An intriguing constitutional argument against the Libby indictment

You don’t have to be a fan of this administration to be sickened at Special Counsel Patrick Fitzgerald’s robotic, absurdist, Kafkaesque prosecution of the vice president’s former chief of staff, Lewis Libby, in connection with the “outing” of a secret CIA agent who in reality could not be outed because she was not a secret agent. Last week Libby’s attorneys advanced an intriguing argument on behalf of their client, that Libby’s indictment should be dismissed on the ground that Fitzgerald “was appointed and exercised his powers in violation of the appointments clause of the Constitution.”

As explained in the New York Sun, the president under the Constitution appoints Supreme Court judges and the principal officers of the government with the consent of the Senate, while, as determined by law, he appoints “inferior officers” without the consent of the Senate. But Fitzgerald is neither a principal officer approved by the Senate, nor is he an inferior officer serving under any superior. While the special counsels under the Special Counsel statute exercised wide lattitude,—far too wide in many people’s opinion—they still functioned under some kind of external limits and supervision; for example, Kenneth Starr had to get Attorney General Reno’s permission to expand his investigation to cover President Clinton’s perjury in the Paula Jones suit. But the Special Counsel statute expired in 1999, and Patrick, appointed apart from any guiding law, is a power unto himself, operating outside the Constitution. The editorial is worth reading.

Posted by Lawrence Auster at February 28, 2006 06:05 PM | Send