Andy — I think what your friend was getting at, and what the Libby motion is arguing, is that the attorney general cannot delegate all of his powers to a person who is not a principal officer of the United States. The Libby brief begins by stating, “Under the Appointments Clause of the Constitution, no person may assume the power of a principal officer of the United States unless he or she has been appointed to that office by the president with the advice and consent of the Senate.” As I understand it, Fitzgerald, even though he was confirmed by the Senate as U.S. Attorney, is not a principal officer. The Libby brief anticipated your friend’s comment in a footnote which reads, “The constitutional infirmity in this case is not cured by the fact that Mr. Fitzgerald was nominated by the president and confirmed by the Senate to serve as a United States attorney, which is an inferior officer position….When an individual is granted the tremendous power of a principal officer, he must be properly appointed to that office, regardless of any prior appointments.”
That still leaves the question of whether the attorney general could have delegated all of his authority to a principal officer, but I would still be troubled by a grant of absolute, unsupervised power. Why couldn’t James Comey have appointed Fitzgerald to serve under his supervision? As it was, the Fitzgerald situation was the result of extensive media-fueled buck-passing in the Justice Department. John Ashcroft recused himself, which put Comey in the position of acting attorney general for this case, and then Comey delegated all the power of the attorney general to Fitzgerald and ran away.
As far as jurisdiction is concerned, I don’t think I’m confused, because I don’t think California and New York have anything to do with this. Your passing on your friend’s lighthearted response makes it clear that, like every other prosecutor in the Justice Department except Patrick Fitzgerald, you did not have the authority to do your job independent of the supervision or control of any officer of the Department.
And as far as the old independent counsel law is concerned, as I understand it, one of the reasons cited by the Supreme Court majority in declaring it constitutional was that there were limits on the independent counsel’s power, beyond simply the president’s power to fire him. For example, he had to ask permission to extend his investigation into new areas. Those limits do not seem to apply to Fitzgerald. And one last thing. You thought the independent counsel law was a bad thing. But now, the Justice Department has given even more authority to someone selected unilaterally by the deputy attorney general, and you don’t have a problem with that?
That’s it for now. We can pick this up tomorrow, if anyone is still interested.