Fitzgerald submitted his response to Libby’s request for bond pending appeal today. Basically, it reiterates the points he made in last week’s hearing on the issue, though in the written form that allows some snark.

Congress Doesn’t Need New Laws

The filing starts by undercutting Libby’s Appointments Clause complaint with a simple reading of the law.

Remarkably, defendant’s application, while suggesting that the AAG might have addressed the urgent conflict-of-interest issue by opting to seek new legislation from Congress … contains no mention of the statutory provisions under which AAG [Comey] acted. In fact, the delegation was made pursuant to the AAG’s statutory authority under 28 USC 510 to delegate any of the functions of the Attorney General to any other officer of the DOJ.

This is where Team USA adopts the same dismissive attitude that Libby’s new Appeals lawyer uses.

Defendant’s argument so lacks merit that it does not present a substantial issue.

While that’s not so persuasive, this bit of snarky logic is:

So Jeff Lomonaco and I were trying to figure out the best place for us to meet face to face after having emailed obsessively on the Plame case for two years. We thought of the best place to meet: at Prettyman Courthouse so we could read through the CIPA filings submitted last year in the case. This post will lay out some general items of interest. In a follow-up later this weekend (or maybe Monday), I’m going to talk about how the CIPA materials support the argument that Dick Cheney was trying to launder the information he had learned on June 10, 2003–information on DOD and State’s interest in the Niger intelligence, and information on Valerie Plame’s identity–so he could publish it. But first the general points.

Dorn Tidbits
Marilyn Dorn from the CIA wrote several statements over the course of the CIPA process describing the information that CIA needed to protect. In one of those, she provides the answer to a question bandied about for some time: whether the CIA did a damage assessment or not on the Plame leak. Dorn writes:

The CIA has not undertaken a “damage assessment”in this case. In accordance with its standard policy, the CIA does not conducta formal damage assessment to determine the actual damage to national securitycaused by an unauthorized disclosure while a criminal investigation orproduction of the matter is pending.

In other words, CIA didn’t do an assessment, but that doesn’t mean there was no damage. Rather, they simply didn’t do an assessment because they don’t, when there is a criminal investigation pending.

But Dorn does provide the following details, none of which are surprising, but describe some of the damage:

The CIA disestablished certain entities that had provided coversupport to Ms. Wilson, such as providing cover backstopping. These coverentities also provided cover support to other CIA personnel. These CIApersonnel were notified of the potential compromise of their identities and weremoved to other cover entities. The CIA notified cover providers whoseclandestine relationships with the CIA were potentially compromised by theWilson leak.

 

In other words, when Novak good and burned Brewster and Jennings in Fall 2003, a bunch of people had to get new cover.

I deliberately avoided Richard Cohen’s latest nonsense of the other day. But then watertiger sent me a tidbit from Cohen’s online chat today (dirty trick, watertiger), and I got sucked in. First, let me start with this passage:

Boston: If Bush felt he needed to respond to Wilson, why not do it openly, on-the-record, based on the merits?

Richard Cohen: Good question. I’m not sure Bush was involved in this at all, but in general I agree.

"I’m not sure Bush was involved in this at all." Well maybe, Cohen, that’s why you shouldn’t write about this case. Because you don’t know what the fuck you’re talking about. You see, evidence submitted at the trial made it clear that on June 9, Bush got involved. And later, on July 10, Condi passed on that "Bush is comfortable." Not to mention the fact that Dick Cheney claims to have asked Bush to declassify Plame’s identity the NIE. If Cheney did, in fact, have Bush unilaterally declassify Plame’s identity the NIE, I’d say that means he was involved.

It appears that we’ve got our panel for Scooter’s motion for release pending appeal–and we lucked out. Judges Sentelle, Henderson, and Tatel appear to be the panel–the same three judges that heard Judy’s and Cooper’s appeal on their subpoena. Sentelle is no liberal, not by any shade. But his decision on the appeal was reasonable. And Henderson and Tatel? They’re probably not invited to many cocktail parties at Laurence Silberman’s.

They’ve ordered the government to file its response to Libby’s request for bond by the 22nd, Friday. And Libby’s team must respond by the 26th.

So they’re expediting this. But they’re not the wingnuts who might have heard this motion …

One more thing: they’re not interested in hearing the Amici Illuminati’s brief.

Here is my presentation from the Take Back American panel on "Curbing the Imperial Presidency." I’m sure it didn’t come out this way. But it might be close.

One year after the publication of his book The ImperialPresidency, Arthur Schlesinger wrote the following for a column in Harpers:

We hear a great deal today aboutthe presumably grim consequences of the impeachment of the President—an endlesspublic trial, a people divided, a government paralyzed, a nation disgracedbefore the world. But suppose the House of Representatives should decide notto impeach Mr. Nixon. That would have its consequences, too—consequencesthat deserve at least as careful an examination.

For the refusal to impeach wouldbe a decision as momentous as impeachment itself. It would and could beinterpreted only as meaning that Congress does not think Mr. Nixon has doneanything to warrant impeachment. It would alter the historic relationship ofPresidential power to the constitutional system of accountability for the useof that power. The message our generationwould send to posterity would be that Mr. Nixon, whatever his other disasters,had conceived and established a new conception of Presidential accountability,and that his successors, so long as they take care to avoid the crudities of aWatergate burglary, can expect to inherit Mr. Nixon’s conception of inherentPresidential authority and to wield the unshared power with which he will haveendowed the Presidency. Failure to impeach would be a vindication of arevolutionary theory of Presidential accountability.

Now, I agree with Schlesinger. The fear of an endless publictrial, of government paralyzed, of international disgrace—those are notsufficient reasons to avoid impeaching a President (or Vice President orAttorney General) who has overstepped his constitutional authority.

Oh, this is getting good. As part of his interim report on RNC emails, Waxman released Susan Ralston’s testimony before the committee. Reading the deposition, it becomes pretty clear why Tom Davis was trying to warn Rove of the danger of Ralston’s testimony. Because even what she was willing to testify to makes it clear that Rove is in some deep legal trouble. And then when you look at the areas where she carves out immunity for herself, you realize that if she were ever to testify under immunity, Rove would be in deeper trouble.

The carved out areas, as already reported, pertain primarily to the Abramoff scandal and the use of RNC emails–both area where Ralston’s position as Karl’s gatekeeper would implicate her in the larger workings of the WH. For example, here is Brad Berenson, the GOP’s  designated firewall defense attorney,  explaining the limites of Ralston’s testimony on RNC emails.

Berenson. Yes. We have decided this morning to allow her to talk aboutsome of the mechanics of Mr. Rove’s use of e-mail accounts, but when itcomes to the reasons of why he vvas using political e-mail accounts,there ìs a reasonable, well-founded concern that a discussion of thereasoning behind the use of those accounts may sweep more broadly thanMr. Rove himself , and may go part of the way toward explaining apattern of usage among other officials, potentially including Ralston,and so that’s why vve are goìng to decline to answer that question thismornìng.

At one point, Berenson reveals something more specific they’re trying to hide.

Q Do you know if anybody received briefings about how to use the different e-maiI accounts?

Mr . Berenson. I ‘m goìng to interpose our previous objection there for the same reasons stated at the outset.

Anyone want to guess a) that there was a briefing and b) that they made it very clear that they should dump anything illegal into RNC emails? Well, Ralston knows, but she won’t tell until you give her a stay out of jail free card.