THE BLOG
02/24/2006 10:01 am ET Updated May 25, 2011

Libby's Weak Defense

Scooter Libby's lawyers certainly can't be accused of not being zealous advocates for their client. From an AP story:

Lawyers for Vice President Cheney's former top aide asked a federal judge Thursday to dismiss his indictment because the special prosecutor in the CIA leak case lacked authority to bring the charges.

In a court filing, lawyers for I. Lewis "Scooter" Libby said his indictment violates the Constitution because Special Counsel Patrick Fitzgerald was not appointed by the president with the consent of the Senate.

The defense attorneys also said Fitzgerald's appointment violates federal law because his investigation was not supervised by the attorney general. They said only Congress can approve such an arrangement.

"Those constitutional and statutory provisions have been violated in this case," Libby's lawyers wrote.

This is certainly an interesting strategy to pursue, and it's definitely not so off-base as to be unethical, but it doesn't really carry much water. The DOJ's grant of authority to Fitzgerald has specific statutory authorization. In Acting Attorney General James B. Comey's Dec. 30, 2003 letter to Fitzgerald [pdf] granting him investigatory power, he writes:

By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.

In this letter, Comey cites 28 U.S.C. §§ 508, 509, 510 and 515 as his authority for granting Fitzgerald such extraordinary powers as a Special Counsel. Section 508 authorizes Comey, as Deputy Attorney General, to "exercise all the duties" of the Attorney General in the case of his "absence or disability." This provision was triggered when Attorney General John Ashcroft recused himself from all matters relating to the leak investigation and explains why Comey signed his letters "Acting Attorney General." Section 509 generally vests broad powers in the Attorney General, though it has no specific application to Fitzgerald's appointment. The clear authorization for Fitzgerald's appointment comes from Sections 510 and 515. Section 510 states that "[t]he Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." The above language provides the basis for Comey's granting Fitzgerald all the authority of the Attorney General. Section 515 elaborates on the specific actions that any attorney (even a non-DOJ employee) authorized by the Attorney General make take in conducting an investigation. These powers include "conduct[ing] any kind of legal proceeding, civil or criminal, including grand jury proceedings."

I guess there's a constitutional argument to be made that, by delegating so much authority, Ashcroft and Comey essentially appointed a new Attorney General and circumvented the Senate's "advice and consent" power. This is what Libby's lawyers are saying when they write, "The attorney general may delegate powers but he may not abdicate responsibility." But accepting that argument would mean that an Attorney General could never recuse himself from a matter without having his issue-specific replacement confirmed by the Senate. This argument was rejected by the Supreme Court in Morrison v. Olson (1988), which upheld the constitutionality of the now-expired independent counsel statute. Under that law, an independent counsel with broad investigatory power (remember Kenneth Starr?) was appointed by a panel of three judges. There was no confirmation by the Senate, and only the panel or the independent counsel himself had the power to end the investigation.