Andy — I fail to see the loopiness in Libby’s argument.

One, it’s hard to say that the old independent counsel statute, bad as it was, was unconstitutional. Even though I thought it was, Congress passed it, the president signed it, and the Supreme Court upheld it. And that was pretty much that.

Two, the fact that Fitzgerald’s appointment is “less strange” than parts of a now-dead statute means nothing. When the attorney general or a U.S. attorney removes himself from a case, the people actually working the case are still supervised by somebody. That’s not the case with Fitzgerald. Remember when Ken Starr wanted to expand his jurisdiction to include the Lewinsky matter? He went to the attorney general. Who does Fitzgerald go to? Nobody.

Third, of course Fitzgerald can be fired by the president. So could any of the old independent counsels. That doesn’t seem to advance the argument one way or another.

Fourth, I think anyone can see that Fitzgerald is exercising a much broader power than what “prosecutors do every day.” You worked 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? And if you did not, did you know any prosecutors who did?