Is Fitzgerald's Appointment As Special Counsel A Close Constitutional Question?

By Big Tent Democrat, Section Lewis Libby Trial Coverage
Posted on Sun Jun 10, 2007 at 11:25:04 AM EST
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Somewhat lost in the pleasure that Judge Walton's now famous footnote has provided, is the question of whether law professors make a credible argument that Fitzgerald's appointment runs afoul of the Appointments Clause of the Constitution. The law professors argue:

The dispositive Constitutional question then is whether the Office of Special Counsel to which Mr. Fitzgerald was appointed is inferior office within the meaning of the Appointments Clause.

If it is not an "inferior" office, all agree, then it is subject to Presidential appointment and Senate confirmation. But there is more to it than that. Patrick Fitzgerald was a duly appointed and confirmed U.S. Attorney. Does that matter? Not only does it matter, it decides the case imo. Let's explore these issues on the flip.

The amici argue that Morrison v. Olson is not an on point precedent and instead point to Edmond v. United States. In Edmond, the Court wrote:

We must determine in this case whether Congress has authorized the Secretary of Transportation to appoint civilian members of the Coast Guard Court of Criminal Appeals, and if so, whether this authorization is constitutional under the Appointments Clause of Article II.

Wait a second. The amici argued Morrison was not an on point precedent because it involved a Congressional act. It is hard to see how Edmond becomes an on point precedent on this distinction. It involves appointment power granted by congressional act. I suspect the amici like the language of Edmond better for their argument than the language of Morrison. Let's e see what they like about it. Well it can't be this:

In Weiss v. United States, 510 U.S. 163 (1994), we considered whether the assignment of commissioned military officers to serve as military judges without reappointment under the Appointments Clause was constitutional. We held that military trial and appellate judges are officers of the United States and must be appointed pursuant to the Appointments Clause. Id., at 170. We upheld the judicial assignments at issue in Weiss because each of the military judges had been previously appointed by the President as a commissioned military officer, and was serving on active duty under that commission at the time he was assigned to a military court. We noted, however, that "allowing civilians to be assigned to Courts of Military Review, without being appointed pursuant to the Appointments Clause, obviously presents a quite different question." Id., at 170, n. 4.

(Emphasis supplied.)

Wait a second. Fitzgerald was "previously appointed by the President as a [United States Attorney], and was serving [as such] at the time he was assigned to [act as US Attorney to investigate the Plame leak case.]" Why are the amici not focued on Weiss? Because Weiss demolishes their argument:

We begin our analysis on common ground. The parties do not dispute that military judges, because of the authority and responsibilities they possess, act as "officers" of the United States. See Freytag v. Commissioner, 501 U. S. ___, (1991) (concluding special trial judges of Tax Court are officers); Buckley v. Valeo, 424 U.S. 1, 126 (1976) ("[A]ny appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States,' and must, therefore, be appointed in the manner prescribed by [the Appointments Clause]"). The parties are also in agreement, and rightly so, that the Appointments Clause applies to military officers. As we said in Buckley, "all officers of the United States are to be appointed in accordance with the Clause. . . . No class or type of officer is excluded because of its special functions." Id., at 132 (emphasis in original). It follows that those serving as military judges must be appointed pursuant to the Appointments Clause. All of the military judges involved in these cases, however, were already commissioned officers when they were assigned to serve as judges, [n.4] and thus they had already been appointed by the President with the advice and consent of the Senate. [n.5] The question we must answer,therefore, is whether these officers needed another appointment pursuant to the Appointments Clause before assuming their judicial duties. Petitioners contend that the position of military judge is so different from other positions to which an officer may be assigned that either Congress has, by implication, required a second appointment, or the Appointments Clause, by constitutional command, requires one. We reject both of these arguments.

(Emphasis supplied.)

And this is the rub for the amici. They are repeating the argument made in Weiss. Fitzgerald was already an appointed and confirmed United States Attorney when Acting Attorney General Comey appointed him as Special Counsel to investigate the Plame leak matter.

Comey invoked 28 U.S.C. Section 510 when he appointed Fitzgerald:

The 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.

Clearly the appointment of Fitzgerald falls within the powers conferred by this law. And yet, the amici utterly fail to address 28 U.S.C. Section 510. It seems to me that they are bound to argue that this law is an unconstitutional violation of the Appointments Clause to have any reasonable argument here. But they failed to do so. I think the answer why is clear. Because Weiss does not permit the argument. Weiss held that the Appointments Clause did not require a second appointment:

Petitioners' alternative contention is that even if Congress did not intend to require a separate appointment for a military judge, the Appointments Clause requires such an appointment by its own force.
. . . "[T]he argument is, that while Congress may create an office, it cannot appoint the officer; that the officer can only be appointed by the President with the approval of the Senate. . . . As, however, the two persons whose eligibility is questioned were at the time of the passage of the act . . . officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed." Id., at 300-301.

. . . By looking to whether the additional duties assigned to the offices were "germane," the Court sought to ensure that Congress was not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office. But here the statute authorized an indefinite number of military judges, who could be designated from among hundreds or perhaps thousands of qualified commissioned officers.
. . . Even if we assume, arguendo, that the principle of "germaneness" applies to the present situation, we think that principle is satisfied here. . . . Although military judges obviously perform certain unique and important functions, all military officers, consistent with a long tradition, play a role in the operation of the military justice system. . . .

Fitzgerald was carrying out the exact role for which he was appointed and confirmed. There is nothing new in what Fitzgerald did in the Plame investigation that he did not do every day in his role as U.S. Attorney for the Northern District of Illinois.

The discussion of whether Fitzgerald was appointed to an office requiring appointment is a red herring. The very cases that the amici cite for their argument demonstrate this. Fitzgerald would not need a second appoint and confirmation process to act as Special Counsel.

In short, the amici, who couch their brief in language of law professors expressing Constitutional concern, have merely rehashed a bad argument made by Libby's principal attorneys in poor and incomplete fashion. It is a bad piece of work.

< The GOP Talking Points on Libby Debunked, By WaPo No Less | Extremists? The Tale of the Two Joes >

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Is Fitzgerald's Appointment As Special Counsel A Close Constitutional Question? | 32 comments (32 topical)

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Just Carrying Water (5.00 / 1) (#1)
by squeaky on Sun Jun 10, 2007 at 11:40:19 AM EST

Or is it kool aid....

: making their bones so as to be considered for (5.00 / 2) (#4)
by Molly Bloom on Sun Jun 10, 2007 at 11:59:55 AM EST

judicial appointments down the road.

For KISS (5.00 / 1) (#30)
by Mary on Mon Jun 11, 2007 at 04:59:08 PM EST

Here's the situation in a nutshell.

Fitzgerald received a 28 USC Secs 510/515 delegation. As a matter of basic agency law, that delegation was an remained subjec to a) revocation and b) amendment and modification. No one has ever argued to the contrary in any way, shape or form.

As such, Fitzgerald remained not only removable at will, but also subject to all manner of supervision via modification of his authority and jurisdiction, at any time and at will. The delegation to Fitzgerald doesn't state that it was irrevocable and isn't coupled with any kind of an interest and as such, Fitzgerald was subjec to real and practical supervisory process at all points. Much more so than almost anyone else who has ever been found to be an inferior officer.

Not only was he subject to such amendment and modification, but, because the outside Special Counsel regulations do not apply, Margolis or McNulty (and I think its McNulty) can make block and modify without ever having to make the reports to Congress that would at least have been required under the outside Special Counsel CFRs.

Speaking of Fitzgerald's appointment (none / 0) (#2)
by naschkatze on Sun Jun 10, 2007 at 11:56:02 AM EST

What is all this talk about Fitzgerald having five more years to pursue this investigation (unless he closes it down)? At what point did the five years start? Or is this all just blog rumor?

No idea (none / 0) (#3)
by Big Tent Democrat on Sun Jun 10, 2007 at 11:59:36 AM EST

: Very interesting post. Thanks. (none / 0) (#5)
by oculus on Sun Jun 10, 2007 at 12:12:45 PM EST

And now, thanks to you, I know who decided Fitzgerald [or, for that matter, anyone within the Department Justice] should investigate the leak re Plame.

Interesting (none / 0) (#6)
by Maryb2004 on Sun Jun 10, 2007 at 12:25:10 PM EST

I hadn't read their brief before I clicked through from here. Thanks for the analysis.

Along with being the resident extremist (5.00 / 3) (#7)
by Big Tent Democrat on Sun Jun 10, 2007 at 12:30:01 PM EST

at this blog, I do an occasional piece of legal analysis.


: Indeed. (none / 0) (#9)
by Gabriel Malor on Sun Jun 10, 2007 at 12:55:46 PM EST

which I always enjoy. Thanks for taking the time.

Inferior or Principal Officer (none / 0) (#8)
by Gabriel Malor on Sun Jun 10, 2007 at 12:54:44 PM EST

Good Morning, BTD.

First, the law professors address themselves to the court's use of Morrison because of the court's reliance on that case. They do a good job of distinguishing the present circumstances from those in Morrison and I will only repeat their argument below. Second, some more thought, however, goes into your analysis of Weiss. I believe that you are wrong about the applicability of Weiss and I will tell you why. Third, you err when you say that the law professors should have addressed the constitutionality of 28 U.S.C. 510. Finally, Edmond is directly on point and, as the law professor's wrote, causes the present case to be a "close question" that deserves more exacting scrutiny from the court.

But first: Morrison. The law professors write that Morrison is distinguishable from the present case for several reasons:

(1) The office of Independent Counsel Morrison was created explicitly by Congress (in the Ethics in Government Act of 1978). That statute set out the framework for appointing Independent Counsels, their duties, their powers, and the conditions for their continuing existence once created.

On the other hand, the office of Special Counsel Fitzgerald was created using a general delegation of authority to the Attorney General. The statute used by the AG (or acting AG, in this case) to appoint the Special Counsel had no framework for the office, no description of its duties, or powers, and no conditions for revoking that power once granted.

The difference is patent. When Congress passed the Independent Counsel portion of the Ethics in Government Act it intended that Independent Counsels be created under certain circumstances. One the other hand, when Congress delegated to the AG, the power to create inferior officers in the Department of Justice, they did not specifically consider whether Special Counsels would be created by the law.

(2) Second, Congress specifically limited Independent Counsels by requiring them to comply with the policies of the Department of Justice. This was an important factor considered by the Supreme Court in Morrison. Special Counsel Fitzgerald operates under no such restriction. In fact, as the law professor's note: "indeed, Deputy Attorney General Comey's letter of February 6, 2004 expressly exempted the Special Counsel from complying with Justice Department policies."

(3) A Special Division of the D.C. Circuit Court of Appeals had the power to limit the jurisdiction of the Independent Counsel. This is a significant restraint placed on that office. The fact that it can be so limited led the Supreme Court to conclude that the office was an inferior one.

On the other hand, Special Counsel Fitzgerald was told to operate "independent of the supervision or control of any officer of the Department." In other words, he had no limitation placed on his office at all. That strongly weighs toward finding that the office was not an inferior one.

To sum up, there are significant differences between the offices of Independent Counsel and Special Counsel. The court in the present case did not take adequate notice of those differences in its reliance on Morrison.

Second, despite some superficial similarities, Weiss is not controlling in this case. Like with Morrison, the differences between the present case and the circumstances in Weiss make them insurmountably distinct.

(1) First, even after they were selected, the military judges in Weiss could only perform their judicial duties at the direction of the Judge Advocate General. In other words, they were patently inferior to the JAG. On the other hand, Special Counsel Fitzgerald was made independent of the rest of the Department of Justice; within his office he is a power unto himself and answerable to no one.

(2) The position of a military judge is not so different from other positions to which an officer may be assigned. On the other hand, the Special Counsel and the U.S. Attorney are entirely different creatures.

BTD claims that the duties of Special Counsel Fitzgerald are "exact role for which he was appointed and confirmed" as a U.S. Attorney, but that ignores the material differences between the two offices. For example, U.S. Attorney's are by statute subject to removal by the President. The Special Counsel is not (in fact, there are no Congressional restrictions on the Special Counsel at all). U.S. Attorneys are subject to the oversight of the Attorney General. The office of the Special Counsel was made to be independent of the AG. U.S. Attorneys must operate pursuant to the regulations promulgated by the Department of Justice in the CFR in accordance with the Administrative Procedures Act (which is an important part of our due process protections). The Special Counsel is exempted from operating under the CFRs.

All of these differences make manifest the point: the role for which Fitzgerald was appointed and confirmed is materially different than the role he is performing. In short, Weiss is not on point. Therefore, we must determine if the new role he is performing is an inferior one or a principle one.

Third, BTD makes a fundamental misunderstanding of the Appointments Clause when he criticises the law professors for not addressing the constitutionality of 28 U.S.C. Section 510. BTD writes:

Clearly the appointment of Fitzgerald falls within the powers conferred by this law. And yet, the amici utterly fail to address 28 U.S.C. Section 510. It seems to me that they are bound to argue that this law is an unconstitutional violation of the Appointments Clause to have any reasonable argument here.

That is incorrect. There is a difference between the delegation of power to the AG, and the AG's exercise of that delegation. It may be perfectly constitutional to delegate power to the AG, but he on his own may exceed that delegation in an unconstitutional manner. That is what is being contended here.

For example, Congress can delegate to the AG the power to share his duties with other officers in the Department of Justice. But if the AG turns around and claims that he is using that delegation to create a new office with functions and powers that were not previously possessed by the AG, he would be in constitutional error. His claim that he's using the Congressional delegation to create the new office does not make it so if he exceeds the Congressional delegation.

Finally, the Edmond case is exactly on point. That case created the generally applicable rule to determine if an officer is an inferior one. The rule is:

Inferior officers are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.

Rather than relying on the inapt Morrison, the court in the present case should have focused its analysis on Edmond.

Your misunderstandings are grave (none / 0) (#10)
by Big Tent Democrat on Sun Jun 10, 2007 at 01:31:08 PM EST

and most of your assertions unsupported.

Let's consider them. First you write:

This is irrelevant to the argument. Moreover, itis inaccurate as Weiss and Edmonds point out that military judges are insulated from the influence of the Judge Advocate General in the carrying out of their duties.

However, it is, as I wrote, a red herring. You see the Weiss Court found that the Appointments Clause APPLIES but is met by the prior appointment. The Weis Court says, in relevant part:

It follows that those serving as military judges must be appointed pursuant to the Appointments Clause. All of the military judges involved in these cases, however, were already commissioned officers when they were assigned to serve as judges, [n.4] and thus they had already been appointed by the President with the advice and consent of the Senate. [n.5] The question we must answer,therefore, is whether these officers needed another appointment pursuant to the Appointments Clause before assuming their judicial duties. Petitioners contend that the position of military judge is so different from other positions to which an officer may be assigned that either Congress has, by implication, required a second appointment, or the Appointments Clause, by constitutional command, requires one. We reject both of these arguments.
. . . Petitioners' alternative contention is that even if Congress did not intend to require a separate appointment for a military judge, the Appointments Clause requires such an appointment by its own force. They urge upon us in support of this contention our decisions in Buckley, supra, Freytag, supra, and Morrison v. Olson, 487 U.S. 654 (1988). These decisions undoubtedly establish the analytical framework upon which to base the conclusion that a military judge is an "officer of the United States" --a proposition to which both parties agree. But the decisions simply do not speak to the issue of whether, and when, the Appointments Clause may require a second appointment.
. . . Even if we assume, arguendo, that the principle of "germaneness" applies to the present situation, we think that principle is satisfied here. . . . Although military judges obviously perform certain unique and important functions, all military officers, consistent with a long tradition, play a role in the operation of the military justice system.
. . . In sum, we believe that the current scheme satisfies the Appointments Clause. It is quite clear that Congress has not required a separate appointment to the position of military judge, and we believe it equally clear that the Appointments Clause by its own force does notrequire a second appointment before military officers may discharge the duties of such a judge.

Second you write:

(2) The position of a military judge is not so different from other positions to which an officer may be assigned. On the other hand, the Special Counsel and the U.S. Attorney are entirely different creatures.
BTD claims that the duties of Special Counsel Fitzgerald are "exact role for which he was appointed and confirmed" as a U.S. Attorney, but that ignores the material differences between the two offices. For example, U.S. Attorney's are by statute subject to removal by the President. The Special Counsel is not (in fact, there are no Congressional restrictions on the Special Counsel at all). U.S. Attorneys are subject to the oversight of the Attorney General. The office of the Special Counsel was made to be independent of the AG. U.S. Attorneys must operate pursuant to the regulations promulgated by the Department of Justice in the CFR in accordance with the Administrative Procedures Act (which is an important part of our due process protections). The Special Counsel is exempted from operating under the CFRs.

(Emphasis supplied.) You have made an argument the amici did not and that is the heart of my complaint. They avoided the issue. And you are wrong in your argument. Fitzgerald was REMOVABLE by, not only the President, but by the Attorney General.

Second, where was it said that Fitzgerald was not bound by the regulations of the Justice Department? this is a canard. He is a U.S. Attorney and as such IS and WAS bound by them. You are simply wrong. As were the amici.

You further write:

All of these differences make manifest the point: the role for which Fitzgerald was appointed and confirmed is materially different than the role he is performing.

But your "differences" are simply false. they do not exist.

In short, Weiss is not on point. Therefore, we must determine if the new role he is performing is an inferior one or a principle one.

In short, since your facts are wrong, Weiss is precisely on point as you must concede if your facts are wrong. As they are, then your conclusion is wrong.

Third, BTD makes a fundamental misunderstanding of the Appointments Clause when he criticises the law professors for not addressing the constitutionality of 28 U.S.C. Section 510. BTD writes:

Clearly the appointment of Fitzgerald falls within the powers conferred by this law. And yet, the amici utterly fail to address 28 U.S.C. Section 510. It seems to me that they are bound to argue that this law is an unconstitutional violation of the Appointments Clause to have any reasonable argument here.
That is incorrect. There is a difference between the delegation of power to the AG, and the AG's exercise of that delegation. It may be perfectly constitutional to delegate power to the AG, but he on his own may exceed that delegation in an unconstitutional manner. That is what is being contended here.

This is absurd. The law delegates the power exercised. How can the law be Constitutional if it provides for the exercise of a power you claim is unconstitutional. This is a very silly argument you provide. The statute is the problem if there is a problem. you can not avoid that.

You write:

For example, Congress can delegate to the AG the power to share his duties with other officers in the Department of Justice. But if the AG turns around and claims that he is using that delegation to create a new office with functions and powers that were not previously possessed by the AG, he would be in constitutional error.

And in violation of Section 510 which does NOt confer such power upon the AG. This is a particularly silly argument. You write:

His claim that he's using the Congressional delegation to create the new office does not make it so if he exceeds the Congressional delegation.

You claim that naming a Special Prosecutor is the creation of a new office as opposed todelegating exisitng powers. This is spurious. You can not argue that the AG could have prosecuted Libby himself so what new power was created? None. This is utterly spurious.

You finish with this:

Finally, the Edmond case is exactly on point. That case created the generally applicable rule to determine if an officer is an inferior one. The rule is:

Inferior officers are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.
Rather than relying on the inapt Morrison, the court in the present case should have focused its analysis on Edmond.

This is not correct. Neither Morrison NOR Edmonds are on point. Indeed, neither Edmonds or Morrison say things that are very different. It is Weiss that is on point, for the reasons I argued in my post and in this comment.

You follow the red herring if you wish. Weiss decides this case. BTW, I do not know if Walton relied on Morrison, but he would have been better off relying on Weiss, which is right on point.


Weiss (none / 0) (#11)
by Gabriel Malor on Sun Jun 10, 2007 at 05:10:08 PM EST

BTD, I think you'd be right if Weiss actually applied. But the critical factor for the Court in that case was that "the position of a military judge is not so different from other positions to which an officer may be assigned."

That factor just doesn't exist in the present case. "Special Counsel" is by its very institution a one-of-a-kind office with duties, powers, and administrative structure manifestly different than that of a U.S. Attorney.

Further separating Weiss from the current case is the fact that Congress provided for the existence of military judges, their selection, and their duties by statute. No such provisions exist for Special Counsels.


: Your argument is that a US Attorney (none / 0) (#14)
by Big Tent Democrat on Sun Jun 10, 2007 at 07:24:44 PM EST

is not like a US Attorney as far as I can tell.
Because a Special Counsel takes on the function of a US Attorney.
The fact that Congress provides for assignments by the AG pursuant to 28 USC 510 seems not to have had an impact on your thinking.
That is for you to explain. As I said, Section 510 can not be ignored in this argument ands the professors did.
I think you will admit that is an unacceptable oversight.
At the least, they need to explain their theory of why Weiss doe s not apply. Because, as you admit, if it does, then case closed.

What I Did Not Find in the Amicus Brief (none / 0) (#12)
by JM Hanes on Sun Jun 10, 2007 at 06:47:49 PM EST

Patrick Fitzgerald was a duly appointed and confirmed U.S. Attorney. Does that matter? Not only does it matter, it decides the case imo.

I think I'll go with the amici's opinion on whether that's decisive. You, personally, may be convinced this cake is baked, but the legal question has yet to be definitively resolved in court. The circumstances in the caselaw you prefer differ in arguably consequential ways from the circumstances surrounding Fitzgerald's appointment -- which the "law professors" detail, and you essentially ignore.

"Clearly the appointment of Fitzgerald falls within the powers conferred by this law."

Clearly, that very point remains a matter of dispute, not settled law. The statutory history of Indpendent & Special prosecutors alone, not to mention the fact that such appointments are addressed separately and explicitly in the DoJ's own regulations, suggests that 28 U.S.C. Section 510 was not designed, and has not been regarded as sufficient, for the purposes at hand. Having patently violated the DoJ regulations which do govern such appointments, Mr. Comey officially suspended them ex post facto.

Fitzgerald was "previously appointed by the President as a [United States Attorney], and was serving [as such] at the time he was assigned to [act as US Attorney to investigate the Plame leak case.]"

Fitzgerald may have been serving "[as such]" at the time, but he was not "assigned" to the Plame investigation "[to act as US Attornery...]." If handling this case were an extension of his duties as U.S.Atty, then no further titles were required. He was neither "assigned" nor even reassigned as a US Attorney, he was appointed to act as Special Prosecutor -- in a case which, even as a duly confirmed U.S Attorney in Chicago, he had been given neither the authority, nor the jurisdiction to pursue. The very distinctions you conveniently blur are central to the constitutional question to be resolved: Was this Special Prosecutor sufficiently independent of restraint and was Fitzgerald's purview as U.S. Attorney sufficiently distinct from his purview as Special Prosecutor to require separate confirmation?

Somehow, I rather doubt that you've actually contemplated the logical extension, and decidedly unpleasant flip side, of the argument you're so confidently advancing. The President, for example, whose statutory authorities dwarf 28 U.S.C. Section 510, could similarly argue that any official once confirmed by the Senate, could be "reassigned" in like fashion at the Chief Executive's pleasure. I'm sure the conspiracy theorists among us can color in that picture easily enough.

Whether intentional or inadvertant, it's also worth noting the strawman you set up before you even assay the legalities. You pose "the question of whether law professors make a credible argument that Fitzgerald's appointment runs afoul of the Appointments Clause of the Constitution." The professors themselves, however, neither posed nor attempted to address that question. Contra your framing, the amici specifically declined to do so in a glaringly explicit disclaimer as to the purpose of their brief. In the interests of credibility, you might want to highlight that passage for your readers.

What the collected lawyers do actually argue is that there is sufficient basis for asking the Appellate Court to entertain the question of whether the Appointments Clause should have been triggered -- or not. The sui generis nature of Fitzgerald's appointment, for example, in contradistinction to the subjects of previous adjudication & potential precedent, might prove reason enough for the Appellate Court to undertake review. That's just the most obvious element in a matrix of underlying, unresolved questions articulated in the Amicus Brief. The law professor's ambitions are considerably less ambitious than your own. They don't even express an opinion on whether or not the Appellate Court will actually agree to hear the question, they simply suggest that there is reason to think it might.

Did you read Weiss? (none / 0) (#13)
by Big Tent Democrat on Sun Jun 10, 2007 at 07:21:30 PM EST

Because the similarity in assignment for Fitzgerald is much closer than that of the military judges in Weiss.

You tilt at windmills when you write:

Fitzgerald may have been serving "[as such]" at the time, but he was not "assigned" to the Plame investigation "[to act as US Attornery...]." If handling this case were an extension of his duties as U.S.Atty, then no further titles were required.

And? Thye gave him a title that was descriptive.Sort of like the title military judge. You fail to distinguish Weiss at all.

He was neither "assigned" nor even reassigned as a US Attorney, he was appointed to act as Special Prosecutor -- in a case which, even as a duly confirmed U.S Attorney in Chicago, he had been given neither the authority, nor the jurisdiction to pursue.

Thsi is precisely why Section 510 was invoked. The question is whether it required re-appointment. Weiss would say no. Weiss is the case on point. You ignore Weiss.

The very distinctions you conveniently blur are central to the constitutional question to be resolved: Was this Special Prosecutor sufficiently independent of restraint and was Fitzgerald's purview as U.S. Attorney sufficiently distinct from his purview as Special Prosecutor to require separate confirmation?

I blurred nothing. I cited Weiss, which you fail to come to grips with.

Somehow, I rather doubt that you've actually contemplated the logical extension, and decidedly unpleasant flip side, of the argument you're so confidently advancing. The President, for example, whose statutory authorities dwarf 28 U.S.C. Section 510, could similarly argue that any official once confirmed by the Senate, could be "reassigned" in like fashion at the Chief Executive's pleasure.

The President's statutory authority over the Attorney General? You mean his Constitutional authority I take it. And of course it dwarfs it. What is your point. The PResident can not circumvent the Appointments Clause by assigning say, the Secretary of State, to do a different job at Justice. This is precisely the point of Weiss. Again, you seem not to have read the case.

I'm sure the conspiracy theorists among us can color in that picture easily enough.

And like most conspiracy theorists, you would be full of feathers.


Bud Cummins and Missouri (none / 0) (#15)
by sphealey on Sun Jun 10, 2007 at 07:38:48 PM EST

Setting aside the other issues and implications of that investigation, are you then saying that, for example, the appointment of Bud Cummins (then USA for Arkansas) to investigate a situation in Missouri that had the potential to implicate the USA of Western Missouri was unconstitutional? That is, there is no constituational method to send a USA outside of his "home" district to work on an issue that has implications of conflict of interest in the district to which he is temporarily assigned?

If so, how in your scenario do allegations involving conflict of interest (or alleged criminality) of a sitting USA get investigated? They don't? The alleged perp just gets fired, regardless of whether or not the allegations are justified?

Help me understand.

sPh


Now that sounds like a Weiss situation. (none / 0) (#16)
by Gabriel Malor on Sun Jun 10, 2007 at 08:11:01 PM EST

sphealey,

This isn't a situation where one U.S. Attorney was moved into another's jurisdiction to investigate government officials' misconduct. Here, a U.S. Attorney was sent to investigate government misconduct and was explicitly exempted from DoJ oversight and control. That makes it unlike any U.S. Attorney position. That's why the present case is unlike the Weiss case.

The question now is whether Comey's creation of the Special Counsel is one which constitutionally requires advice and consent. BTD would like it if Section 510 constituted Congressional authorization for the new office, but that's far from a certainty.


It's worth noting that my criticism (none / 0) (#17)
by Big Tent Democrat on Sun Jun 10, 2007 at 08:51:00 PM EST

is applicable to Judge Walton and Fitzgerald, who also ignored Weiss.


Yeah. (none / 0) (#18)
by Gabriel Malor on Sun Jun 10, 2007 at 08:56:04 PM EST

I'll be keeping an eye out for it in any further filings and in Walton's bond decision. No doubt this will be a big issue in the appeal.


: Also worth reading are the concurrences in Weiss (none / 0) (#19)
by Big Tent Democrat on Sun Jun 10, 2007 at 09:12:27 PM EST

Souter rejects Rehnquist's determination that the military judges are principal officers:

If military judges were principal officers, the method for selecting them, which is prescribed in legislation adopted by Congress and signed by the President, would amount to an impermissible abdication by both political Branches of their Appointments Clause duties. Military officers commissioned before 1968, though they received presidential appointment and Senate confirmation, were chosen to fill inferior offices that did not carry the possibility of service as a military judge. If military judges were principal officers, the 1968 Act would have authorized the creation and filling of principal officeswithout any presidential nomination or Senate confirmation to that principal office, or indeed to any principal office at all. Such a process would preclude the President, the Senate, and the public from playing the parts assigned to them, parts the Framers thought essential to preventing the exercise of arbitrary power and encouraging judicious appointments of principal officers.
The office to which military officers have been appointed since enactment of the Military Justice Act of 1968 includes the potential for service as a military judge. But that would be a sufficient response to petitioners' Appointments Clause objection only if military judges were inferior officers. Otherwise, the method for selecting military judges even from the ranks of post-1968 commissioned officers would reflect an abdication of the political Branches' Appointments Clause duties with respect to principal officers. Admittedly, the degree of abdication would not be as extreme as in the prior setting, for the President and Senate are theoretically aware that each officer nominated and confirmed may serve as a military judge. Judging by the purposes of the Appointments Clause, however, this difference is immaterial. It cannot seriously be contended that in confirming the literally tens of thousands of military officers each year the Senate would, or even could, adequately focus on the remote possibility that a small number of them would eventually serve as military judges. [n.6] And the method for appointing military judges allows the President no formal role at all in the selection of the particular individuals who will actually serve in those positions. This process likewise deprives the public of any realistic ability to hold easily identifiable elected officials to account for bad appointments. Thus while, as the Court explains, see ante, at 7-9, Congress has certainly attempted to create a single military office that includes the potential of service as a military judge, I believe the Appointments Clause forbids the creation of such a single office that combines inferior and principal officer roles, thereby disregarding the special treatment the Constitution requires for the appointment of principal officers. For these reasons, if military judges were principal officers, the current scheme for appointing them would raise a serious Appointments Clause problem indeed, as the Solicitor General conceded at oral argument. See Tr. of Oral Arg. 30-31.
The argument that military judges are principal officers is far from frivolous. It proceeds by analogizing military judges to Article III circuit and district judges, who are principal officers, [n.7] and to Article I Tax Court judges, who Freytag suggests are principal officers too (since, Freytag held, Tax Court judges may appointinferior officers). In terms of the factors identified in Morrison v. Olson as significant to determining the Appointments Clause status of a federal officer, the office of military judge is not "limited in tenure," as that phrase was used in Morrison to describe "appoint[ment] essentially to accomplish a single task [at the end of which] the office is terminated." 487 U. S., at 672. Nor are military judges "limited in jurisdiction," as used in Morrison to refer to the fact that an independent counsel may investigate and prosecute only those individuals, and for only those crimes, within the scope of the jurisdiction granted by the special three judge appointing court. See ibid. Over the cases before them, military judges would seem to be no more "limited [in] duties" than lower Article III or Tax Court judges. Ibid., at 671. And though military judges are removable, the same is true of "most (if not all) principal officers in the Executive Branch." Id., at 716 (Scalia, J., dissenting) (emphasis deleted).
The argument that military judges are principal officers, however, is not without response. Since Article I military judges are much more akin to Article I Tax Court judges than lower Article III judges, the analogy to Tax Court judges proves nothing if Tax Court judges are inferior officers, which they may be. The history that justifies declaring the judges of "inferior" Article III courts to be principal officers is not available for Tax Court judges, and though Freytag holds that the Tax Court is a "Cour[t] of Law" that can appoint inferior officers, it may be that the Appointments Clause envisions appointment of some inferior officers by other inferior officers.
But even if Tax Court judges are principal officers, military trial judges compare poorly with them, because not only the legal rulings of military trial judges but also their factfinding and sentencing are subject to de novo scrutiny by the Courts of Military Review. See 10 U.S.C. § 866(c). Though the powers of Court of Military Review judges are correspondingly greater, they too are distinguishable from Tax Court judges. First, Tax Court judges are removable only for cause, see 26 U.S.C. § 7443(f), while Court of Military Review judges may be freely "detail[ed]" by the relevant Judge Advocate General to non judicial assignments. [n.8] See ante, at 8. Second, Tax Court judges serve fixed 15-year terms, see 26 U.S.C. § 7443(e), while Court of Military Review Judges have no fixed term of office and typically serve for far less than 15 years. [n.9] See Brief for Petitioners 5 (military judges "often serve terms of two, three, or four years").
"The line between `inferior' and `principal' officers is one that is far from clear," Morrison, 487 U. S., at 671, and though there is a good deal of force to the argument that military judges, at least those on the Courts of Military Review, are principal officers, it is ultimately hard to say with any certainty on which side of the line they fall. The Court has never decided how to resolve doubt in this area; the Morrison Court did not address this issue since it understood the independent counsel to be "clearly" an inferior officer. Ibid. Forced to decide now, I agree with the approach offered by then Judge Ginsburg in her Court of Appeals opinion in the independent counsel case. "Where . . . the label that better fits an officer is fairly debatable, the fully rational congressional determination surely merits . . . tolerance." In re Sealed Case, 838 F. 2d 476, 532 (CADC 1988) (R. B. Ginsburg, J., dissenting), rev'd sub nom. Morrison v. Olson, 487 U.S. 654 (1988). Since the chosen method for selecting military judges shows that neither Congress nor the President thought military judges were principal officers, and since in the presence of doubt deference to the political Branches' judgment is appropriate, I conclude that military judges are inferior officers for purposes of the Appointments Clause.
Because the limits the Appointments Clause places on the creation and assignment of duties to inferior offices are respected here, for the reasons the Court and Justice Scalia give, and on the understanding that the Court addresses only the Appointment Clause's limits regarding inferior officers, I join the Court's opinion.
Scalia wrote in concurrence:

As to the former: The Court states that this case differs from Shoemaker v. United States, 147 U.S. 282 (1893), because, after the passage of the Military Justice Act in 1968, military judges could be selected from "hundreds or perhaps thousands of qualified commissioned officers," ante, at 11, so that there is no concern (as there was in Shoemaker, where a single incumbent held the office whose duties were enlarged) that "Congress was trying to both create an office and also select a particular individual to fill the office." Ibid. That certainly distinguishes Shoemaker, but I do not see why it leads to the Court's conclusion that therefore "germaneness" analysis need not be conducted here as it was in Shoemaker (though the Court proceeds to conduct it anyway, ante, at 11-12).
Germaneness analysis must be conducted, it seems tome, whenever that is necessary to assure that the conferring of new duties does not violate the Appointments Clause. Violation of the Appointments Clause occurs not only when (as in Shoemaker) Congress may be aggrandizing itself (by effectively appropriating the appointment power over the officer exercising the new duties), but also when Congress, without aggrandizing itself, effectively lodges appointment power in any person other than those whom the Constitution specifies.
Thus, "germaneness" is relevant whenever Congress gives power to confer new duties to anyone other than the few potential recipients of the appointment power specified in the Appointments Clause--i.e., the President, the Courts of Law, and Heads of Departments.
The Judges Advocate General are none of these. Therefore, if acting as a military judge under the Military Justice Act is nongermane to serving as a military officer, giving Judges Advocate General the power to appoint military officers to serve as military judges would violate the Appointments Clause, even if there were "hundreds or perhaps thousands" of individuals from whom the selections could be made. For taking on the nongermane duties of military judge would amount to assuming a new "Offic[e]" within the meaning of Article II, and the appointment to that office would have to comply with the strictures of Article II. I find the Appointments Clause not to have been violated in the present case, only because I agree with the Court's dictum that the new duties are germane.
I believe Weiss is the key case in this consideration and I believe it decides in favor of Fitzgerald.

From a different perspective... (none / 0) (#20)
by Tom Maguire on Sun Jun 10, 2007 at 09:55:33 PM EST

First, I'll side with the view that Fitzgerald's appointment to an inferior post does not count as an appointment to a superior post, which his Special Counsel job arguably was.

But from another viewpoint - after the independent prosecutor law lapsed the DoJ developed extensive guidelines for creating a special counsel. Their goal was to encompass the various court rulings and make sure such an appointment cleared all hurdles and would be bullet-proof. Fine.

However - we have no idea if their procedures would have stood up to legal challenge, because they were never employed. Instead, Comey figured he could cite four clauses and create a special counsel impervious to challenge in one paragraph.

Now, maybe it was that easy, and the earlier handbook was a waste of time. But one might suspect that maybe the DoJ experts who studied the issue had found some real potholes, that the handbook was useful, that Comey ignored it at his peril, and now the experts have come to point out the unraveling.

US Attorneys (none / 0) (#21)
by Big Tent Democrat on Sun Jun 10, 2007 at 10:46:29 PM EST

are subject to Presidential appointment and Senate confirmation, as per the Appointents Clause.

Which post of Fitzgerald's are you referring to?


In addition (none / 0) (#22)
by Big Tent Democrat on Sun Jun 10, 2007 at 10:48:21 PM EST

Comey knew he was appointing an existing Justice Dep't officer, not a classic Special Counsel.

Unless you are holding to the view that he could only appoint non-Justice personnel as Special Counsel, I do not follow your point.


: in house is the main point (none / 0) (#32)
by Mary on Mon Jun 11, 2007 at 05:59:36 PM EST

Comey, in his capacity as acting AG for the Plame leak, told an existing DOJ employee to handle the case.
It doesn't matter if he called him "Special Counsel" or "Plame Task Force Leader" or "Quinn the Eskimo." He's a DOJ employee working on a DOJ case. He's working on that case under a very broad initial delegation (boss says, "just get it done") but there's nothing irrevocable about the delegation and nothing "protective" about it (other than the initial delegor - Comey- 's good graces.
It's just like any other DOJ delegation. Any subsequent acting AG could (and very possibly has - we don't know, but it was a VERY short time after Walton's ruling on the revocation/at will nature of the relationship that Rove's case was dropped) amend, withdraw, modify, or replace under that delegation. The things that have been at issue before have been the very "lengthy statutory or regulatory schemes" that were enacted to prevent a Special Counsel in some politically sensitive cases from being interfered with or replaced.
All Comey gave Fitzgerald as insulation was an initially broad mandate and a personal "I've got your back" There is nothing that was done that would protect Fitzgerald from the actions of Comey, or any successor in his slot, if they became unhappy with him. There were no agreements with Congress as there were with Watergate - there was not the three panel court protection as existed under the Independent COunsel statute, and there was not even the protection of the counsel being from "outside" DOJ.
It is not the title "Special Counsel" that creates an inferior/principal officer issue. It is whether or not the person has or is subject to some kind of superior authority. The lack of regulations don't make his case weaker, they make it stronger. He had not one regulation bulletproofing his delegation. That meant he could be negatively impacted both in his normal employee capacity as USA for the ND of IL and in his employee on the Plame Task Force capacity.
All it took was one "at will" action by his supervisor to block him, change his authorization, etc. and he wouldn't necessarily even be able to come forward about their actions publically.
It's nonsensical to say that giving a DOJ employee a case to work on is somehow making them a principal officer.

One last point (none / 0) (#23)
by Big Tent Democrat on Sun Jun 10, 2007 at 10:49:38 PM EST

How do you handle Weiss? I think it really destroys the argument you seem to be adopting.


Special Counsel not a US Attorney (none / 0) (#24)
by Gabriel Malor on Sun Jun 10, 2007 at 11:36:54 PM EST

In Weiss, the Supreme Court ruled that military judges did not have to be re-appointed before serving since they had already been confirmed once when they were commissioned as officers. The central determining factor was that "the position of a military judge is not so different from other positions to which an officer may be assigned."

So, for Weiss to apply here the position of Special Counsel would have to be "not so different" from the other positions to which a U.S. Attorney could be assigned. BTD argues that "Fitzgerald was carrying out the exact role for which he was appointed and confirmed." But that is explicitly not the case.

Here is Acting AG Comey during the press conference in which he announced the creation of the Special Counsel and his assignment of Fitzgerald to that position. The press asked what the difference was between the Special Counsel and U.S. Attorneys. Comey answered:

QUESTION: So how does that move it outside the traditional chain of command, as you put it?
COMEY: Well, because what I've done with Fitzgerald is the normal outside counsel appointed outside or the ordinary U.S. attorney, if he needs to issue a subpoena involving the media, for example, or if he wants to grant immunity to somebody or if he wants to take an appeal, has to come for approval to the Department of Justice.
Pat Fitzgerald will not for these purposes.
[...]
QUESTION: You mentioned that you felt that Fitzgerald will have a broader mandate, broader abilities than an outside counsel. Can you expand on that a little bit? In what respect would...
COMEY: An outside counsel has a -- the regulations prescribe a number of ways in which they're very similar to a U.S. attorney.
COMEY: For example, they have to follow all the Department of Justice policies regarding approvals. So that means if they want to subpoena a member of the media, if they want to grant immunity, if they want to subpoena a lawyer -- all the things that we, as U.S. attorneys have to get approval for, an outside counsel has to come back to the Department of Justice.
An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission.
Fitzgerald has been told, as I said to you, "Follow the facts, do the right thing." He can pursue it wherever he wants to pursue it.

An outside counsel, according to the regulations, has to alert the attorney general to any significant event in the case -- file what's called an urgent report. And what that means is, just as U.S. attorneys have to do that, he would have to tell the attorney general before he brought charges against anybody, before maybe a significant media event, things like that.
Fitzgerald does not have to do that. He does not have to come back to me for anything. I mean, he can if he wants to. But I've told him our instructions are, "You have this authority, I've delegated to you all the approval authority that I as attorney general have. You can exercise it as you see fit."
And a U.S. attorney or a normal outside counsel would have to go through the approval process to get permission to appeal something. Fitzgerald would not, because of the broad grant of authority I've given him.
So in short, I have essentially given -- not essentially, I have given him all the approval authorities that rest that are inherent in the attorney general, something that does not happen with an outside special counsel.

So, to sum up, Comey pointed out at least three ways that the Special Counsel is unlike a U.S. Attorney:

(1) He does not have to get departmental approval to issue a subpoenas, grant immunities, or pursue appeals.
(2) He does not have a limited jurisdiction. "He can pursue [the case] wherever he wants to pursue it."
(3) He does not have to inform the attorney general before bringing charges or "a significant media event."

: And (none / 0) (#27)
by Big Tent Democrat on Mon Jun 11, 2007 at 08:26:10 AM EST

Comey was fluffing for PR effect as it turns oput Fitzgerald was bound by ALL of that precisely because he IS a US attorney.
Read his opposition to Libby' Motion to Dismiss (where the arguments of the amici were made in better fashion BTW, the amici was really unnecessary) where this argument is debunked. Indeed, Comey was just puffing for theMedia as what he said was just plain wrong.

Yup. Read Weiss. Understood it too. (none / 0) (#25)
by JM Hanes on Mon Jun 11, 2007 at 12:32:27 AM EST

Per BTD:

Did you read Weiss? Because the similarity in assignment for Fitzgerald is much closer than that of the military judges in Weiss.

If you're arguing germaneness, you're actually arguing Shoemaker, not Weiss, yourself. If you want to do it anyway, you might start by checking out Fitzgerald's funding which is not exactly same job, different title stuff.

Of course, you're really just invoking Weiss, not citing Weiss, which would generally require more than pasting in "U.S. Attorney" and pronouncing it a good fit. I can see why you might not want to go much further. Tthe Court's emphasis on the existing body of military regulations and practice (all under Congressional auspices, of course) is awkward, given Comey's summary execution of the controlling regs at DoJ -- not to mention the legislative ambivalence on the Hill. It also seems pretty obvious why the amici didn't bother to address 28§510. It only comes into play if the Appointments Clause goes down, and since they explicitly declined to actually argue the case, I'd file it under Brief, Amicus: KISS.

Weiss (none / 0) (#28)
by Big Tent Democrat on Mon Jun 11, 2007 at 08:28:01 AM EST

is 1994. Shoemaker 1893. It is an application of Shoemaker.

Now you are being silly.


: If you think I'm the one being silly here.... (none / 0) (#31)
by JM Hanes on Mon Jun 11, 2007 at 05:31:44 PM EST

....then you need to go back for some serious review of Weiss yourself. The discussion of Shoemaker by Mr. Silly in Chief bears directly on the issue of Appointments & gernmaness. You'll note the Court's conclusion that the germaneness principle would be satisfied in Weiss if it actually applied, but that it doesn't, in fact, apply. Sillier still, however, is your arch "Shoemaker is 1893" -- as if the Court's Opinions have expiration dates.

I tend to agree with BTD... (none / 0) (#26)
by Deconstructionist on Mon Jun 11, 2007 at 07:52:10 AM EST

on the ULTIMATE issue-- did the AG possess the lawful authority to delegate the powers to the SC as he did? I'd say yes. I think § 510 grants that power to the AG and I think § 510 will pass constitutional muster.

That, however, is not the same thing as saying it is not a close question, which is the issue with regard to bond pending appeal.

Would it be a cop-out to suggest it's a close question as to whether it's a close question?

Walton dealt with your Weiss argument (none / 0) (#29)
by Mary on Mon Jun 11, 2007 at 04:50:14 PM EST

Take a look at footnote 15 in Walton's appointment decision. The officers in Weiss were "principal officers" but Walton says he is denying Fitzgerald's "invitation" to apply a similar approach - that since Fitzgerald went through nomination, advice and consent as a USA it is an analogous situation. Walton says - Nope - bc he believes a USA appointment is still an inferior officer appointment (I'm not sure I agree - but he didn't just forget this and Weiss only destroys the arguments IF you say the USA is a principal officer and Fitzgerald has never made that argument baldly at least - although Walton's right, the Spec Pros did kind of "invite" Walton to consider it.)

FWIW

I still think the brief is silly and here's my kos diary on it fwiw.
http://www.dailykos.com/story/2007/6/11/152815/948