The Potemkin Prosecution (Part One)

The Scooter Libby case is back in the public eye, with the news that subpoenas have been issued to the New York Times, NBC News and Time Magazine, and the likelihood that reporters' notes, emails, and testimony of celebrities like Tim Russert may become public. But the embarrassment which may be experienced by the antique media pales before what awaits Special Prosecutor Patrick Fitzgerald, whose reputation may never recover from what lies ahead.

As the Libby cases progresses, it has underscored the pattern seen in other recent cases Patrick Fitzgerald has supervised. Fitzgerald is good at creating elaborate facades which tart up the ramshackle huts to which they are affixed, like Potemkin Villages. Once those facades are removed, it is obvious the cases behind them are rickety, and the prosecutor more adept at hiding than ferreting out the truth.

A Pattern of Careless Prosecution

Although sympathetic media friends have largely hidden his responsibility from the public, Fitzgerald has demonstrated carelessness in the handling of significant matters entrusted to him. As the gears of the judicial process slowly grind on, the public will become aware of the lack of substance behind his latest disaster, the prosecution of the Vice President's former Chief of Staff.

The denouement of the Special Prosecutor began a few weeks ago when it was learned his staff in a major terrorism case accidentally delivered 16 cartons of highly classified documents to defense counsel, and it took them four months to figure that out and try to get them returned. As the Los Angeles Times wrote:

'Federal officials erred in releasing intelligence documents to an Islamic charity's defense team.  Federal officials in Dallas mistakenly disclosed classified counter—terrorism information in a breach of national security that could also threaten one of the country's biggest terrorism prosecution cases, newly unsealed court records show.

'The blunder exposed secret wiretap requests that commonly include classified information from U.S. agencies, foreign intelligence reports and confidential sources.

'The criminal case involves officials of the Texas—based Holy Land Foundation for Relief and Development, a now—defunct Islamic charity with alleged ties to terrorists. Its assets were frozen by the Treasury Department three months after the Sept. 11 attacks.'

The LA Times Covers for Fitzgerald

Had the Los Angeles Times disclosed Fitzgerald's connection to  this story, it would have highlighted the absurdity of the simultaneous assertion by Fitzgerald in the Libby case that Libby was not to be trusted with classified documents, a charge  utterly devoid of evidence. (Libby was never charged with mishandling classified information in any respect. Even the government's witness, Judith Miller, testified that he was always scrupulous in handling classified information.) 

Luckily for Fitzgerald's reputation, the Los Angeles Times failed to disclose that it was he who was the supervising Attorney in that case. Strangely, the article appeared on February 16 here. But since last week, when it was discussed on the Just One Minute website, a leading forum for critics of Fitzgerald, it no longer seems accessible online or on the LA Times archives. But it has been reproduced here.)

As between Libby and Fitzgerald, only Fitzgerald (as supervising counsel) has mishandled classified documents—16 boxes worth to be exact. And that slip up did harm national security.

A Second Fitzgerald Blunder

The news for Fitzgerald got worse last week, as he was forced to drop a high profile prosecution of a prominent businessman with an impeccable record whom he had wrongfully charged with criminal conduct, in a case remarkably redolent of the same kind of sloppy handling which characterizes the Libby case. The Washington Post reports:

'Charges have been dropped against Northern Virginia businessman Frank L. Cowles Jr., who was arrested in November on allegations of conspiring to defraud a hedge fund out of $25 million.

'A U.S. District Court judge in Chicago dropped criminal charges against Cowles on March 1 after the U.S. attorney's office there filed a motion to dismiss. Cases continue against two men who were charged with Cowles for allegedly defrauding a Chicago—based fund.

''For someone who has been absolutely clean and honorable all my life, the charges came as quite a blow,' Cowles, 76, said in a telephone interview.' The only thing I've ever had on my record is three speeding tickets when I was 18,' he said. 'After a very, very exhaustive 3 � —month investigation, they came up with the right conclusion.' Cowles's attorney, Robert D. Luskin of the law firm Patton Boggs in the District, said the complaint against Cowles was a mistake and that his client had been the victim of a scheme that cost him a great financial loss.' This was a mistake,' Luskin said. 'The person that was thought to be the predator was actually the prey.''

You may recognize the name of defense counsel, Robert D. Luskin. He's Karl Rove's lawyer in the ongoing Plame case.

Fitzgerald's Name Mysteriously Absent — Again

But for mysterious reasons the Washington Post (like the Los Angeles Times before it) neglected to name the prosecutor who made the mistake of charging the prey as the predator, forcing an innocent man to resign from an important position and spend a great deal to defend his name. The prosecutor in the Cowles case is Patrick Fitzgerald. And I think it obvious that in the Libby case as in the  Cowles case, Fitzgerald has confused the prey and the predator.

Unless a prosecutor believes he has a reasonable likelihood to convict on evidence that meets the beyond—a—reasonable—doubt—test, he should not indict. How solid could his evidence in the Cowles case have been where within months of the indictment he was forced to dismiss the case?

I maintain the significant difference between Libby's and Cowles'case is that in the Cowles case Fitzgerald made such a series of blunders while operating under the supervision and direction of the Attorney General. In the Libby case, as the discussion below will show, he has no direction, supervision or accountability, and the blunders he's made are greater, while the power of cooler heads to rein him in is for all practical purposes  nonexistent.

A Faulty Appointment

Reading the reports of the Holy Land case slip—up and the Cowles prosecution, it is hard not take issue with the description Acting Attorney General Comey offered at the press conference where he announced Fitzpatrick's appointment as Special Prosecutor:

'I once told a Chicago newspaper that Pat Fitzgerald was Eliot Ness with a Harvard law degree and a sense of humor. Anyone who knows him, who knows his work, who knows his background, knows that he is the perfect man for the job.'

So confident was Comey in Fitzgerald  that, in effect, Fitzgerald was made Attorney General to handle this matter however he chose. Comey's misplaced confidence in Fitzgerald's competence and fairness, and his failure to see the constitutional and statutory infirmities of his open—ended grant of power to Fitzgerald, are now both evident and fatal to the Government's case.

The Special Prosecutor is trapped in a series of ridiculous conflicting assertions. He is being outflanked by defense counsel at every turn. It appears that virtually everything he said to the press at the outset of the case, and some of what he represented to Judge Walton, have proven to be factually incorrect. Further, the legal arguments he has so far advanced in this matter are not persuasive enough to save it.

The Special Prosecutor's unimpressive grasp of the law and his efforts to fudge the facts of the case raise the increasing likelihood that the case will be dismissed before trial, or the trial will result in Libby's acquittal and the end of the reputation of a man who has been riding for far too long on an undeserved high level of esteem for fairness and competence. The constitutionally inappropriate grant of unlimited power will eventually be seen as the abuse it constitutes.

The Motion to Dismiss (and the Special Prosecutor's Response)

On February 23, Libby's lawyers filed a deftly—written and I think persuasive Motion to Dismiss, a motion that relies heavily on the statements made by former Deputy Attorney General Comey on October 23, 2003, when he appointed Fitzgerald, to make its case.

The argument is simple—it is inconsistent with the Constitution to create, by fiat of the Deputy Attorney General, an office that supplants the authority of the Attorney General. Secondly, the power granted to Fitzgerald violates the statutory requirement that the Attorney General supervise all litigation to which the US is a party.

I will briefly outline Libby's argument—the entire pleading and affidavits are available in pdf format.

1. Article II of the Appointments Clause of the Constitution define the Attorney General as a principal officer who must be nominated by the President and confirmed by the U.S. Senate, a Clause the Supreme Court has acknowledged is critical to protecting the public interest and is at the heart of our federal system. The process for appointing principal officers is

'more than a matter of etiquette or protocol; it is among the most significant structural safeguards of the constitutional scheme'. Edmond v. U.S. 520 U.S. 651,659(1997). 

Government officials who are appointed otherwise are known as 'inferior officers' and must be supervised and controlled by principal officers.

2. The nature of Comey's appointment of Fitzgerald violates this provision because by its very terms Fitzgerald was to act

'independent of the supervision or control of any officer of the Department.'

After the expiration of the Independent Counsel Act, 28 C.F.R. Part 600 was promulgated by the Department of Justice to govern the appointment of outside counsel to govern these kinds of investigations. Comey bypassed it, saying he did so because he didn't want to 'put [the investigation] on hold for any period of time' and because he had decided to give the Special Counsel a mandate

'significantly broader than...would go to an outside special counsel.'

Comey didn't mention it, but the rules he chose to bypass barred the appointment of Fitzgerald to this position because he was already in the government employ and therefore would be precluded under the established regulations from appointment as Special Counsel.
In his affidavit presented to the Court of Appeals in the Miller case, Fitzgerald acknowledged the wide scope of his appointment

'[A]s Special Counsel, I serve as the functional equivalent of the Attorney General in this matter.'

He added, that his authority

'is in many respects broader than the authority conferred by [28 C.F.R.Part 600] as I need not seek approvals prior to significant investigative or prosecutive steps.'

At the press conference in which he announced the indictment of Libby (and ironically exceeded the bounds of DoJ regulations on public statements about ongoing proceedings) he acknowledged that he was not constrained by the regulations, procedures, practices and policies of the Department that govern special counsel. So extensive was the grant of authority that in this new position (unlike the Special Counsel provided for in the established regulations) he need not obtain approval 'to issue a subpoena involving the media,' to 'subpoena a lawyer,' to grant immunity, to take an appeal, or to seek access to classified information in the custody or control of U.S. intelligence agencies.

Indeed, he isn't  subject to any meaningful restriction on his jurisdiction or tenure. There isn't even any Department or other control over his budget. His post was, in sum, a hybrid creation which could not have been better designed to create a loose cannon. Only in that respect has Fitzgerald lived up to his assignment.

3. Libby's constitutional argument is that this grant of unsupervised power to Fitzgerald and the Attorney General's total abdication of supervision and control over the Special Counsel (who Comey said was not really the Special Counsel contemplated by the Statute) makes him the equivalent of a 'principal officer': a person who must be nominated by the President (not a Deputy Attorney General) and confirmed by the Senate (which Fitzgerald wasn't).

As an example of the harm he has suffered by this bypassing of the constitutional and statutory framework for the appointment of Special Prosecutors, Libby points to Fitzgerald's patently false press conference statement that Libby was 'the first official to disclose' [information about Mrs. Plame's employment] outside the government to a reporter.

In fact, it now appears Richard Armitage was the 'first official to disclose.'

Inexplicably, Fitzgerald has persuaded the Court to keep the source's name secret, but Libby is deprived under this arrangement of the possibility of getting a supervisor at the Department to make a corrective statement. Fitzgerald has, in sum, exceeded the applicable regulations with impunity and there simply is no internal check on his conduct.

Libby's argument that Fitzgerald violated the Department's guidelines in his press conference announcing the indictment is sound. In his brief, Libby reminds us of some of the most outrageous of Fitzpatrick's claims in the press conference announcing the indictment:

— that the case involved 'compromising national security information';

— that Libby lied to the FBI and grand jury;

— that the damage 'was done to all of us';

— and that a prosecution for obstruction of justice was a way of holding the defendant accountable for such uncharged conduct.

'When you do a criminal case, if you find a violation, it doesn't really, in the end, matter what statute you use if you vindicate the interest. If Mr. Libby is proven to have done what we've alleged—convicting him of obstruction of justice, perjury and false statements—very serious felonies—will vindicate the interest of the public in making sure he's held accountable. It's not as if you say,' Well, this person was convicted but under the wrong statute.''

Any U.S. Attorney who made such outrageous statements in the course of announcing a criminal indictment would find himself in serious trouble for violating the Department's clear guidelines on such conduct.
But the press conference statements are but one indicia of the affect of this overbroad appointment. I find particularly compelling this argument in Libby's brief in support of the Motion to Dismiss.

'The decision whether to continue the Special Counsel's investigation long after the acts regarding the disclosure of Ms. Plame's occupation were established required a careful balancing of the interests. On the one hand, there is a law enforcement interest in investigating potential false—statement and perjury offenses. On the other hand, there is a public interest in avoiding confrontations that Mr. Fitzgerald's investigation and prosecution continue to entail. There is also a public interest in avoiding continued distraction of our nation's highest officials well after it has become apparent that the alleged crime that was the intended focus of the investigation did not in fact occur. Those competing interests should have been weighed by properly appointed principal officers of the United States. Because the Special Counsel was given the power to operate without any supervision of direction in contravention of the Appointments Clause, that did not happen in this case.'

Indeed, so broad are the powers granted this unchecked hybrid 'Special Counsel' created by Comey, Libby contends, that they exceed the powers granted to Independent Counsels, statutory provision for which was allowed to expire amid 'serious concerns over prosecutorial excesses and lack of oversight.'

Here, again I think, the argument is unanswerable.

The Independent Counsel provisions were deemed too broad by Congress and scrapped. In response, the Special Counsel regulations were established by the Department of Justice. Those regulations were cast aside by Comey to create a prosecutor with even fewer checks than were imposed on Independent Counsels.  The powers granted to Independent Counsels were considered so overbroad that Congress scrapped the office. Predictably, the overreach inherent in Fitzgerald's office has led to the most patent egregious prosecutorial abuses in this case.

Anticipating that the Special Prosecutor would argue that the Deputy Attorney General had retained the power of removal (Comey said in the appointment press conference  he could remove Fitzgerald 'in theory...if [he] kn[e]w what [ Fitzgerald were] doing'), Libby argues that this 'theoretical' removal authority 'not set forth or defined in any law or regulation' is insufficient to cure the defect in granting an inferior officer all the powers of a principal officer without compliance with the Appointment Clause.

In any event, since Comey renounces any oversight, the removal power seems meaningless, for he has no meaningful way to learn of the Fitzgerald's 'deliberations and decision—making.'

In fact, Libby notes the that the Supreme Court's decision holds that the guiding question respecting whether a person is a principal or an inferior officer is whether the officer is subject to direction and supervision by  a properly appointed supervisor 'and an unlawful subdelegation could not be saved by a vague assertion like Comey's.'

4.    Finally, Libby argues that the abdication of supervisory authority by Comey violates Title 28 U.S.C.Section 516 which expressly requires that the Attorney General must 'supervise' and 'direct' all litigation in behalf of the U.S. unless there us a specific statute to the contrary. There is no such statute here.

Responding to the Motion to Dismiss, Fitzgerald underscores, I think, the strength of Libby's arguments. The Prosecutor is making an argument relevant not only to his own appointment in this case, but which may be binding on this Attorney General and the Department in general. He does this on his own, with nothing filed by the Solicitor or Attorney General's office, and no indication anywhere that anyone in the Department of Justice, let alone the principal officers there, had any input whatsoever on this pleading.

The Wrong Precedent

And the pleading of the Special Prosecutor is weak. It rests almost entirely on the notion that the Supreme Court decision in Morrison v. Olson, 487 U.S.654 (1988), which rejected an Appointment Clause challenge to the now—defunct Independent Counsel provisions, not the later decision in Edmond v. U.S., 520 U.S. 651(1997), which followed Morrison, and which controls.

(In the Morrison case, the Supreme Court sustained the Independent Counsel provision of the Ethics in Government Act, rejecting an Appointments Clause challenge, using a multi—factor balancing test, and determining, on the basis of several important factors not present here, that the prosecutor was an 'inferior officer.' Among those tests were the limits set on the independent counsel's jurisdiction and tenure. In the subsequent Edmonds case, the Court said Morrison hadn't set forth a definitive test and then set one for deciding Appointments Clause challenges: the status of the officer is to be measured by whether he is subject to the direction and supervision of principal officers. And, of course, unlike this Comey—created appointment of Fitzgerald, the Independent Counsel office was created by an Act of Congress reflecting Congress' view that such a person was not a principal officer.)

It would appear that little of the Morrison case holding continues to be good law after Edmond. In any event, the statements and letters of Comey on the record unbound Fitzgerald from any supervision or direction by principal officers, and unbound him from following the guidelines established for special counsel, set no limits on his budget, jurisdiction or tenure, and establish clearly he was acting unlawfully in the capacity of a principal officer.

The vague reservation of power to dismiss him (in the absence of anyone in the Department even knowing what Fitzgerald was doing) and the likely firestorm which would follow such a dismissal (which Comey acknowledged at the press conference announcing the appointment) simply are inadequate to provide relief from either the statutory or constitutional infirmities of the appointment. Thus the  appointment of Fitzgerald  should fail an Appointment Clause challenge, even if Morrison had any residual precedential value.

Authority to Run Amok

If further proof were needed that Fitzgerald was given full authority to run amok for as long as he chose to, at whatever monetary and national security costs, it is this: nowhere in Fitzgerald's defense of his appointment has he supplied even one memorandum indicating that he sought or received a single bit of direction or supervision from the Department in anything.

In his motion (fn 4, p. 9) Libby pointedly notes that Fitzgerald failed to even make public his 'apparent request for clarification on the scope of his authority.' That letter seemingly triggered Comey's letter of February 6, 2004 (slightly more than a month after his December 30, 2003 appointment of Fitzgerald), which was made public and which frees Fitzgerald from any of the limitations of the regulations applicable to Special Prosecutors under 28 C.F.R. 600.( See Exhibit D to the Motion to Dismiss).  I suspect that what triggered this letter is that Fitzgerald noticed that he was ineligible under the Regulations to be appointed Special Prosecutor because he was already in the public employ and that he and Comey then decided on this hybrid—where they'd call him a Special Prosecutor but he was subject to NONE of the regulations which limit such a designee, which regulations, ironically, were adopted to preclude an Appointments Clause challenge like this very one.

In sum, I think that Libby has made a persuasive hard—to—answer argument that the Prosecutor was improperly appointed and granted powers in a way that violates the Statute and the Constitution, and that the indictment should be dismissed.

And if there were an answer to this argument, I fail to see that Fitzgerald has made it.

Should the case continue, however, issues raised in other of Libby's pleadings, including his  Motion to Compel, provide equally great challenges to the continued life of this case.

I will deal with those in further installments of The Potemkin Prosecution.

Clarice Feldman is an attorney in Washington, DC.