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Thursday, February 23, 2006

AG or not AG - is that really a question?

ThinkProgess is linking to this report that says
In a court filing, lawyers for I. Lewis "Scooter" Libby said the indictment violates the Constitution because Special Counsel Patrick Fitzgerald was not appointed by the president with the consent of the Senate.

The defense attorneys also said Fitzgerald's appointment violates federal law because he was not supervised by the attorney general or approved by Congress.
Obviously, I'm no lawyer. But this one strikes me as the Mary-est of Hails. Here's the body of the December 30, 2003, letter James Comey wrote to Fitz when Comey appointed him to the position of Special Counsel:
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.
Comey was Acting AG at the time due to John Ashcroft's recusal. I'm guessing that Libby's filing would mean that you couldn't have Acting AG's at all, since any person serving as Acting AG would ex hypothesi not have been nominated by the President nor confirmed by the Senate as non-acting AG. Thus I don't see how AG recusals would ever be possible under Libby's theory of the law.

Let's assume it turns out that Comey cited real and controlling statutes in his letter to Fitz, so that Fitz was legitimately appointed Acting AG. Then it's obvious that the contention that Fitz "was not supervised by the attorney general or approved by Congress" is worse than a non-sequitur: Fitz is the AG for purposes of this investigation, and he was made AG by (someone who was made AG by) the AG who was indeed nominated by POTUS and confirmed by the Senate.

So either this is a Hail Mary or, more likely, it's meant to stall while throwing red meat---however maggot-infested---to the talk radio denizens.


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