Ed Brayton at Dispatches From The Culture Wars wrote yesterday about a bipartisan amicus brief filed on Libby's behalf earlier this week:
Dispatches from the Culture Wars: Brief Controversy in Libby Case
The reasoning revolves around a highly technical matter of constitutional law, whether the position of special prosecutor is an "inferior officer" under Article 2, Section 2, Clause 2 of the Constitution or whether he is a "principal officer." There is no doubt that Fitzgerald held an "inferior office" as the US Attorney for the Northern District of Illinois, but under the law he cannot be elevated to a position as a "principal officer" without a separate Senate nomination and confirmation.
So the question is whether the office of Special Prosecutor that he was appointed to is inferior or principal. It also revolves around the differences between a special prosecutor and an independent prosecutor. The key difference is that an independent prosecutor is required by law to follow all DOJ procedures, while a special prosecutor is explicitly exempted from them (or at least Fitzgerald was, in this case). That suggests that his appointment may constitute a principal office rather than an inferior one.
The distinction is this: if he was operating in his investigation under the granted powers of a principal officer, then he should have been confirmed by the Senate to hold those powers. If not, he was operating unconstitutionally. There is an obvious moral answer to the question of whether DOJ appointees should be vested with powers reserved in the constitution for those that must receive nomination and confirmation by congress, and that answer should be clear to anyone no matter what side of the ballot you choose to mark.
Now, I don't pretend to be a constitutional scholar, and I don't pretend to try and tell you that Ed's breakdown of Libby's appeal strategy will or won't pass muster. All I am saying is this: this smells really funny all of a sudden.
Yes, it reeked before, I'll grant you that. But with all the grasping at straws ("No one ever said 'covert under IIPA!' Free Scooter!") that has taken place since the perjury/obstruction allegations were leveled, why does this come up now? Why was this brief fired out after the conviction and just before the hearing as to whether or not Libby remains free pending appeal?
The difficulty with that question lies with the signatories on the amici curiae (PDF) (I've always wanted to use that term correctly in a blog post) filed on this issue. They represent a left-to-right representation of the political spectrum, and certainly cannot be assigned a "neocon" tag or GOP-loyalist accusation. While it seems that the brief was filed specifically to keep Scooter out of jail pending appeal, and while that seems to be a partisan issue on the surface, it's really a little more complicated than that.
But only a little.
If this issue of constitutionality is the basis for appeal, and if it really does represent any sort of positive chance for Scooter Libby to get his conviction overturned, then he shouldn't go to jail pending that appeal. As much as I think he's a despicable toadie who stood as a firewall between a despicable action and the actors who executed it, it is from within the canon of long-standing American ideals that this thought arises. It's not a new ideal. It's a long standing legal principle which any reasonable person should get behind: so long as there's a valid appeal, the appellant should remain free to wage that appeal in the courts. It really is that simple.
Again, why is the constitutionality of Patrick Fitzgerald's appointment as Special Prosecutor being challenged now? Why wasn't someone smart enough at the beginning to recognize that this was (going to be) a problem? I'm not smart enough to parse the argument to determine whether the problem was in the appointment or in the assumption of power by Fitzgerald that ran extra-constitutionally to that appointment, nor do I want to assume or speculate as to which of those two issues is at the root of this argument. All I know, is that if it's the former which lies behind the appeal, then it's going to smell an awful lot like a setup. With a single party in power controlling both branches that mattered in this issue, it won't be a long leap of conspiracy to believe that the DOJ (under the Executive Branch) "mistakenly" gave a Special Prosecutor extra-constitutional authority, only to have the challenge card played at the absolute last minute possible before the only real prosecution to arise from the case occurs.
Here, then, is the sketch of your conspiracy theory timeline:
1) Cheney asks Libby, Rove and Armitage to leak Valerie Wilson's covert status to discredit Joe Wilson's debunking of the Niger yellow cake debacle.
2) The leak eventually gets traced back to the White House, and public pressure demands a grand jury investigation.
3) The DOJ, filled with "loyal Bushies*," is brought in to conduct the investigation, but given explicit instructions to construct a house of cards. In other words, give the appearance of legitimacy to the investigation, but make sure the logistics of setting it up are able to be effectively challenged in court at a later date.
4) Have everyone interviewed from the WH by the Special Prosecutor play dumb, but have one guy lie and obfuscate, thereby clouding the IIPA-prosecutable "intent to disclose" narrow reading of the applicable law. When the prosecutor can't get a story straight, but knows he found a perjurer, he'll drop everything to get that handled.
5) Have the perjury trial take place. If Libby wins, you don't play your constitutional challenge card you swiped from the deck. If he loses? You play the card.
6) Get a sympathetic judge on the DC circuit to hear the appeal and overturn the conviction.
7) Since now the lack of constitutional authority by the Special Prosecutor has been established, this essentially voids any and all responsibility any of the leakers may have had (although they weren't forced to take responsibility anyway), and essentially frees the perjurer on a technicality.
8) Crack a big bottle of champagne and drink heavily at how clever you were to get away with your lies. Don't forget to spill a little on the shredded remains of the constitution sitting in charred embers on the floor of your office.
*#3 is really a stretch, especially knowing what we do now about James Comey who made the Fitzgerald appointment. This is where the conspiracy theory falls apart entirely, I think. Still a fun thought exercise though. (Do JFK next! Do JFK next!)
I don't know whether Scooter Libby gets out of jail free with this appeal or not. All I know is that whenever something big like this gets tossed on a technicality, it bears asking why the people who were responsible for putting it together didn't understand how to keep it constitutional in the first place. So do I think Scooter goes free? Yup. Do I think the reason he might go free is legit? Yup. Do I put it past this administration to have put all this together so it would fall apart at their demand later? Nope, not in a million years.
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