The Corner

More Fitz & Things

While it is true that there is not a word in the Constitution about how the Justice Department is organized, there are statutory and regulatory words that do exactly that. While the president has the constitutional power to appoint Fitzgerald as special counsel to investigate XYZ, he specifically did not. Nor did he authorize Comey to grant him the authority of the attorney general. Nor did the attorney general (unless there is some order the attorney general put in place and Comey triggered). At a minimum, if normal procedures were not followed, I don’t understand why not. An inferior constitutional officer cannot confer the powers of a superior constitutional officer on a third party.

Moreover, in the Libby case, Fitzgerald is not acting under his authority as a United States Attorney. They are confirmed to prosecute cases in given jurisdictions. Otherwise, Fitzgerald would not have had to receive a special counsel appointment at all.

The general point here is that this is not an academic debate. Congress — through its budgetary authorization, appropriation and confirmation authorities, and the president — through his appointment power, have resolved most of this through the statutory process. As I said upfront in my earlier post, I haven’t taken the time to read all the filings, but I will be curious to learn, and will check, to see if there was an attorney general order in place, and if so whether it was complied with, when Comey conferred such extraordinary powers (and they are extraordinary) on Fitzgerald.

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