Back on Feb. 23, the Libby defense team filed a motion to dismiss the indictment on the grounds that Special Counsel Fitzgerald's appointment was unconstitutionally broad. We had discussion here and here, and this is the filing itself.
As best we can tell from the court docket, Mr. Fitzgerald was scheduled to respond by St. Patrick's Day. Of course, that deadline may have been extended by the judge, but we are keeping an eye on PACER anyway.
For anyone so inclined (and setting up a PACER account is E-Z; c'mon, this is America, where the people watch the government!), this case is proceeding through the District of Columbia, and the case number is: 1:05-cr-00394.
Meanwhile, enjoy the traditional green bagel.
AND AWAY WE GO: Extra-Special Counsel Fitzgerald filed three documents:
Exhibits A to D are: (18 pages)
Ex. A - the Dec 30 2003 letter from Acting Attorney General Comey appointing Fitzgerald (Available at the Fitzgerald website).
Ex. B - the Feb 6, 2004 letter clarifying Fitzgerald's power (see below, or the Fitzgerald website).
Ex. C - an Aug 12, 2005 letter from Deputy Attorney General Comey to Associate Deputy Attorney General Margolis with this baffling passage:
By virtue of the authority vested in me as Deputy Attorney General under the law, including 28 CFR 0.15(a), I delegate to you all of my authority as Acting Attorney General with respect to that investigation and Mr. Fitzgerald's service as Special Counsel, as delineated in that correspondence. This delegation to you in no way retracts or modifies the scope of the prior delegations of authority to Mr. Futzgerald.
Since Mr. Fitgzerald had been previously delegated the authority of Acting AG, and this does not limit his authority, what does it mean? I don't know, but since Comey stepped down a week later, this must be a transfer of authority saying that Margolis is now in charge of Fitzgerald, to the extent anyone is.
Ex. D - a transcript of the Dec 30, 2003 DoJ press conference at which Mr. Comey announced the appointment of Mr. Fitzgerald.
Exhibits E to G: (35 pages)
Ex. E - a transcript of Fitzgerald's Oct 28, 2005 press conference (also here).
Ex. F - an affidavit from Mr. Comey explaining his thought process in appointing Mr. Fitzgerald. I laughed out loud at his description of the telepathic, empathetic appointment:
In addition, although the Special Counsel was delegated approval authority with respect to specific actions such as issuing media subpoenas, granting immunity, or taking appeals, it was my intention that the Special Counsel would follow substantive Department policies concerning such specific actions, as he was obliged to do as an employee of the department. To the best of my knowledge, the Special Counsel shared each of these understandings and knew of the intended limits on his authority.
Fitzgerald knew those letters weren't worth the paper they were written on! Uh huh - I smell fear. I also have a recollection from reading through (IIRC) the Miller opinion that Fitzgerlad alluded to the fact that he is not bound by the DoJ regs - tracking that down would be a silver bullet. [I seem to have misremembered; with the second Cooper subpoena (which ultimately led to Karl Rove), it appears that Fitzgerald did not name an official in the subpoena, but invoked the "exhaustion" exception in the guidelines.
Oh, this affidavit is a comedy classic - Mr. Comey also explains that what he said at the Dec 30 press conference about Fitzgerald's broad authority was "perhaps inadvertently demonstrating the perils of giving a 347 word extemporaneous answer at a press conference". I.e., what he wrote doesn't count, and what he said doesn't count - Mr. Fitzgerald knew what he meant, and that is what counts.
Mr. Comey cites US Code 28, Section 509, 510, and 515 as his legal authority for the delegation.
Ex. G - an affidavit from Mr. Fitzgerald in which he asserts that he understood that he was bound by DoJ guidelines.
FROM THE TIME VAULT: This affidavit from Fitzgerald in Aug 2004, related to the Miller subpoena, is gold:
I have not been appointed pursuant to Title 28, United States Code, Part 600, which is the provision allowing the Attorney General to appoint an attorney outside the Department of Justice to investigate and prosecute certain matters. In fact, the authority delegated in this case is in many respects broader than the authority conferred by the latter provision as I need not seek approvals prior to significant investigative or prosecutive steps.
Or, from pargraph 5:
Thus, as Special Counsel I serve as the functional equivalent of the Attorney General on this matter.
[Upon further research, I see that the Libby team already had these excerpts in their original submission. Well, I am seeing them as if for the first time.]
UPDATE: With thanks to Rick Ballard, let's put this in the "Too-Independent Prosecutor" mix: the Feb 6, 2004 letter from Acting Attorney General Comey (Ashcroft was recused on this case) clarifying Fitzgerald's authority:
At your request, I am writing to clarify that my December 30,2003, delegation to you of "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" is plenary...
and more importantly:
Further, my conferral on you of the title of "Special Counsel"in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.
28 CFR Part 600 is right here, and is the rules set up by the DoJ for Special Counsels.
Now, as we have noted, the DoJ guidlines are guidelines, not law. Just because Comey did not follow them, it does not follow that Fitzgerald's appointment is unconstitutional, illegal, or contrary to previous court opinions. In fact, even if these regulations had been followed, the defense might have been able to challenge them for failing to clear some constitutional or legal hurdle.
However - there was a fair amount of litigation about independent prosecutors in the 80's and 90's, and courts have expressed some ideas about what is and is not acceptable. One presumes that the DoJ lawyers who drafted these guidelines paid close attention to those opinions. One may also presume that Comey paid them no heed at all, based on this letter anyway, and this letter, plus the Dec 30 2003 letter, seem to be all we have establishing Fitzgerald's authority.
Let's just leaf throught the guidelines and notice how much supervision a "Special Counsel" might have experienced, relative to Fitzgerald's situation:
Sec. 600.6 Powers and authority.
Subject to the limitations in the following paragraphs, the Special Counsel shall exercise, within the scope of his or her jurisdiction, the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.
Fitzgerald was delegated the power of the Attorney General, not "any United States Attorney".
Sec. 600.7 Conduct and accountability.
(a) A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice...
(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in Sec. 600.9(a)(3).
(c) The Special Counsel and staff shall be subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice. Inquiries into such matters shall be handled through the appropriate office of the Department upon the approval of the Attorney General.
(d) The Special Counsel may be disciplined or removed from office only by the personal action of the Attorney General....
I don't get the impression that Fitzgerald was subject to any of these rules - if so, they are not in his founding documents. Whether that creates a fatal constitutional flaw is up to the courts. My prediction - Judge Walton will punt this to a higher pay grade, probably by ruling in favor of Fitzgerald but expediting an appeal.