Thursday, February 23, 2006

The Libby Website -- New Motion to Dismiss the Indictment

The legal defense fund for I. Lewis Libby has a website ( 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)

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I am not sure that an interlocutory
appeal of a denial of the motion is poss-
ible. Show me how.

And I do not see how a reindictment based
on an investigation and empaneling of
a grand jury based on a constitutionally
flawed appointment is either. Explain.

Posted by: clarice | Feb 24, 2006 12:39:36 PM

Isn't Libby's Appointments Clause argument foreclosed by Morrison v. Olson, 487 U.S. 654 (1988)?

Posted by: Marcel | Feb 24, 2006 2:27:56 PM


Denial of the motion would not trigger a right to appeal for Libby, only granting the motion (as the post states). If the indictment were dismissed, then 18 USC Sec. 3731 provides as follows: "In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."

Similarly, if the indictment were dismissed on this ground, I think a validly appointed prosecutor (either Fitzgerald after Senate approval) or the Attorney General could seek a new indictment from a grand jury. Because Libby seeks pretrial dismissal, double jeopardy would not bar a new indictment, nor would the statute of limitations present a problem. This would not involve an appeal, only fixing the process to pass constitutional muster.

peter henning

Posted by: Peter Henning | Feb 26, 2006 1:30:08 PM

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