Thursday, February 23, 2006
The legal defense fund for I. Lewis Libby has a website (www.scooterlibby.com) with information about Libby, a list of the fund's Advisory Committee that includes a number of former administration officials and senators, and links to recent headlines. The fund's trustee is G. Michael Green, a tax lawyer at Dickstein Shapiro in Washington, D.C.
The site links to an AP story (here) discussing the response of Libby's lawyers to the "greymail" accusation made by Special Counsel Patrick Fitzgerald, that Libby seeks a large volume of classified materials as part of a strategy to obtain a dismissal of the charges under the Classified Information Procedure Act (see earlier post here). The response of defense counsel is that the greymail accusation "is not only false, but insulting" -- an almost sure sign that the defense strategy includes seeking a means to have the charges dismissed under CIPA. But that's not the only avenue for seeking dismissal. Also available on the website is Libby's motion to dismiss the indictment (here) filed on Feb. 23. The motion asserts that the appointment of the Special Counsel violates the Appointments Clause (Art. 2, Sec. 2), which requires the advice and consent of the Senate for a "principal officer" who can exercise the power of the United States to approve an indictment and prosecute a case without further supervision by a superior officer. Because Fitzgerald's office need not obtain the prior approval of the Attorney General or U.S. Attorney before seeking an indictment, he can only be appointed after the advice and consent of the Senate, according to Libby's brief. Needless to say, in the current political climate, I suspect Fitzgerald's nomination would sail through the Senate if that were necessary. This new front in the litigation could cause a delay in the trial if U.S. District Judge Reggie Walton agrees with the defense argument because it would trigger an immediate appeal, or perhaps Senate approval of Fitzgerald's appointment and a reindictment. (ph)