U.S. v. Libby

Page 1

498 F.Supp.2d 1

UNITED STATES of America, v. I. Lewis LIBBY, Defendant.

Criminal Action. No. 05-394 (RBW).

United States District Court, District of Columbia.

June 21, 2007.

Patrick Fitzgerald, Office of the United States Attorney, Debra R. Bonamici, Office of the Special Counsel, Chicago, IL, Kathleen Kedian, Peter Robert Zeidenberg, U.S. Department of Justice, Washington, DC, for United States of America.

MEMORANDUM OPINION

WALTON, District Judge.

On March 6, 2007, the defendant was convicted on four counts of obstruction of justice, perjury, and making false statements to federal investigators. On June 5, 2007, as a consequence of these convictions, the defendant was sentenced, inter alia, to a term of thirty months imprisonment.¹ Upon the imposition of the sentence, the defendant requested that he be released on bond pending his appeal pursuant to 18 U.S.C. § 3143 because one or more of the issues he plans to raise on appeal constitute "substantial question[s] of law or fact likely to result in [a reversal of his convictions or an order for a new trial]." 18 U.S.C. § 3143(b) (2000); see also I. Lewis Libby's Motion for Release Pending Appeal ("Motion") at 2-5; I. Lewis Libby's Reply in Further Support of His Motion for Release Pending Appeal ("Reply") at 1. The government opposes the defendant's request. Government's Response in Opposition to Defendant's Motion for Release Pending Appeal ("Opp.") at 1. For the following reasons, and in accordance with the Court's oral orders issued at the June 14, 2007 motions hearing, the defendant's motion for release pending appeal is denied.

I. Legal Standard

The United States Code requires that a federal criminal defendant "who has been found guilty of an offense and sentenced to a term of imprisonment" be detained during the pendency of his appeal, unless the Court finds (1) that the person does not pose a flight risk or a danger to the community; and (2) "that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in ... reversal[][or] an order for a new trial."² 18 U.S.C. § 3143(b)(1). Thus, under § 3143(b), "[t]he law has shifted from a presumption of release to a presumption of valid conviction," United States v. Perholtz, 836 F.2d 554, 556 (D.C.Cir.1988) (citation omitted), and the defendant bears the burden of rebutting this presumption and "demonstrat[ing] that he has a substantial question to present [upon appeal] before he may be admitted to bail," United States v. Shoffner, 791 F.2d 586, 589 (7th Cir.1986); see United States v. Colon Berrios, 791 F.2d 211, 214 n. 4 (1st Cir.1986) (stating that "[i]n enacting § 3143 [(b)], Congress placed the burden as to all elements bearing on whether to grant bail pending appeal on [the] defendant[]") (emphasis in original) (citations omitted); see also Reply at 1 (stating that "[t]he government is correct that it is the defense's burden to show that Mr. Libby will raise substantial issues on appeal").

In United States v. Perholtz, the District of Columbia Circuit held that an issue is "substantial" for the purposes of § 3143(b) if it "is a close question or one that very well could have been decided the other way,"³ Perholtz, 836 F.2d at 555 (internal quotation marks and footnote omitted); see also, e.g., United States v. Day, 433 F.Supp.2d 54, 55 (D.D.C.2006) (applying the Perholtz standard); United States v. Quinn, 416 F.Supp.2d 133 (D.D.C.2006) (same).⁴ In so holding, the Perholtz Court considered "[t]wo differing standards for determining substantiality [that had] been adopted in the various circuits," choosing to adopt the "more demanding" of the two standards "because it appears better to accord with the expressed congressional intent to increase the required showing on the part of the defendant."⁵ Perholtz, 836 F.2d at 555-56. Accordingly, if the Court cannot conclude that the defendant raises "a close question or one that could very well have been decided the other way," Perholtz, 836 F.2d at 555 (internal quotation marks and footnote omitted), it is bound to order that the defendant be detained. 18 U.S.C. § 3143(b)(2). However, if the Court finds that the defendant does raise a substantial question of law or fact, it must release the defendant while he pursues his appeal. 18 U.S.C. § 3143(b)(1); see Motion at 2 (observing that "bail pending appeal is mandatory, not discretionary," once the requirements of § 3143 are found to have been met).

II. Legal Analysis

Here, the defendant proffers numerous issues for the Court's consideration, each of which he claims "raises a substantial question of law or fact likely to result in ... reversal [of his convictions]," 18 U.S.C. § 3143(b)(1), and each of which the Court addressed during the June 14, 2007 hearing on the defendant's motion.⁶ See Motion at 4 (stating that the defendant's "pre-trial and trial motions, combined with defense objections preserved in the record, present a number of close questions that are more than sufficient to satisfy the requirements of § 3143(b)"). Among the issues identified as "substantial" by the defendant is whether the Special Counsel in this case qualifies as an "inferior officer" or a "principal officer" under the Appointments Clause of the United States Constitution, art. II, § 2, cl. 2.⁷ Motion at 5-7; see generally United States v. Libby, 429 F.Supp.2d 27 (D.D.C.2006) (holding that the Special Counsel is an inferior officer). The Court addresses this question at greater length below.⁸

The Appointments Clause

The defendant argues that "[t]he question whether the appointment of Patrick Fitzgerald as Special Counsel satisfied the Appointments Clause of the Constitution ... is a close one," and one for which "[t]he Court of Appeals could easily reach the opposite conclusion from this Court."⁹ Motion at 5. The Court disagrees. In its April 27, 2006 Memorandum Opinion addressing this issue, the Court undertook a ,thorough and painstaking, yet ultimately straightforward analysis of the role of the Special Counsel in the constitutional firmament, concluding easily that the scope of the Special Counsel's duties and authority fit "squarely into the mold of [Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988)], [in which] the Supreme Court concluded that the independent prosecutor [in that case] was an inferior officer." Libby, 429 F.Supp.2d at 44; see generally id. at 34-45. As a result, and based upon the applicable Supreme Court precedent — most notably Morrison and Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) — it is absolutely clear to this Court that the Special Counsel, like the independent prosecutor in Morrison, should be considered an inferior officer, and that the terms of his appointment by the acting head of the Department of Justice were therefore entirely proper under the Appointments Clause.

1. Factual Background

The circumstances of the Special Counsel's appointment are set forth in great detail in the Court's April 27, 2006 Memorandum Opinion, see Libby, 429 F.Supp.2d at 28-29, but it is helpful to relate them briefly here. Under 28 U.S.C. § 510, the Attorney General is empowered to "authoriz[e] the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." 28 U.S.C. § 510 (2000) (emphasis added); see also Libby, 429 F.Supp.2d at 33 (interpreting § 510 and observing that "there is no language in [that statute] which limits the type of functions which can be delegated"). On December 30, 2003, Deputy Attorney General James Comey, acting in his capacity as Acting Attorney General, exercised his authority under § 510, among other statutes, to appoint an individual from within the Department of Justice to oversee a criminal investigation into the possible unauthorized disclosure of Valerie Plame Wilson's affiliation with the Central Intelligence Agency ("CIA") by members of the Executive Branch.¹⁰ See id. at 28. Comey selected Patrick J. Fitzgerald — who was then, and is currently, the United States Attorney for the Northern District of Illinois — for this role, delivering to Fitzgerald two letters purporting to describe the scope of his authority and duties as Special Counsel with regard to the investigation.¹¹ See id. at 28-29. In the first letter, dated December 30, 2003, Comey stated that Fitzgerald was being delegated "all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity," and directed him "to exercise that authority as Special Counsel independent of the supervision or control of any dicer of the Department." Id. (quoting Motion of I. Lewis Libby to Dismiss the Indictment and Memorandum of Support Thereof ("Def.'s Mem."), Exhibit ("Ex.") C (December 30, 2003 letter from James Comey to Patrick Fitzgerald) at 1) (internal quotation marks omitted). In the second letter, dated February 6,. 2004, Comey clarified the terms of the delegation to Fitzgerald by stating that the Special Counsel's authority with respect to the Flame investigation was "plenary" and that it included, inter alia, "the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, [the] investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses."¹² Id., Ex. D (February 6, 2004 letter from James Comey to Patrick Fitzgerald) at 1. As a result of this delegation of authority, Fitzgerald assumed the mantle of Special Counsel and commenced his investigation. See Libby, 429 F.Supp.2d at 29. Importantly, Comey retained his position as Acting Attorney General over the Plame investigation until his resignation from the Department of Justice in August 2005. S...