The Corner

Re: Re: Fitzgerald

Byron, that’s fine. For what it’s worth, I’ve gotten some feedback from folks I think are pretty smart (and have nothing to do with the case), who, like me, are unpersuaded but make an additional point that, though it doesn’t sway me much, I pass along because it’s been mentioned a few times.

It’s this. Contrary to my comparatively lowly status (which was never higher than a Division Chief in a District U.S. Attorney’s Office), Pat — like the Attorney General, the Deputy AG, the Solicitor General, and the Chief of the Criminal Division at Justice — holds a position in which, consistent with the Appointments Clause, he was confirmed by the Senate. That is, his day-job, when he’s not Plaming, is U.S. Attorney for the Northern District of Illinois. In that capacity, he is a presidential appointee — who can only be fired by the President (whereas, I could have been fired by the U.S. Attorney for the Southern District of New York or, I imagine, the Attorney General).

Consequently, so the argument goes, even if there would have been some problem if the AG tried to delegate all his authority to me, there is no such problem with Fitzgerald.

As I’ve said, I don’t see a constitutional issue in any event, but I pass that along.

Another old friend, who read our exchange, had this observation: “The best part of this exchange is York quizzing Andy about Andy’s days as a prosecutor: ‘Did anyone supervise you? Could you expand your

jurisdiction on your own? Did you have the authority to do your job

independent of the supervision or control of any officer of the Justice

Department?’ ‘No’, ‘Yes’, and ‘No, but I did it anyway’ would be the three correct answers to those questions . . . .”

This insight suggests you could well be right about lines of authority and I may be missing the point because I, er, have this authority thing …

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