So let me get this straight, Byron. Your position is that if the Attorney General of the United States decided to go over to the District Court in Washington and try a case by himself, that would be unconstitutional because he’s the chief and you have to be an Indian?

There is not a word in the Constitution about how the Justice Department has to be organized, or, for that matter, about whether there has to be a Justice Department at all. The position of Attorney General was created by an Act of Congress — the Judiciary Act of 1789. Interestingly, that act gave the AG the duty “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned[.]” That is, he handled all the cases without any supervision … or any help. It wasn’t until 1870 that, in another Act of Congress, the Justice Department was created — because the workload, not the Constitution, called for it.

What the Constitution talks about is the executive power — “all” of it — being vested in the President. As long as Fitzgerald remains under the President’s ultimate control, then it doesn’t matter if he has no other boss, or one, or a hundred. That’s why, though you may not think it advances the argument, it is actually dispositive that the President retains the ability to fire the independent counsel. If he did not, then either Pat would not be exercising the executive power or the President would have been stripped of it — either of which would be a constitutional no-no.

Your jurisdictional point is confused. When I was a prosecutor, my jurisdiction in any particular case was controlled, as all prosecutors’ jurisdiction is controlled, by staute. That has utterly nothing to do with the structure of the Justice Department. If a crime was committed in California, I could indict it in New York. The defendant could seek to change venue — and he’d undoubtedly win. But there would be nothing jurisdictionally or constitutionally defective about the indictment simply because I brought it outside the federal district to which I was assigned.

As for the constitutionality of the old statute, you are surely correct that it was passed, signed and upheld. The upheld part came over a trenchant dissent by Justice Scalia. He may have lost, but that doesn’t mean he was wrong — and I daresay history proved him to have had the better of the argument.