If you're like me, you're concerned with two questions related to the investigation triggered by the disclosure of the identity of CIA operative Valerie Plame.
The first question has to do with the investigative and prosecutorial scope of Patrick Fitzgerald's Special Counsel's office.
The second question is the concern that Patrick Fitzgerald may be removed as Special Prosecutor in a replay of Nixon's removal of Archibald Cox as Special Prosecutor during the Watergate "Saturday Night Massacre."
Both of these issues are important, of course, and the latest great analysis of them is discussed below the fold.
Read and rest a little--just a little--easier...
On December 30, 2003 Deputy Attorney General James Comey made an announcement about the "Appointment of [a] special prosecutor to oversee investigation into [the] alleged leak of CIA agent identity and [the] recusal of Attorney General Ashcroft from the investigation."
A record of the Press Conference for the Announcement can be found here.
There are several important passages in the transcript of the press conference that relate to the first issue of this Diary, namely, the scope of the investigation headed by Special Prosecutor Patrick Fitzgerald.
James Comey, Deputy Attorney General of the United States announced:
I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation; that is, that he has the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive decisions to make. I expect that he will only consult with me or with Assistant Attorney General Ray, should he need additional resources or support.
In the question and answer period with reporters that followed, Comey made the following, interesting comments that relate to our first issue of concern: whether the scope of the Fitzgerald investigation is limited in nature:
QUESTION: You mentioned that the -- you felt that Fitzgerald will have a broader -- actually a broader mandate, broader abilities than an outside counsel. Can you expand on that a little bit?...
MR. COMEY: Yes. An outside counsel has a -- the regulations prescribe a number of ways in which they're very similar to a U.S. attorney. For example, they have to follow all Department of Justice policies regarding approvals. So that means if they want to subpoena a member of the media, if they want to grant immunity, if they want to subpoena a lawyer -- all the things that we as U.S. attorneys have to get approval for, an outside counsel has to come back to the Department of Justice. An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission.
Fitzgerald has been told, as I said to you: Follow the facts; do the right thing. He can pursue it wherever he wants to pursue it.
An outside counsel, according to the regulations, has to alert the attorney general to any significant event in the case; file what's called an "urgent report." And what that means is just as U.S. attorneys have to do that, he would have to tell the attorney general before he brought charges against anybody, before maybe a significant media event, things like that. Fitzgerald does not have to do that; he does not have to come back to me for anything. I mean, he can if he wants to, but I've told him, our instructions are: You have this authority; I've delegated to you all the approval authority that I as attorney general have. You can exercise it as you see fit. [Emphasis added]
Wow!
According to Comey, the scope of Patrick Fitzgerald's investigation and prosecution is limited only by what Patrick Fitzgerald says it is limited to.
OK. But what about removal? Can Patrick Fitzgerald be legally removed from his position as Special Counsel?
For an detailed examation of this question, take a look at the blog post of Citizen Spook here.
CitizenSpook's short answer to the question is this:
The Attorney General, Acting Attorney General or any other officer of the Department of Justice has NO LEGAL AUTHORITY to remove Special Counsel Fitzgerald from the Treasongate investigation or prosecution-- AND -- President Bush does NOT have the legal authority to fire Patrick Fitzgerald in his capacity as "Special Counsel". [Emphasis added]
Wow again!
Further, Citizen Spook writes:
Fitzgerald wears the following two hats:
- US Attorney for the Northern District of Illinois.
- Special Counsel in the Treasongate investigation "Acting" with the full authority of the US Attorney General.
James Comey, in his capacity as Acting Attorney General, with respect to the Justice Department's investigation into "the alleged unauthorized disclosure of a CIA employee's identity" (hereinafter "Treasongate"), delegated his plenary authority to Special Prosecutor Patrick Fitzgerald, pursuant to 28 U.S.C. 508, 509, 510, and 515, conferring upon him "all of the authority of the Attorney General" thereby transferring his status as Acting Attorney General, in this matter, to Fitzgerald.
Special Counsel Fitzgerald is not serving as an "outside Special Counsel" pursuant to 28 USA § 600, so the provisions of that code are not applicable in this matter nor do they have any legal effect over Fitzgerald's investigation and/or prosecution.
While President Bush may fire or replace Fitzgerald as the "US Attorney for the Northern District of Illinois", the President has NO AUTHORITY to fire him as the "Special Counsel" in the Treasongate investigation. [Emphasis added]
Now, you'll want to review Citizen Spook's detailed argument about the legal security of Fitzgerald's position including the approval by the GAO that Fitzgerald has a "permanent indefinite appropriations" to perpetually fund Fitzgerald's office.
Let me conclude this Diary introduction with a final quotation from Citizen Spook.
...Neither Bush nor his Justice Department cronies have the legal authority to remove Fitzgerald as Special Counsel or to prematurely end his grand jury. You can thank James Comey for this.
Comey's brilliant nuances involved with US Attorney Patrick Fitzgerald's appointment as "Special Counsel" are nothing short of genius. The foresight of Acting Attorney General Comey's "delegation of authority" to Fitzgerald will go down in history as one of the most stunning and brilliant acts of non-partisan patriotism this nation has ever seen.