It's a bit disturbing when Robert Bork channels Freddy Mercury and, not content with his Archibald Cox scalp, just has to see if he can make another one bite the dust. Couple that with the sight of "12 legal scholars" collectively donning their linguistic lycra and, concepts fluttering behind them like capes in a breeze, rushing off to do battle on behalf of obstruction and perjury, and the day is off to a bad start. Now that the Bork 12: Vikram Amar, Randy Barnett, Robert Bork, Alan Dershowitz, Viet Dinh, Douglas Kmiec, Gary Lawson, Earl Maltz, Thomas Merrill, Robert Nagel, Richard Parker and Robert Putshaw, have joined forces, Libby can ditch that ineffective legal counsel he had and, like Richard Nixon, harness the power of the Bork.
Typically, amicus briefs are filed in the actual appeal process, but when you have the power of the Bork behind you, you can think outside the box. SO, in an unusual approach, the Bork 12 filed their amicus in connection with the Team Libby Motion for Bail. They have basically gone to Judge Walton and said, "You were dead wrong in your pre-trial rulings that Fitzgerald's appointment didn't violate the Appointments Clause and that the Special Counsel is an inferior officer. It's a 'slam dunk' that the Sup. Ct. will overrule you, so go ahead and ignore the verdict and leave Libby free on bail, pending your imminent reversal."
So what is this "principal" vs. "inferior" officer all about and how strong is their argument? Well, notice up front - I was royally ticked of when the decision as made to "in-house" the Plame investigation and I still think Congress is ducking their duty. Also, on the the list of people I'd like to see go to prison, Scooter Libby is pretty far from the top. Still - the effort by the Bork 12 is pretty unusual and in places more than a little humorous. Persuasive to any but the presold and prepackaged? Not so much.
Principal Officers.
The main element of the argument is centered on the concept of "how much," or "what kinds," of power make people "Officers of the United States" under Article II, Section 2, Clause 2 of the Constitution. Such an Article II "officer" (aka a "principal officer") is required to be nominated by the President, then go through advice and consent in the Senate.
... [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Constitution does not go on to specify just what it meant by "Officers" who have to go through the formal appointments process and so litigation has ensued over the years. The legislative and executive branches have engaged in all kinds of allocations of diverse, overlapping and competing duties and rights. The judicial branch has had a hard time finding a "one size fits all" set of rules for when someone is getting such power, in particular policy power, that they must go through the "appointment" process. Similarly, it is difficult for judges, lawyers and lay persons to have a uniform understanding of how some kinds of officers - especially prosecutors and judges - can have and exercise their requisite independence and their right/duty of prosecutorial and judicial discretion while remaining "inferior" officers who do not have to go through the appointments process.
Fitzgerald is an odd situation because, as a U.S. Attorney for the ND of Illinois - he has gone through nomination, advice and consent, although, according to Judge Walton (footnote 15 of his appointments opinion) this is also an inferior office and the advice and consent was not Constitutionally required (IMO, there might be some good arguments to the contrary and there is no Sup Ct authority on the question, but it's only a side issue). In Fitzgerald's position as "Special Counsel" for the Plame leak investigation, however, he received a delegation of an assignment that was outside of his normal jurisdiction and he did not go through nomination, advice and consent for that assignment.
Appointments Clause and Prosecutors/Counsel Empowered to Pursue the Executive Branch.
Not only has there been litigation in general over the principal/inferior officer question, but there has been litigation specifically involving counsel or prosecutors delegated the duty(s) of investigating the Executive Branch. A brief history http://www.brookings.edu/... of some of the special prosecutor, special counsel and independent counsel approaches shows the variety of approaches that have been taken. During the Watergate investigations, the Department of Justice issued internal regulations (not laws or statutes) allowing it to bring in an outside counsel to conduct the investigations.
The Watergate regulation was issued twice, once on Attorney General Elliot Richardson's appointment of Special Prosecutor Archibald Cox, 38 Fed. Reg. 14688 (1973), and again (with some changes), 38 Fed. Reg. 30738 (amended, id., 32805), by Acting Attorney General Robert Bork on the appointment of Leon Jaworksi after Cox was fired in October 1973.
Each of these Watergate appointments was a "class of one" and unique, with the first Special Prosecutor fired by Robert Bork, prior to Bork's revision of regulations and the Jaworski's subsequent acceptance of the post. Later, Congress enacted statutes setting up an "Independent Counsel" approach that was used in the Iran/Contra investigation (and later in the plethora of Starr investigations into President Clinton's actions and emissions). When the status of Iran/Contra Counsel, Walsh, was attacked, then (1987) AG Ed Meese added suspenders to the Congressional statutory belt and issued Dept. of Justice regulations that tracked the Congressional Statute and gave a "back up" appointment to Walsh.
Another Independent Counsel (Morrison) began investigating Ted Olson (who went on to serve as George W. Bush's Solicitor General)and that investigation prompted a Supreme Court battle over whether or not the Independent Counsel statute improperly created a "principal officer." The Independent Counsel statute was upheld, but in 1999 it was allowed to lapse.
After the Independent Counsel lapse, the Dept of Justice ended up promulgating regulations to apply to an "outside" (selected from outside the US government) Special Counsel if the Attorney General determined that someone from outside of the Department of Justice would need to be brought in to handle an investigation/prosecution. Grounds for bringing in someone from outside the Dept of Justice are stated as including conflicts of interest or other "extraordinary" circumstances. Under the regs, there would be no 'day to day' supervision(600.7(b)), but an outside counsel would be bound by rules, regulations, procedures, etc. of the Department. Another interesting point to keep in mind for later reference - under the outside Special Counsel regulations, IF the AG decided to block any significant actions of the outside Special Counsel, he could - BUT the AG would have to then report to Congress as to what he blocked (600.9).
The Delegation to Fitzgerald.
After the Plame matter gained prominence, AG Ashcroft ended up (finally) recusing himself from the matter. There were concerns and allegations involving Karl Rove and Rove had worked on Ashcroft's 1994 Senate campaign. Ashcroft stayed on for a long time (let's face it - if the Armitage information had been given out quickly, the very next thing people would have been asking was, 'who is the second source?') There was an uproar at the time, with the large looming possibility of a full blown Congressional inquiry, or demands for an appointment of outside Special Counsel (under those outside counsel regs that would force an AG to report to Congress on any actions blocked) and there were strong calls for the re-introduction of Independent or modified Independent Counsel statutes.
With Ashcroft's recusal, Dep. Atty General James Comey became "Acting" Atty Gen for the matter on which Ashcroft recused - the Plame leak investigation. Comey met with Senators and sold them on a decision to stay "in house" at the Dept of Justice and have the investigation handled by an existing DOJ employee - not the DC USA but instead Fitzgerald and a small in house 'task force' of department lawyers. This pretty much meant no reports to Congress on the investigation (and Fitzgerald acknowledged that as soon as he as appointed) and no reports to Congress on any actions taken by the Acting AG in connection with the case.
The Prior Attacks & the Bork 12.
Libby's counsel have already addressed the issue of Fitzgerald's appointment in pre-trial motions and rulings by Judge Walton. (***trivial pursuit - I don't do crim law and I know there have been some revisions of final order, collateral orders and interlocutory appeals cases and statutes over the years, but if Libby wanted to stay "free" pending a determination of the collateral order on Fitzgerald's status, it seems as if he would have at least sought to have Judge Walton's ruling certified for appeal - maybe that's not a viable option in the criminal setting but if it is, I'd pretty much say failing to pursue that avenue then forecloses raising it now as a "free on bail" grounds - but maybe there was no way to get a collateral order review earlier)
Walton did an excellent job with his opinion and so instead of summarizing it - I'm just going to go through the Bork 12 arguments and pull in Walton's existing rebutal or the factual rebutals to them.
Not 1. Overruling Morrison. Walton relied some, but not entirely, on the Morrison case in his opinion. The Bork 12 know that saying "hey, the Sup. Ct might reverse itself now that we've reshaped it" is not a good grounds for allowing a convicted felon to remain free on bond. However, in their heart of hearts - that is their real argument and they can't help tossing it out there as they describe their "interest." It's not an argument, but it underlies their arguments.
1. The Special Counsel is Different from the Independent Counsel in Morrison. The Bork 12 argue that unless Fitzgerald's delegation was "indistinguishable in all material aspects" from Morrison's, then Walton should realize he screwed up and let Libby free on bail. The 12 argue that since "Morrison did not purport to set forth a definitive test of whether an office is 'inferior' under the Appointments Clause" (see Edmond v. U.S., 520 U.S.651, 661 (1997) emph. added) then, unless the Special Counsel can prove that he definitively and indistinguishably falls exactly within the Morrison "tests," he must not be an inferior officer. Think about that a minute.
The Bork 12 then go on on to argue why a golden delicious apple is not an apple because it is different from a Fuji apple.
1(a). Fitzgerald's "office" was not created by Congress. The Bork 12 argue that Morrison's position was established under a statute and decisions to dispense with nomination, advice and consent are for Congress to make, so Comey's delegation of the Plame case to Special Counsel was not "like" Morrison. It would be helpful here if they had read the first half of Judge Walton's opinion, where he discusses that Congress did, by statutes (28 USC 510 and 515) authorize the Attorney General to delegate pretty much any power he chose within the Dept of Justice and similarly to authorize the conduct of pretty much any legal proceeding he chose to attorneys within the Dept of Justice. So just as Morrison had a statute allowing the appointment as Independent Counsel of someone "outside" of the DOJ, Fitzgerald has statutes allowing the delegation of duties "inside" of the DOJ to him, as an employee of DOJ. The Bork 12 don't even attempt to address the statutory 510 and 515 underpinnings for Fitzgerald's delegation.
1(b) Fitzgerald not required by statute to follow Department of Justice rules. The Bork 12 argue that Morrison (as someone not an employee of DOJ and so not otherwise bound by DOJ rules) had a specific statutory direction that the Independent Counsel "comply to the extent possible" with DOJ rules. The Bork 12 argues two things here, (i) that Fitzgerald - who is a DOJ employee and therefore already bound to follow DOJ rules - did not have a special statute that says, when the AG makes delegations under 510 or 515, the DOJ employees receiving those delegations still have to follow DOJ rules; and (ii) Comey, in writing, said Fitzgerald did not have to follow the regulations at 28 CFR 600 et seq, so that just proves Fitzgerald didn't have to follow DOJ rules.
As to (i) there is no legal support whatsoever for the argument that you need a statute that "re-tells" DOJ employees with each new assignment that they are still subject to DOJ rules.
Let's move to (ii) and then think back to what I recited in the earlier part of this post. 28 CFR 600 deals with the regulations that apply to "outside" special counsels - those who are selected from "outside the United States Government" (600.3). So there's a shock. Comey told an inhouse DOJ prosecutor, who received a delegation under 28 USC 510 and 515, that the DOJ employee as not governed by the regulations that apply to counsel who are appointed from outside the US government. Stop the presses. Comey said department employees shouldn't look to regulations issued for outside counsel. As proof that Fitzgerald, unlike Morrison, doesn't have to follow DOJ rules - that's not real persuasive.
1(c) Comey, as Acting AG for the Plame matter, 'seemingly indicate[d] that the Special Counsel could expand his jurisdiction.' Apparently Comey wasn't around to give the Morrison press conferences and didn't say anything that could possibly be misconstrued in connection with the Morrison case, so the Bork 12 argue that this is also different than Morrison - no one held a press conference to 'seemingly indicate[d] that the [Independent] Counsel could expand [her] jurisdiction.'
2. Under Edmond, Fitzgerald had too much power with no mechanism to make him follow the rules, so he was not an inferior officer. Fitzgerald and Walton agreed that Fitzgerald was removable 'at will' (meaning for any reason or no reason - although not for an illegal reason) by the Acting Attorney General for the Plame leak (now presumably McNulty, although possibly Margolis). That makes for a pretty good argument that he is not omnipowerful. Still, the Bork 12 cite Akhil Amar who states (at 112 Harv. L. Rev. at 807) that removability isn't really a big deal or determining whether an officer is constitutionally inferior because "Cabinet members are removable at will, but they are not constitutionally inferior ..."
What's in the water at Harvard these days? The existence of the President as the sole supervising officer would make pretty much all officers inferior. Now, give those Cabinet members someone other than the President (let's say, a guy named "Kyle") who can remove them and then come argue that they remain principal officers. Cabinet oficers have no superior officer other than the President. Fitzgerald has two - the AG in Fitzgerald's general capacity as DOJ employee and the Acting AG for the Plame matter in connection with the duties delegated by the Acting AG under 510/515.
It does bother me that everyone (other than Judge Walton) ignores as best they can the agency law applicable here, but let's toss it in fwiw. Delegations of authority are not only bounded by the authority the delegor has (Comey didn't have Acting AG authority outside the leak and couldn't delegate authority outside the leak) but they are generally revocable and the power to revoke is usually deemed to be the power to modify. So not only could Fitzgerald be fired, his delegation under 510 and 515 (under general agency law) could be amended or modified. Not only does Fitzgerald have no protection from withdrawals, amendment, modifications, etc. of his authority delegated under 510/515 - the Acting AG does not even have to make the reports to Congress that they would under the outside Special Counsel rules if they did interfere with or intervene in the litigation.
The Bork 12 go on for some time on the lack of ability to effectively supervise without ever really addressing why there is no ability to supervise under a 510/515 delegation. In trught, there were plenty of supervisory powers available over Fitzgerald. Too many IMO. The Bork 12 never address what is means to have a 510/515 in-house delegation and why they would or could begin to believe, under applicable statutes or general agency law, that such a delegation did not provide all kinds of avenues for supervision.
There is nothing much different, absent press conferences and flowery speeches, about the Fitzgerald investigation than any other in-house task force investigation/prosecution. He was delegated authority - "directed" to get going as the person heading the project, and remained subject to being pulled from the project or having the scope of his powers under the delegation changed.
The real issue is the one not addressed. Was the 510/515 delegation to Fitzgerald irrevocable? If not, the question as to superior/inferior is pretty easy to answer - he was inferior as long as his delegation could be revoked, amended or altered. No one has made any credible argument that the 510/515 delegation was irrevocable and the Bork 12 certainly haven't made any credible argument that Walton will be overruled on appeal. IMO. FWIW and not on a cents/word basis.