No. 07-3068

In the United States Court of Appeals

for the District of Columbia Circuit

__________

 

United States of America,

Plaintiff-Appellee

 

v.

 

I. Lewis Libby,

Defendant-Appellant

__________

 

appeal from the united states district court

for the district of columbia

no. 05-cr-00394-01, hon. reggie b. walton

__________

 

BRIEF FOR LANDMARK LEGAL FOUNDATION AS

AMICUS CURIAE SUPPORTING THE DEFENDANT-APPELLANT

AND SUPPORTING REVERSAL

__________

 

 

 

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

 

 

 

 

Counsel for Amicus Curiae Landmark Legal Foundation


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A.      Parties and Amici

·        United States of America (Plaintiff-Appellee)

·        I. Lewis Libby (Defendant-Appellant)

·        Law Professors Vikram Amar et al. (Amici Curiae in connection with Defendant’s motion for bail pending appeal)

·        Landmark Legal Foundation (Amicus Curiae supporting the Defendant-Appellant and supporting reversal)

 

Pursuant to Federal Rule of Appellate Procedure 26.1(b) and Circuit Rule 26.1, Landmark Legal Foundation states that it is a nongovernmental, non-profit corporate entity that has no parent corporation and does not issue stock. 

B.      Rulings Under Review

          The rulings at issue in this appeal are District Judge Reggie B. Walton’s April 27, 2006, order denying Libby’s motion to dismiss the indictment, United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006); several evidentiary rulings at trial, memorialized in Judge Walton’s written opinion on March 2, 2007, 475 F. Supp. 2d 73 (D.D.C. 2007); and Judge Walton’s December 1, 2006, ruling on the use, relevance, and admissibility of certain classified documents, 467 F. Supp. 2d 1 (D.D.C. 2006).  This brief focuses only on Judge Walton’s April 27, 2006, order.

C.      Related Cases

          This case was previously before the Court under the same name (No. 06-3174, filed November 27, 2006), but was voluntarily dismissed on December 27, 2006.

CERTIFICATE AS TO NEED FOR A SEPARATE AMICUS BRIEF

Pursuant to Circuit Rule 29(d), counsel certifies that it is aware of no other amici curiae intending to file a brief in support of the Defendant-Appellant I. Lewis Libby.  Counsel for Defendant-Petitioner I. Lewis Libby have also informed counsel that they are aware of no other amici curiae intending to file a brief in support of the Defendant-Petitioner I. Lewis Libby.  Amicus curiae has therefore satisfied the requirements of Circuit Rule 29(d) by filing a single brief.


TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES. i

CERTIFICATE AS TO NEED FOR A SEPARATE AMICUS BRIEF. ii

TABLE OF AUTHORITIES. iv

PERTINENT STATUTES, RULES, AND REGULATIONS. 1

STATEMENT OF INTEREST. 2

INTRODUCTION.. 3

STATEMENT. 4

SUMMARY OF ARGUMENT. 7

ARGUMENT. 9

I..... The History And Purpose Of The Appointments Clause Highlights The Importance Of Political Accountability Through Congressional
Involvement In The Selection Of Both Principal And Inferior
Officers. 11

II.... The Appointment Of The Special Counsel Violates The Appointments Clause Even If The Special Counsel Is An Inferior Officer. 15

A.... The Special Counsel’s Appointment Violates the Excepting
Clause by Creating a New Office and Determining How to
Fill It—Duties Constitutionally Delegated to Congress Alone. 16

B.... The Special Counsel Did Not Merely Perform Governmental “Functions” Delegated by the Attorney General. 17

C.... The Duties of the Special Counsel Are Not “Germane” to the
Duties of the U.S. Attorney for the Northern District of Illinois,
for Which He Was Confirmed by the Senate. 21

III... The Appointment Of The Special Counsel Violates The Appointments Clause Because The Special Counsel Is A Principal Officer Under
Either Morrison v. Olson Or Edmond v. United States. 25

A.... The Decision Below Is Inconsistent with Morrison. 25

B.... The Decision Below Is Inconsistent with Edmond. 30

CONCLUSION.. 33

TABLE OF AUTHORITIES

FEDERAL CASES                                                                                 Page(s)

 

In re Certain Complaints Under Investigation by an Investigating Committee,

783 F.2d 1488 (11th Cir. 1986)............................................................ 22

 

*Edmond v. United States,

520 U.S. 651 (1997)..................................................................... passim

 

Freytag v. Commissioner,

501 U.S. 868 (1991)............................................................................ 13

 

*Morrison v. Olson,

487 U.S. 654 (1988)..................................................................... passim

 

Shoemaker v. United States,

147 U.S. 282 (1893)...................................................................... 20, 21

 

*United States v. Libby,

429 F. Supp. 2d 27 (D.D.C. 2006)................................................ passim

 

United States v. Maurice,

26 F. Cas. 1211 (No. 15,474) (Cir. Ct. D. Va. 1823)............................ 15

 

*Weiss v. United States,

510 U.S. 163 (1994)........................................................... 12, 15, 20, 21

 

Will v. Hallock,

546 U.S. 345 (2006)............................................................................ 13

 

 

FEDERAL STATUTES

 

28 C.F.R. § 600...................................................................................... 31

 

 

* Authorities upon which we chiefly rely are marked with asterisks.

28 C.F.R. § 600.7.............................................................................. 26, 27

 

28 U.S.C. § 510...................................................................................... 17

 

28 U.S.C. § 541(a)............................................................................. 22. 23

 

28 U.S.C. §§ 591-599.............................................................................. 25

 

*U.S. Const. art. II, § 2, cl. 2.............................................. 1, 3, 7, 8, 10, 11

 

 

MISCELLANEOUS

 

Sir William Blackstone, Commentaries on the Laws of England  (1765-69) 15

 

William W. Crosskey, Politics and the Constitution in the History of the United States (1953)................................................................................................ 15

 

The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124 (1996)....................................................................... 16

 

The Declaration of Independence (U.S. 1776)....................... 12

 

Alexander Hamilton, Federalist No. 76 (Jacob E. Cooke ed., 1961) (1788)      11, 12, 24

 

Alexander Hamilton, Federalist No. 77 (Jacob E. Cooke ed., 1961) (1788)      10, 11

 

Inventions International Exposition,

18 Op. Att'y Gen. 171 (1885).............................................................. 16

 

U.S. Department of Justice Office of Legal Counsel, Officers of the United States Within the Meaning of the Appointments Clause, at 1  2007 WL. 1292268 (O.L.C.).................................................................................. 18, 19, 22

 

 


PERTINENT STATUTES, RULES, AND REGULATIONS

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.

 


STATEMENT OF INTEREST

          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.


INTRODUCTION

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.

STATEMENT

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[1] 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.

 


SUMMARY OF ARGUMENT

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.


ARGUMENT

          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.[2]  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.

I.                  The History And Purpose Of The Appointments Clause Highlights The Importance Of Political Accountability Through Congressional Involve-ment In The Selection Of Both Principal And Inferior Officers.

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.

A.               The Special Counsel’s Appointment Violates the Excepting Clause by Creating a New Office and Determining How to Fill It—Duties Constitutionally Delegated to Congress Alone.

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.[3]  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.

B.               The Special Counsel Did Not Merely Perform Governmental “Functions” Delegated by the Attorney General.

          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.

C.               The Duties of the Special Counsel Are Not “Germane” to the Duties of the U.S. Attorney for the Northern District of Illinois, for Which He Was Confirmed by the Senate.

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.[4]

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).[5]  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.

III.           The Appointment Of The Special Counsel Violates The Appointments Clause Because The Special Counsel Is A Principal Officer Under Either Morrison v. Olson Or Edmond v. United States.

          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.

A.               The Decision Below Is Inconsistent with Morrison.

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.

B.               The Decision Below Is Inconsistent with Edmond.

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.


CONCLUSION

          For the foregoing reasons, the district court’s judgment should be reversed.

                                                       Respectfully Submitted.

 

 

              /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

 

 

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

 

 

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:

                                                         

Lawrence S. Robbins

Hon. Patrick Fitzgerald

Roy T. Englert

  Office of Special Counsel

Mark T. Stancil

  Bond Building

  Robbins, Russell, Englert, Orseck

    & Untereiner LLP

  1400 New York Avenue, N.W.

  Ninth Floor

  1801 K Street, NW

  Washington, D.C. 20530

  Suite 411

  (202) 514-1187

  Washington, DC 20006-1322

 

  (202) 775-4500

 

 

Counsel for Defendant-Appellant

I. Lewis Libby

Counsel for Plaintiff-Appellant

United States of America

 

                  

 

                                                                              /s/ Steffen N. Johnson              

 

 



[1] Fitzgerald had already been nominated by the President and confirmed by the Senate for his position as U.S. Attorney for the Northern District of Illinois.

[2]  For example, he could have (among other things) allowed career prosecutors in the Department to continue the investigation, petitioned Congress for statutory authority to conduct the investigation outside of the established procedures, or appointed a special counsel pursuant to Department regulations (28 C.F.R. Part 600).

[3] See 1 Sir William Blackstone, Commentaries on the Laws of England ch. vii at 260-261 (1765-69); 1 William W. Crosskey, Politics and the Constitution in the History of the United States 419-420 (1953).

[4] This broad grant of authority is one of many factors that distinguish Fitzgerald from a special counsel appointed pursuant to 28 C.F.R. Part 600.  Counsel appointed under Part 600 exercise the same “investigative and prosecutorial functions of any United States Attorney” (id. at § 600.6)—not the “plenary” authority of the Attorney General—and they do so under far more supervision and control than Fitzgerald.  Id. at § 600.7.  An appointment pursuant to Part 600, therefore, does not raise the constitutional problems presented here.

[5] Available at:

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/2mcrm.htm