The Legal Equivalent of a ‘Hail Mary’ Pass

I haven’t the energy to go into any detail this evening, but I thought I would just mention that at least based on the news reports, the latest argument to emerge from Scooter Libby’s lawyers, Libby’s Lawyers Say Prosecutor Acted Unconstitutionally, smacks of desperation.

I’d have to read the actual brief to be sure, but the general legal area in which arguments of this sort fall is territory I teach and write in. The Supreme Court held in 1988, in Morrison v. Olson, that a special prosecutor with far more independence than Fitzgerald — one appointed under the old special prosecutor law which has since lapsed — was not an unconstitutional actor. That 7-1 decision has been criticized in hindsight, and only two Justices who participated remain on the Court, including Scalia who wrote a fiery dissent, which may be what prompted this challenge. The trouble is that — unless of course there’s a surprise in the brief — in order for this argument to work you’d not only have to get the Supreme Court to overturn the Morrison decision, which is conceivable if unlikely, but then also get that revised logic to apply to a set of facts that amount to a much, much weaker case for a separation of powers violation — which I think is just not gonna happen.

Update: Fuller Washington Post story.

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4 Responses to The Legal Equivalent of a ‘Hail Mary’ Pass

  1. Russell says:

    That was my initial thought as well, although on reading it, it is actually a bit more subtle in distinguishing Morrison (credit where credit is due). The basic issue they raise appears to be an argument that Fitzgerald is *more* independent than the independent counsel, because unlike a “Morisson-style” IC, Fitzgerald is assertedly not subject to any supervision by the AG (or an Acting AG), whereas an IC was subject to the supervision of the Special Division. That difference, according to the defense team, makes Fitzgerald a “superior officer” rather than an inferior officer (as the Court determined the IC to be in Morrison).

    The question will be, I think, whether the facts actually bear out their claims of Fitzgerald’s absolute independence. I find that somewhat hard to believe, since I assume the AG always retains the power to revoke his delegation of authority to any subordinate, including a “special counsel,” notwithstanding a previous statement that it would be irrevocable. But I’m not a DOJ expert…

  2. Marty Lederman says:

    There are two principal problems with the motion, I think. The first is the factual question Russell identifies — it’s very unlikely that the Deputy AG has in fact formally disclaimed all authority to superintend Fitzgerald, to correct any mistakes he makes (especially on the law and DOJ policy), and to replace him, if necessary.

    The second is the “so what?” question: Let’s say the nature of the relationship between Fitzgerald and the AG and DAG on this case does make him a principal officer. What would follow from that? Only this: He would have to be nominated by the President by and with the advice and consent of the Senate. And . . . he was. He’s the U.S. Attorney for the Northern District of Illinois. He was confirmed by the Senate. (There’s a footnote in the brief suggesting that this is a new “office” requring a repeat nomination and confirmation. I’m skeptical. Even if the assignment to oversee the Plame case had been effected by statute, it would be sufficiently germane to Fitzgerald’s Senate-confirmed appointment under Weiss, 510 U.S. at 171-176. But here it’s accomplished by assignment within DOJ, which should make the “germaneness” problem even less serious, if it doesn’t indeed eliminate it altogether.)

  3. Marty Lederman says:

    Just looked at the Exhibits. It’s odd that Comey instructed Fitzgerald to exercise his autority “independent of the supervision or control of any officer of the Department.” See Exhibit C here: Could he possibly really mean to be disclaiming any power of oversight, review and correction? I don’t think so. Check out pages 9-11 of the press conference transcript (Exh. A): Basically, Comey is saying that Fitzgerald doesn’t need to get the ordinary *pre*-approval from DOJ for various things (e.g., expanding targets, issuing subpoenas). He’s not disclaiming the authority to withdraw the delegation of authority — which presumably means that the Deputy AG (and now possibly the AG?) has the authority (and perhaps the obligation, under 28 USC 516) to superintend Fitzgerald’s activities should be act unlawfully or in some other fashion unacceptable to the AG/DAG.

    But it is an odd locution.

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