The last time we checked in on the criminal case of the man who served as Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, it was an editorial of December 8, 2005, "A Season for Giving." We offered a series of reasons why our readers might see fit to donate to the legal defense trust set up for Mr. Libby's defense. "One could be a neo-conservative who believes that the Iraq war spread freedom. One could be a defender of the freedom of the press who believes that government officials in America should be free to talk to the press without fear of being thrown in prison by a prosecutor. One could be a Clinton loyalist who remembers how special prosecutors were used against the previous administration. One could be a believer in a strong presidency who thinks the whole idea of criminalizing policy differences has a tendency to sap the boldness of the president. Finally, one could just be a believer in the underdog and want Mr. Libby to have a fair fight against the special prosecutor."
Yesterday, a federal court filing by Mr. Libby's team before Judge Reggie Walton raised another good reason in Mr. Libby's favor - the appointments clause of the Constitution. It was a well-crafted, and by our lights, persuasive shot across the bow of the prosecutor. The motion to dismiss filed yesterday signaled that Mr. Libby is on offense, prepared to fight the constitutional issues in this case all the way to the Supreme Court. The argument is that the indictment should be dismissed "on the ground that it was obtained, approved and signed by an official - Special Counsel Patrick Fitzgerald - who was appointed and exercised his powers in violation of the appointments clause of the Constitution."
The appointments clause resides in Article II of the Constitution, which enumerates the powers of the president. It says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
The appointments clause, in other words, divides up the executive branch into principal officers - who require Senate approval - and "inferior officers," who do not. Mr. Fitzgerald was not confirmed by the Senate as a principal officer, so he isn't one. But he is not accountable to the attorney general or to any other Justice Department official, so he isn't an inferior officer, either. He is, not to put too fine a point on it, an illegal, extra-constitutional prosecutor.
The motion to dismiss goes back to the founding fathers to explain the reasoning behind the appointments clause. Alexander Hamilton, in Federalist No.76, departed from what would be his later deplorable tendency to amass power in the executive and acknowledged that Senate confirmation is an "excellent check" against this risk of "incautious" appointments. Roger Sherman, a signer of the Declaration of Independence who attended the Constitutional Convention at Philadelphia, wrote to John Adams explaining that "If the president alone was vested with the power of appointing all officers, ... he would be liable to be deceived by flatterers and pretenders to patriotism, who would have no motive but their own emolument. They would wish to extend the powers of the executive to increase their own importance."
That is exactly what has happened in the case of Mr. Fitzgerald. The prosecutor himself acknowledged in an August 27, 2004 affidavit, "I serve as the functional equivalent of the attorney general on this matter." Yet he has been confirmed to no such job.
When Congress let the independent counsel statute expire in 1999 after the excesses of Kenneth Starr, there was bipartisan consensus that an independent - i.e., unaccountable - prosecutor was a danger. Senator Levin of Michigan said at the time, "Our system of government is based on the premise that no official has unlimited power; we are all supposed to be subject to effective checks on how we exercise our authority." Yet as Mr. Libby's legal team points out, what happened after the independent counsel statute expired is that the Mr. Fitzgerald somehow was established as "an entity with even greater independent authority than the Office of Independent Counsel enjoyed."
In the 1988 case of Morrison v. Olson the Supreme Court upheld the constitutionality of the independent counsel statute against an appointments clause challenge. Justice Scalia - whose wing of the court now includes Justices Thomas, Roberts, and Alito - was, famously, the lone dissenter. Yet not only does Mr. Fitzgerald have more power than the independent counsel upheld in Morrison, as the motion to dismiss points out, in Morrison the court was reviewing an act of Congress that is entitled to deference. As the motion to dismiss points out, "Here, however, Congress has made no such determination. Instead the Office of Special Counsel in this case was created through the unilateral action of a Deputy Attorney General."
The result, as the motion to dismiss puts it, is that "Acting without any direction or supervision, Mr. Fitzgerald alone decides where the interests of the United States lie in an investigation that involves national security, the First Amendment, and important political questions." The motion goes on, "By law the Attorney General may delegate powers, but he may not abdicate responsibility. If the abdication that occurred here is permitted by this Court, important constitutional and statutory protections of our form of government will be at risk. Our system depends on the accountability of federal officers."
This first defense is no mere pettifogging. Separated powers is American bedrock. A prosecutor who respected it would have stopped this case a long time ago. And this defense is a line of argument on which Justice Scalia and Senator Levin and Alexander Hamilton and Roger Sherman and Scooter Libby - and we, too - can agree. Here's hoping that Judge Walton sees the logic to this reasoning but that, if he does not, Mr. Libby has the resources to press this case all the way to the Roberts-Scalia-Thomas-Alito court. He may win his own exoneration, but more importantly he protects all of us from the damage that can be wrought by those "flatterers and pretenders" who, as Sherman put it, "wish to extend the powers of the executive to increase their own importance."
HOW TO GIVE
Libby Legal Defense Trust
2100 M Street, N.W.
Washington, D.C. 20037-1233