Many of us waited with bated breath as we listened to Patrick Fitzgerald's press conference after the verdict on Lewis Libby's trial was announced. After all, no one had yet been charged with the leak of Valerie Plame's status, which was the reason Fitzgerald had been appointed special counsel in the first place. And had we not heard that there was a "cloud" over the Office of the Vice President? Had not the trial itself uncovered evidence of a number of crimes and misdemeanors?
So, many of us went into shock when Fitzgerald said that no further indictments were planned. Why not????
There are many theories about this. One is that Fitzgerald needs Libby to flip, and be a witness against Cheney, and that he doesn't have enough strong evidence without Libby's testimony. I don't know. But some claimed that Fitzgerald's mandate was limited, and this was about all that he could do.
Early on, I had come across a Yurica Report, "Synopsis of Article on Why They Can’t Fire Fitzgerald," by Marcia Macmullan (August 13, 2005), which was a brief summary of an examination of the relevant documents by a lawyer blogging under the name of "Citizen Spook" (also contained in the link above.) The summary included the following:
Fitzgerald was empowered by Comey with unilateral authority to "expand" his jurisdiction and "pursue it wherever he wants to pursue it." ...
The Government Accounting Office, (GAO) concurring in Comey's explanation that Fitzgerald has full authority to act independently, without obtaining permission from the AG. The GAO [Decision B-302582 (September 30, 2004)] stated:
"Thus, Special Counsel Fitzgerald need not follow the Department's practices and procedures if they would subject him to the approval of an officer or employee of the Department.."
Not only was it Comey's intention to prepare Fitzgerald for the coming assault on his legally mandated plenary authority by vesting him with complete autonomous rule, but the GAO, through their approval of "permanent indefinite appropriations" to perpetually fund Fitzgerald's office, at the request of the Justice Department, has made a strong legal argument, in Decision B-302582, that Fitzgerald has all of the protections and authority normally granted to an independent prosecutor under the expired independent counsel law....
According to Citizen Spook's analysis, Fitzgerald's authority was conferred from Comey to him via two official Justice Department notification letters. The first letter was issued on December 30, 2003. On February 6, 2004, a second official letter was sent to Fitzgerald by Comey. This second letter (as well as the first) was discussed in Decision B-302582 issued by the Government Accountability Office (hereinafter GAO) on September 30, 2004. (The GAO Decision paper was drafted in relation to oversight of appropriations granted to Fitzgerald's office for the investigation.)
This seemed like plenty of room to roam. So why hadn't Fitzgerald used this mandate?
An answer was provided over at FireDogLake (scroll down to comment 172) by Mary (Mary4), who wrote:
It doesn’t matter who said what about Fitzgerald’s "powers" in this or that article, bc the matter was specifically addressed by the Special Prosecutor and the Court. It is the subject of an unappealed decision.
In connection with the detailed claims made by Libby as to why Fitzgerald’s appointment was an unconstitutional violation of the appointments clause, Fitzgerald himself argued (and I think those filings are on the Spec Counsel site but I’m too tired to go look for them yet again - I should probably have saved this info in a doc) that a)he could be removed "at will" (legal shorthand - any time, any cause, no cause), and b) his appointment was for a narrow investigation only and he could NOT expand it at whim.
Walton agreed. The law was pretty clear that a) Fitzgerald could be removed at will and b) his appointment was only for the exact matter Ashcroft recused from - the Plame leak only - and matters specifically related to violations of law connected with that investigation.
The link Mary provided,
https://ecf.dcd.uscourts.gov/...
did not work for me. Mary's notes include the following:
p. 7 - Comey, as Dep AG, only had powers as "acting" AG with respect to the specific matter from which Ashcroft recused.
p. 19 - Spec Counsel (Fitzgerald) argument to the court is that he can be removed at will "in that the authoritiy delegated to him can be taken away at any time by the Deputy Attorney General."
p. 22 - The court holds that the Spec Counsel does have limited (NOT PLENARY) jurisdiction and that "...Special Counsel’s jurisdiction is restricted to the investigation and prosecution of the alleged unauthorized disclosure of a CIA employee’s identity and any violations of federal law tha arise during the course of that investigation. The Special Counsel’s jurisdiction is therefore limited in scope to the exact matter from which the Attorney General has recused himself. "
If accurate, it would appear that Fitzgerald himself doesn't believe that Comey's expansive mandate is valid. But then why would the GAO validate Comey's mandate?
Another clue may be provided by Citizen Spook him?self, who thinks that Fitzgerald is just biding his time ("LIBBY WAS JUST AN APPETIZER. CHEF FITZGERALD WONT SERVE THE MAIN COURSE UNTIL FEBRUARY 2009.")
Seems to me that Fitzgerald can afford to be bold here; after all, with the precedent of the Saturday Night Massacre that blew up in Nixon's face, why would the Bush administration take the risk of firing him?
And now Congressman Henry Waxman, chairman of the House Oversight Committee, has asked Special Prosecutor Patrick Fitzgerald to testify before his committee about his investigation into the leak of covert CIA operative Valerie Plame-Wilson's identity. Plame-Wilson, Waxman's office said, has already agreed to testify before Congress on March 16.
What we have here seems to be a very sophisticated game of chess. Was Fitzgerald's press conference after the verdict of the trial of Lewis Libby, wherein he disclaimed any future indictments, just a head fake? Or is this really "it"?
Bob in HI