Is Fitzgerald's Appointment As Special Counsel A Close Constitutional Question?
Posted on Sun Jun 10, 2007 at 11:25:04 AM EST
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Somewhat lost in the pleasure that Judge Walton's now famous footnote has provided, is the question of whether law professors make a credible argument that Fitzgerald's appointment runs afoul of the Appointments Clause of the Constitution. The law professors argue:
The dispositive Constitutional question then is whether the Office of Special Counsel to which Mr. Fitzgerald was appointed is inferior office within the meaning of the Appointments Clause.
If it is not an "inferior" office, all agree, then it is subject to Presidential appointment and Senate confirmation. But there is more to it than that. Patrick Fitzgerald was a duly appointed and confirmed U.S. Attorney. Does that matter? Not only does it matter, it decides the case imo. Let's explore these issues on the flip.
The amici argue that Morrison v. Olson is not an on point precedent and instead point to Edmond v. United States. In Edmond, the Court wrote:
We must determine in this case whether Congress has authorized the Secretary of Transportation to appoint civilian members of the Coast Guard Court of Criminal Appeals, and if so, whether this authorization is constitutional under the Appointments Clause of Article II.
Wait a second. The amici argued Morrison was not an on point precedent because it involved a Congressional act. It is hard to see how Edmond becomes an on point precedent on this distinction. It involves appointment power granted by congressional act. I suspect the amici like the language of Edmond better for their argument than the language of Morrison. Let's e see what they like about it. Well it can't be this:
In Weiss v. United States, 510 U.S. 163 (1994), we considered whether the assignment of commissioned military officers to serve as military judges without reappointment under the Appointments Clause was constitutional. We held that military trial and appellate judges are officers of the United States and must be appointed pursuant to the Appointments Clause. Id., at 170. We upheld the judicial assignments at issue in Weiss because each of the military judges had been previously appointed by the President as a commissioned military officer, and was serving on active duty under that commission at the time he was assigned to a military court. We noted, however, that "allowing civilians to be assigned to Courts of Military Review, without being appointed pursuant to the Appointments Clause, obviously presents a quite different question." Id., at 170, n. 4.(Emphasis supplied.)
Wait a second. Fitzgerald was "previously appointed by the President as a [United States Attorney], and was serving [as such] at the time he was assigned to [act as US Attorney to investigate the Plame leak case.]" Why are the amici not focued on Weiss? Because Weiss demolishes their argument:
We begin our analysis on common ground. The parties do not dispute that military judges, because of the authority and responsibilities they possess, act as "officers" of the United States. See Freytag v. Commissioner, 501 U. S. ___, (1991) (concluding special trial judges of Tax Court are officers); Buckley v. Valeo, 424 U.S. 1, 126 (1976) ("[A]ny appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States,' and must, therefore, be appointed in the manner prescribed by [the Appointments Clause]"). The parties are also in agreement, and rightly so, that the Appointments Clause applies to military officers. As we said in Buckley, "all officers of the United States are to be appointed in accordance with the Clause. . . . No class or type of officer is excluded because of its special functions." Id., at 132 (emphasis in original). It follows that those serving as military judges must be appointed pursuant to the Appointments Clause. All of the military judges involved in these cases, however, were already commissioned officers when they were assigned to serve as judges, [n.4] and thus they had already been appointed by the President with the advice and consent of the Senate. [n.5] The question we must answer,therefore, is whether these officers needed another appointment pursuant to the Appointments Clause before assuming their judicial duties. Petitioners contend that the position of military judge is so different from other positions to which an officer may be assigned that either Congress has, by implication, required a second appointment, or the Appointments Clause, by constitutional command, requires one. We reject both of these arguments.(Emphasis supplied.)
And this is the rub for the amici. They are repeating the argument made in Weiss. Fitzgerald was already an appointed and confirmed United States Attorney when Acting Attorney General Comey appointed him as Special Counsel to investigate the Plame leak matter.
Comey invoked 28 U.S.C. Section 510 when he appointed Fitzgerald:
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.
Clearly the appointment of Fitzgerald falls within the powers conferred by this law. And yet, the amici utterly fail to address 28 U.S.C. Section 510. It seems to me that they are bound to argue that this law is an unconstitutional violation of the Appointments Clause to have any reasonable argument here. But they failed to do so. I think the answer why is clear. Because Weiss does not permit the argument. Weiss held that the Appointments Clause did not require a second appointment:
Petitioners' alternative contention is that even if Congress did not intend to require a separate appointment for a military judge, the Appointments Clause requires such an appointment by its own force.. . . "[T]he argument is, that while Congress may create an office, it cannot appoint the officer; that the officer can only be appointed by the President with the approval of the Senate. . . . As, however, the two persons whose eligibility is questioned were at the time of the passage of the act . . . officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it has frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed." Id., at 300-301.
. . . By looking to whether the additional duties assigned to the offices were "germane," the Court sought to ensure that Congress was not circumventing the Appointments Clause by unilaterally appointing an incumbent to a new and distinct office. But here the statute authorized an indefinite number of military judges, who could be designated from among hundreds or perhaps thousands of qualified commissioned officers.
. . . Even if we assume, arguendo, that the principle of "germaneness" applies to the present situation, we think that principle is satisfied here. . . . Although military judges obviously perform certain unique and important functions, all military officers, consistent with a long tradition, play a role in the operation of the military justice system. . . .
Fitzgerald was carrying out the exact role for which he was appointed and confirmed. There is nothing new in what Fitzgerald did in the Plame investigation that he did not do every day in his role as U.S. Attorney for the Northern District of Illinois.
The discussion of whether Fitzgerald was appointed to an office requiring appointment is a red herring. The very cases that the amici cite for their argument demonstrate this. Fitzgerald would not need a second appoint and confirmation process to act as Special Counsel.
In short, the amici, who couch their brief in language of law professors expressing Constitutional concern, have merely rehashed a bad argument made by Libby's principal attorneys in poor and incomplete fashion. It is a bad piece of work.
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