The World's Strangest Amicus Brief

As others have noted, a distinguished group of twelve right-leaning law professors has submitted an amicus brief to Judge Walton on Scooter Libby's behalf arguing that the question of whether Patrick Fitzgerald's appointment as Special Counsel is constitutional is a close one. This is important to Libby because if Walton determines that his appeal presents close questions of law, he's likely to grant Libby bail pending the outcome of that appeal.

Judge Walton allowed the amicus brief to be submitted, but appended this sarcasm-drenched footnote to his decision:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

I think the academics who submitted this brief thoroughly deserve this ridicule, but it's important to understand why.

As a general matter, I have no problem with lawyers and academics weighing in on legal issues they find interesting or important, regardless of who ends up benefiting from their assistance. The reason we allow amicus briefs at all is because we recognize that legal decisions can impact a much wider group of people than just the parties in the case being litigated.

There are often cases involving criminal defendants (or accused terrorists) in which the importance of the legal question being decided far outweighs the significance of what ends up happening to the individual defendant. For instance, those who submitted briefs on behalf of Salim Ahmed Hamdan were not vouching for him personally but rather were standing up for the rule of law and against executive overreach. As an amicus party, you are generally fighting for a principle, not a person.

But this is not one of those situations. Even assuming that these professors have some genuine interest in the question of whether Patrick Fitzgerald's appointment was constitutional, that question is going to be decided by the D.C. Circuit, not Judge Walton. All that Walton is deciding is whether Libby will be granted bail while his appeal is pending. In other words, whatever Walton decides, it will have no impact whatsoever on the resolution of the constitutional question. Which means that this brief was submitted not to vindicate a legal principle, but rather to assist Libby personally.

In the brief itself, the professors write:

Amici take no position on any other issue raised in this case or on whether this court should grant or deny bail pending appeal. The sole issue they address is whether the Appointments Clause issue is a close one.

This is more than a little disingenuous. The whole point of submitting this brief is to convince the court that the constitutional issue is a close one and therefore Libby should be granted bail. Yet the professors claim to "take no position" on whether bail should be granted or denied. If they take no position, then why on earth are they seeking to intervene as amici curiae in this case? The question of whether bail should be granted or denied is the only question before the court.

Stranger still, their amicus brief doesn't even take a position on the constitutional question itself. The esteemed professors go only as far as claiming that the question presented on appeal is "a close one." In other words, they're claiming not to be interested in whether Libby is granted bail or to have any strong opinions one way or the other on the underlying constitutional issue raised by his appeal.

Which of course begs the question, why are they bothering to intervene at all? The truth, of course, is pretty simple. These right-leaning professors view Libby sympathetically and don't want him to go to jail. They can't just say that, though, so they're pretending to be dispassionate academics who care only about making sure Judge Walton has all relevant information at his disposal. Their refusal to be up-front about their true motivations, however, has the perverse effect of making what is supposed to be an amicus brief read like something produced by an expert for hire. Like a report from a defense expert, the brief limits itself to the one question its authors can competently answer--whether a close constitutional issue is presented--and disclaims any intent to opine on other matters. By doing so, however, the authors manage to leave out the defining aspect of all amicus briefs: an explanation of why the parties submitting the brief have an interest in the issue before the court.

And it's not hard to see why. What relevant interest could a group of law professors possibly have in whether an individual criminal defendant receives bail?

To underscore this point, it's worth noting that the Appointments Clause issue that Libby plans to raise on appeal, if successful, would result in Libby getting off on what can only be described as a technicality. It wouldn't make Libby any less guilty of the crimes for which he was convicted, some of which he committed before Fitzgerald was even appointed as Special Counsel. There was nothing unusual about Libby's prosecution. He was prosecuted by a sitting U.S. Attorney before a federal judge and duly-empanelled jury. All the normal rules and procedures were observed. In other words, even if Fitzgerald's appointment was somehow improper, it's hard to see how Libby was in any way prejudiced by it.

That's not to say that technicalities don't matter. Sometimes guilty people have to be freed in order to vindicate an important legal principle. But going back to my earlier point, no such principle is actually before the court at this moment. Any constitutional questions raised by Libby's appeal will be decided at a later date by the D.C. Circuit. So the only point of submitting a brief now is to help a convicted felon avoid jail time. That's a truly bizarre rationale for intervening in a criminal case, particularly by a bunch of professors who claim only to be interested in the legal issues raised by the case.

Judge Walton was absolutely right to mock these professors. Anyone willing to sign his name to that brief deserves at least a little mockery.

Postscript: For some good analysis of the substance of the constitutional question, see this post by Big Tent Democrat (and especially the back and forth in the comments).