Law professors from Bork to Dershowitz petition judge about Fitzgerald's constitutional authority

[dajoki]

Libby prosecutor's authority questioned
Was Fitzgerald given too much power and too little accountability?

By Joel Seidman
NBC News producer
Updated: 4:16 p.m. ET June 8, 2007
http://www.msnbc.msn.com/id/19116347/

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?

<<snip>>

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.

<<snip>>

The legal minds write, "It appears to be undisputed that there is no day-to-day supervision of Special Counsel Fitzgerald by anyone, and no way short of removal even to assure that he complies with the policies of the Department of Justice or the Executive Branch."

They argue Fitzgerald had "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and was "directed to act 'independent of the supervision or control of any officer of the Department.'"

They also argue that Fitzgerald's appointment and prosecutorial powers were beyond the scope of the constitution, "With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed "superiors" politically accountable for his actions, and it is at the very least a close question whether the mere power of removal does anything to solve the problem."
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Click for related content
Read the professors' filing (pdf)
http://msnbcmedia.msn.com/i/msnbc/sections/news/070608_Libby_professors.pdf

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE AND BRIEF OF LAW
PROFESSORS VIKRAM AMAR, RANDY E. BARNETT, ROBERT H. BORK,
ALAN M. DERSHOWITZ, VIET D. DINH, DOUGLAS W. KMIEC, GARY S. LAWSON,
EARL M. MALTZ, THOMAS W. MERRILL, ROBERT F. NAGEL,
RICHARD D. PARKER, AND ROBERT J. PUSHAW AS AMICI CURIAE IN
CONNECTION WITH DEFENDANT=S MOTION FOR BAIL PENDING APPEAL

-Vikram Amar
Professor of Law
University of California
Hastings College of the Law
200 McAllister Street
San Francisco, CA 94102

-Randy E. Barnett
Carmack Waterhouse Professor of Legal Theory
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001

-Robert H. Bork
Formerly the Alexander M. Bickel
Professor of Public Law at Yale Law School
6520 Ridge Street
McLean, VA 22102

-Alan M. Dershowitz
Felix Frankfurter Professor of Law
Harvard Law School
Hauser Hall 520
1575 Massachusetts Avenue
Cambridge, MA 02138
June 7, 2007

-Christopher J. Wright (DC Bar # 367384)
Harris, Wiltshire & Grannis LLP
1200 18th St., N.W.
Washington, DC 20036
[phone]
Counsel for Amici

-Viet D. Dinh
Professor of Law
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001

-Douglas W. Kmiec
Professor of Constitutional Law and Caruso
Family Chair in Constitutional Law
Pepperdine University School of Law
24255 Pacific Coast Highway
Malibu, CA 90263

-Gary S. Lawson
Professor of Law
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

-Earl M. Maltz
Distinguished Professor
Rutgers School of Law – Camden
217 North Fifth Street
Camden, NJ 08102

-Thomas W. Merrill
Charles Keller Beekman Professor of Law
Columbia Law School
435 West 116th Street, Room 720
New York, NY 10027

-Robert F. Nagel
Rothgerber Professor of Constitutional Law
University of Colorado Law School
430 Wolf Law Building
401 UCB
Boulder, CO 80309

-Richard D. Parker
Paul W. Williams Professor
of Criminal Justice
Harvard Law School
Hauser Hall 514
1575 Massachusetts Avenue
Cambridge, MA 02138

-Robert J. Pushaw
James Wilson Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Highway
Malibu, CA 90263

[Fridays Child]

1. And did you read Judge Walton's response? It was better than perfect, if that's possible.

"It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics’ willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it." --Judge Reggie Walton

[drm604]

5. I love it.

:rofl:

[dajoki]

6. Oh, that is beautiful!!

[venable]

8. how perfect is that response. a work of art. n/t

[SharonRB]

20. Great answer!

Go, Reggie.

[krkaufman]

26. Excellent. Thanks.

[How Goes It]

27. What utter nonsense

Judge Walton says ... The Court trusts that this is a reflection of these eminent academics’ willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse ...

Say what?!!!!!!

How about I call on you judge when and wherever I need some help, being as you feel so generous on behalf of others. Wouldn't want you to be a hypocrite in requiring of others what you aren't willing to do yourself.

The most garbage of statements I have heard in a long time. What utter nonsense. "Since you have helped here, I expect you to help any and all comers". Something that no one with any grey matter would expect of others.

Could it be that a self righteous judge has an ego and wouldn't want to see his decision regarding the special counsel overturned? Boy ----- that sure doesn't sound all that virtuous to me.

He should have kept this nonsense out of his response to the amici. He wouldn't have come off sounding so petty.

[BootinUp]

31. hmmm, a new Du'er that wishes Libby's sentence overturned?

enjoy your brief stay.

[Fridays Child]

32. How silly.

Judges don't represent those who appear before them but they do have to try to ensure that defendants are fairly represented. Otherwise, their decisions are vulnerable to appeal.

But, your disingenuous and sour grapes retort notwithstanding, you should rest easy. Given the make-up of the appellate court, Libby will probably never serve a day behind bars.

Oh, and welcome to DU. I hope you enjoy your visit.

[How Goes It]

36. Think for yourself

Firdays Child says - "Judges don't represent those who appear before them ..."

Okay, you're kidding, right? Who said anything about the judge sitting on his thrown, and AT THE SAME TIME, representing a person in that very same court?!!

But if you couldn't figure out what was being said ------- I made the statement that if the judge was going to tell others what jobs they are to take, then someone should tell that judge who he is going to represent once we send him out to pasture. I greatly doubt that the courts are in the business of telling those in private practice who they are going to represent. There may be an assignment once in a great while that a court may make to a lawyer in private practice, but I doubt that happens much.

And what in the world is disingenuous about being disgusted with a Judge making a sarcastic remark in his trying to chide some profs that would question his decision about the special counsel? I guess you've never heard how judges are not to happy when their decisions are appealed and overturned. Seems it just may be possible that the judge is more concerned with his feelings than doing what his law books says he should. He shouldn't let his feelings come into play.

Look, I am not of any party affiliation. I see those from all walks of government blowing it daily. But for you die hard Democrats that feel you must never question the party line, well of the two Democratic Senators in California, who was correct on the cloture vote re. the latest immigration bill? Was it Feinstein or Boxer? My oh my. How is it that those two could be of different opinions? And please, don't give me the Wrigley's gum of answer that both were right. And if two Dem. Senators can disagree -- then so can I disagree with what I think is dumb.

Look, sooner or latter you have to grow up and call em as you see em. And if any of you think that Patrick Fitzgerald's big task was a "Mission Accomplished" in nailing AT LEAST ONE PERSON near the White House, well then, there is not much hope. Fitzgerald's main function was to find the person who revealed the identity of a supposed covert agent -- plain and simple. Instead, the best he could do was get someone for lying. Now let me ask you, how many lies across all party lines do you think are told in DC ? And speaking of lies, how many of you expected congress to quickly end the war after your last vote? After the Dems took over congress? Wasn't that the big spiel they all fed you?!!!

If you think playing gotcha is the ultimate game, then this country is full of losers. If you really want to get to the heart of matters, don't swallow the party line hook, line and sinker. What is accomplished in sending Scotter to jail? Did it get the guy who spilled the beans first - Armitage? NO !!! By the way, how is it that Sandy Burglar got off scot-free after telling one major lie? But you probably have no problem with that.

Trust me I have plenty of problems with Republicans, and at the moment, one very big problem with the President. For one ---- giving amnesty to felon gang members is not my idea of what is good for this country.

But if you feel you have to be told what to think and never veer from the talking points, what can I say.

[Fridays Child]

37. Oh, my. Evidently, you meant to say WAY more than you actually said, but...

...you lost me at "thrown." :rofl:

[How Goes It]

38. By the way, I don't text either

Yup, you got me. Throne. The fingers are faster then the mind in my old age.

I guess they call these things typos. New to you, huh?

I have no idea what rofl is supposed to mean. Looks like some kind of texting thing.

I get the impression you are all pretty young here.

[snowbear]

39. Question for "How goes it"

So... how long have you been a proud Democrat?

Welcome to Democratic Underground. But why don't you introduce yourself to the group here?

You can open your profile ya know.. no reason to lock it up.

[How Goes It]

41. I'm not

Like I said in a previous post - I am of no affiliation.
When I registered to vote, I check 'undeclared'.

If this is for Democrats only, and you guys only want to hear from each other, I have no problem bowing out.
No where did I see that this was a site for Democrats only.
I could have easily missed it. My sight isn't the greatest anymore either.

[dajoki]

40. swallow the party line hook, line and sinker

there has never been any group that swallows the party line more than the current batch of republicans, from the government officials to the pundits to the person on the street who take in and blurt out the administration's "talking points" as if it were God Almighty speaking directly to them. Oh sure, a few are starting to stray, but only because they are afraid for their own political futures. The Dems are far from perfect, but at least we have the guts to let them know what we think and will take them out if necessary. If you bothered to look around this forum you will see the diverse opinions shared here, but I doubt you troubled yourself.

[How Goes It]

42. You are right - on one thing

I have no problem admitting when I have fallen short. You are right. I DID NOT look around this forum other than the string on Walton's response to the amici. All that I saw was that on this particular string, there was no diversity of opinion whatsoever until I jumped in.

dajoki, you said --- "but at least we have the guts to let them know what we think and will take them out if necessary"

Cindy Sheehan was totally disgusted with the Democratic party. She thought that once the Dems took congress, the war would go away. She was wrong and she decided to hang up her spurs. So what if you do get one of your candidates in as President --- do you believe this person will bring a quick end to the war, and if not, what will you do then? You'll have to live with that vote for awhile to come.

I wouldn't be so convinced into thinking that you are the only party that speaks up for it's convictions. If you go to Polipundit.com, you could read of a tremendous amount of dissension regarding the way the Republicans were leaning on the immigration bill, and the way they were finally convinced to vote on the cloture vote. In short, the rank and file Republicans were ready to vote any Republican clown out of office that was going to allow felons into the country.

[BootinUp]

43. It amazes me

when people defend Libby and Cheney on this CIA leak case. The standard of proof for the leak case may not have been met, (proving what someone knew when the information was leaked) but there is little doubt about what actually happened. And the writers of this brief that the judge has mocked have exposed themselves as partisan hacks (like many other Libby defenders) by looking for any little technicality to have him spared the sentence he earned by obstructing the investigation. Is obstruction of an investigation by high ranking Government officials ok with you then?

[How Goes It]

44. Yeah, let's do it.

The judgement was that Libby lied and I guess that is obstruction. Sure, let's throw all government officials in the clink who lie. Sandy Burger and Clinton included.

Look, if you really want to be the law and order crowd, you won't be able to build prisons fast enough. Lying and big government are pretty much a synonymous thing.

Myself, I'd say, spend your time on the things that really can make a difference. Libby spending time in jail will make no difference for our country whatsoever.

But what the heck, let's all get our little digital recorders out, and go out and catch us a politician or bureaucrat in a lie. Then we can all get our kicks.

[BootinUp]

46. Is this where you are making the case

that any lie is equivalent to Libby and Cheney leaking information about a CIA covert agent, which was done to discredit a critic of the Bush admin who was attempting to uncover the lies in the State of the Union address regarding yellow cake uranium and Iraq? Have you ever looked into the how the information was twisted to get this fucked up war started? Have you ever looked at how Cheney takes down any critics/whistle blowers (from their own party/administration) that attempt to tell what the bastards have done?

Lies about blow jobs for instance, thats all you got? Hell thats all Republicans ever got, what about Clinton's penis!!??

And while you are at it, you might update your information file on Berger. He admitted his mistake for whatever that might be worth to you.

[How Goes It]

47. Berger - your boy - huh

I don't know what you are reading, but Sandy Berger sounds like one big walking disaster to me http://en.wikipedia.org/wiki/Sandy_Berger
But hey, if you want to make an argument to defend this guy as one of yours - go for it big guy.

[BootinUp]

48. I read that

It says he did not destroy any original information. It also says he was fined $50,000, and 2 or 3 years of probation, and that he surrendered his law license.

Any defense I offered was to demonstrate that he was not found to be lying to investigators, rather they confirmed his story. I never said he didn't fuck up. The article also talks about the urban myths that have been spread around to claim he was trying to hide some disastrous information to the Clinton Administration.

In any event, you fail to make any effort to defend your hero. You simply point to someone else and yell "Hey he lied too!!!!"


I tire of the game. If you want to debate the Libby case let me know.

[How Goes It]

52. Why do the right thing when you could do partisan

It's like the jest of what I am saying is going right over your head.
There are foul ups EVERYWHERE in government. Elected and non-elected. Republican and Democrat.
But if this is all about playing gotcha, then let's get on with it.
OR, you could cut through all the nonsense, and deal with things that really matter.
So I'll ask you again, Libby was convicted of lying. Not revealing Plames identity, that was Armitage, a Democrat by the way. So if the purpose of Fitzgerald was to find who did the exposing, which was by all accounts Armitage, then why play games and take down the person that didn't do it? Fitzgerald failed to bring in the guy who exposed Plame and his work had NOTHING to do with exposing who revealed Plame's identity. Otherwise he would have brought down Armitage.

By the way, don't try and put any spin on who Berger is - it's there for all to see. This guy is a major disaster and if you think Libby should do the time, then surely Berger got away with the golden goose.

But I don't think you are into playing fair. I think you like partisan politics. On the other hand - I have no problem going after clowns on both sides. Fitzgerald for wasting money and coming up with a patsy at best. He was also the guy that went after our border guards Ramos and Compean for shooting a drug smuggler in the rear end. Well this guy would be toast in my book, and he was brought in under a Republican. So I'd go after those from either party - no problem with me.

[BootinUp]

53. Chief of Staff to the VP a Patsy? Hey I'm all for gettin Dick.

How do we do that?


No, your not talking over my head, I got it. You want to excuse the crimes of the Bush Admin by pointing out that all Government is bad and what are we complaining about. I hear ya!

I say lets get em all. Lets spend another 70 million to investigate Bill and Hillary Clinton. This time we'll get more than just a blow job. In fair trade can we get Reagan's cronies that G HW Bush pardoned while we are at it?

[How Goes It]

55. Don't forget Jimmy

Might as well get the biggest failure of recent presidents.
Remember those 20% interest rates under Carter. I do. Boy, was that guy a disaster.
More gotcha. How useless.
It never ends.

[BootinUp]

58. The problem is you don't want to

justify your gotchas with any facts. If I throw a gotcha and its not justified and you can show that I will certainly retract it.

Jimmy had his problems, one being that he could not maintain the public confidence during that time. But any half assed look at the causes of the economic woes in the 70's would clearly show he walked into a mess. Hell he was only there 4 years. What makes this excercise useless is the lack of effort to understand the real causes. Now on the Carter thing you owe some kind of facts that show he caused the economic problems of the late seventies.


I promise not to raise a gotcha unless there is some supporting facts.

[How Goes It]

59. Talk about a disaster

Using todays house prices, the difference of a loan payment on a $400,000 loan amortized over 30 years on loan with an interest rate of 20% as compared to a loan with an interest rate of 6% would be a difference of a monthly payment of $6,684 - $2,398. That equals a difference in payment of $4,286 PER MONTH. That stinks at todays rates. It stunk while people were trying to buy homes at the prices they were selling for during Carters administration. A major, major, major, disaster.

[BootinUp]

60. Why don't you check out

the Jimmy Carter page at Wikipedia. I think you'll learn something. Maybe we can discuss some of it later. Pay particular attention to when he took office in January 1977 and what was the economic situation. Then what were his policies and what changes did he make or couldn't get passed. Who did he put in the charge of the Federal Reserve in '79. Also, read up on the Iranian hostage crisis cause I'm sure you will want to attack him on that next.

[How Goes It]

64. Yeah, I read it

I read his wiki page. Highest interest rate in the history of the U.S. ----- 21.5%

[BootinUp]

66. Thats all you learned?

Yeah he failed to turn around the mess fast enough for you and everyone else. You are missing the point. Carter was for reduced spending but the Congress was not cooperating with him. He brought in Volker in 79 to the run the Fed.

-------------------------
Volcker's Fed is widely credited with ending the United States' stagflation crisis of the 1970s by limiting the growth of the money supply, abandoning the previous policy of targeting interest rates. Inflation, which peaked at 13.5% in 1981, was successfully lowered to 3.2% by 1983 and has remained low ever since<1>. The change in policy contributed to the significant recession the U.S. economy experienced in the early 1980s, which included the highest unemployment levels since the Great Depression.
_________________________

The point is that you can't turn around a huge economy on a dime. The causes that lead to this where too much spending during the war years and the programs enacted by previous administrations and the oil crisis and who knows what else.

Reagan was a strong campaigner and captured peoples imagination. I am not going to say that his economic policy didn't stimulate the economy. Sure it did. But the inflation problem and interest rates were already being corrected by changes made by the Fed in the Carter years.

But you keep to your comforting story line that Carter was the worst of all time. Admittedly, many other Americans will agree. But the facts on examination will show that he had the right ideas.

have fun.

[dajoki]

61. A $400,000 home in the '70's...

is now $800,000. Everything now is going up except wages. The difference between the rich and the working class has never been so profound as it is now.

[dajoki]

49. Quite a list

http://en.wikipedia.org/wiki/Category:George_W._Bush_administration_controversies
From Wikipedia, the free encyclopedia

List of controversies associated with U.S. President George W. Bush and his administration.

Alleged retaliatory acts against opponents
Plame affair
Al Jazeera bombing memo
Bunny Greenhouse
Controversies surrounding pre-Iraq war intelligence
Iraq and weapons of mass destruction
Saddam Hussein and al-Qaeda
Office of Special Plans
Niger uranium forgeries
CIA leak grand jury investigation
Downing Street memo
Bush-Blair memo
Controversies surrounding human rights
Abu Ghraib torture and prisoner abuse
Extraordinary rendition
Unlawful combatant
John Negroponte
Controversies surrounding spying
NSA call database
NSA warrantless surveillance controversy
Spying on the United Nations
Controversies surrounding propaganda
Bush administration payment of columnists
Lincoln Group
White House Iraq Group
Controversies surrounding obstruction
2002 New Hampshire Senate election phone jamming scandal
Controversies surrounding response to national crisis
Criticism of government response to Hurricane Katrina
Walter Reed Army Medical Center neglect scandal
Controversies involving business / economics
Halliburton
Dubai Ports World controversy
2002 United States steel tariff
Controversies involving influence / lobbying
Energy Task Force
Controversies involving secrecy / censorship
Executive Order 13233
State Secrets Privilege
Free speech zone
EPA 9/11 pollution controversy
Misrepresentation of cause of death of Pat Tillman
Bush White House e-mail controversy (Use of Republican National Committee servers and private mail systems for Government business)
Controversies surrounding nepotism / cronyism
Michael D. Brown
Harriet Miers Supreme Court nomination
Uncle "Bucky"
Sam Fox
Controversies surrounding the growth of executive power
Unitary executive theory
Signing statement
Line-item veto
Dismissal of U.S. attorneys controversy
Controversies surrounding criminal acts of Administration officials
Brian Doyle
Claude Allen
David Safavian
Larry Franklin
Roger Stillwell
Frank Figueroa
Darleen Druyun
Lewis Libby
Controversies surrounding investigation of Administration officials or nominees
Carl Truscott
Joseph E. Schmitz
J. Steven Griles
Susan Ralston
Kyle Foggo
Janet Rehnquist
Kenneth Tomlinson
George Deutsch
Richard Perle
James G. Roche
Philip Cooney
Bernard Kerik
Timothy Flanigan
Linda Chavez
Eric Keroack
Lurita Doan

[BootinUp]

50. Don't forget Abramoff.

And Cheney's visitor list that has been classified/sealed from the public.

[dajoki]

51. I just copied...

what was there. I guess its hard for anyone to keep up with it all.

[How Goes It]

54. Common guys, this is what I meant about gotcha - it goes nowhere !!!

Now you really didn't think that someone couldn't find the same on the other side, did you?

http://en.wikipedia.org/wiki/Category:Clinton_administration_controversies

This is exactly my argument for a much smaller government.
Bigger the government -- bigger and/or more the fouls ups.
Smaller the government -------------------------------- I'll let you fill in the blanks.

[dajoki]

56. And Bush proposes smaller government?

You gotta be kidding? Besides Smaller government means no help for the poor, health care through the roof, bye-bye social security, etc.

[BootinUp]

57. No, it does go somewhere

I remember the Clinton years. Despite the weathering attacks from the Republican congress they came up with squat. But go ahead and pick the most damning stuff from your link and explain how awful it was. Tell me more about what a bad guy Berger is. (I thought we covered that but you seem to want to keep going there).

The answer to corruption and secrecy is to have effective rules on ethics that are enforced, and to limit government secrecy. Its not about size of government, its how the thing is run. Size of government is outside the scope of this discussion.

[dajoki]

45. I and many others...

here are disgusted with our party as far as the war funding goes, if you do look around you will see that. I have not decided yet who I will support in the primary, he/she will have to convince me they will end this war, however that is not my only issue. If I choose wrong I WILL have to live with it. But one thing I know is that anything will be better that the current administration.

[dajoki]

34. Why are you attacking the judge?...

He does not represent those who come before him. Do you not like his sentence handed out to Libby? And he is correct about the bevy of law proffessors, they should be willing to stand up for ANYONE if they think their constitutional rights were compromised.

[babylonsister]

2. If they want to question Fitz's authority, why didn't they do it a few years

ago? Sounds like sour grapes to me. Too bad if they don't like what Fitz accomplished.

[AngryAmish]

33. They did

Judge denied it then. This is a petition to allow Libby to be free during the appeal. The amicus is to tell the judge that there is a close constitutional question so Libby should be allowed to be free.

[Mojambo]

3. He's too independent! n/t

[JDPriestly]

4. So -- the constitutional crisis that everyone denied was happening in 2000

is now undeniably here. Who is to prosecute a corrupt administration when the attorney general's office is at the center of the corruption? If there ever was a constitutional crisis, that is it. The Constitution just does not provide a remedy other than the appointment of Fitzgerald. I believe his appointment was OK since he was appointed by the then attorney general. These critics are just uncomfortable with his charge -- which was to investigate before a grand jury. It is the grand jury and the ultimate court and jury before which Fitzgerald brought the initial witnesses, obtained the indictments and tried Libby that checked his power.

[MonkeyFunk]

28. The rejected

opinion of a dozen malcontents doesn't make a constitutional crisis.

[hlthe2b]

7. Dershowitz and Lieberman--two of a kind...

That anyone ever thought either was at all progressive is now, in retrospect, absolutely absurd.

[Tellurian]

13. Dershowitz's role in the Appeal of the Von Bulow case was

equally appalling-

[MonkeyFunk]

29. How so?

[madrchsod]

15. dershowitz? i used to think he was something special

well come to think of it, he certainly is.

[Vincardog]

9. Where were these scholars when Kenny Star war sunning roughshod over his limits?

[dajoki]

10. What about Ken Starr...

From Wikipedia
http://en.wikipedia.org/wiki/Kenneth_Starr#Time_as_Independent_Counsel

Though his judicial reputation earned him popularity for three and a half years after his appointment, particularly after his aggressive emphasis on confronting political corruption in Arkansas -culminating in the successful fraud prosecution of then-sitting Arkansas Governor Jim Guy Tucker and Clinton real estate investment partners James and Susan McDougal, Starr was accused of doing the bidding of Richard Mellon Scaife, who had funded a position at Pepperdine University that Starr first accepted but later relinquished. (He is currently the Dean of Pepperdine Law School<10>.) Rumors began spreading that members of Starr's staff were gay, and Doug Ireland alleged in The Nation that White House aide Sidney Blumenthal was spreading them.<11> Susan McDougal, in the book and film documentary The Hunting of the President, alleges that Starr's office pressured her to lie under oath in order to back up its allegations against Clinton.

Most importantly, the now-defunct monthly magazine Brill's Content accused Starr's office of leaking grand jury testimony in violation of the Federal Rules of Criminal Procedure, based in part on editor Stephen Brill's interview with Starr himself. Acting on motions of Clinton defense attorneys, US District Court Judge Norma Holloway Johnson ordered an investigation into whether Starr's office had improperly leaked grand jury information (July 1998). She further authorized President Clinton's lawyers to conduct the investigation, by subpoenaing and questioning Starr and members of his staff under oath. The federal appeals court in Washington reversed Judge Johnson's decision and said that any investigation would have to be conducted by a court-appointed Special Master, not by President Clinton's lawyers. Throughout, Starr's office maintained that the information alleged to have been leaked was not uniquely available to it, but was also possessed by Clinton's lawyers, who monitored the grand jury through witnesses' lawyers participation in a joint defense arrangement, and who may have strategically leaked it in order to neutralize the damage and at the same time to blame Starr. After an investigation, a Special Master concluded that no evidence indicated that Starr's office had unlawfully leaked grand jury information. During the leak investigation, however, Charles Bakaly, spokesman for Starr's office, resigned (March 11, 1999). He was later charged with having signed a false affidavit, but acquitted at trial (Oct. 6, 2000). Critics such as Joe Conason and Gene Lyons maintain that the Starr office systematically leaked grand jury information to the press.

Starr's lengthy investigations forced Clinton and his staffers to devote many days and hours responding to requests from the Office of Independent Counsel. Critics of Starr's investigations charged that years of depositions, subpoenas and court hearings demanded by Starr's office distracted the Clinton administration from devoting full attention to international affairs.

Starr expressed regret for ever having asked the Justice Department to oversee the Lewinsky investigation, saying "the most fundamental thing that could have been done differently" would have been for somebody else to have investigated the matter <12>.

[Kagemusha]

17. They would argue Starr's authority was unconstitutional too

even though there is a large difference.

The President could not fire Ken Starr. The President can fire Patrick Fitzgerald, and could at any point in the process. No appeal, no redress, just a phone call (or a letter) and he packs his bags. He just has chosen not to do so.

[KansDem]

35. Ken Starr jailed Susan McDougal because she wouldn't lie for him...

McDougal, smiling glowingly in front of cameras and reporters, said she felt like acquittal on the obstruction of justice charge was the big victory she sought. "I didn't believe they wanted the truth," she told listeners.

That statement has been McDougal's mantra from the start of Starr's investigation into President Clinton's and first lady Hillary Rodham Clinton's role in the failed Whitewater real estate development scheme. The Clintons invested in the project with McDougal and her late ex-husband James McDougal.

"The great thing for me was not the verdict, it was more that I got my day in court, and I got to tell everything that I had been wanting to tell for years, and we got to put on evidence of the lives that Kenneth Starr has ruined,'' said McDougal. After talking with reporters, McDougal, Geragos and family members dashed off to the Capital Hotel for a celebration breakfast with champagne.
--more--
Salon

He wanted her to lie for him to get the Clintons; she wouldn't do it so he put her in jail.

Starr is scum...

[The Velveteen Ocelot]

11. I googled these guys. And guess what -- they aren't exactly a bunch of liberals.

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.

[dajoki]

14. And in doing so...

take shrub off the hot seat to pardon him.

[struggle4progress]

22. Amar's father is quite cozy with the Federalist Society, and Vikram has appeared

at a number of Federalist Society events

[The Velveteen Ocelot]

23. Well, that figures.

I guess he fits in with all the rest of them.

[unlawflcombatnt]

25. Thanks for doing the research

I'm not a legal professional, but I suspected as much. Mostly Rightward-leaning judges, likely to support anything the Bush administration wants to dish out.

[Straight Shooter]

12. Q'elle surprise! Son-of-a-bitch Dinh, author of the Patriot Act, questions Fitzgerald's authority

World's biggest prick outside of the White House:

Viet Dinh has been called a "political pit bull" and "a foot soldier" for Attorney General John Ashcroft. But the 36-year-old author of the Patriot Act prefers to be called an "attendant of freedom."

In May 2001, the professor of law at Georgetown University was tapped by the Justice Department to work for two years as an assistant attorney general, working primarily on judicial nominations for the department. But three months later the World Trade Center towers collapsed, and Dinh was drafted to work on the USA Patriot Act, a bill that would give the government some of its most controversial surveillance powers. The bill, coupled with the government's subsequent treatment of immigrants and native-born citizens, prompted critics to charge the administration with overthrowing "800 years of democratic tradition."

Ironically, Dinh is an immigrant himself. The youngest of seven children born in Vietnam, he was 7 years old when communists took over the country and imprisoned his father, a city councilman, for "reeducation." Three years later, Dinh's mother escaped with him and five of his siblings to the United States. His father arrived eight years later.

Dinh graduated from Harvard Law School and clerked for Justice Sandra Day O'Connor. He has had a hand in many high-profile issues, including the Whitewater investigation and the impeachment trial of former President Clinton. In 2000, he also wrote a friend-of-the-court brief for the Supreme Court on behalf of Florida voters who favored George W. Bush's win in the contested presidential election.

More at link, if you can stomach reading it:
http://www.wired.com/politics/law/news/2004/02/62388

[The Velveteen Ocelot]

16. Well, I do declare!

Yeah -- I recognized that douchebag's name right away. He's a hard-core partisan, one of the worst.

[motocicleta]

21. Wonderful country we have, the USA

Where an immigrant, from a country far away that the US treated so viciously and savagely, can come here, study hard, join the elites in their legal contests - and return the vicious and savage favor. Thank you, Viet Dinh. The US needs more instant karma like you.

Is the sarcasm tag necessary?

[Algorem]

18. a dozen rotten eggheads

stinking like sulfur

[wishlist]

19. Fitz' independent status didn't cause Libby to lie and obstruct justice

This whole thing is a coverup to diminish the reality that Libby lied to the Grand Jury to coverup the complicity of Cheney and the rest of leakers. Whether or not Fitzgerald had exceptional independence and lack of supervision from highers up does not change the fact that Libby lied and obstructed justice preventing the truth from coming out.

[bleever]

24. The essential flaw in their grand edifice of an argument

is that Patrick Fitzgerald, contrary to their assertion, was not immune to all supervision.

He was directed to act without supervision with respect to this investigation. He is still subject to supervision and being overruled in case of any misconduct of his duties.

Had their been some egregious misuse of his authority, whoever was heading DOJ certainly retained the ability to override his actions. Could he go screaming down the I-5 through Aurora Illinois and speed through the toll both without paying, based on his assignment? Of course not. His independence was circumscribed by the case he was assigned to. Claiming that that is unconstitutional is unintelligent.


Added irony: claiming that "removal from office" is insufficient remedy against misconduct, in light of a presidency that claims all powers, including some that make his removal impossible.

[BootinUp]

30. Its gotta be one of the most

ridiculous legal arguments ever made by "respected legal minds" in the pursuit of partisan politics.

[AtomicKitten]

62. WTF is that all about anyway?

Why now?

[BootinUp]

63. They are trying to keep Libby

out of the hoosegow while on appeal.

[AtomicKitten]

65. I hope they force Junior's hand.

I dare that bastid to pardon Libby now.

From what I understand, he doesn't qualify yet.

[dajoki]

67. These law professors may make that unnecessary n/t