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April 28, 2006

Comments

I especially liked this argument:
The same cannot be said of Deputy Attorney General Comey though, can it? Per common law, as the designated agent of the Attorney General in an “exact matter” of limited scope, upon what basis did Comey himself “disregard established Department of Justice policies and regulations” – of which he was well aware – when he explicitly rejected DOJ regulations concerning the appointment of Special Counsel?

Very good.

JMH,

Didn't Comey go even a bit further than ignoring 28CFR 600 when he specifically stated in his February 6 letter:

"Further, my conferral on you of the title of "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600."

I found Walton's pointing pack to the guidelines that Fitz is supposed to follow as a US A as providing all necessary guidance to be downright silly. If it's taken up as an iterlocutory appeal I wonder what evidence of supervision will be provided by Fitz? Another affidavit from Comey?

Clarice -- That is indeed the centerpiece where it seems to me that Walton's argument is utterly hoist on its own petard. At one point it occured to me to count just how many times he referred to "regulations" in the second part of his opinion. It was also remarkable how consistently he slid right over the Dep. Atty General in going from Recusal to Special Prosecutor. Comey is the real weak link in this chain.

Rick -- Yes, I think maybe I should have been more specific about what I meant by explicitly rejecting the DOJ regulations. Actually, I didn't originally intend to post it here till I realized how long it had gotten. at the time I was more focused on working in both "bypassed & ignored" which, per previous discussion, I thought the JOMers would get a kick out of. :) As for supervision, somehow I don't see the Supremes awarding points for abstraction, but shoot, judges are always a wildcard.

So ...

I think you're right about Comey being the weak point. As I said over on JOM (but nobody else commented on -- hmmmm, suppose I need to get a hint?) there is this curious disconnect. In the opinion, as is proper to a legal document, people are not individuals, but officers referred to by their titles. ("Deputy Attorney General" and "Special Prosecutor") But they are not referred to by their correct titles. Fitzgerald is not a Special Prosecutor, because he has been explicitly appointed something which is not a Special Prosecutor. But Comey is even more interesting. Because first of all, his role in this is not Deputy Attorney General, but Acting Attorney General on Matters Plame From Which Mr Ashcroft Recused Himself.

This is all very personal and individual -- Ashcroft did not recuse the Attorney General, he recused himself personally, individually, as someone who had been an elected official who employed Karl Rove as his campaign manager. But Ashcroft hasn't been the Attorney General since Feb 5, 2005 -- where is the Dept of Justice paperwork stating the Gonzalez has also recused himself? Has he? Did Comey stop being the person with the power to dismiss Fitzgerald on Feb 5, 2005? Did Comey know? Did Gonzalez know? Any documentation? And Comey hasn't been Deputy AG since August, 2005 -- where is the DoJ paperwork showing just what has been delegated to whom? This is a serious question -- if the Fitzgerald prosecution stopped being a legitimate government activity on Feb 5, 2005, then what does that make Judith Miller's imprisonment? Even if the date was Aug, 2005 not Feb, 2005, Miller was in jail until Sept 29, 2005.

Presumably, one of the roles of a prosecutor's supervisor is that if the prosecutor gets a judge to throw somebody in jail for refusing to testify in front of a grand jury, then the supervisor can order the prosecutor to let the person out. Is there any sign that any properly elected or appointed official had the authority to tell Fitzgerald, "Look, this has gone too far, you can't keep this woman in jail, I'm ordering you to find some way to let her out" ? This is not some hypothetical here, this is about the possible gross violation of Miller's civil rights.

cathy :-)

Cathy

Given his intimate association with the White House (and his active role at the time the investigation commenced) Gonzalez would be pretty much compelled to recuse himself as well. At the same time, however, we're dealing with some sort of bizarre chain of custody phenomenon that deserves considerably more attention than it's gotten. I think your point on titles gets at the essence of the problem here, and suggests the very question Walton had such trouble answering: what, precisely, is Fitzgerald, and what is his authority? Whether that's a legal issue or a constitutional issue is something I'm still in the process of pondering.

Note the Judge's ruling re the Dismissal motion--that Fitz is bound by the rules and regulations of the Dept and therefore we believe that this is the appropriate office to which to bring the complaint.[citation and quote from ruling]
2.. If we are wrong and the OPR feels that under the particular circumstances of the appointment it has no jurisdiction, we'd appreciate a public statement to that affect for we believe it is relevant to the trial court's ruling and to any which may be made subsequently by a reviewing court.
3. We believe that to date Fiz has violated the rules and regulations and his ethical obligations as an attorney representing the government in the following respects:

(a) the false statements in the presser which misstated the facts and represented an effort to smear Libby and poison public opinion against him [detail misrepresentations0;
(b) the misleading representations to the Miller Court, including the footnote upon which Tatel relied;[detail]
(c) the setting up of a perjury trap by reading out of all sense his mission (to protect a whistleblower, rather than to find a leaker).I'd quote his good leak/bad leak statement. His mission was to find the leaker and he had found that person before he compelled the testimony of Miller.His statement of the law in the footnote to the Miller court was misleading and wrong. He knew at the time he went to the Ct of Appeals that he has no grounds to believe there had been a violation of IIPA or the Espionage Act. Both statutes were inapplicable.
(d) that he has conflated normal testimonial variances into perjury and false statements acts
(e) he is engaged in selective prosecution, charging Libby with false statements and conspiracy and not charging the leaker who, it appears, was really "the first to leak", someone who it seems disclosed Plame's identity to two reporters both of whom told others and one of whom, in fact, published that information leading to this investigation;
(f) He has improperly criminalized a political dispute.[Let's quote lots of his stuff..including that bit about good leaks/bad leaks to show that he is not impartial, but in deciding what is a good leak selects the anti-Administration statements of a serial liar (cite SSCI report) and a bad leak anyone who quite understandably sought to set the record straight. Wilson was a partisan with deep ties to the President's opponent, he publicized his false charges widely and they were charges of significant moment and import.The Administration had every right and reason to respond and Fitz' singular interpretation of what he is doing is proof that he has politicized this matter.
(g) He has gratuitously used the proceedings to smear the Administration for reasons unrelated to the advancement of the case:
(i) the NIE claim in his pleadings which he waited a week to correct.
(ii) the Cheney annotations assertion which he knew to be false and certainly not probative of Libby's state of mind

Above and beyond this, what he do know on the public record is that the investigation he oversaw was a one-sided one, designed to target Libby and Rove and not to get at the truth. PUK on Fitz' idee fix and notation about never apparently having asked Wilson if he himself had ever told anyone about his wife's employmentThere is substantial public record evidence, for example,that Plame's identity was well known to many reporters (including, for example, David Corn of the Nation who first floated the "revenge outing" and Plame was "covert" fables) and the only reporters who were questioned were those who had spoken to Libby and Rove.
moreover, in questioning selective reporters he limited his questioning of them to discussions with Libby and Rove, leaving out that they had other sources, thus skewing and distorting the investigation to a predictable end. One example of this is the questioning of Cooper who does not seem to be asked if he had knowledge of Plame outside any discussion with these two. As his wife was a prominent Clinton appointee that seems a reasonable likelihood. As his co-author Calabresi spoke to Wilson before and after his discussion with Libby that seems a certainty.That Cooper's call, in fact, was pretextual seems a certainty for his written account is at complete odds with his testimony.

Indeed, the agreement that the prosecutor made with reporters to only reveal certain sources was certain to skew the record. Here is but one example:
Judith Miller statement on agreement with Special Counsel to limit testimony to Libby.
Published: September 30, 2005
Following is the transcript of a statement by Judith Miller on Friday afternoon, as recorded by The New York Times
"Once I got a personal, voluntary waiver my lawyer, Mr. Bennett, approached the special counsel to see if my grand jury testimony could be limited to the communications with the source from whom I had received that personal and voluntary waiver. The special counsel agreed to this and that was very important to me."
http://www.nytimes.com/2005/09/30/politics/30transcript-miller.html?ex=1148270400&en=6f361ab70706e9ad&ei=5070


In sum and substance you have a prosecutor who is misusing his office in a way which violated ethical standards and the department's rules and regulations which codify those standards of conduct

Updated draft


Note the Judge's ruling re the Dismissal motion--that Fitz is bound by the rules and regulations of the Dept and therefore we believe that this is the appropriate office to which to bring the complaint.[citation and quote from ruling]
2.. If we are wrong and the OPR feels that under the particular circumstances of the appointment it has no jurisdiction, we'd appreciate a public statement to that affect for we believe it is relevant to the trial court's ruling and to any which may be made subsequently by a reviewing court.
3. We believe that to date Fiz has violated the rules and regulations and his ethical obligations as an attorney representing the government in the following respects:

(a) the false statements in the presser which misstated the facts and represented an effort to smear Libby and poison public opinion against him [detail misrepresentations0;
(b) the misleading representations to the Miller Court, including the footnote upon which Tatel relied;[detail]
(c) the setting up of a perjury trap by reading out of all sense his mission (to protect a whistleblower, rather than to find a leaker).I'd quote his good leak/bad leak statement. His mission was to find the leaker and he had found that person before he compelled the testimony of Miller.His statement of the law in the footnote to the Miller court was misleading and wrong. He knew at the time he went to the Ct of Appeals that he has no grounds to believe there had been a violation of IIPA or the Espionage Act. Both statutes were inapplicable.
(d) that he has conflated normal testimonial variances into perjury and false statements acts
(e) he is engaged in selective prosecution, charging Libby with false statements and conspiracy and not charging the leaker who, it appears, was really "the first to leak", someone who it seems disclosed Plame's identity to two reporters both of whom told others and one of whom, in fact, published that information leading to this investigation;
(f) He has improperly criminalized a political dispute.[Let's quote lots of his stuff..including that bit about good leaks/bad leaks to show that he is not impartial, but in deciding what is a good leak selects the anti-Administration statements of a serial liar (cite SSCI report) and a bad leak anyone who quite understandably sought to set the record straight. Wilson was a partisan with deep ties to the President's opponent, he publicized his false charges widely and they were charges of significant moment and import.The Administration had every right and reason to respond and Fitz' singular interpretation of what he is doing is proof that he has politicized this matter.
(g) He has gratuitously used the proceedings to smear the Administration for reasons unrelated to the advancement of the case:
(i) the NIE claim in his pleadings which he waited a week to correct.
(ii) the Cheney annotations assertion which he knew to be false and certainly not probative of Libby's state of mind

Above and beyond this, what he do know on the public record is that the investigation he oversaw was a one-sided one, designed to target Libby and Rove and not to get at the truth. PUK on Fitz' idee fix and notation about never apparently having asked Wilson if he himself had ever told anyone about his wife's employmentThere is substantial public record evidence, for example,that Plame's identity was well known to many reporters (including, for example, David Corn of the Nation who first floated the "revenge outing" and Plame was "covert" fables) and the only reporters who were questioned were those who had spoken to Libby and Rove.
moreover, in questioning selective reporters he limited his questioning of them to discussions with Libby and Rove, leaving out that they had other sources, thus skewing and distorting the investigation to a predictable end. One example of this is the questioning of Cooper who does not seem to be asked if he had knowledge of Plame outside any discussion with these two. As his wife was a prominent Clinton appointee that seems a reasonable likelihood. As his co-author Calabresi spoke to Wilson before and after his discussion with Libby that seems a certainty.That Cooper's call, in fact, was pretextual seems a certainty for his written account is at complete odds with his testimony.

Indeed, the agreement that the prosecutor made with reporters to only reveal certain sources was certain to skew the record. Here is but one example:
Judith Miller statement on agreement with Special Counsel to limit testimony to Libby.
Published: September 30, 2005
Following is the transcript of a statement by Judith Miller on Friday afternoon, as recorded by The New York Times
"Once I got a personal, voluntary waiver my lawyer, Mr. Bennett, approached the special counsel to see if my grand jury testimony could be limited to the communications with the source from whom I had received that personal and voluntary waiver. The special counsel agreed to this and that was very important to me."
http://www.nytimes.com/2005/09/30/politics/30transcript-miller.html?ex=1148270400&en=6f361ab70706e9ad&ei=5070

Walter Pincus also received information from someone revealing Plame’s identity and position and was not required to testify:

The Washington Post reported last year:
[quote] "I understand that my source has already spoken to the special prosecutor about our conversation on July 12 [2003], and that the special prosecutor has dropped his demand that I reveal my source. Even so, I will not testify about his or her identity," Pincus said in a prepared statement.
"The source has not discharged us from the confidentiality pledge," said The Post's executive editor, Leonard Downie Jr. [/quote]

Subsequently, Bob Woodward says , he too, conveyed this information to Pincus which he’d received from his source.News reports say that Pincus has no recollection of that discussion. But because the Prosecution never questioned Pincus we do not have on the record confirmation of that. In any event, perhaps if he had been questioned about other sources, the Prosecution may have learned earlier about Woodward’s source.

In sum and substance you have a prosecutor who is misusing his office in a way which violated ethical standards and the department's rules and regulations which codify those standards of conduct


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