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.