Twelve Distinguished Law Professors Concerned About CIA Leaker, Nostalgic for Firing Special Counsel
Even as AP Reports a Woman Facing a Possible Three Year Sentence for Filching Toilet Paper...
By Margie Burns on 6/12/2007, 8:06pm PT  

*** Special to The BRAD BLOG
*** by Libby/CIA Leak Trial Correspondent Margie Burns

On November 29, 2005, the Boston Globe ran a nice Letter to the Editor by Mr. Ralph West of Philly, under the headline “REMOVE CANCER IN ADMINISTRATION”:

...It is just as important as ever that the metastasized cancer of corruption in the Bush administration be removed, if possible...If a Robert Bork does not emerge to fire Fitzgerald, we may yet get to the truth of the Valerie Plame Wilson affair...

Mr. West's concerns may now have come to fruition, The BRAD BLOG has learned, as "a Robert Bork" has emerged --- in fact, Robert Bork himself --- along with eleven other law professors from some of the nation's most highly regarded law schools, and Pepperdine, to file an amici brief in the Scooter Libby perjury and obstruction of justice case in order to argue that the Special Prosecutor's assignment to the case was unconstitutional...

Bork was the Nixon official found willing to fire Special Prosecutor Archibald Cox during the height of the Watergate investigation, after Attorney General Elliott Richardson and DAG William Ruckelshaus resigned rather than do so. Having attained fame as the Acting Attorney General who carried out the “Saturday Night Massacre,” Bork --- who had never served as a judge --- was subsequently placed on the DC federal appeals court by Ronald Reagan, who then nominated him to the Supreme Court, with some ensuing unpleasantness. The noise machine has turned Bork into a symbol of constitutional ‘conservatism’ martyred --- ‘borked’ --- by liberals.

While Bork and friends can't fire the Special Prosecutor Fitzgerald in the CIA leak matter, their brief argues to Judge Reggie Walton that they believe “the constitutionality of Special Counsel Fitzgerald’s appointment presents a close question.”

Quick note: a “close question” apparently means one that has a chance of winning on appeal. For the bail hearing for Lewis 'Scooter' Libby --- Thursday June 14 --- Libby's attorneys must argue that the issues for appeal are substantive and not just a way to postpone imprisonment. This "friends of the court" brief is offered to help the defendant.

-- The brief brief may be downloaded here [PDF]

The profs filing this amici curiae brief are Vikram Amar of the U of California, prominent West Coast go-to interviewee for media inquiries about high-profile legal cases; Alan M. Dershowitz and a Harvard Law colleague, Richard D. Parker; Viet D. Dinh and fellow Georgetowner Randy E. Barnett; Douglas W. Kmiec and Robert J. Pushaw of Pepperdine; Gary Lawson of Boston U; Earl M. Maltz of Rutgers; Thomas Merrill of Columbia; and Robert F. Nagel of Colorado. Rounding out the apostolic twelve is Robert H. Bork.

Counsel for the group is attorney Christopher J. Wright of the DC law firm Harris, Wiltshire & Grannis.

Bork, now living in Arlington, Virginia, is retired from Yale Law; seven of the others have endowed chairs, including Dershowitz; and one is a Distinguished Professor.

The group is not narrowly partisan --- Dershowitz, for example, has donated to Dems running for office --- but it does have a pronounced leaning toward the barking pro-war, military-and-security-complex range of the political spectrum. Professor Viet Dinh, of Georgetown, was among chief framers of the USA PATRIOT Act and then went to ChoicePoint as an advisor on the company’s federal homeland security contracts. Among other affiliations, he sits on the board of Rupert Murdoch’s News Corporation and was on Arnold Schwarzenegger’s Transition Committee. In 2006, with Whitewater prosecutor Ken Starr, he challenged the constitutionality of the Sarbanes-Oxley Act requiring corporations to provide fuller accounting of executive compensation via stock options; he also wrote in favor of dismissing espionage charges against two AIPAC lobbyists in another leak case. During the out-of-power Nineties Dinh was an attorney for the Senate Whitewater investigation of the Clintons and was Special Counsel to Sen. Pete Domenici (R-NM) in Clinton’s impeachment.

On October 27, 2005 – the day before the grand jury indicted Lewis Libby – Dinh co-authored a commentary in the Wall Street Journal against appointing special prosecutors.

Some members of the group would seem to lean toward an authoritarian model of First Among Equals. Professor Douglas Kmiec, holder of an endowed chair at Pepperdine, was Reagan’s head of the Office of Legal Counsel and helped develop Reagan's use of ‘signing statements,’ now used with unprecedented frequency by Bush.

One could not accuse the profs of paper-churning or time-wasting. At a scant five pages, this must be one of the shortest briefs on record, especially for twelve law professors. The U.S. Attorney’s office, through spokesman Randall Samborn, says it has no comment on the brief at this time.

I am not an attorney, and have no credentials whatever in law – having taken one course in Constitutional Law, in a university rather than a law school, and only for personal interest.

So I am limiting myself to the eminent professors’ shortest and simplest statements, below, each set forth by the profs merely as fact, not argued:

To begin with, his office was not created by Congress. That is a factor of at least arguable constitutional significance
No such statute [as 28 U.S.C. 594(f)] binds the Special Counsel to comply with Justice Department policies;
his appointment did not arise (a) under the governing Department of Justice regulations (28 C.F.R. Part 600), (b) pursuant to the now-defunct Independent Counsel Act, (c) as a result of direct Presidential action, or (d) as in the Watergate investigatoin and Teapot Dome scandal, with guidance from or other restrictions imposed by Congress.

This kind of thing is difficult for a non-lawyer to understand. If they mean that the Special Counsel appointment did not come from Congress or from the Justice Department but sprang up somehow outside the basket, and hopped in --- on December 30, 2003 [PDF] , when the GOP controlled both houses of Congress as well as the White House, with Bush enjoying a 57% approval rating following the capture of Saddam Hussein and looking pretty solid for reelection --- you’d think people like Tom DeLay, Dennis Hastert and Orrin Hatch would have noticed.

Maybe not that day, maybe not the next day, but soon, and for the rest of their lives.

Or at least some time before the 2007 trial.

In fact, in September of 2003 Senator Hatch (R-UT) had already stopped a ‘Sense of the Senate’ amendment proposed by Chuck Schumer of New York: “Purpose: To express the sense of Congress concerning the appointment of a special counsel to conduct a fair, thorough, and independent investigation into a national security breach.”

If a GOP Congress objected even to expressing a wish for a Special Counsel, why couldn’t the Majority pull the purse strings and prevent the appointment? Why did it create the office, two months later, and find ways to keep on funding it?

The existence of the position is regularized by law, and the law came from Congress. Why doesn’t that count as “created by Congress” “with guidance” etc from Congress?

Deputy AG James Comey, in his appointment letter [PDF], cited 28 U.S.C. 509, which reads in part:

Since Attorney General derived his authority to hire Watergate Special Prosecutor from Congress, Congress therefore had power to limit circumstances in which Special Prosecutor could be discharged; in this case Attorney General chose to limit his own authority by promulgating formal Department of Justice regulation giving Special Prosecutor broad powers of investigation and prosecution, and providing that Special Prosecutor would not be removed from his duties except for extraordinary improprieties, and it is well settled that in such circumstances agency regulation has force and effect of law; existence of agency regulation thus made the discharge of Special Prosecutor for insisting upon executive compliance with final court order illegal. Nader v Bork (1973, DC Dist Col) 366 F Supp 104, vacated (1975, DC Dist Col) 1975 US Dist LEXIS 16791.

The statement that no (“such”) statement binds Special Counsel to comply with DOJ policy is also puzzling, but the brief does not go on to argue it, so maybe it doesn’t matter much.

Then there’s the statement about “28 C.F.R. Part 600.” This one seems to have been canvassed for Congress by the Government Accountability Office (GAO):

...Unlike the expired independent counsel law, the permanent indefinite appropriation does not require that a Special Counsel be appointed from outside the government. The Department, in appointing Special Counsel Fitzgerald under "other law", has afforded him independence by delegating all of the Attorney General's authority with respect to the investigation and instructing him to exercise that authority independent of the control of any officer of the Department. Finally, the Part 600 regulations are not substantive and may be waived by the Department.

But then the amici writers seem to hold a rather pessimistic view that even the power to fire someone is insufficient control:

With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed “superiors” [sic] 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.

The gist of this argument seems to be that the new office is intrinsically uncontrolled, because a new “Saturday Night Massacre” would be politically unfeasible. You can tell where they’re headed with this --- oh, for the good old days of Meese and Agnew on a balcony, soaking up the smell of tear gas from the streets below --- although, with only 5 pages invested, they don’t seem too dug in about it.

Admittedly that kind of nostalgia can also be found on the other side of the aisle. As our Boston Globe letter-to-the-editor writer, Mr. West, who we began this piece with, continued...

...which, like the Watergate break-in, is really emblematic of the lies, Swift-Boating, and bullying with which Bush marched our country to war. The Fourth Estate, it is true, has surrendered much of its credibility. However, unlike the Watergate era, we now have the Internet, which the FCC has not yet succeeded in corrupting or bullying. For my part, I no longer watch or read the media's Judith Millers, David Brooks, John Tierneys, Bob Woodwards, Tim Russerts, Chris Matthews, et al. Corrupt as much of it is, the legal system may be our salvation in our present situation.

Judge Walton permitted the filing of the amici brief, as is typical. He also inserted an atypical comment noting a hope that these interested luminaries might find a similar interest in future cases involving defendants too poor to afford the same fine counsel as Mr. Libby:

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 an indication 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.

Perhaps the woman (unfortunately named Butts) who AP reports may now be facing a three-year sentence for stealing three rolls of toilet paper, would appreciate the attention of these twelve concerned and distinguished law professors.