Thursday, April 27, 2006

Libby Challenge to Fitzgerald Appointment as Special Counsel Rejected

U.S. District Judge Reggie Walton rejected I. Lewis Libby's challenge to the authority of Special Counsel Patrick Fitzgerald to conduct the investigation of the leak of Valerie Plame's identity as a covert CIA operative.  In a thirty-one page opinion (available below), the judge found wanting Libby's statutory and constitutional challenges to the appointment of Fitzgerald to oversee the investigation and seek his indictment.  First, the court held that the delegation of the Attorney General's authority to Fitzgerald was proper under 28 U.S.C. Sec. 510.  Second, under the Appointment's Clause in Article II, Judge Walton determined that Fitzgerald is an "inferior" officer for purposes of whether his appointment required the advice and consent of the Senate.  The opinion applies Morrison v. Olson, 487 U.S. 654 (1987), which upheld the appoint of an Independent Counsel under now-expired provisions of the Ethics in Government Act on the same ground.  The court noted in its conclusion that "[t]here must therefore be a process by which the perception of fairness withstands the scrutiny of the American public when prosecution authority is called upon to investigate public officials."  Libby will have to hold further challenges to Fitzgerald's authority until any appeal after a conviction because the judge's decision appears to come within the "collateral order" doctrine that prohibits interlocutory appeals of such issues in criminal cases, and it is unlikely Libby could succeed in bringing a mandamus action.  The battle will continue, but will move on to the myriad other fronts in the case. (ph)

Download libby_dismissal_opinion_april_27_2006.pdf

Judicial Opinions, Plame Investigation | Permalink

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