Fitzgerald As Unconfirmed Principal Officer - The CIPA Problem

One of the arguments raised by the Libby defense team is that Fitzgerald's appointment is unconstitutional because the terms of his appointment effectively made him a "principal" officer, which would normally require the advice and consent of the Senate.

Fitzgerald's reply is that his appointment was a simple delegation of the Attorney General's power and that he remained an "inferior" officer regulated by Department of Justice regulations and supervised by the Attorney General, or one of his deputies, or someone.

This point was raised by the defense in early 2006 (lots of links in the intro to this recent post; Gov't response discussed/linked here) and re-surfaced when the defense filed its arguments for appeal.

HOWEVER!  In the most recent defense reply a very cryptic but seemingly powerful point is made for what appears to be the first time:

The appellate court might also find significant the fact that Mr. Fitzgerald assumed (and perhaps was ceded) significant powers under CIPA - an issue that did not arise at all in Morrison. Section 14 of CIPA expressly requires that "[t]he functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may Not be delegated to any other official." (Emphasis added.)

That provision reflects Congress's clear concern that, given the extraordinary interests at play in a CIPA case, certain crucial steps must be taken by the Attorney General himself or other specifically enumerated members of the Department.

For example, CIPA clearly provides that it is the Attorney General who must sign and submit to the court the é 6(c) "affidavit certifying that disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." Yet, here, it was Mr. Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory scheme. This fact alone is compelling evidence that the Special Counsel, with all of his sweeping powers, qualifies as a principal officer under the Appointments Clause.

Here is a link to CIPA:

Sec. 14. Functions of Attorney General

The functions and duties of the Attorney General under this Act may be exercised by the Deputy Attorney General, the Associate Attorney General, or by an Assistant Attorney General designated by the Attorney General for such purpose and may not be delegated to any other official.

Hmm, the CIPA powers can not be delegated, as noted by the defense.  Yet it was Fitzgerald signing off on the CIPA documents, as frequent JOM commenter cboldt noticed last December, triggering the following point from cathyf:

Interesting language from the North ruling:

In fact, CIPA expressly states, in Section 14, that the Attorney General's decisionmaking responsibility under CIPA may be delegated only to the Deputy Attorney General or an Assistant Attorney General (all presidential appointees, removable at will) and "may not be delegated to any other official."

This comment is particularly interesting to me in contrast:

Given Congress's clear, constitutionally based commitment of CIPA authority to the Attorney General as an agent of the President, it would be extraordinary if the independent counsel statute had to be read to strip any of that authority from the Attorney General.

The independent counsel was created by statute. Fitzgerald's appointment was improvised, and it's pretty clear that neither Comey nor anybody else gave any thought at all to this sort of sticky constitutional question.

Perhaps the defense is now having the same insight.  Well, fair enough - the CIPA filings occurred after the motion to dismiss related to the appeal of the constitutionality of Fitzgerald's appointment.

Now, one might ask whether this can be dodged by arguing that Fitzgerald's appointment made him the equal of an Assistant Attorney General, an inferior officer eligible for this delegation.  That is a problematic answer:

Title 28, Section 506. Assistant Attorneys General

The President shall appoint, by and with the advice and consent of the Senate, ten Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties.

*IF* I am following, that argument would imply that Fitzgerald was functioning in a position that was subject to Senate confirmation.   He was confirmed as a US Attorney, but the promotion to de facto Assistant AG was not confirmed, so this may not be the road the prosecution wants to travel.

Well.  If any legal eagles see a good answer for the prosecution,we would love to see it.  It does appear that Fitzgerald acted as if he held powers that exceeded his station.  This certainly calls into question the nature of his supervision by his superior officers at DoJ, who were surely aware of the CIPA hearings - didn't they wonder who was approving the government's submissions?  And, having learned it was Fitzgerald approving them, how did they let this breach of the law continue?

Or if they did not intervene (and they seem not to have), doesn't that imply that Fitzgerald was being treated as a principal rather than an inferior officer?  If so, his role would violate the appointments clause.

We will no doubt learn more tomorrow at the hearing.

And do keep in mind - Judge Walton is not being asked to conclude that Fitzgerald's appointment was unconstitutional; he is simply being asked to decide whether it is a tricky enough question that Libby should remain free while an appeals court takes a whack at it.  That hurdle seems to be easily cleared, but I am sure the judge will find a way to minimize it.

Comments

[Poppy]

Bush could fix this without pardoning Libby, all he needs to do is send a letter to the Senate, with a copy to the court and the Libby defense.

The letter to the Senate would state that Bush has recognized in hindsight that Fitz was acting as a principal officer and needed to be confirmed by the Senate. Blame Comey for his terrible oversight of not pointing out that fact that Fitz was operating in an unconstitutional role without appointment and advice and consent of the Senate.
Request the Senate confirm Fitz to his position so he can legally continue in his office. Of course all his prior actions would have to be reviewed by the courts for any reversible errors.

THIS GIVES BUSH THE ABILITY TO:
- DISS COMEY
- APPEAR TO SUPPORT FITZ
- GET LIBBY'S CONVICTION THROWN OUT.

[cboldt]

I have to say I was surprised to learn that Courts have the power to appoint independent prosecutors for the purpose of pressing criminal contempt charges. ZERO involvement of the executive, upheld by SCOTUS.

[clarice]

TM:Well, fair enough - the CIPA filings occurred long after the appeal of the constitutionality of Fitzgerald's appointment.
TM there was no appeal; I think you meant long after the motion to dismiss on the basis of the unconstitutionality of Fitz' appointment.

[Good point and I have made a change - TM]

[cboldt]

Just to quibble with the "long after" characterization of the timeline, the first CIPA filing was by Team Libby on 23 January 2006, the motion to dismiss on grounds of defective appointment was made on 23 February 2006, and a filing indicatative of CIPA sophistiation was made by Team Libby on 24 February (MOTION To Bar Ex Parte Submissions Under CIPA Section 4 Without A Particularized Showing Of Exceptional Circumstances).

[Hmm, only one business day... OK, when was the first actual affidavit signed by Fitzgerald presented? I probably ought to know, but the comment thread to which I linked was December. Well, I'll change "long after" to "after".]

[clarice]

BTW Is Sharon a genius or what? He pulls out of the "occupied territories" leaves them alone and they take all that aid they keep getting and use it to buy weapons to kill eachother.

Tell me again, bien pensants, why the Palestinian question has to be resolved before there can be peace in the Middle East.

[topsecretk9]

Someone mentioned Comey's press conference the other day -- Here is a link in case anyone is interested...

I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation; that is, that he has the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive decisions to make. I expect that he will only consult with me or with Assistant Attorney General Ray, should he need additional resources or support..

-----------------

Q: Could you fire Fitzgerald?

MR. COMEY: That's a great question. (Laughter.) Now I believe that I could revoke the delegation of authority that I've given to him. I don't believe that I could --

Q: So how does that move it outside the traditional chain of command, as you put it?

MR. COMEY: Well, because what I've done with Fitzgerald is -- the normal outside counsel, appointed outside, or the ordinary U.S. attorney, if he needs to issue a subpoena involving the media, for example, or if he wants to grant immunity to somebody or if he wants to take an appeal, has to come for approval to the Department of Justice. Pat Fitzgerald will not, for these purposes.

He is a --

Q: If you don't like what he's doing, you can end it.

MR. COMEY: Well, in theory, if I know what he's doing, in theory I could, yeah. And I'd better have a darn good reason for doing it, because you'd have your hands in the air.

Yes, sir?

[cathyf]

Geez, doesn't that press conference give you the creeps? I mean the reporters were falling all over themselves to stroke Comey. **shudder**

[clarice]

Sprinkle a little chum on the water, cathy.......

[cboldt]

Self-investigation is always problematical. And Clinton v. Jones opened the door to compelling executive testimony in a civil case. For political dirty tricks by the party in power, the "game" says stiffing investigation altogether is the winning legal strategy.

There are, however, political consequences for playing/bluffing a legal hand. I'm still fascinated by the Libby case, and it has ramifications and insights far beyond what I saw a year ago.

[anduril]

Tell me again, bien pensants, why the Palestinian question has to be resolved before there can be peace in the Middle East.

Posted by: clarice | June 13, 2007 at 08:45 PM

Simple. Because if their problem isn't solved they'll all kill one another.

It's a bit like a hostage taker holding the gun to his own head.

[anduril]

I'm amazed that TSK9 hasn't yet come up with Schumer's reaction to the Fitz appointment. He should have been enraged, given that Fitz was serving a GOP admin and was nominated by a very conservative GOP senator. Schumer should have been screaming bloody murder, demanding someone independent and approved of by Larry Tribe. Wanna bet?

Stop me if I've said this before: what a doofus Ashcroft was. Traveling the country, speaking to captive audiences of DoJ employees and delighting them with his impromptu singing. God, Schumer and company must have been laughing fit to be tied.

[Other Tom]

It may be a distinction without a difference, but in the Clinton case the operative facts in the underlying case arose before he assumed the presidency.

Clarice, on the earlier thread you mentioned the issue of an interlocutory appeal (an appeal that is sought, and under the right circumstances allowed, even while the case is still pending at the trial-court level). I assumed all along that the only reason such an appeal wasn't taken was that it was clearly not available--is that right? My God, if it was available, or even arguably so, I can't imagine why they didn't attempt it.

[anduril]

How about this? Isn't it possible to have an appeal certified as involving an important federal question, and then you get bumped up in the queue? Who would do that? Gonzalez, a judge?

[Pal2Pal (Sara)]

Other Tom -- It has been 103 degrees out here in the Temecula/Murrieta area today, how is it down by the Bay where you are? 6:30 PM and we are still at 99.

[cboldt]

-- My God, if it was available, or even arguably so, I can't imagine why they didn't attempt it. --

If it's arguably available now, it was arguably available then. The argument hasn't evolved or developed from the time it was first made.

There are differences in threshold and rationale for advancing an interlocutory appeal, compared with advancing a motion for bond pending appeal. Defense had to have made a conscious decision to defer this avenue. "Gaming the judiciary." Huzzah!!

[lurker9876]

Fitzgerald's reply is that his appointment was a simple delegation of the Attorney General's power and that he remained an "inferior" officer regulated by Department of Justice regulations and supervised by the Attorney General, or one of his deputies, or someone.

If that is the case, then shouldn't the TeamLibby put the AG, one of his deputies, or someone on the stand to testify exactly what they saw over Fitz's work?

Clarice, I'd say let the Palestinians kill each other off. Sharon was really brilliant in shutting them off from Israel. Looks like Egypt is allowing the Palestinian civilian into Egypt. That way Hamas and Fatah cannot use human shields.

cboldt:

I have to say I was surprised to learn that Courts have the power to appoint independent prosecutors for the purpose of pressing criminal contempt charges. ZERO involvement of the executive, upheld by SCOTUS.

Where does this say this part? But it wasn't a court that appointed Fitz.

Wonder if Fitz knows it's a lost cause if the TeamLibby goes on up to the Appellate Court. Fitz' 43 page filing was ill-prepared and sets the tone of deperation. But TeamLibby's filings were excellent and to the point. JMHO.

[Other Tom]

Anduril: my recollection is that, when that is your avenue to the court of appeal, it is the trial court that has to certify it. But I also recall that there are other circumstances where you can get appellate consideration even without the trial court's acquiescence. I just don't remember what they are.

More of the hazards of practicing law as a hobby, and with no consequences for being wholly in error.

Evening phalanx of Martinis were (was?) a huge success.

[Other Tom]

"If it's arguably available now, it was arguably available then. The argument hasn't evolved or developed from the time it was first made."

But it would not be "interlocutory" now (judgment having been entered), whereas it would have been then. Right?

[Enlightened]

Sara - I work in South San Fran - it cooled down around noon, it's about 65 now...

But, I live in Cordelia, about 55 miles from here and it has cooled down to about 97....

[cboldt]

-- But it would not be "interlocutory" now (judgment having been entered), whereas it would have been then. Right? --

Yes. Interlocutory implies a deviation from the routine, an interruption to settle something that is better settled before proceeding with what follows in the routine. The propriety of Fitz's appointment falls in this category, better settled before the trial than after the trial.

One criteria for granting an interlocutory appeal is that the issue be unsettled, other wise every criminal would go for interlocutory appeal after interlocutory appeal, tying up the court bureaucracy. Libby's case is per se unique, being a one-off grant of authority. IMO, better to run it up the flagpole early.

[Other Tom]

In Coronado, it hit 73 today. Down to about 64 tonight; forecast 74 tomorrow.

[clarice]

OT when the judge denied the motion to dismiss cboldt and I did some paltry research on the topic of interlocutory appeals. The federal rules deal with two kinds of interlocutory appeals--one required the certification of the judge , another IIRC doesn't.

I don't remember the specifics, but at the time I believed Libby could have appealed then. (After all it was the kind of issue which if resolved in his favor would utterly obviate a trial at all.) In retrospect I think he was wise to wait because--see the CIPA discussion--the improper conduct became even more obvious as the trial progressed.

[Other Tom]

Cboldt, I believe we are in agreement. Which still leaves me wondering why the defense didn't seek to take an interlocutory appeal from the judge's initial ruling. I recall thinking at the time that they almost certainly would, and when they didn't I figured they must have thought they couldn't get it heard.

But it's always easy after the fact to second guess some other guy's trial tactics.

[lurker9876]

Not only that, Clarice, we learned more during the trial as we find more pieces to fit the puzzle. Fitz' revelations during the trial actually gave Libby more ammunition.

[Other Tom]

Clarice, we're cross-posting again.

God, Sara--we're 65 miles from Temecula here, and there's thirty degrees difference. Not unheard of, but it seems a little bit unusual. I guess Gore is right...it must be the SUV's...

[clarice]

I have been a long time watchers of political trials. It often takes some time for the heat to wearoff long enough for people to see clearly what happened and to have the balls to stop it.

[lurker9876]

Oh, Clarice, that is what I had expected. Americans are getting tired of the media hype over the Wilson story and all.

Now we're seeing more and more people coming out of the cracks to complain about Fitz. Amazing!

[cboldt]

-- I recall thinking at the time that they almost certainly would, and when they didn't I figured they must have thought they couldn't get it heard. --

And why would they not get it heard? Whatever the reasons for denial then, are the same reasons that play for denial now.

If your case "on the law" is strong, you press it early to avoid all the hassle of trial. It the argument isn't so strong, reserve it in case you lose at trial. Well, here we are.

[clarice]

TM, It's time to clean the litter box again.

[lurker9876]

cboldt, could it be that the Team Libby had been collecting ammunition before and during the trial to build their appeals?

[Sue]

Did they raise the issue at trial? I'm thinking you can't appeal what you didn't raise, but maybe I'm thinking of something else. Not a lawyer here, but I play one now and again.

[clarice]

Yes. He moved to dismiss early on based on the appointments clause Sue.

[Sue]

On second thought, are they raising the CIPA issue now merely to show another instance where Fitzgerald was acting without supervision?

[Sue]

Clarice,

I remember the dismissal motion. I was referring to the CIPA issue.

[cboldt]

-- could it be that the Team Libby had been collecting ammunition before and during the trial to build their appeals --

Sure. But that would be a wasteful, and IMO stupid strategy. Why go through the crap of a trial, if your argument is that the prosecutor lacks authority to prosecute?

Water over the dam, and I like the argument - I just prefer it to have been litigated months ago.

[cathyf]

Italactico!

[cathyf]

emphatico?

[clarice]

Sue,There are two CIPA arguments:One is that the CIPA issue was unfairly resolved by the Judge and that was objected to at the time. The second is noting that CIPA resolutions can by statute only be made by principal officers and Libby was not one--that is just additional evidence in the appointments issue which as I noted was properly raised at the appropriate time.

[Sue]

Clarice,

That is what I was asking. Was the CIPA issue being used as additional evidence since I don't remember an objection to his signing off on the affidavit at the time.

[Pal2Pal (Sara)]

Well OT if it is as hot tomorrow, I might have to consider lunch at the Del. Many years ago, I used to hang out with a contractor who built many of the homes in the Cays and I fell in love with Coronado. I used to take my Mom to lunch there on a regular basis, but I haven't been over there now since she died in 2004.

[lurker9876]

-- could it be that the Team Libby had been collecting ammunition before and during the trial to build their appeals --

Sure. But that would be a wasteful, and IMO stupid strategy. Why go through the crap of a trial, if your argument is that the prosecutor lacks authority to prosecute?

Water over the dam, and I like the argument - I just prefer it to have been litigated months ago.

Thanks, cboldt.

[Other Tom]

So I guess I simply restate what I said: certainly in retrospect, they should have sought the interlocutory appeal immediately. And while it may be true that the intervening proceedings have lent a bit of factual support to their legal argument, I'm sure that Libby himself would have just as soon given it a try way back when.

[Other Tom]

So I guess I simply restate what I said: certainly in retrospect, they should have sought the interlocutory appeal immediately. And while it may be true that the intervening proceedings have lent a bit of factual support to their legal argument, I'm sure that Libby himself would have just as soon given it a try way back when.

[Other Tom]

Sara--I'm at 710 J. l If you're in town, stop in and say hi.

[lurker9876]

Why didn't Libby try the interlocutory appeal at all?

[clarice]

lurker, no one but he and his defense team could possibly answer that.

[Pofarmer]

Lurker, my guess is they didn't think the prosection had a case. I don't think they counted on the moonbat judge and jury though.

"Where's Cheney, Where's Rove?"

[JM Hanes]

2 x Wow! The Libby reply is great stuff! Ya gotta love these guys -- they obviously kept their ammunition dry for their reply to Fitz' response! They were not about to give him any time to catch his breath, schmooze up Walton (or calm him down?), or run around wrangling affadavits from the usual suspects. If I'd had a clue the CIPA thing was in the tubes, I could have saved myself -- and everybody else -- a book length post.

No more Mr. Nice Guy with Walton either, they clearly decided to take this game to the Judge. I have no doubt that when their actual appeal is filed, we're going to see a whole lot more on a whole lot more. Correct me if I'm wrong, but somewhere along the way I got the impression that they've had an appeals specialist, if not one of their own, on board, working diligently away from the outset. Or did I just make that up?

I just fell out when they hit Walton on the meaning of "any." What goes around, just keeps going, and going. Things may go rotten tomorrow, but today's a good day. The Amicus Brief was terrific in its own way, mostly because it was the first sign that anybody else was really watching and might actually do something. This one, though, was like watching the home team connect with the ball.

[Charlie (Colorado)]

Harmless error at best.

Speaking of "tone of desperation."

[JM Hanes]

As self-appointed irony monitor, I can't help noting that my first meaningful captcha check window finally showed up saying: s9yrup Nice, eh?