News Intelligence Analysis
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 [email protected]
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