Patrick Fitzgerald's mandate

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

•  Fitzgerald stated his reasons

  for not charging anyone with the leak in the news conference after he indicted Libby.  He said that the law was difficult to interpret and would likely be difficult to convict under, and he thought that using it in this case could possibly lead to its enshrinement as a form of Official Secrets Act which he thought was a danger.

  Of course, the subsequent information that the original source was Armitage who was sloppy, not vindictive, in giving out Plame's name and her connection to Wilson means that there was considerably less of a case to be made than if it had turned out as everyone thought and Rove and Libby had originated the leak.

  I found Fitzgerald's position thoughtful even if the result was not what I wanted (Rove and Libby in jail for life).  I'm glad to know that there are people in the federal government who give that degree of thought to their actions.  I only wish they were that thoughtful when targetting Democrats -- if Ken Starr had one-tenth the legal mind and concern for democracy that Fitzgerald displayed, we'd be a lot better off.

  by LarryInNYC on Sat Mar 10, 2007 at 07:28:29 PM PDT

•  That "cloud" over Cheney

  Can Fitz charge Cheney with a crime, or does he have to be impeached (or "resign for health reasons") first?  If the latter, that's anothe reason for Fitz to bide his time.

  by Pyesetz the Dog on Sat Mar 10, 2007 at 07:53:14 PM PDT

  •  That "cloud" over Cheney

    Yes, he CAN be charged with a crime, just as Spiro Agnew was when he was a sitting Vice President.

    Bob in HI

    by BobSchacht on Sat Mar 10, 2007 at 07:58:51 PM PDT

    •  Agnew was forced

      to resign over a crime that happened before he was VP.  Frankly, I don't care if Cheney is charged with a crime.  His resignation would be enough for me--followed by Bush's resignation.

      by Boston Boomer on Sun Mar 11, 2007 at 06:30:31 AM PDT

  •  Just because a man commits a crime...

    doesn't mean there's sufficient evidence to prove he committed a crime.

    And until/unless Libby tells all (the 12th of Never), there's insufficient evidence to charge Cheney with any crimes.
    .
    .
    .
    .
    wendy

    by wendynyc on Sat Mar 10, 2007 at 11:58:20 PM PDT

•  Don't forget, he's got other work to do!

  You are forgetting he is the US Attorney for the Northern district of Illinois (Chicago area), which means he'll be involved in plenty of corruption trials in the Chicago area over the next couple of years.  Fitzgerald already bagged one Governor (a Republican) and many of us expect him to take down Gov. Rod "Sleazy" blagojevich to give him one of each party.

  by Randall Sherman on Sat Mar 10, 2007 at 08:01:17 PM PDT

  •  Indeed he does, including this case

    Not a political corruption case (except as the Mexican government is kinda sorta involved), but very important to thousands of Americans who were collectively ripped off to the tune of over $400 million dollars via a ponzi scheme involving a timeshare scam in Cancun. (Whew, that's a long sentence, lol) The bad guy's name is Michael E. Kelly, and lots of his victims are delighted that Fitz is handling the case.

    http://streettalkblog.com/...

    http://streettalkblog.com/...

    http://streettalkblog.com/...

    Google the jerk's name, or "Resort Holdings International. Lots of interesting stuff.

    by tigerdog on Sun Mar 11, 2007 at 03:28:52 AM PDT

•  Fitz: INVESTIGATION IS OVER

  There is nothing more coming. No more investigations, no more indictments.

  I know why.

  Like many others, I believed that a jury decision that Libby was LYING, would mean that the truth hangs Rove, Cheney, Armitage, Bush and even Hadley.

  And that would be true, were it not for one bit of information that came out in Libby's trial, and which has largely been ignored by the press, the public, and even bloggers:

  Cheney declassified Plame's identity on July 8th, 2003. Bush declassified Plame's identity July 20th, 2003.

  That declassification order by Bush MUST have provided immunity from prosecution for the leak to Libby, Rove, Cheney and Armitage.

  Apparently, there is some debate as to whether Cheney's declassification on July 8th was LEGAL, hence the declassification on July 20th by Bush.

  As a matter of LAW, that stopped Fitz dead in his tracks from pursuing a leak investigation. So why did he go through with it and investigate it anyway?

  Because, Bush's declassification of Plame's identity to immunize the leakers is a criminal, impeachable abuse of power.

  Unless Fitz investigated the leak and found out EVERYTHING he possibly could about it, the whole gang would walk away scot-free.

  As it is, the operating theory is that Fitz can't investigate whether Bush acted legally when he immunized the leakers. That's something CONGRESS has to decide.

  We are actually lucky that the short-term political calculations of Bush and his gang led to Libby lying to the FBI and the Grand Jury. That opened the door to find out SO MUCH MORE about the leak conspiracy than we would have otherwise.

  Think about what would have happened if Libby DIDN'T LIE. Suppose he went before the FBI and the GJ and said, "Sure! I leaked Plame's identity to Miller, Cooper and others. Just ask them. I'll release them from their confidentiality pledges."

  Suppose, too, that Rove had done the same thing.

  Then Fitz would have been done with his investigation in mid-2004. And NO ONE would have been indicted. The Republican House would have reviewed the matter, without hearings, and concluded that no law was broken. END OF STORY. Just another liberal conspiracy theory.

  by taraka das on Sat Mar 10, 2007 at 08:53:06 PM PDT

  •  True Confessions

    taraka das opined,

    ...Think about what would have happened if Libby DIDN'T LIE. Suppose he went before the FBI and the GJ and said, "Sure! I leaked Plame's identity to Miller, Cooper and others. Just ask them. I'll release them from their confidentiality pledges."

    Suppose, too, that Rove had done the same thing....

    Apparently, in Rove's case, that's exactly what he did (on his 5th grand jury appearance). see Citizen Spook's blog on this: "IT APPEARS KARL ROVE PLEAD GUILTY TO MAKING A FALSE STATEMENT BEFORE ANY CHARGES WERE BROUGHT AND WITHOUT A DEAL HAVING BEEN MADE"

    Bob in HI

    by BobSchacht on Sat Mar 10, 2007 at 09:08:18 PM PDT

    •  Yes I agree

      The only way to get these crooks for outing Plame is to examine Bush & Cheney's declassification of her identity for purpose of immunizing the leakers.

      by taraka das on Sat Mar 10, 2007 at 09:15:31 PM PDT

  •  I agree with you,

    except that Fitzgerald's did not say the investigation is over.  He said it is inactive.

    He also indicated that if he were asked for information by Congress, he would respond "appropriately."

    Based on Fitzgerald's past history, I tend to agree with "Citizen Spook" that it's not over till it's over.

    by Boston Boomer on Sun Mar 11, 2007 at 06:27:44 AM PDT

•  Add tags: Law, Justice and please also

  Make an executive summary so speed up the process of getting through all the good stuff on DKos.

  And, if possible, incorporate points in the comments so we have a final summary of maybe 3 paragraphs in plain English for the tired, the busy, and the dim [like me].

  The biggest question I have is why Fitzgerald didn't do what prosecutors normally do to shake things loose...shaking harder.....Something is either fishy or rigged or opaque.

  by LNK on Sun Mar 11, 2007 at 01:45:11 AM PDT