United States Constitution, Article II,
section 2, clause 2.
[The President] shall have Power, by and with the Advice
and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur; and he 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.
Amicus Landmark Legal Foundation (“Landmark”)
is a national public interest law firm committed to preserving the principles
of limited government, separation of powers, individual rights, and free
enterprise. Since its founding in 1976, Landmark
has advocated for the rule of law and government accountability on numerous
fronts, especially in the exercise of Executive power, and has filed amicus briefs in a wide variety of cases
presenting important constitutional issues.
Of particular relevance to this case,
Landmark was actively involved in the Independent Counsel investigations
arising out of the Iran-Contra matter, where it represented former Attorney
General Edwin Meese in the investigation of Independent Counsel Lawrence
Walsh. This investigation gave Landmark
firsthand experience in the potential for abuse in the appointment of unaccountable
special counsel. Following the
Iran-Contra investigations, moreover, Landmark was a consistent public critic
of the Independent Counsel Act until its expiration in 1999. It therefore has an keen interest in ensuring
that the abuses of the now-expired Independent Counsel Act are not revived
through unilateral, Executive-branch action such as that at issue here.
Landmark has filed a Motion for Leave
to File Brief as Amicus Curiae
concurrently with this brief.
The Appointments Clause of the U.S. Constitution
provides that “[the President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint . . . all . . .
Officers of the United States . . . : 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.” U.S. Const.
art. II, § 2, cl. 2.
In an act that circumvented the
restrictions of this clause, Acting Attorney General James Comey appointed
Patrick Fitzgerald—U.S. Attorney for the Northern District of Illinois—as
Special Counsel to investigate and prosecute any federal crimes related to the allegedly
unauthorized disclosure of the identity of a CIA employee. Comey delegated to Fitzgerald “all the
authority of the Attorney General with respect to the . . .
investigation,” and freed him “to exercise that authority as Special Counsel
independent of the supervision or control of any officer of the Department.” United
States v. Libby, 429 F. Supp. 2d
27, 28 (D.D.C. 2006).
This appointment effectively created
a new office within the Department of Justice, endowed the office with
sweeping, unsupervised authority, and filled the office with a person neither nominated
to the office by the President nor confirmed to it by the Senate. The Appointments Clause, however, provides
that only Congress can create new
offices, and that only Congress can
authorize the appointment of inferior officers by means other than presidential
nomination with senatorial advice and consent.
The appointment of Fitzgerald therefore violated the Appointments
Clause, and the resulting conviction of Defendant I. Lewis Libby must be
overturned.
In an article published on July 14,
2003, columnist Robert Novak disclosed the identity of a CIA employee, Valerie
Plame Wilson. Because the disclosure was
allegedly unauthorized, the U.S. Department of Justice launched an investigation
into the leak. Attorney General John Ashcroft
recused himself from the matter on December 30, 2003, however, and on the same
day, Acting Attorney General Comey appointed Fitzgerald as Special Counsel for the
investigation.
In a one-sentence letter dated
December 30, 2003, Comey vested complete control of the investigation in
Fitzgerald. The letter delegated to
Fitzgerald “all the authority of the Attorney General,” and “direct[ed]”
Fitzgerald “to exercise that authority as Special Counsel independent of the
supervision and control of any officer of the Department.” Id.
at 29. A subsequent letter from Comey,
dated February 6, 2004, elaborated on the breadth of Fitzgerald’s authority:
[The] delegation to you of ‘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’ is plenary and
includes the authority to investigate and prosecute violations of any federal
criminal laws related to the underlying alleged unauthorized disclosure, as
well as federal crimes committed in the course of, and with intent to interfere
with, your investigation, such as perjury, obstruction of justice, destruction
of evidence, and intimidation of witnesses . . . . 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.
Ibid.
Pursuant to this delegation of
authority, Special Counsel Fitzgerald investigated Defendant Libby for his
actions related to the leak investigation, and on October 28, 2005, a federal
grand jury charged Libby with perjury, obstruction of justice, and making false
statements. Ibid.
Libby
then moved to dismiss the indictment on the grounds that it “was obtained,
approved and signed by an official—Special Counsel Patrick J. Fitzgerald —who
was appointed and exercised his powers in violation of the Appointments Clause
of the Constitution and applicable federal statutes.” Id.
at 28. Libby explained that, because the
Special Counsel operated “independent of the supervision and control of any
officer of the Department,” he was a “principal officer” whose appointment
required re-nomination by
the President with the advice and consent of the Senate. Because Comey circumvented this procedure by
appointing Fitzgerald directly, however, the appointment and resulting
indictment were invalid.
The district court disagreed, concluding
instead that Fitzgerald was merely an “inferior” officer and therefore did not
need to be appointed by the President with the advice and consent of the
Senate. According to the court, Fitzgerald
could be removed by the Attorney General, and his limited duties, jurisdiction,
and tenure brought the case “squarely into the mold” of Morrison v. Olson, 487 U.S.
654 (1988), rendering Fitzgerald an “inferior” officer. 429 F. Supp. 2d at 44. The court never analyzed the “much more
difficult question” of whether Fitzgerald was an inferior officer under Edmond v. United States, 520 U.S. 651 (1997), or whether Fitzgerald’s
appointment might violate the Appointments Clause even if he was an inferior officer.
Id. at 45. The court simply stated that it “need [not]
confront that analysis since Morrison
remains binding authority,” and thus denied Libby’s motion to dismiss. Ibid.
Libby
was subsequently convicted and sentenced to a term of 30 months’ imprisonment
and a $250,000 fine. On July 2, 2007, President
George W. Bush commuted Libby’s prison sentence, but left intact the other aspects
of the judgment below. Libby appealed.
The district court’s decision on the
Appointments Clause rested on the premise that as long as Special Counsel
Fitzgerald was an inferior officer, he was not subject to the requirement of re-appointment
by the President with the advice and consent of the Senate. The text of the Appointments Clause, however,
requires that Congress play an active role in the appointment of both principal and inferior
officers. Only Congress has the
constitutional authority to create new offices, and only Congress may vest
appointment of inferior officers “in the President alone, in the Courts of Law,
or in the Heads of Departments.” U.S. Const. art. II, § 2, cl. 2.
Here, however, acting without
congressional authorization, Acting Attorney General Comey created a new office
of Special Counsel, endowed the office with sweeping prosecutorial authority,
and filled the office with a person of his own choosing. This action violates the Appointments Clause
regardless of whether Special Counsel Fitzgerald is a principal or inferior
officer. The appointment was therefore
invalid, and the resulting conviction must be reversed.
Moreover, important characteristics
of the appointment here indicate that Special Counsel Fitzgerald is, in fact, a
principal officer under either Morrison
or Edmond. Fitzgerald was appointed without
congressional involvement, was directed to act with the “plenary” authority of
the Attorney General and “independent of the supervision or control of any
officer of the Department,” and was exempted from complying with Justice
Department policies—all facts that distinguish Fitzgerald from the Independent
Counsel in Morrison and confirm that
Fitzgerald is a principal officer. His
unilateral appointment by Comey, then, without nomination by the President or
the advice and consent of the Senate, violates the Constitution.
This
appeal turns on the meaning of the Appointments Clause—Article II, Section 2,
Clause 2, of the United States Constitution—which provides that:
[The President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint . . . 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 is a critical component of the Constitution’s provision for the separation
of powers and one of the bulwarks against abuses of power by the federal
government. Its purpose is “to preserve
political accountability relative to important government assignments” among
the three branches of government. Edmond, 520 U.S. at 663. But while Fitzgerald has, without doubt,
received an “important government assignment,” his appointment as Special
Counsel circum-vented the procedure prescribed by the Appointments Clause and
thus offends the basic principle of accountability that the clause is designed
to protect.
In
appointing Fitzgerald as Special Counsel, the Acting Attorney General created a
new office not authorized by Congress, gave the office substantial
prosecutorial power, and freed the office from the “supervision or control of
any officer of the Department.” Libby, 249 F. Supp. 2d at 29. The appointment thus violated two important
limitations imposed by the Appointments Clause: (1) that only Congress—not the
President (and certainly not the Acting Attorney General) —may create new offices
not provided for in the Constitution, regardless of whether those offices are
filled by principal or inferior officers; and (2) that all officers (unless, in the case of an inferior officer, Congress
otherwise provides) must be appointed by the President with senatorial advice
and consent.
However admirable
the aim of the Special Counsel’s appointment—and the goal of investigating
allegedly unlawful conduct by high-level, executive-branch officials is certainly
important—the appointment must follow the constitutionally prescribed
procedure. This is especially true where,
as here, the Acting Attorney General had available several plainly constitutional
alternatives for accomplishing the same objective. Comey’s unilateral creation of a special counsel
not only ignores the concerns that prompted Congress to allow the independent
counsel statute to lapse in the first place, but also deprives Congress of its
constitutional authority and duty to participate in the selection of all federal officers—either through advice-and-consent
or through its authority to create an office and to specify the means of
appointment. The appointment of
Fitzgerald thus sets a dangerous precedent: it would allow the Executive Branch to create any
number of new offices in a wide variety of settings, threatening the separation
of powers and the political accountability guaranteed by the Appointments
Clause.
Although the Appointments Clause
specifies two main classes of officers and, correspondingly, two different
methods of appointment, the default method for appointing any officer—principal or inferior—is nomination
by the President with the advice and consent of the Senate. U.S. Const.
art. II, § 2, cl. 2. This mechanism
demonstrates the Founders’ concern with unchecked power and the high value they
placed on political accountability. As
Alexander Hamilton explained, the President and Senate would share the political repercussions of
making bad appointments or rejecting good ones:
“The blame of a
bad nomination would fall upon the president singly and absolutely. The censure of rejecting a good one would lie
entirely at the door of the senate . . . . If an ill appointment should be made, the
executive for nominating, and the senate for approving, would participate,
though in different degrees, in the opprobrium and disgrace.” Alexander Hamilton, Federalist No. 77, at 461 (Jacob E. Cooke ed., 1961) (1788). Moreover, Hamilton emphasized that the
participation of the Senate “would be an excellent check upon a spirit of
favoritism in the President, and . . . an efficacious
source of stability in the administration.”
Id. at 457.
In addition to presidential
appointment with advice and consent of the Senate, the Appointments Clause provides
a second method of appointment in what is sometimes called the Excepting
Clause:
[B]ut 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.
U.S. Const. art. II, § 2, cl. 2. By this grant of power, Congress may bypass the
usual method of appointment by vesting sole authority to appoint in the hands
of the President, a court of law, or a departmental head—but only in the case
of “inferior” officers. In general, however,
“[t]he [constitutionally] prescribed manner of appointment for principal
officers is also the default manner of appointment for inferior officers.” Edmond,
520 U.S. at 660.
Both of these mechanisms ensure that
Congress plays a vital role in the appointment of every officer of the United States: for all principal officers (and most inferior
officers), the Senate gives its advice and consent; for inferior officers
covered by the Excepting Clause, Congress defines the scope of their offices
and controls whether their appointment is vested in the President alone, in the
courts, or in the head of a department. Importantly,
the Executive is never permitted to fill an office on its own unless Congress,
pursuant to the Excepting Clause, gives it express permission to do so. Weiss
v. United States, 510 U.S. 163, 184 (1994)
(Souter, J., concurring).
This check on executive power grew
out of, among other things, the Founders’ experience with officers appointed by
King George III. One of the grievances
cited in the Declaration of Independence was that the king had “erected a Multitude
of new Offices, and sent hither Swarms of Officers to harass our People, and
eat out their Substance.” The Declaration of Independence
¶ 12 (U.S. 1776). In the minds of
the Founders, the Appointments Clause went a good distance in easing these fears. Hamilton praised it as likely “to produce a
judicious choice of men for filling the offices of the Union” and explained that
on those choices “must essentially depend the character of [the Government’s]
administration.” Federalist No. 76, at 457.
To be sure, the motive of the
appointment in this case was not to “harass [the] People, and eat out their
Substance,” but to investigate alleged misconduct within the Executive Branch. But an admirable motive cannot justify an
unconstitutional appointment. And even
more importantly, it is impossible to draw a reasoned distinction between the
appointment here and a variety of potentially abusive appointments that might follow
in its wake. For example, the Attorney
General could follow the same procedure used here in appointing a special
counsel to investigate a political opponent in Congress or within the
Administration, cutting the special counsel loose from any “supervision or
control” and then disclaiming any responsibility for the consequences of the special
counsel’s actions. Indeed, under the
Government’s reading of the Appointments Clause, nothing would stop the
Attorney General from unilaterally appointing hundreds of special counsel across
the nation to investigate and prosecute (for example) individual tax crimes, housing
crimes, voter fraud, or public corruption—all without political accountability.
The potential for abuse is great, therefore,
and the need for political accountability is no less present when the Executive
Branch is investigating itself than when it is performing other executive
functions. By ensuring that Congress is
involved in appointing every officer,
whether principal or inferior, the Appointments Clause guarantees that both the
Executive and Legislative Branches are
accountable for the results of an intra- or inter-branch investigation. See Freytag
v. Commissioner, 501 U.S. 868, 884
(1991).
Moreover, political accountability is
even more important where, as here, the appointed officer is exercising prosecutorial
powers—the “quintessentially
executive function.” Morrison, 706 (Scalia, J., dissenting). The prosecutorial power, more than any other
executive function, carries with it “the enormous . . . power . . .
to subject an individual ‘to embarrassment, expense
and ordeal.’” Will v. Hallock, 546 U.S.
345, 352 (2006). By creating a
new office vested with expansive prosecutorial power, filling the office
without congressional involvement, and then cutting the office loose from
executive “supervision or control,” the Acting Attorney General short-circuited
the political accountability the Appointments Clause is designed to ensure, and
in the precise context where political accountability matters most.
In sum, in an effort to ensure
political accountability and protect against executive overreaching, the
Framers ensured that Congress would be involved in the appointment of every U.S.
officer. Under the Appointments Clause,
a principal officer may be appointed only with the advice and consent of the
Senate, and an inferior officer may be chosen by the Executive or the Judiciary
only when Congress so provides. Here, however,
the Executive Branch alone has created a new office, filled that office without
congressional involvement, and—if that were not enough —freed the office from “the
supervision and control of any officer of the Department.” Libby,
429 F. Supp. 2d at 29. This presents serious
constitutional problems, to which we now turn.
II.
The Appointment Of The Special Counsel
Violates The Appointments Clause Even If The Special Counsel Is An Inferior
Officer.
Although the district court assumed,
without analysis, that the appointment of the Special Counsel was proper so
long as the Special Counsel is an inferior officer, this assumption is incorrect. The Excepting Clause provides the only procedure
for appointing inferior officers without presidential appointment or senatorial
advice and consent, and the Special Counsel’s appointment violates this procedure
in two important ways.
First, the authority to create
inferior offices—as distinct from the
power to fill them—is vested solely in Congress, not in the Executive Branch. The Framers consciously departed from the British
model, which had vested the appointment power in the King alone. Instead, they chose to divide the King’s
power into halves: Congress was given
the authority to create offices
(other than those established by the Constitution itself), and the President
was given the authority to fill them
(subject to the Senate’s advice and consent or, in the case of inferior
officers, Congress’s provisions under the Excepting Clause). Weiss,
510 U.S. at 184. As Chief Justice John
Marshall explained: “The constitution
then is understood to declare, that all officers of the United States, except
in cases when the constitution itself may otherwise provide, shall be
established by law.” United States v. Maurice, 26 F. Cas. 1211, 1214 (No. 15,474) (Cir. Ct. D. Va. 1823).
Moreover,
the Justice Department itself has long acknowledged that only Congress can
create offices not otherwise created by the Constitution: “As the language of the Appointments Clause
suggests, offices in the constitutional sense are only those established or
recognized by the Constitution or by act of Congress. . . . The
President cannot create an office.” The Constitutional Separation of Powers
Between the President and Congress, 20 Op. O.L.C. 124, 139 n.44 (1996)
(quoting Inventions International
Exposition, 18 Op. Att’y Gen. 171, 171 (1885)). Congress did not create the office of Special
Counsel. Consequently, the Special
Counsel’s appointment, even if to an “inferior” office, is invalid.
Second, as discussed
above, the Appointments Clause prescribes a default method for appointing
officers. Unless Congress has created an
office and specified “by Law” how it is to be filled, any officer, whether principal or inferior, must be appointed by
the President with senatorial advice and consent. Here, however, no Act of Congress specified how the Special Counsel was to be
appointed, and no Act of Congress vested the power of appointment in the
Attorney General (as department head). Even
assuming the Special Counsel was an inferior officer, then, Comey, as the
Attorney General’s delegate, had no authority to appoint him. The resulting appointment—without presidential
nomination and senatorial advice and consent—is therefore unlawful.
It is no answer to the foregoing analysis to say that the Special
Counsel did not hold an “office” at all, but merely performed governmental “functions”
delegated by the Attorney General, such that no “appointment” was necessary.
Although 28 U.S.C. § 510 permits the Attorney General to
“authoriz[e] the performance by any other officer, employee, or agency of the
Department of Justice of any function of the Attorney General,” it does not
authorize creation of new offices or appointment of officers (let alone freeing
them from “the supervision or control of any officer of the Department”). And, of course, any delegation of authority
under § 510 must itself comport with the Appointments Clause. Otherwise, the Attorney General could
“authoriz[e] . . . any . . . employee . . . of
the Department,” such as an unappointed records clerk, to sit on the
President’s cabinet, elevating these employees to the status of “officer” in
violation of the Constitution.
Both Supreme Court precedent and the Executive Branch’s own
(internally binding) legal opinions establish that the Special Counsel occupies
an “office” of the United States, appointment to which is governed by the Appointments
Clause. The Special Counsel here
occupies an office no less than did the Independent Counsel in Morrison, and the Court there found it “clear
that appellant is an ‘officer’ of the United States, not an ‘employee.’” 487 U.S. at 671 n.12.
Based in part on Morrison, the Justice Department has
developed a two-part analysis for determining whether a position is an “office”
subject to the Appointments Clause: “a
position, however labeled, is in fact a federal office if (1) it is
invested by legal authority with a portion of the sovereign powers of the
federal Government, and (2) it is ‘continuing.’” U.S. Department of Justice Office of Legal
Counsel, Officers of the United States
Within the Meaning of the Appointments Clause, at *1 (April 16, 2007), 2007
WL 1292268 (O.L.C.). Here, as in Morrison, the position of Special
Counsel possesses both characteristics of an “office.”
As an initial matter, the
Attorney General’s power to investigate and prosecute federal crimes, vested
here without limitation in the Special Counsel, plainly involves “a portion of
the sovereign powers of the federal Government.” Ibid. Indeed, “the authority to administer,
execute, or interpret the law” is the quintessential example of sovereign power,
id. at *11, and the Special Counsel
exercises all of these responsibilities.
Moreover, the Special
Counsel’s position is “continuing.” While
a “permanent” position is necessarily continuing, “a temporary position also
may be continuing, if it is not [1] personal, [2] ‘transient,’ or [3] ‘incidental.’” Id.
at *21. As the Justice Department has
explained concerning these three conditions: “(1) The position’s existence
should not be personal: the duties
should continue, though the person be changed,’ . . . and an
incumbent’s tenure should not depend on whether ‘the office of his superior’ is
vacated . . . (2) The position should not be ‘transient’: The
less fleeting and more enduring it is (or is likely to be), the more likely it
is to be a continuing seat of power and thus an office. (3) The duties should be more than ‘incidental’
to the regular operations of government.”
Id. at *30. Finally and importantly, “the nature of the
delegated sovereign authority will affect whether a temporary position is an
office.” Ibid. (citations omitted).
Special Counsel
Fitzgerald satisfies each of these conditions.
First, his appointment is not “personal”: his duties would
presumably continue even if he, say for reasons of disability, became unable to
discharge them. Nor have the departure
of Attorney General Ashcroft or Acting Attorney General Comey terminated Fitzgerald’s
position. Id. at *32.
Second, the Special Counsel’s position
is not “transient”: as in Morrison, the
position is “indefinite and [has] last[ed] for multiple years, with ongoing
duties, the hiring of a staff, and termination only by an affirmative
determination that all matters were at least substantially complete.” Ibid.
Third, his duties are not merely
“incidental” to the regular operations of the Government. The Special Counsel “possesse[s] core and
largely unchecked federal prosecutorial powers,” ibid., and thus exercises “important public powers, trusts, and
duties.” Id. at *30 (citation omitted).
Finally, taking account of “the
nature of the delegated sovereign authority”—here, an authority that includes the
power to investigate and prosecute some of the highest officials in the federal
government—the conclusion that the Special Counsel is an “officer” for
Appointments Clause purposes is inescapable.
His position is therefore an office, and his appointment was subject to
the procedural restrictions of the Appointments Clause.
Nor is it tenable to say
that Acting Attorney General Comey did not appoint the Special Counsel to a new “office,” but merely imposed
additional duties on
Fitzgerald that were germane to his pre-existing responsibilities as U.S.
Attorney for the Northern District of Illinois, for which he had been confirmed. Congress
may, by statute, confer additional duties upon existing officers of the United
States, without giving rise to the necessity of a new appointment, if those
duties are germane to their existing functions.
See, e.g., Shoemaker v. United States, 147 U.S. 282, 301 (1893);
Weiss v. United States, 510 U.S. 163, 174 (1994). But that is not what happened here.
First, in both Shoemaker and Weiss, it
was Congress that expanded the scope
of responsibilities in an existing office. Weiss,
510 U.S. 163, 174; Shoemaker, 147
U.S. 282, 301. Just as Congress has
authority to create an office in the first place, so also Congress has authority to confer additional, germane
responsibilities on an office it has created.
Doing so poses no threat to the separation of powers or to political accountability,
for both the Executive and Legislative Branches are involved in the
appointment—the legislative, in the decision to expand the office, and the executive,
in the decision to maintain the appointed officer in office.
Here, however, it is a member of the Executive Branch—not Congress—that has expanded an executive
office’s duties. This is problematic for
two reasons. To begin with, Congress can
confer additional duties on an office because it possesses the greater
authority to create the office in the first place; the Executive, by contrast,
has no authority to create an office, and therefore no authority to confer
additional duties. Moreover, when
Congress expands an executive office, as in Shoemaker
and Weiss, it does not raise
separation of powers or accountability concerns because the Executive maintains
the power to remove the officer. Here, by
contrast, when the Executive expands the authority of its own officer without
congressional involvement, Congress has no recourse short of impeachment. This unilateral expansion of an executive officer’s authority by the Executive therefore raises both
separation of powers and accountability concerns not present in Shoemaker or Weiss.
Second, the nature of the new duties
conferred on Fitzgerald indicate that the Acting Attorney General has not
merely added new duties to an existing office but has created an entirely new
office. The duties of Fitzgerald are not
“merely an outgrowth of the[] existing responsibilities” of the U.S. Attorney
for the Northern District of Illinois. In re Certain Complaints Under Investigation
by an Investigating Committee, 783 F.2d 1488, 1515 (11th Cir. 1986). On the contrary, the Senate would have had no
reason whatsoever to foresee that Mr. Fitzgerald, in being appointed to his
initial post in Illinois, would be given such unusual and extraordinary
responsibilities—to act “independent of supervision
or control of any officer of the Department,” including the Attorney
General. In exercising the “plenary”
authority of the Attorney General, moreover, Fitzgerald may independently undertake
a wide variety of actions as Special Prosecutor that he could not have taken
(or would have required Department approval to take) as a U.S. Attorney. This sweeping grant of new authority, in and
of itself, creates an entirely new position that is not “merely an outgrowth”
of Fitzgerald’s antecedent responsibilities.
Furthermore, the Senate could not
reasonably have foreseen that Fitzgerald would later be asked to perform the
extraordinary role of the Special Counsel outside
the jurisdiction to which he was appointed. Congress has specified by law that the
President shall appoint U.S. Attorneys “for
each judicial district.” 28 U.S.C. § 541(a)
(emphasis added). Congress has also
provided that U.S. Attorneys must reside in or near the district for which they
are appointed. Id. § 545(a). And in delimiting
the duties of U.S. Attorneys, Congress has said: “Except as otherwise provided by law, each
United States Attorney, within his
district, shall . . . prosecute for all offenses against the
United States.” Id. § 547(1) (emphasis added).
Similarly, the U.S. Attorney’s Manual states that “[t]he United States
Attorney, within his/her district,
has plenary authority with regard to federal criminal matters. This authority is exercised under the
supervision and direction of the Attorney General and his/her delegates.” U.S. Attorneys Manual 9-2.001 (emphasis
added). These provisions reflect the fact that Congress did create an office with responsibility
for prosecuting the offenses alleged here: U.S. Attorney for the District of Columbia. But at a minimum, the provisions establish
that in confirming Fitzgerald for his post in Illinois, the Senate would not
have foreseen that it was passing on his fitness to serve in the extraordinary
capacity of Special Counsel in a highly visible case inside the Beltway.
In sum, one vital underlying purpose behind
the Appointments Clause—safeguarding the Senate’s role in judging the fitness
of presidential nominees for the important offices they will perform, e.g.,
Federalist No. 76—strongly confirms that Mr. Fitzgerald’s appointment was
defective. If the Executive Branch could
circumvent the Appointments Clause simply by changing the scope of the
authority of an inferior officer to include duties not within the purview of
his or her original office—or expand the inferior officer’s responsibilities to
such an extent that it transforms the inferior officer into a principal officer—it
would infringe on Congress’s constitutional prerogative either to consent to
the appointment of principal officers (through Senate confirmation) or to
assign authority to appoint inferior officers.
As neither result complies with the Appointments Clause, the appointment
of Special Counsel Fitzgerald is unconstitutional.
As
explained above, the appointment of Special Counsel Fitzgerald is invalid
whether he is a principal or an inferior officer. The Supreme Court’s decisions in both Morrison and Edmond, however, establish that Fitzgerald is a principal
officer. As such, his appointment
violates the Appointments Clause because the elevation of an inferior officer
to the position of a principal officer requires a second appointment by the
President with the advice and consent of the Senate.
In Morrison, the Supreme Court confronted the constitutionality of the
appointment of an Independent Counsel under the Ethics in Government Act of
1978. The Independent Counsel was
appointed by a court of law (the Special Division) and authorized to
investigate allegations that officials within the Attorney General’s Office
gave false testimony or obstructed justice in an EPA investigation. The question was whether the Independent
Counsel was an “inferior officer,” in which case Congress had validly vested
her appointment in a court of law, or a “principal officer,” in which case her
appointment was invalid. The Court concluded
that the Independent Counsel was an inferior officer based on four factors: (1) the
Attorney General’s authority to remove the Independent Counsel; (2) the
Independent Counsel’s limited duties under the Act; (3) the Independent
Counsel’s limited jurisdiction; and (4) the Independent Counsel’s limited
tenure. 487 U.S. at 671-672.
Quite apart from these four factors, several
important facts distinguish this case from Morrison. First, unlike the office of the Special Counsel,
the office of the Independent Counsel in Morrison
was created by Congress. 28 U.S.C. §§ 591-599
(1982 ed., Supp. V). Second, Congress
vested the appointment of the Independent Counsel in a court of law, the
Special Division. Id. § 592(b)(1). And third,
Congress established a system of oversight by which the Independent Counsel was
required to comply with Justice Department policies and to provide Congress with
information about the exercise of her authority. Id.
§ 595(a)(1). Congress thus acted
pursuant to the Excepting Clause and established a thorough system of accountability
for an office wielding substantial prosecutorial power. Such congressional action, and a system of
accountability, are absent here, and this deficiency alone distinguishes this
case from Morrison.
Turning to the four factors, the Court
first noted that the Independent Counsel was “subject to removal by a higher
Executive Branch official.” Ibid.
Here, however, neither letter sent to Fitzgerald by Acting Attorney
General Comey indicates that Fitzgerald could be removed, how that would take
place, or what would happen if Fitzgerald—now cloaked with the Attorney General’s
“plenary” authority—objected. The
district court assumed, based on the law of agency, that if Comey could grant
authority to Fitzgerald, he could also take it away at will. 429 F. Supp. 2d at 44. But the only regulation that actually details
how a Special Counsel may be removed is 28 C.F.R. § 600.7, and Comey expressly
stated that Fitzgerald’s position was not
“defined and limited” by this section. Id. at
29. Thus, it appears that Fitzgerald is
removable only by the President himself (or by impeachment), which confirms
that he is a principal officer.
Moreover, the power to remove is
meaningful only if effective oversight exists to determine when the officer has
done something that warrants removal. As
Edmond makes clear, removal is “a
powerful tool for control”—but only if coupled with effective “oversight.” 520 U.S. at 664. Although the
Independent Counsel in Morrison was at
least subject to certain congressional oversight (487 U.S. at 664-665), the
Special Counsel here is “independent of the supervision or control of any
officer.” Without oversight, then, the
Attorney General’s authority to remove the Special Counsel—if that authority
exists at all—is a particularly poor substitute for supervision and control.
Second,
Morrison found persuasive the fact
that the Independent Counsel was empowered by statute to “perform only certain,
limited duties,” including the “investigation and, if appropriate, prosecution
for certain federal crimes.” 487 U.S. at 671.
Crucial to the Court’s analysis of this factor was the fact that the Independent
Counsel was required by statute “to comply to the extent possible with the
policies of the Department.” Id. at 671-72.
Here, by contrast, not only is there
no statute requiring the Special Counsel to comply with the Department’s policies,
but Comey expressly exempted
Fitzgerald from those policies. Comey’s
delegation stated that Fitzgerald’s authority is not “defined and limited by 28 C.F.R. Part 600”—the only set of
regulations governing the conduct of a special counsel within the Department of
Justice. 429 F. Supp. 2d at 28. Those
regulations require any special counsel to “comply with the rules, regulations,
procedures, practices and policies of the Department of Justice.” 28 C.F.R. § 600.7. By exempting Fitzgerald from the limits of
Part 600, Comey expressly relieved him of complying with Department policy. This fact, without more, distinguishes this
case from Morrison.
Third,
Morrison relied on the fact that the
Independent Counsel’s jurisdiction was limited “to certain federal officials
suspected of certain serious federal crimes.”
487 U.S. at 672. While Comey’s
letter also authorizes the investigation of only a certain category of crimes,
the limitation in Morrison was
imposed by statute, and the Independent Counsel there could act only within
“the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney
General.” Ibid. (emphasis added). Thus,
all three branches of government had a say in the extent of the Independent
Counsel’s jurisdiction. Here, by
contrast, it appears that the Attorney General can devolve upon the Special
Counsel however much of his authority he pleases—even full prosecutorial powers
without any supervision—and without congressional oversight. Moreover, the jurisdiction of all officers is
limited in some way, and the Supreme Court provided very little guidance in Morrison as to how limited an officer’s
jurisdiction must be in order for him to be considered inferior.
Finally,
Morrison emphasized the limited
tenure of the Independent Counsel’s office, which was “temporary” in the sense
that “an independent counsel is appointed essentially to accomplish a single
task, and when that task is over the office is terminated.” Id.
at 672. In that sense, of course, every
special counsel (including Fitzgerald) has a limited tenure. But it is impossible to know how long
Fitzgerald’s tenure may last. It has
already exceeded the tenure of the Attorney General and the Acting Attorney
General, and could well exceed the tenure of many other principal
officers. It is therefore unclear how
this open-ended authority to investigate for an indefinite period of time can reasonably
be considered a “limited tenure” rendering Fitzgerald an inferior officer.
In
sum, several important facts—including the lack of congressional involvement in
the Special Counsel’s appointment, the absence of Executive Branch supervision,
and the exemption of the Special Counsel from compliance with Justice Department
policies—distinguish Fitzgerald from the Independent Counsel in Morrison and indicate that Fitzgerald is
a principal officer. Thus, his unilateral
appointment by the Acting Attorney General, without nomination by the President
or the advice and consent of the Senate, violates the Appointments Clause.
It is even more clear that Special
Counsel Fitzgerald is a principal officer under Edmond. The Court there
considered whether judges of the Coast Guard Court of Criminal Appeals were
“inferior officers” who could therefore be appointed by the Secretary of
Transportation pursuant to an act of Congress.
Noting that Morrison “did not
purport to set forth a definitive test for whether an office is ‘inferior,’”
the Court set forth a new framework: “‘inferior officers’ are officers whose work is directed and supervised at
some level by others who were appointed by presidential nomination with the advice
and consent of the Senate.” 520 U.S.
at 663 (emphasis added).
Applying this test to the Coast
Guard’s criminal appellate judges, the Court concluded that they were inferior
officers “by reason of the supervision over their work by the General Counsel
of the Department of Transportation in his capacity as Judge Advocate General
and [by] the Court of Appeals for the Armed Forces.” Id.
at 666. The Judge Advocate General
prescribed “uniform rules of procedure” for the court, formulated policy
governing review of court-martial cases, and could remove the judges at
will. Id. at 664. Moreover, because
the Court of Appeals for the Armed Forces had authority to review their decisions,
judges on the Coast Guard court had “no power to render a final decision . . .
unless permitted to do so by other Executive officers.” Id.
at 665. Given this extensive
supervision, the Court concluded that the judges were “inferior” officers.
This is precisely the kind of
supervision that is lacking here.
Indeed, the terms of the Special Counsel’s appointment expressly “direct”
him to act “independent of the supervision and control of any officer of the
Department,” including, of course, the Acting Attorney General. 429 F. Supp. 2d at 29. It is hard to imagine how the Acting Attorney
General could make it more clear that the Special Counsel was to operate without supervision. Special Counsel Fitzgerald need not seek the
approval of anyone in the Executive Branch before he exercises substantial
prosecutorial power. He has unfettered
discretion and “plenary” authority to investigate and prosecute “any” federal
crime “related” to the allegedly unauthorized disclosure of the CIA operative’s
identity, as well as crimes arising in the course of the investigation. He is exempted from the Department policies
set forth in 28 C.F.R. § 600, and, in contrast with Edmond, the only “tool” that apparently exists to control the
Special Counsel is the assumed but questionable power of the Attorney General
to remove the Special Counsel at will. Nothing
in Edmond, however, suggested that the
power of removal alone—let alone when divorced from the power to monitor an
officer’s conduct—renders an officer “inferior” for purposes of the
Appointments Clause. Thus, under Edmond, Special Counsel Fitzgerald is a
principal officer, and his appointment was invalid.
For
the foregoing reasons, the district court’s judgment should be reversed.
Respectfully Submitted.
/s/ Steffen N. Johnson
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Mark R. Levin
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Steffen N. Johnson
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Richard P. Hutchison
|
Counsel
of Record
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Landmark Legal Foundation
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Luke W. Goodrich
|
|
19415 Deerfield Ave.
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Winston & Strawn LLP
|
|
Suite 312
|
1700 K Street N.W.
|
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Leesburg, VA 20176
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Washington, D.C. 20006
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(703) 554-6100
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(202) 282-5000
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|
|
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Counsel for Amicus Curiae
Landmark Legal Foundation
Dated: August 17, 2007
CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE
OF APPELLATE PROCEDURE 32(a)
1. This
brief complies with the type-volume limitation of Federal Rule of Appellate
Procedure 32(a)(7)(B) because:
·
The
brief contains 6,997 words, excluding the parts of the brief exempted by
Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) and Circuit Rule 32(a)(2).
2. This
brief complies with the typeface requirements of Federal Rule of Appellate
Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate
Procedure 32(a)(6) because:
·
The
brief has been prepared in a proportionally spaced typeface using Microsoft
Office Word 2003 in 14 point Times New Roman.
Dated:
August 17, 2007 /s/ Steffen N. Johnson
|
Mark R. Levin
|
Steffen N. Johnson
|
|
Richard P. Hutchison
|
Counsel
of Record
|
|
Landmark Legal Foundation
|
Luke W. Goodrich
|
|
19415 Deerfield Ave.
|
Winston & Strawn LLP
|
|
Suite 312
|
1700 K Street N.W.
|
|
Leesburg, VA 20176
|
Washington, D.C. 20006
|
|
(703) 554-6100
|
(202) 282-5000
|
|
|
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Counsel for Amicus Curiae
Landmark Legal Foundation
CERTIFICATE OF SERVICE
I hereby certify that on this 17th
day of August, 2007, a true and correct copy of the foregoing Motion for Leave
to File Brief for Landmark Legal Foundation as Amicus Curiae Supporting the Defendant-Appellant and Supporting
Reversal was served by Federal Express to:
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Lawrence S. Robbins
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Hon. Patrick Fitzgerald
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Roy
T. Englert
|
Office of Special Counsel
|
|
Mark
T. Stancil
|
Bond Building
|
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Robbins, Russell, Englert, Orseck
& Untereiner LLP
|
1400 New York Avenue, N.W.
Ninth Floor
|
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1801 K Street, NW
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Washington, D.C. 20530
|
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Suite 411
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(202) 514-1187
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Washington, DC 20006-1322
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(202) 775-4500
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Counsel for Defendant-Appellant
I. Lewis Libby
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Counsel for Plaintiff-Appellant
United States of America
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/s/
Steffen N. Johnson
In the United States Court of Appeals 