Team Libby’s valiant attempt at a Hail Mary Technicality Defense is amply padded, but it doesn’t pass the smell test for me for a couple of very good reasons: statutory interpretation and recitation of facts ought to be accurate when you are making this sort of argument, and I have to say that Team Libby fails on both counts in a number of places.
First, though, a huge thank you to Tom Maguire for hosting the PDFs of all the related docs on Just One Minute. Bless you, Tom! (And a big hat tip to Jeralyn for the heads up that Tom had them posted. Thanks!)
Now, onto the substance of why I think Team Libby’s motion is bound for failure.
Under 28 USC Sections 509, 510, and 515, the Attorney General and his designee (in this particular case, James Comey) have the authority to vest investigative powers, including that of grand jury power and otherwise, in DoJ employees for whatever purposes the Attorney General deems necessary and appropriate.
See, for example, 28 USC Sec. 510:
The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.
And then read 28 USC Sec. 515(a):
§ 515. Authority for legal proceedings; commission, oath, and salary for special attorneys
(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought.
Now I know this is old ground for some of our regular Traitorgate readers, but I wanted to cover it again because the statutory language is fairly clear on its face. And when you take a walk through the federal regs on this — in the 28 CFR 600 series — you see that there are quite a few rules and regs for everyone involved.
Jane covered some of the ethical quandries involved and the transfer from Comey to Margolis at the time that Comey left the DoJ for private employment.
And the rule of thumb in legal arguments is, where the statute and regulations are clear on their face, you go with the common meaning of the statutes and regs.
Thus, Team Libby’s argument that Fitzgerald’s appointment powers do not reconcile with the Edmond v. US, 520 US 651, 662-63 (1997) (which deals with the prior Independent Counsel law, not the special counsel appointment powers, just FYI) is disengenuous, at best. (And the fact that they rely on the Restatement of Agency to impugn to supervisory role of Comey and then Margolis, well let’s just say it’s not exactly a slam dunk or anything, either.)
The one truly intriguing bit is buried on Page 17 of Team’s Libby’s response (Tom has this as a PDF):
For example, it only recently came to light that the Special Counsel learned as early as February 2004 who disclosed the CIA identity of Valerie Plame Wilson to Robert Novak.
Hmmmm…well, that opens up a whole, huge line of questions, doesn’t it? Not the least of which is who told Fitz and what has been the obstacle to charging this person? Jeralyn caught this as well, and I have to agree with her — I can’t recall anywhere that we’ve known this publicly, despite a cursory search through my notes and documents. And I have to suspect that this has come to light for Team Libby in the recently disclosed discovery since Libby’s indictment.
As I reported back in October, there are a lot of potential charges in the offing, so you have to think that Fitzgerald’s comments at the press conference after the Libby indictment were carefully said:
I also want to take away from the notion that somehow we should take an obstruction charge less seriously than a leak charge.
This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.
Which begs the question: why is Team Libby disclosing this publicly now? What purpose does this serve for them — a warning shot across Official One’s bow? Across the Administration’s? Across Rove’s? Yep, lotsa questions.
More on all of this from DailyKos here and here. And the AP’s take on the Team Libby motion is here. And for the GAO’s interpretation of the appropriateness of the Fitz appointment and his spending power under the federal regs, read here. For Comey’s initial appointment letter, see here.
(Huge thanks to Valley Girl for sending me the signature gif of Fitz’s "Very truly yours.")