Byron, defense lawyers are apt to raise everything including the kitchen sink at this point in a criminal case, but I’m afraid this is one of the loopier motions I’ve heard of in a while – I hope Scooter’s got better ones than that.

First, if anything Scooter’s lawyers are referring to was unconstitutional, it was the old independent counsel statute. Prosecution is an executive branch function. The constitutional anomaly is the thought that it must be supervised by the judicial branch.

Second, Pat’s appointment is a lot less strange than other aspects of the old independent counsel statute. It is akin to the common situation in which the Attorney General or a U.S. Attorney has to be walled out of a case because of some conflict of interest (for example, if the government is investigating a company which the AG used to represent as a private attorney).

All that really happened in the Libby case is the AG and the rest of Justice’s top brass walled themselves out of most supervision of Fitz because of a perceived conflict of interest. (BTW, I don’t think there was a conflict requiring them to recuse themselves. DOJ could have handled this without appointing an independent counsel, but chose not to. But that’s neither here nor there.)

To the contrary, the old, thankfully lapsed independent counsel statute featured a much more elaborate construct to insulate the independent counsel from the executive branch. It, far more than Pat’s situation, was constitutionally dubious.

Finally, as a constitutional matter, Pat’s authority came not from Jim Comey’s letter but from the President’s executive power under Article II. There was never a moment when President Bush could not have fired Pat – indeed, the President could fire him today (just as he could pardon Scooter today if he decided to). That he doesn’t do so is understandable politics, but it doesn’t change the legal reality.

In any event, there is nothing remotely unconstitutional about a presidentially appointed prosecutor (which Pat remains, even as an “independent counsel”) exercising the President’s prosecutorial authority. That’s what prosecutors do every day.