the set-up here, is that earlier
today, the court of appeals for the d.c.
circuit, from the bench of judge tatel,
re-published an even-less-redacted
version of a much earlier collateral
opinion in the libby case — denying
various media people the right to refuse
questioning, by patrick fitzgerald, under
oath, before the grand jury. . . during the
continuing investigation of the c.i.a. leak
case that led to mr. libby’s conviction.
[thanks to j. at talkleft.com for hosting
the now-almost-fully-filled-in opinion. . .]
but the post one must read on all of this,
was authored by EW, over at thenexthurrah.com,
earlier today. it posits several possibilities
for the portions of the opinion that remain re-
dacted — one of which directly involves dick
cheney. do go read it all, but here is a quote:
. . .In the same way that there is almost certainly some sentence that gives closure to the Armitage quotations in the Novak passage, there must be some kind of statement that explains the meaning of these Cheney references. But since that explanation appears in the Rove section, then presumably there is some evidence of Cheney’s involvement in Rove’s lies. Get it?
There’s one more piece of evidence to support my wildarsed guess. Look at Tatel’s discussion of why what appears to be a perjury case overcomes the reporter’s privilege:
“. . .Finally, while it is true that on the current record the special counsel’s strongest charges are for perjury and false statements rather than security-related crimes, that fact does not alter the privilege analysis. Insofar as false testimony may have impaired the special counsel’s identification of culprits, perjury in this context is itself a crime with national security implications. . .”
He starts by making the argument about obstruction that I’ve been making for so long, suggesting that the lies Rove and Libby told even still might be preventing Fitzgerald from identifying culprits. That’s a particularly curious formulation since Fitzgerald had two suspects, Rove and Libby, in his sights, and if it referred to them you’d think Tatel might have mentioned intent, rather than culprit, which was one of two things preventing an IIPA indictment of them. But it mentions a culprit, which suggests that Fitzgerald was prevented from identifying a different culprit — Dick. . .
fascinating, truly. and excellent work.
now, as that sinks in, consider this:
consider that this is the same judge, and
the same panel, that will decide scooter
libby’s motion for release during the appellate
process. in fact, we are waiting for either (1) an
order setting oral argument on the motion, perhaps
for the week of july 9, or (2) an outright memorandum
opinion, and/or order, deciding the motion without
hearing argument. reading the re-issued opinion, i’d
now bet on the latter. and, i’d bet it will be bad
news for scooter libby.
that is — i expect that this panel will deny mr.
libby bail while his appeals are prosecuted. i think
the timing of this re-issue is a clear signal to team
libby, and lawrence s. robbins, that this panel does
not feel ambiguous, in any way, about the conduct of
scooter libby. while this opinion does not touch on
mr. fitzgerald’s right to bring the case, i also fore-
see a pretty strong sense of deference to his judgment,
particularly as to matters involving “fair play“, for
lack of a more legally-precise term.
true, the panel was not asked, then, about the question
lawrence robbins and team libby now call a “close” one,
but i am beginning to get the sense — just as with judge
reggie walton, earlier, at trial — that the body-english
looks pretty ominous for mr. libby’s chances of avoiding
later: not to pile on, but add to libby’s list of woes that
the supremes have decided to reconsider, and will now
grant certorari in two of the “guantanamo“
cases — [this is exceedingly rare — it last occurred
in 1968!] it sure seems like a point-of-inflection has
been reached — and perhaps, breached — in the conservative
circles now-no-longer-enthralled with the endless-parade-of-
bush-cheney-faux-gestapo tactics. . .
i hesitate to read too much into all of this, but i
do feel pretty strongly that all of this — the timing
of it, especially — looks to bring bad news to team
libby — and pretty soon.
i’d be surprised to see anything before the fourth of
july, now. . . and would expect something around the
9th or 10th of july. . . but it could still come, with
a flourish, before the 4th — say on monday, the 2nd.
then, team libby will need to prepare either an out-
right appeal “on the merits“, or seek cert. on the emergency
release motion. it is far-too-early to tell which path will
best suit them. this is so, because team libby will need
to assess their chances with this panel by reading the panel’s
obiter dicta on the emergency release motion. . .
once lawrence robbins sees the way the wind is blowing
in front of the panel, he may even choose to seek an en banc
re-hearing before the whole court of appeals. we’ll have
to wait and watch for these possibilities to become plain.
in any event, buckle up for next week.