Monday, June 11, 2007

Law Professors Question Fitzgerald's Authority in Libby Case

According to this law.com article, a dozen law professors are questioning the constitutional authority of Patrick Fitzgerald in the I. Lewis "Scooter" Libby case.

"The constitutional issue to be raised on appeal is substantial," conservative Robert Bork, liberal Alan Dershowitz and 10 other professors wrote in their nine-page brief, filed Thursday at U.S. District Court in the District of Columbia.

"To our knowledge, the special counsel appears to occupy virtually a 'class of one' in the history of special prosecutors," the professors wrote...

The professors argue Fitzgerald may have been given too much power, with too little accountability, since he was not appointed by the president or approved by the Senate. Moreover, they say, Fitzgerald was exempted from complying with Department of Justice policies -- even though he was appointed by the attorney general.

"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," the professors wrote.

Judge Reggie Walton reacted rather childishly to the display of law acumen.
On Friday, U.S. District Judge Reggie B. Walton agreed to consider the legal argument as part of Libby's request for bail while the case is appealed. But in a stinging rebuke to the professors, Walton sarcastically called it "an impressive show of public service" that such a group of distinguished lawyers would rush to help a criminal defendant -- and questioned whether they would do the same for others who lacked financial means for brilliant legal aid.

"The court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, wherever similar questions arise in the cases that come before it," Walton wrote in his one-page order granting the request to consider the constitutional argument.

But Eugene Volokh points out the stupidity of Walton's remarks.
Yet this makes no sense. The point of amicus brief is to express the signatories' views on some matter that they especially care about, in which they have a special interest or on which they have special expertise. A pro-abortion-rights organization, for instance, may file such a brief in an abortion rights case. Constitutional law professors who believe the Constitution, properly interpreted, supports abortion rights may do the same. No-one pretends that it's an "impressive show of public service," except insofar as any not terribly difficult action on behalf of a legal view that you think is the right view is a form of public service.

Of course it doesn't make sense. Walton was pissed off that so many well-known and respected law professors took issue with the Libby prosecution. Instead of leaving the issue for appeal, Walton decided to accuse the professors of favoring high-level political figures instead of unknown defendants.

But Volokh points out that these same professors could write amici briefs in just the cases Walton suggests, not because of some notoriety or power attached to the cases, but because the issues raised are within their areas of expertise.
Such amici (whether advocacy groups or professors) surely incur no professional or moral obligation to start helping other litigants who raise other issues about which the amici don't are, or on which they lack expertise. Would you demand that a pro-abortion-rights professor who filed a pro-abortion-rights brief also file a brief in an assisted suicide case? Would you demand that he file such a brief even in an abortion rights case that raises a different issue? I would hope not — there's just no reason to think that because someone cared strongly about issue X he must now express his views about issue Y, or even that his views about issue Y would be helpful. The same applies here...

what's the point of the sarcasm? I take it many of the signatories would be happy to express the same view in a future case raising the same issue. Some might not — and according to standard professional conventions, they are entitled to decide which litigants to speak on behalf — but many might. (Why would Amar or Dershowitz, to take the most obvious examples, treat a future Democratic special prosecutor target any worse than a future Republican?) The snideness thus seems at the very least premature.

And immature.

Volokh has more in his post and it is wonderful reading.