Accountable Strategies blog

A blog about accountability issues in the public, private, and nonprofit sectors

Accountability in the Libby case

Posted by David Kassel on June 19, 2007

Might it have been a diabolical strategy on the part of the Bush administration to neutralize Patrick Fitzgerald-by disingenuously giving him too much power and independence?

Here’s the scenario: The Department of Justice appoints Fitzgerald as the special counsel to investigate the outing of Valerie Plame Wilson as a CIA agent and gives Fitzgerald independence in his probe.  Complete independence.  He’s not supervised by anyone and not even bound by DoJ policies.  It’s patently unconstitutional.  Ultimately, any convictions Fitzgerald gains are thrown out on appeal. 

Neat strategy.  I have no evidence, though, that anyone in the administration employed it.  But could the scenario play out that way anyway?  Fitzgerald did get convictions of “Scooter” Libby for perjury and obstruction of justice in the case. Will it all be thrown out on appeal because Fitzgerald’s appointment is found to be unconstitutional?  The amicus curiae brief  filed in the case on June 7 by a dozen prominent legal scholars makes a plausible sounding argument that it will.

United States District Court Judge Reggie Walton, who sentenced Libby, stated that evidence of Libby’s guilt was “overwhelming” and warned that Libby was unlikely to win a reversal of his conviction.  But the quality of the evidence against Libby may not be the issue that the appeals court considers.  The issue may be whether Fitzgerald was constitutionally appointed to his position.

The reasoning used by the 12 signers of the brief filed with Judge Walton has been called into question by at least one legal analyst.  I’m not a lawyer and don’t want to hazard a guess as to who’s right here.  But, to me, the issues raised by the brief do raise questions about the accountability, or lack of it, of the special counsel’s role in this case. 

The problem that the brief notes with Fitzgerald’s appointment is that it would appear to violate the Appointments Clause of Article II of the Constitution.  The Appointments Clause states that the president, with the advice and consent of the Senate, must appoint the top officers of the United States.  Bush, however, didn’t appoint Fitzgerald with the advice and consent of the Senate, but left it to the Attorney General to make the appointment, without seeking the Senate’s approval.

Why might that pose a problem in the prosecution of Libby?  According to the Bork-Dershowitz brief (I’ll refer to it as that, because those are the two signers I’ve personally heard of), the answer can be found in Edmund v. United States, a 1997 Supreme Court decision.  Edmund v. United States stressed the importance of the presidential appointment and Senate confirmation of the top officers as “among the significant structural safeguards of the constitutional scheme.”  The Appointments Clause, the High Court stated, was, at least in part, “designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one.”

In other words, if the special counsel can be considered to be a top or “principal” officer of the United States and President Bush had appointed Fitzgerald to that position in the Wilson case with the advice and consent of the Senate, Bush could then be held accountable if Fitzgerald screwed up the job in some big way.  But he didn’t appoint Fitzgerald to the post, in effect, leaving no one accountable for Fitzgerald’s actions.

The question, according to the Bork-Dershowitz brief, is whether Fitzgerald can be considered to be a principal officer, or whether he is actually an “inferior officer,” which would not have required presidential appointment or Senate confirmation under Article II.  An inferior officer, as the High Court defined it in Edmond v. United States, is someone “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” (my emphasis).

Bork, Dershowitz et al contend that “only if one can conclude that Special Counsel Fitzgerald’s work is directed and supervised by a presidential appointee is it even possible to conclude that he is an inferior officer.” 

The Bork-Dershowitz et al brief makes three arguments as to why Fitzgerald’s work has not been directed or supervised by a presidential appointee and why his position is therefore akin to a top or principal officer, who should have been appointed by the president with the advice and consent of the Senate:

1. Fitzgerald’s office was not created by Congress.

2.  The now-expired statute that created the Independent Counsel in the wake of Watergate specified that the Independent Counsel was required to comply with policies of the DoJ, but no such statute binds Fitzgerald to comply with DoJ policies. 

The critic of the brief, whom I cited above, noted that Congress did authorize the Attorney General by statute (28 USC 510 and 515) “to delegate pretty much any power he chose” to Fitzgerald within the DoJ, “and similarly to authorize the conduct of pretty much any legal proceeding he chose to attorneys” within the DoJ.  That may well take away the argument that Congress had no say in the creation of Fitzgerald’s office, but it doesn’t seem to take away from the argument that Fitzgerald wasn’t supervised in his official activities (see point 3 below).

3. The Supreme Court  held in Morrison v. Olson (1988) that “an independent counsel can only act within the scope of the jurisdiction that has
been granted” by the three-judge panel of the United States Court of Appeals.  By contrast, Fitzgerald, the brief notes, was delegated “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 “direct[ed]” to act “independent of the supervision or control of any officer of the Department.”  Those quotes, according to the brief, are from the December 30, 2003 letter from the Deputy Attorney General to Fitzgerald, appointing him to the post.

“To our knowledge, the Special Counsel appears to occupy virtually a “class of one” in the history of special prosecutors…” the brief stated.  The brief went on to say that:

 It appears to be undisputed that there is no day-to-day supervision of Special Counsel
Fitzgerald by anyone, and no way short of removal even to assure that he complies with the policies of the Department of Justice or the Executive Branch.

The brief then went on to advance several arguments as to why the DoJ’s power to remove Fitzgerald doesn’t constitute true supervisory power over him, or, at least, presents another “close question” for the appeals court to decide. 

Whether or not you buy the Bork-Dershowitz arguments, perhaps the important question here is whether all this is an argument for bringing back the Independent Counsel Law.  We’ve had a love-hate relationship with the Independent Counsel ever since the office was created in the wake of Watergate.  The office has been allowed to lapse twice now, most recently after the debacle of Ken Starr’s investigation of Clinton’s sexual peccadilloes.   But even under Starr, there was at least some supervision of the Independent Counsel and at least some restraints on the conduct of the office, as the Supreme Court recognized in Morrison v. Olsen.

Maybe the Libby case will spur Congress to take another look at the Independent Counsel statute.  Clearly, it was flawed in its last incarnation, but rather than just throwing it out and leaving special counsels to operate within the DoJ, yet with no restrictions or guidance, some modified form of the law should be considered–perhaps an independent commission rather than a three-judge panel to appoint and supervise the independent counsel.


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