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Synopsis of Article on Why They Can't Fire Fitzgerald

By Marcia Macmullan

August 13, 2005

A blogger (a lawyer) who calls himself "Citizen Spook" posted a comprehensive analysis of the laws invoked by Acting Attorney General Comey, following John Ashcroft's recusal of himself in the Valerie Plame Leak Case. Comey appointed Special Counsel Patrick Fitzgerald to investigate the case. Citizen Spook finds that neither Bush nor Attorney General Gonzales have the authority to remove Fitzgerald from his duties as special prosecutor in "Treasongate" aka "Rovegate":

"As you will soon see, Fitzgerald's appointment as Special Counsel, the first of its kind in the history of the United States, was meticulously crafted to withstand the coming onslaught.... 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....

Fitzgerald was empowered by Comey with unilateral authority to "expand" his jurisdiction and "pursue it wherever he wants to pursue it." Let your imagination run wild because it's all legally in play...

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 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.."

The main stream media mantra announcing that Fitzgerald's term as US Attorney expires in October is completely irrelevant to the ongoing, plenary mandate he has while wearing the hat of "Special Counsel" for purposes of prosecuting Treasongate matters.

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....

 


 

 


Treason Gate:

The US Attorney General's Office And President Bush Have No Legal Authority To Remove Patrick Fitzgerald As Special Counsel

By Citizen Spook

 

 

[Yurica Report Editor's Note: The following legal analysis is by "Citizen Spook" at his blogspot. He states that he is a licensed attorney, who practices before the Federal bench. We have studied his analysis carefully and believe it to be a valid legal position. We have excerpted most of the article and have inserted his links because his web page is horribly slow and difficult to navigate. You may go there by clicking: http://citizenspook.blogspot.com/

 

Monday, August 08, 2005

Excerpts from Citizenspook
[UPDATED August 8, 2005 10:35 p.m.

 

 

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".

Analysis of federal law (involved with both the appointment of -- and authority granted to -- Special Counsel Fitzgerald), Comey's press conference of December 30th, 2003, and Decision B-302582 (September 30, 2004) issued by the Government Accountability Office, leads to the following legal conclusions:

1. 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.

2. 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.

3. 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.

Fitzgerald wears the following two hats:

1. US Attorney for the Northern District of Illinois.

2. Special Counsel in the Treasongate investigation "Acting" with the full authority of the US Attorney General.

Comey's brilliant nuances involved with U.S. Attorney Patrick Fitzgerald's appointment as "Special Counsel" are nothing short of genius. The foresight of Acting Attorney Gerneral 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.

Federal regulations and decisions, germane to Fitzgerald's unique appointment, legally protect the integrity of the Special Counsel's unrestricted mandate from interference by political operatives in this investigation, an investigation to which Acting Attorney General James Comey (empowered as such by Attorney General John Ashcroft's recusal) provided unprecedented patriotic and non-partisan foresight.

Furthermore, Fitzgerald was empowered by Comey with unilateral authority to "expand" his jurisdiction and "pursue it wherever he wants to pursue it". Let your imagination run wild because it's all legally in play.

The Appointment of Special Counsel Patrick Fitzgerald

On December 30th, 2003, Deputy Attorney General James Comey held a press conference wherein he announced that Attorney General John Ashcroft had recused himself, on that day, from all involvement with the Treasongate investigation. Comey stated that the recusal included all of Ashcroft's "staff" and that "a document was created ...that memorialized the recusal."

Comey announced:

"By that act, I automatically become the acting attorney general for purposes of this case with authority to determine how the case is investigated, and if warranted by the evidence, prosecuted."

Comey went on to say:

"[P]rior to his recusal, the attorney general and I agreed that it was appropriate to appoint a special counsel [read: special prosecutor] from outside our normal chain of command to oversee this investigation.

By his recusal, of course, the attorney general left to me the decision about how to choose a counsel, who that person should be and what that person's mandate should be...effective immediately, the United States attorney for the Northern District of Illinois, Patrick J. Fitzgerald, will serve as special counsel in charge of this matter."

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. It stated:

"By the authority vested in the Attorney General by law, including 28 U.S.C. 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department."

At the December 30 press conference, Comey further stated:

"Fitzgerald...does not have to come back to me for anything...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.

"And a U.S. attorney or a normal outside counsel would have to go through the approval process to get permission to appeal something. Fitzgerald would not because of the broad grant of authority I've given him.

"So, in short, I have essentially given him -- not essentially -- I have given him all the approval authorities that rest -- that are inherent in the attorney general; something that does not happen with an outside special counsel."

Before we analyze the provisions of the law which enables this transfer of power, please note that Comey removed all "supervision or control of any officer of the Department" while also conferring "all the approval authority" that Comey, "as Attorney General" had.

From the December 30th press conference:

"Q: 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? In what respect will he have a --

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."

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 is discussed in detail below).

The GAO quoted Comey's second letter to Fitzgerald as follows:

"In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald's delegation of authority to state that the authority previously delegated to him is plenary. It also states, 'Further, my conferral on you of the title of Special Counsel' in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.' [4]"

Comey went to great lengths to shield Fitzgerald from the restrictions of 28 CFR Part 600. These regulations, enacted by former Attorney General Janet Reno, demand that an "outside Special Counsel" submit his investigation to various oversight by others in the Justice Department.

Please note, because it's a major point of confusion, that Patrick Fitzgerald is not an "outside Special Counsel". To many it has appeared that way, but such an assumption is completely erroneous. Comey nullified the Part 600 regulations by delegating all of his authority using "other law", and the GAO unconditionally agreed such a delegation of authority was legal and proper:

"The parameters of his authority and independence are defined in the appointment letters which delegate to Special Counsel Fitzgerald all (plenary) the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity with the direction that he exercise such authority independent of the supervision or control of any officer of the Department. [13]. In addition, Department officials informed us that the express exclusion of Special Counsel Fitzgerald from the application of 28 C.F.R. Part 600, which contains provisions that might conflict with the notion that the Special Counsel in this investigation possesses all the power of the Attorney General, contributes to the Special Counsel's independence. [14] 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. For example, 28 C.F.R. 600.7 requires that a Special Counsel consult with the Attorney General before taking particular actions." [15]

The next paragraph graphically illustrates the recognition by the GAO that Fitzgerald has all of the power of the Attorney General for purposes of this investigation:

"The consulting requirement would seem to be inconsistent with the notion that Special Counsel Fitzgerald possesses the plenary authority of the Attorney General".[15]

The key word is "plenary"; as in unlimited or complete authority.

The GAO then went on to discuss the legality of the Part 600 waver:

"The remaining issue is whether Part 600 can be waived by the Attorney General or acting Attorney General. We examined Part 600 and found it was issued in 1999 to replace the procedures of the expired Independent Counsel Reauthorization Act of 1994. In our view, Part 600 is not a substantive (legal) limitation on the authority of the Acting Attorney General to delegate departmental functions to Special Counsel Fitzgerald. First, 28 C.F.R. 600.10 states that the regulations are 'not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.' Further, in the supplemental information accompanying the issuance of Part 600, the Department explained that the effective date of the rule did not have to be delayed 30 days after publication because it was not a substantive rule, citing 5 U.S.C. 553(d), 552(a)(1)(D). 64 Fed. Reg. 37038, at 37041 (July 9, 1999).

"Finally, the only statute cited as authority for 28 C.F.R. Part 600 that expressly authorizes the Department to issue regulations is 5 U.S.C. 301 (2000)...The power conferred by 5 U.S.C. 301 is administrative and not legislative...It follows that such regulations governing internal procedures issued under this statute do not have the force and effect of law... Thus, 28 C.F.R Part 600 does not act as a substantive limitation on the Attorney General's (or Acting Attorney General's) authority to delegate authority to a U.S. Attorney to serve as a Special Counsel to investigate high ranking government officials and it may be waived..."

28 U.S.C. 510 states:

"The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General."

The GAO decision discusses this and other provisions of United States Code which allowed Comey to transfer his full authority as Acting Attorney General for this matter:

"The Department was not limited by 28 C.F.R. Part 600 when it exercised its authority under 28 U.S.C. 508, 509, 510 and 515 and appointed Special Counsel Fitzgerald from within the Department to investigate the alleged unauthorized leak of a CIA employee's identity..."


And:

"Acting Attorney General Comey appointed Special Counsel Fitzgerald under 28 U.S.C. 509, 510 and 515. [16]... We agree with the Department that the same statutory authorities that authorize the Attorney General (or Acting Attorney General) to delegate authority to a U.S. Attorney to investigate and prosecute high ranking government officials are "other law" for the purposes of authorizing the Department to finance the investigation and prosecution...[17]

 

Why Can't Fitzgerald Be Fired As Special Counsel?

First, let me make it clear that Patrick Fitzgerald, while wearing the hat of US Attorney for the Northern District of Illinois, can indeed be fired or replaced by President Bush. There's no doubt about that.

But Fitzgerald wears a different hat pertaining to Treasongate where he is the "Special Counsel" "Acting" and vested with the "full authority" of the "US Attorney General" to prosecute Treasongate. And as such, nobody in the Department of Justice can touch him.

The main stream media mantra announcing that Fitzgerald's term as US Attorney expires in October is completely irrelevant to the ongoing, plenary mandate he has while wearing the hat of "Special Counsel" for purposes of prosecuting Treasongate matters.

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.

The following passages are taken directly from GAO Decision B-302582:

"Subject: Special Counsel and Permanent Indefinite Appropriation

"The Government Accountability Office (GAO) is required to audit twice a year the expenditures by independent counsels and certain special counsels paid from the permanent indefinite appropriation. [1] In the course of auditing independent counsel expenditures for the period ending March 31, 2004, we learned that the Department of Justice was using the permanent indefinite appropriation to pay the expenses of the investigation by Special Counsel Patrick J. Fitzgerald. Mr. Fitzgerald continued to perform his duties as a U.S. Attorney after his appointment as Special Counsel. This is the first time that the expenses of an investigation by a United States Attorney appointed to serve as Special Counsel who continues to serve as a United States Attorney have been paid from the permanent indefinite appropriation. In addition, Department of Justice regulations at 28 C.F.R. Part 600 (2003) provide that Special Counsels shall be selected from outside the government.

"Given our responsibility to audit the fund, the use of the account to finance Special Counsel Fitzgerald's activities, and the provisions of 28 C.F.R. Part 600 (2003), we initiated inquiries with the Department of Justice to assure ourselves of the availability of this account to defray his expenses. [2] In considering this matter, we requested and received the written views of the Department of Justice. We also met with officials of the Department to discuss their views and obtained additional comments and information. Finally, we reviewed the laws and their legislative histories, regulations, court decisions, and past practices of the Department of Justice, as they relate to this matter.

For the reasons discussed below, we do not object to the use of the permanent indefinite appropriation to fund Special Counsel Fitzgerald's expenses. Unlike the expired independent counsel law, the permanent indefinite appropriation does not require that a Special Counsel be appointed from outside the government. The Department, in appointing Special Counsel Fitzgerald under "other law", has afforded him independence by delegating all of the Attorney General's authority with respect to the investigation and instructing him to exercise that authority independent of the control of any officer of the Department..."

There's no doubt, at least as far as the GAO is concerned, that Fitzgerald has been vested with "all of the authority of the Attorney General" and that he is also "independent of the control of any officer of the Department".

McAllum can't touch him. Flanigan can't touch him. Gonzales certainly can't touch him.

And the President can't touch him because the conflict of interest which caused DOJ to appoint him in the first place has expanded exponentially.

Should President Bush try to fire Fitzgerald anyway, not only will the political fall out be much greater than if an underling did the dirty deed, but Fitzgerald could fight back on very solid legal ground using the arguments set forth below from the GAO which analyzes Fitzgerald's "Special Counsel" mandate as being similar to the mandate conveyed by the expired Independent Counsel law. That law, I'm sure you will recall, prohibited the President from wriggling out of an impeachment and possible conviction by firing the Independent Counsel investigating him.

Let's hear from the GAO again:

"Following his appointment as Special Counsel, Mr. Fitzgerald continued to perform his duties as United States Attorney. As a result of our activities in connection with the audit of the Independent Counsel expenditures for the six-month period ending March 31, 2004, we learned that the Department of Justice was charging the expenses of Special Counsel Fitzgerald to the permanent indefinite appropriation established ' . . . to pay all necessary expenses of investigations and prosecutions by independent counsels appointed pursuant to the provisions of 28 U.S.C. 591 et seq . or other law . . .' [5] In the following section we discuss two issues: whether the permanent indefinite appropriation is available to fund Special Counsel Fitzgerald's expenses and whether the Part 600 regulations, which among other things require the appointment of Special Counsel from outside the government, can be waived."

Discussion

As you are aware, the authority to appoint independent counsels pursuant to the provisions of 28 U.S.C. 591 et seq . expired on June 30, 1999. However, the permanent indefinite appropriation remains available to pay the expenses of an independent counsel (1) who was appointed by the Special Division of the United States Court of Appeals for the District of Columbia pursuant to the provisions of 28U.S.C. 591 et seq. whose investigation was underway when the law expired [6] or

(2) who was appointed under "other law." [7] Under the expired law, a person appointed as an independent counsel could not hold "any office of profit or trust under the United States, 28 U.S.C. 593(b)(2) (2000)." [8] The purpose of the qualification was to avoid the public perception of an actual or apparent conflict of interest existing between the investigator and those being investigated for alleged violations of law. [9]

The permanent indefinite appropriation is available to pay all necessary expenses of investigations of independent counsels appointed under other law. However, the term "independent counsel" is not defined in the permanent indefinite appropriation. About the time the independent counsel law was being considered for reauthorization in 1987, legal challenges were underway regarding the constitutionality of the procedure followed to appoint independent counsels. Consequently, to avoid interruption of ongoing investigations should the law be ruled unconstitutional by a court, the Attorney General appointed the same persons to serve as independent counsels under the statutory authority that was relied upon to appoint Special Counsel Fitzgerald. [10] Thus, the independent counsels appointed under "other law" around the time that the Congress was considering the Department of Justice appropriation act for fiscal year 1988 (which enacted the permanent indefinite appropriation into law) were the independent counsels that also had been appointed in conformity with the requirements of the independent counsel law. [11]

That's big, really big.

Why?

Because it elaborates on precedent. And precedent is the backbone of our legal system.

The expired independent counsel law barred the President from firing an independent prosecutor. And here we have the GAO, citing legal precedent in their approval of permanent indefinite appropriation to fund Special Counsel Fitzgerald's investigation, and comparing him to the "independent counsels that also had been appointed in conformity with the requirements of the independent counsel law." They were all shielded from being fired by the President until their work was done.

This isn't Citizen Spook creating the argument to sway people, it's the GAO citing legal precedent to support a DOJ request for funds to finance Fitzgerald's investigation. It was the Department of Justice who convinced the GAO to recognize such precedent:

"In a meeting with Department of Justice officials, [12] the Department explained its view that use of the permanent indefinite appropriation to pay expenses of a U.S. Attorney appointed to serve as Special Counsel who continues to perform his duty as a U.S. Attorney is appropriate. The alleged violation that Special Counsel Fitzgerald is investigating involves the rank and level of government official that clearly would have been within the scope of the expired independent counsel law and the investigation of which could have been funded by the permanent indefinite appropriation. Additionally, the Department views the use of the permanent indefinite appropriation as important to facilitate Special Counsel Fitzgerald's investigation by freeing him from possible budget constraints that potentially might serve to limit his activities."

"Since the permanent indefinite appropriation is available for independent counsels, we looked for indicia of independence of Special Counsel Fitzgerald...In addition, Department officials informed us that the express exclusion of Special Counsel Fitzgerald from the application of 28 C.F.R. Part 600, which contains provisions that might conflict with the notion that the Special Counsel in this investigation possesses all the power of the Attorney General, contributes to the Special Counsel's independence." [14]

And finally, the GAO's conclusion:

"Conclusion

Upon review and consideration, we do not object to the Department's determination that the permanent indefinite appropriation is available to pay the expenses of Special Counsel Fitzgerald's investigation. Admittedly one might infer from events occurring around the time that the Congress was considering establishing the permanent indefinite appropriation that it was within the Congress' contemplation that the appropriation would be used to pay the expenses of an independent counsel possessing the degree of independence similar to that possessed by an independent counsel appointed under 28 U.S.C. 591 et seq. However, such an inference is insufficient to support our reading into the law a limitation on the use of the permanent indefinite appropriation to pay for investigations solely by Special Counsels appointed from outside the government. The independence conferred by the delegation of authority to Special Counsel Fitzgerald from the Department of Justice is consistent with a fair reading of the independence required of an "independent counsel" appointed under "other law." Finally, Part 600 regulations do not have the force and effect of law and may be waived by the Department. Thus we do not view the payment of the expenses associated with Special Counsel Fitzgerald's investigation from the permanent indefinite appropriation to be improper or unauthorized simply because he was not appointed from outside the government and continues to serve as a United States Attorney."

Simply put, DOJ cannot reverse themselves on the issue of Fitzgerald's plenary authority and independence just because he's getting too close to possible indictments/convictions of the people he was specifically empowered by the DOJ to investigate.

And just in case you were wondering, check out the results of the GAO's audit of Fitzgerald's investigation:

We audited the statement of expenditures for the Office of Special Counsel Fitzgerald and found that (1) the statement of expenditures was presented fairly, in all material respects, in conformity with U.S. generally accepted accounting principles, (2) the Special Counsel had effective internal control over financial reporting and compliance with laws and regulations, and (3) there was no reportable noncompliance with laws and regulations we tested. Additional information on our audit of the Office of Special Counsel Fitzgerald can be obtained from our report, Financial Audit: Independent and Special Counsel Expenditures for the Six Months Ended March 31, 2004 (GAO-04-1014, Sept. 30, 2004). [15]

 


Citizen Spook asks that the article be reposted. He may be reached at citizenspook@hotmail.com


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