Arrives the cavalry

This amicus brief filed in the Libby case, signed by an impressive and bipartisan (if such term can be used) array of lawprofs, argues that the case may fail at the foundational level: the appointment of Patrick Fitzgerald violates the appointments clause. Consequentially, they argue, since there is a substantial and close question to be argued on appeal, Libby should be bailed pending that appeal. There would be something slightly amusing were Libby v. United States turned out to be the case that overrules Morrison v. Olson (although so doing probably isn't necessary in this case).

For background, you'll want to read Weiss v. United States, including Justice Souter's concurrence, Edmond v. United States, and of course Morrison itself, including Justice Scalia's dissent, which regular readers will know I have a special affection for.

(The District Court was apparently quite snide about the brief; Eugene Volokh responds to that point here.)