Waiting For St. Patrick

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:

Fitzgerald's response is a 34 page .pdf. [Copy/paste HTML version here, with thanks to Rick Ballard]

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.

Comments

[Patton]

Does it work as well as the fishbowl Pacer?

[Lew Clark]

My first thought was that Fitzgerald does not want to write a response with a stomach full of green beer. Then, realizing how his other filings were written, it may be the only chance we have at an honest, candid response.

[TM]

Maybe he'll submit it and we will turn green.

[kim]

Will it have the visibility of a Pacer, Avanti view, Eagle vision, or will it be Rambler syntax.
==================================

[topsecretk9]

Fitzgerald was delegated the power of the Attorney General, not "any United States Attorney".

And isn't part of this question also, if Comey can "delegate" the power of Attorney general?

Seems to me (prior reading, Scalia Navy opinion) that Comey can appoint a SP, but has no power to appoint a de facto Attorney General that answers to no one. Can't have it all ways kinda thing.

AKA Comey appointed himself President in making Fitz an Attorney General with the additional glitch on no senate confirmation.

I can't wait to read Fitz's explanation that Comey has Presidential authority.

[Rick Ballard]

Going back to JMH's request for proposals concerning Fitz's response, he may point to:

"with respect to the Department's investigation"

as being a sufficient limitation.

I would say that, logically, it is not. The reason for it not being an actual limitation returns to 'who is to provide the necessary check regarding Fitz's actions?'

In theory, any action by the AG can be checked by the President but I believe that it would be nigh impossible to find an example of public implementation of such a check.

Comey created a Grand Inquisitor and we don't have those.

[Patton]

BAM.

Comey just appointed me head of all allied forces.

[topsecretk9]

Well he responded, according to This

"Fitzgerald replied that the attorney general has been granted broad legal authority by Congress "to delegate any of his functions to other offices of the Department of Justice."

Little to NO meat, though.

[Sue]

Okay. PACER has them. I'm downloading them now. I'm on dial up though. Will take a few minutes. Where is Rick? I can't convert to html on my home computer.

[Rick Ballard]

TS,

That had to be from Fitz's response but it's still not up on his site.

TM - Time to see if you can outPACER Sue.

TS,

Btw - that's a very weak rebuttal, sloppy attempt to conflate function and authority plus it does not address 'all' which is at the crux of the Motion to Dimiss.

[topsecretk9]

Okay, without the benefit of reading the response but

"Fitzgerald replied that the attorney general has been granted broad legal authority by Congress "to delegate any of his functions to other offices of the Department of Justice.""

Yes, okay... Comey can delegate, but um what limits does Comey have in granting power? he can't make himself king of the world and start ordaining mini "answer to no one" Attorney Generals everywhere ...there has to be more to the response. Jumping the gun.

[topsecretk9]

Rick

As you can see, I felt the same...has to be more (otherwise intentionally weak?)

[Rick Ballard]

Sue wins.

Click my name here which will take you to YARGB and click myname again on the contributors list.

How many pages?

[Sue]

Oh, crap. I only have the Adobe reader on this computer. I can't save the document. I'm trying to figure out how to work around it. Someone else may be able to get it quicker than I can.

[Rick Ballard]

Sue,

There should be a 'whole file' option on pacer that allows an ftp transfer.

[Sue]

The 1st document is 34 pages. There are 3 separate documents. I don't know how many those have yet.

[Rick Ballard]

Fitz's last posted doc was in 'copiable' mode as a PDF. If so, Tom may be able to just pop it into the archive.

[topsecretk9]

I clicked and clicked and I didn't see it? Are you directing Sue

[Rick Ballard]

TS,

Sorry - I was just letting Sue know where to find my email address.

[Sue]

Okay. I've figured it out. Give me a second to get the other 2 docs and I'll email them to you Rick.

[Lew Clark]

There must be more. But if the gist is, "Congress gave the AG broad powers, AG gave those to Comey, Comey gave those to Fitzgerald." Wonder if the same thing could work for SecDef. Congress gave broad war powers to Rumsfield, Rumsfield gave them to General X, General X gave them to Colonel Y. So Colonel Y is going to fight this war his way, and everybody better butt out! You know that would never fly with MSM/Left, so lets see how incensed the defenders of the little guy feel about Fitzgerald's power without accountability. I'm waiting. Holding my breath. Still waiting.

[Sue]

I'm almost there. Dial up sucks. Watch your email, Rick.

[Rick Ballard]

OK - I've already set up the blog posts. If it's copiable it will only take a few minutes. If I have to print and scan it takes about a minute per page so I'll post a partial for everyone to pick on until I get done.

[clarice]

Bravo adn thanks to both of you!

[topsecretk9]

Aye Curumba

I would have helped if I didn't step away, take a phone call and then greet a baseball practicer!

[topsecretk9]

Lew

That is exactly the argument they made. Yes, the acting secretary can delegate authority and so on, but not unchecked. Otherwise our friends on the left would be a aghast at the secret police a deputy could start, without even the Presidents knowledge. And if Comey thinks he can make this kind of appointment then this kind of appointment requires Senate confirmation. Can't have it all ways--it is sort of a like Comey forgot requires Fitz has checks and balances too, huh?

[topsecretk9]

one more time...

it is sort of a like Comey forgot a Fitz type appointment requires checks and balances too, huh?

[clarice]

And I suppose it makes no difference that the Statute EXPRESSLY provides that no government employee can be appointed a Special Prosecutor?

[Sue]

Rick,

I've sent the response. The next 2 attachments are exhibits. Dial up is the pits. :(

[topsecretk9]

yeah Clarice, makes you think...what were they thinking?

[topsecretk9]

Of Sue, your efforts are MUCH appreciated and I would have helped...I have an ftp too! :( But you are the "court room goddess"

[clarice]

Prinessa pdf..

[Sue]

Rick,

I'm going to let it take its time and attach both of the next 2 attachments since they are the exhibits.

[topsecretk9]

Clarice,
I don't know how these things work exactly, but in seeing how Fitzy "twisted" to Tatel, is it possible he did so to Comey too and therefore convinced Comey to commit to him? Am I being dumb, were we able to read fitz's letter TO Comey asking for clarification?

If so, sorry in advance.

[Sue]

Top,

Not a problem. Just slow because of dial up. I have broadband at the office, but where I live I can't get anything but dial up. I guess I should be thankful they let me have running water out here. ::grin::

[Rick Ballard]

First five pages

I'll be cut and pasting for awhile and will update the blog every five pages.

[clarice]

ts--I don't know enough to answer. I frankly don't see how they could have screwed up this much. If anyone should have known the history and restrictions of the SP Act, you'd think it would be the people working at that level in the DoJ.

[topsecretk9]

but where I live I can't get anything but dial up.

Really? I get dsl through the phone line, but then I am not an expert on how the split the line.

Anyways this

I guess I should be thankful they let me have running water out here. ::grin::

sounds like bliss.

[topsecretk9]

Clarice
So--ts--I don't know enough to answer. ...we don't know what Fitz presented in his request for clarification to Comey, am I right there?

BTW---So much for getting my taxes done...off to YARGB

[clarice]

It's a incredibly short response wihout a significantly compellng legal argument, I think. I haven't read the two significant cases on the Constitutional issue, but as I recall, I thought the Libby brief in support of the Motion was exceedingly well researched and argued and I'd have expected a far better response that his.

[Sue]

No cable, no dsl. But I also have no neighbors. Take the good with the bad. And only on nights like this do I yearn for the comforts of the city. ::grin::

[topsecretk9]

Clarice

My quick blush...me too....

I may live to regret this but...

in connection with an investigation concerning the disclosure to reporters of then-classified
information regarding the employment of Valerie Plame Wilson.

Really, it was just "CONCERNING"....hmmm, gee I thought that the investigation was "explicit".

[topsecretk9]

And only on nights like this do I yearn for the comforts of the city. ::grin::

Sue, my goal is a smallish cottage in "No-Where" and a fabulous studio in any city, so you are half way there (not that you are in "no-where" hopefully you know what I mean)

[Sue]

Clarice,

Rick is posting it in 5 page increments. The response itself is 34 pages long.

[clarice]

Thanks...

[clarice]

Later, when it's all up I'll print it and read it alongside Libby's motion if I can squeeze in the time..

[TM]

I have put up links to everything (sort of a middle of the post update, so don't be fooled; the response seems to be cut/pastable, but not the exhibits.

I also have some comments - I have only glanced through the exhibits, but this looks ghastly.

And if anyone else remembers the Miller / Tatel opinion - I have the idea that Fitzgerald contradicted himself about his obligation to follow DoJ guidelines on press subpoenas. Well, I am going to review it.

[Rick Ballard]

OK. Main doc is up.

[Sue]

Okay, Rick. I'm not going to send the last exhibits since Tom has them up already.

[topsecretk9]

Read TM's assessments and Updates (easy to forget he does that when you get on a thread) But he's got it right,

TM--there is a reason they did a late filing much like the NYT's attempt to "AP apology" this on a late Friday night, didn't Kaus remark "like an indicted pol"

I am still chuckling at intro...

In order to ensure that the
investigation proceeded apace, Acting Attorney General Comey opted to delegate to an
official within the Department of Justice, but from outside of Washington, namely, the
United States Attorney for the Northern District of Illinois, an officer of the Department
previously appointed by the President with the advice and consent of the Senate.

So Fitzy has argued, that despite the STATUTE it a NEW and great precedent to just go find someone, you know OUTSIDE the county to bypass the statute IN AN ABUNDANCE of CAUTION so to speak.

What the F' ever.

BTW- Quick someone alert JMHanes he can put the rake away!

[clarice]

Just skimmed the affidavits..Sniffing fear and laughing at the esp arguments..Man is this a piece of merde.

[topsecretk9]

Snowed.

[clarice]

TM re Fitz and the DOJ guidelines re reporters..The Miller Court opinion discusses this pp. 20-23. The y note the Dist Ct said he did but said they didn't have to consider it because whatever they provide and whatever Fitz did they do not create rights enforceable by the reporters.

Perhaps the Dist Ct opinion will preovide what you are looking for.

[Sue]

I am not unimpressed with the response. I am scratching my head over this though:

One strand of the defendant’s argument is a matter of semantics over substance. The
defendant argues that the Acting Attorney General’s December 30th letter appointing the Special Counsel, which states that the delegated authority is “independent of the supervision or control of any officer of the Department,” compels the conclusion that the Special Counsel is not an inferior officer.

Seems they wanted their cake and eat it too.

[Sue]

It appears they are hanging their hat on the ability of the AG to fire Fitz at will. Nevermind what they said differently at other times.

This is typical of everything that has come out of Fitz's office. Basically it doesn't matter what he said before it is what he is saying now that matters.

Oh Nash...where are you? The referee is again practicing hand signals that are allowing Al Michaels and John Madden to make fun while the booth reviews the call. ::grin::

[Rick Ballard]

There is no profer of evidence showing that Fitzgerald reported to anyone that I can see.

Saying, "look Comey didn't mean what he wrote and here's an affidavit that acknowledges that he didn't mean what he wrote" doesn't make “independent of the supervision or control of any officer of the Department,” go away. Delegating full authority independent of control of "any officer" is rather explicit.

No sale.

Thanks for sending the files, Sue. I'm sure glad that Tom posted everything - I had no way of getting the exhibits up.

[Rick Ballard]

Clarice,

Fitz declares:

"I always understood that I was required to follow substantive Department of Justice policies and regulations concerning such specific actions."

I wonder what he means by "substantive"? Some but not all? Whatever I damn well feel like and who's to say different? Cute locution.

[Sue]

Rick,

You're welcome.

I am trying to remember without looking for it again but I think the scheduling order provides for Libby to respond to this filing by 3/31.

[Sue]

When you think about it, they are walking a thin line when responding to these filings. They have to be careful to not open up a separate argument for the other issues still up in the air, such as turning over documentation concerning Plame's status.

[clarice]

Yes, Rick, that "substantive" bit and the affidavit of Comey remind me of the presser"classified" and "harm" to national security and then *whoosh* never looked into the evidence on that--it isn't relevant.BTW his presser was a definite departure from DoJ guidelines--referring as it does to factual issues which the governmentt didn't intend to even offer evidence on let alone try to prove at trial.

[topsecretk9]

Special Counsel Fitzgerald’s scope of jurisdiction and tenure are limited to completion of a ,specific task and subject to expansion only by the Acting Attorney General.

Really? We've gone from "concerning" to "specific task", Here is Comey said:

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...
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."

[clarice]

TM , I doubt that further analysis can beat your find:

"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."

Brother!

[Rick Ballard]

Fitz self declares again:

"The Special Counsel’s conduct of the October 28th press conference was in compliance with the guidelines; it certainly in no way demonstrates that the Special Counsel believed he was not bound by the guidelines."

Once again, to whom could a complaint be made?

Sue - While I agree that this is the best piece of writing to come out of Fitz's shop, the logical train is running on HO gauge tracks. He's going in a whole bunch of circles that are totally dependent upon assertions that disagree with the plain language of the letters from Comey. Comey's own last affidavit is posited in theoretical language.

I don't know about his citations but his A /=A argumentation just doesn't cut it.

[topsecretk9]

Sue
Basically it doesn't matter what he said before it is what he is saying now that matters.

aka...fly by the seat of my pants" is the phrase of the day...

I am fully expecting "some nugget" of information that is "stunning" and should surly cause TM a moment of "pause" and "reflection" or, "worry", from you know who.

[noitsnotjeff]

Key phrases are "functional equivalent" and "on this matter". No?

The AG can still fire Fitz. Not that he is liable to do so, especially after he appeared with him yesterday to announce the busting of a child porn ring.

[clarice]

"There are also circumstances involving substantial public interest when it may be appropriate to have media contact about matters after indictment or other formal charge but before conviction. In such cases, any communications with press or media representatives should be limited to the information contained in an indictment or other charging instrument, other public pleadings or proceedings, and any other related non-criminal information, within the limits of USAM 1-7.520, 540, 550, 500 and 28 C.F.R. 50.2." There are also circumstances involving substantial public interest when it may be appropriate to have media contact about matters after indictment or other formal charge but before conviction. In such cases, any communications with press or media representatives should be limited to the information contained in an indictment or other charging instrument, other public pleadings or proceedings, and any other related non-criminal information, within the limits of USAM 1-7.520, 540, 550, 500 and 28 C.F.R. 50.2.http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title1/7mdoj.htm#1-7.400

[topsecretk9]

The AG can still fire Fitz. Not that he is liable to do so, especially after he appeared with him yesterday to announce the busting of a child porn ring.

Nice try Jeff non-imposture, but um...besides all the REAL arguments, would you have been cool if Ashcroft just gave Fitz the AX CUZ HE COULD?

[topsecretk9]

That is what yoU pay the big boys for.

This argument made by Libby's lawyer were solid...and now seeing Fitzs' response I wouldn't be that surprised if Walton does just rule in Libby's favor ( I am sure he will punt it above to keep the record pure and sustainable) but SHEESH.

[topsecretk9]

yesterday to announce the busting of a child porn ring.

Do Democrats control the taffy industry?

[clarice]

He's lucky I'm not sitting in Walton's seat. Should Fitz want Tatel on the Ppeals panel or not? Do you yet suppose he knows he was had ?

[Rick Ballard]

The AG can fire him? So Comey was lying when he wrote:

"independent of control of any officer"?

Interesting. It's going to have to walk, though, 'cause it can't fly.

[clarice]

Wha fun it would be too argue this from Libby's side!

[Rick Ballard]

"Do you yet suppose he knows he was had ?"

Nope. We're gonna have to buy a 64 color set and some poster paper.

[topsecretk9]

I will admit with all the Dem support here I have been duped into the notion that Fitz is the "Doogey Houser" of Prosecution with big moments of doubt...but...now that we see that Gov't makes BIG mistakes in their cases (boxes of classified/prepping witnesses et al.) and well this non-response , like Sue says

"Basically it doesn't matter what he said before it is what he is saying now that matters."

no wonder there was a huge rush to the clerk.

[topsecretk9]

one more time..
no wonder there WASN'T a huge rush to the clerk.

[topsecretk9]

This is sort of casual, laisser faire

"In order to avoid the potential conflict of interest created by the Attorney General’s direction of criminal investigations of high-ranking members of his own administration, special prosecutors have been utilized from time to time pursuant to the Attorney General’s above-described statutory authority to delegate his functions or under the now-lapsed Ethics in Government Act in which Congress, by statute, vested the power of the Attorney General in Independent Counsels. See 28 U.S.C. § 591 et seq."

Oh, you know from time to time...WHEN? ...but more importantly

Fitz in this whole response, they try all ways...he keeps referring that AG has authority to delegate\to Comey to delegate but at the same time has to refer to the AG as the one who has ALL authority but he answers to no one.

Clarice?

[MJW]

One thing that surprised me is that all the attached documents in support of the argument that Fitz was subject to various controls are recently prepared affidavits basically saying "here's what was in the back of my mind at the time.". You'd think he could have dug up some documents that existed prior to Libby's motion to bolster his position -- that is, if they actually existed. I noticed he didn't include his letter requesting the clarifications of his authority. I'd be curious to see how the request was phrased. I'd tend to think that if he'd humbly entreated Comey to expand his power, he would have used the letter to show he considered himself Comey's subordinate.

[topsecretk9]

I noticed he didn't include his letter requesting the clarifications of his authority.

a question I asked above , prior.

[clarice]

ts..I have a simple mind. Bafflegab causes it to overheat and cease functioning,and that "who's on first" argument just blew my circuits.

The affidavits are ridiculous. Had anyone at DoJ exercised the merest amount of supervisory authority don't you suppose we'd find evidence of it in these affidavits? I call that Comey argument "what I would have said if I had known what I was doing"

[clarice]

AP has a not very informative report of the pleading:
"

x - close Recent Stories By The Associated Press

I. Lewis "Scooter" Libby, Vice President Dick Cheney's former chief of staff, walks to the U.S. District Court in Washington, Wednesday, Nov. 16, 2005, accompanied by his attorney Theodore V. Wells Jr., at rear.

AP Photo/J. SCOTT APPLEWHITE


Prosecutor opposes Libby motion to dismiss
The Associated Press
Last Updated 7:29 pm PST Friday, March 17, 2006
WASHINGTON (AP) - Special Counsel Patrick Fitzgerald on Friday disputed the claim of Vice President Dick Cheney's former top aide that the prosecutor lacks legal authority to indict him in the CIA leak investigation.
Fitzgerald opposed the move of I. Lewis "Scooter" Libby asking a judge to dismiss the five-count indictment against him in the Valerie Plame affair. In court papers, the prosecutor argued that being allowed to operate outside any control of the Justice Department is constitutional and in accordance with federal law.

The prosecutor, who is investigating the disclosure of Plame's CIA undercover status, is not supervised by the Justice Department and he is not required to inform anyone at the department about the investigation's progress.

In a court filing in February, Libby said that only Congress could approve such an arrangement.
"The attorney general may delegate powers but he may not abdicate responsibility," Libby's lawyers wrote.

Fitzgerald replied that the attorney general has been granted broad legal authority by Congress "to delegate any of his functions to other offices of the Department of Justice."'http://www.sacbee.com/24hour/politics/story/3232932p-11974227c.html

[clarice]

MJW, if he'd been Comey's subordinate, I think there'd be no constitutional argument. Comey made Margolis, a career(non-confirmed) employee Fitz' superios. And that's the big problem here.

[maryrose]

Did I miss something?Did congress grant broad legal authority to Fitz? I thought he was just appointed by Comey.

[topsecretk9]

Clarice

In court papers, the prosecutor argued that being allowed to operate outside any control of the Justice Department is constitutional and in accordance with federal law.

Even the AP couldn't jump wrap it;s bias around it...and um whens the the NYT's gonna tell us about their subpoenas? Calling Jay rosen, calling Jay Rosen.

[topsecretk9]

Gee, Is Sue right? Did the "story" DIE?

[topsecretk9]

I just checked WAPO with images...have I said this before? But Libby is HOT! He's got that chiseled dimple thing going...and the intense look too.
Anyhoo, no ones covering.

[JM Hanes]

Clarice

Comey may have been turning Margolis into Fitz's superior, but he was simultaneously restricting Margolis authority over the SP: "This delegation to you in no way retracts or modifies the scope of the prior delegations of authority to Mr. Fitzgerald." (Exhibit C) Something of a pickle here.

After a quick read, it appears that Fitz's argument is a one liner: Comey could fire me; therefore I am a subordinate. End of story.

The rest is an extended riddle: When is a Special Prosecutor not a Special Prosecutor? He's not an Independent Counsel, or a regulation Special Prosecutor, but his disenfranchisement would put the legitimacy of any/all past/present Special Prosecutions at risk. He figured he was obliged to follow regulations if they weren't too onerous -- just like Comey did when he decided that the immediate appointment of a Special Prosecutor was more important than taking time for "selecting, clearing, and staffing an outside cousel operation" per regulation. Fitz asserts he had no policy making authority, but defends his authority to make "public statements' on the "public policy significance of a case." Yakety Yak, don't talk back.

When you unwrap the padding, you get: my authority was limited to a specific investigation and removability is synonumous with supervision. If that is deemed sufficient, and it may well be, I'm afraid we'll end up thinking that the old Independent Counsel statute would be an improvement.

On a slightly lighter note, having previously noted Fitz's regular, rather strange reliance on news reports in his filings, I think my favorite passage at the moment comes on p.24, where he says:

Furthermore, as a practical matter, much information about the investigation of the Special Counsel is in the public domain and therefore available to the Acting Attorney General in exercising the power to remove the Special Counsel.

I was going to follow this with a wisecrack, but alas, I don't think I can top the man himself.

[topsecretk9]

I was going to follow this with a wisecrack, but alas, I don't think I can top the man himself.

Oh come on..loosen up, he signed his hancock to it but....enquiring minds want to know...

[topsecretk9]

what smart, controlled,thoughtful, methodical JMHanes's "wisecrack" would be.

[JM Hanes]

My own painful experience suggests that when someone can't quite decide whether or not to tell a joke, you'll probably regret encouraging them to do it. :)

[topsecretk9]

WOW, now I am being chastised by the ahem, by Tom Christianson...life is stranger than fiction.

[JM Hanes]

That's really funny tops. The guy must be googling himself on a weekly basis! You must have made his day. Better keep that black light handy though, just in case.

[topsecretk9]

JMHanes

If you go to his site, he keeps track of who visits his sit an has a quasi analysis of why you are there....anyways, as always "I" hit a nerve...story of my life

[topsecretk9]

i do think Polly USA needs to hit this link, for fun at least.

[MayBee]

His story and Sibel Edmund's story ended up being remarkable similar, I must say. All the CIA people you've ever heard of rolled into one big conspiracy.

[MJW]

I haven't yet looked into it enough to put togeter a coherent argument, but there are a few issues I wonder about.

Fitz argues that the AG can, under section 510, delegate any and all of his powers to virually anyone he pleases, and reading 510 does not clearly contradict this interpretation:

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

I can't, however, accept that this interpretation is correct. First, if it were, why would Congress have felt it necessary to provide in section 543 for the appointment of Special Attorneys, or in 542 for the appointment of Assistant U.S. Attorneys, or even in section 541 for the appointment of U.S. Attorneys (which require advise and consent, no less). The AG could accompish the same thing by delegating his authority in a letter. Also, even if the Special Counsel is not a principal officr, he is at least an inferior officer, and therefore Congress, under the Appointment Clause, must provide for his means of appointment ("Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.") So, unless section 510 is viewed so broadly that it provides a means of appointment for officers of the U.S., then the only stautes that seem to apply are 515 and the related 543. But neither of these provides for authority equivalent to the AG's.

[Dwilkers]

Wow you guys had an exciting afternoon while I was painting the bathroom didn't you? Thanks to Sue and Rick for the effort to get the stuff up and available.

I'm afraid we'll end up thinking that the old Independent Counsel statute would be an improvement.

Well yeah. At least before they were supervised by a panel of judges, so although you might not like something they did you knew they were accountable to someone.

[Bill]

Special Counsel and Permanent Indefinite Appropriation

http://www.gao.gov/decisions/appro/302582.htm

September 30, 2004

The Honorable Ted Stevens

Chairman

Committee on Appropriations

The Honorable Robert C. Byrd

Ranking Minority Member

Committee on Appropriations

United States Senate

The Honorable C.W. Bill Young

Chairman

Committee on Appropriations

The Honorable David Obey

Ranking Minority Member

Committee on Appropriations

House of Representatives

Subject: Special Counsel and Permanent Indefinite Appropriation

The Government Accountability Office (GAO) is required to audit twice a year the expenditures by independent counsels and certain special counsels paid from the permanent indefinite appropriation. [1] In the course of auditing independent counsel expenditures for the period ending March 31, 2004, we learned that the Department of Justice was using the permanent indefinite appropriation to pay the expenses of the investigation by Special Counsel Patrick J. Fitzgerald. Mr. Fitzgerald continued to perform his duties as a U.S. Attorney after his appointment as Special Counsel. This is the first time that the expenses of an investigation by a United States Attorney appointed to serve as Special Counsel who continues to serve as a United States Attorney have been paid from the permanent indefinite appropriation. In addition, Department of Justice regulations at 28 C.F.R. Part 600 (2003) provide that Special Counsels shall be selected from outside the government.

Given our responsibility to audit the fund, the use of the account to finance Special Counsel Fitzgerald's activities, and the provisions of 28 C.F.R. Part 600 (2003), we initiated inquiries with the Department of Justice to assure ourselves of the availability of this account to defray his expenses. [2] In considering this matter, we requested and received the written views of the Department of Justice. We also met with officials of the Department to discuss their views and obtained additional comments and information. Finally, we reviewed the laws and their legislative histories, regulations, court decisions, and past practices of the Department of Justice, as they relate to this matter.

For the reasons discussed below, we do not object to the use of the permanent indefinite appropriation to fund Special Counsel Fitzgerald's expenses. Unlike the expired independent counsel law, the permanent indefinite appropriation does not require that a Special Counsel be appointed from outside the government. The Department, in appointing Special Counsel Fitzgerald under "other law", has afforded him independence by delegating all of the Attorney General's authority with respect to the investigation and instructing him to exercise that authority independent of the control of any officer of the Department. Finally, the Part 600 regulations are not substantive and may be waived by the Department.

[Patton]

Perhaps Libby should come back with an affadavit from Cheney appointing him acting President and therefore authorized to declassify and disclose classified information and Libby could then pardon himself using his newly received powers and this will all be over.

Cheney can just say, well Libby knew what I was thinking when I made him acting President.

[Dwilkers]

Well guys, I'm going to have to disagree with some of you. As much as I'd like to see Fitz get a slapped and someone put in charge that will actually, you know, investigate and plainly tell us who leaked what and why it looks to me like this effort by Libby is going to fail.

To my non-lawyer eye, Fitz shreds the basic argument by Libby on pages 8-13, or perhaps more accurately he sits back and lets the SCOTUS do it for him. From what Fitz provides it looks to me like the inferior/superior and supervised/unsupervised question has been asked and answered before.

I'll climb way out on a limb and predict the judge rules againt him, expedited appeal goes against him, and by early fall the SCOTUS declines to review.

(And TSK9, that Tom C. stuff is pretty funny)

[Patton]

After reading Fitzs submission, my main question is...OK, if you were only tasked with investigating the disclosure of Plame...then why aren' you doing that??

UGO (Armitage?) leaked Plame and Novak published...so prosecute UGO. Otherwise, what does you mandate have to do with Libby?

I take it Fitz would have no problem with the AG saying..OK, prosecute Armitage (UGO)and drop this Libby side issue - not your job.