Law Profs for Libby

Remarks from the Fray:

I don't understand the argument that the amici are making. The basic position seems to be that there is an appointments clause problem because Fitzgerald was not supervised on a day-to-day basis and wasn't subject to DOJ regulation. But the reason for that was that DOJ officials decided that he shouldn't be. In other words, Fitzgerald's discretion was a creature of DOJ operating procedures, rather than a creation of Congress.

Likewise, rather than having his jurisdiction described by statute, it was governed by the decisions of the Attorney General. To me, that makes him more likely to be an inferior officer than Independent Counsel Morrison. Surely the AG can decide that certain cases ought be handled by people who have special "independence" from the main reporting line; the point is that if the AG so decides, it's still the AG's decision and so the officer remains "inferior" for appointment clause purposes. At very least, the officer is more inferior than Independent Counsel Morrison

There's a bigger picture oddity in their argument as well. They implicitly question the ongoing value of Morrison v. Olson and refer to Justice Scalia's oft-cited dissent. But the point of Justice Scalia's dissent was that the Independent Counsel (Morrison) was unconstitutional because it was a congressional encroachment on executive power. So to argue, as they do at the top of page 3, that the fact that Fitzgerald's office wasn't created by Congress makes it less constitutionally sound gets things exactly backwards. The fact that Fitzgerald's office is solely under the DOJ is what, in Justice Scalia's framework, makes it constitutionally superior to the Independent Counsel.

All in all, it seems to me that the amici get hung up in the details of Fitzgerald's discretion without stepping back to examine the source of his discretion, which is solely from the DOJ. To my mind, that means he presents much less of an appointments clause or separation of powers concern than Morrison, where Congress got involved in guiding the show.

--LuxLawyer

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It is becoming readily apparent to me that after the Martha stewart case, Clinton's impeachment and now this investigation involving Scooter Libby that most people feel the laws concerning perjury and obstruction are particularly harsh. Change the Law in three ways. First unless you are under oath lying is not a felony (Martha Stewart only lied to investigators NOT while under oath). Secondly if a lie is told concerning a civil litigation limit the penalties to civil ones (in this case Clinton lied concerning issues brought up in a civil law suit) and thirdly if one lies and the prosecutor cannot demonstrate or present a strong argument that the lies prevented a criminal indictment then as with the case of Libby the crime should only be a misdemeanor.

--dan-51

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(6/22)