Motion to Dismiss Indictment—Scooter Libby

The investigation into who leaked the identity of Valerie Plame has taken an interesting turn. “Scooter” Libby and his lawyers have asked a federal judge “to dismiss his indictment, arguing that the special prosecutor in the CIA leak case lacked authority to bring the charges.”^[1] According to Mr. Libby and his lawyers, “Special Counsel Patrick J. Fitzgerald was improperly appointed by the Justice Department instead of the president to investigate the leak.”^[2]

The Libby defense claim “is similar to a challenge the Supreme Court rejected by a vote of 7-1 in 1988.”^[3] That case was Morrison v. Olson which involved the Justice Department seeking to “quash subpoenas of its officials by an independent counsel.”^[4]

At the end of 2003, James B. Comey, the Acting Attorney General, delegated “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” to Mr. Fitzgerald.^[5] Mr. Comey did this under the auspices of 28 U.S.C. §§ 509, 510, and 515.

Sections 509 and 510 refer to the ability of the Attorney General to delegate power. Section 515 is the key statute here, because it states that the Attorney General “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 … 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.”^[6]

Mr. Libby’s motion to dismiss directly attacks the ability of the DOJ to delegate responsibility. Citing the Appointments Clause of the Constitution, Mr. Libby argues that “no person may assume the power of a principal officer of the United States unless he or she has been appointed to that office by the President with the advice and consent of the Senate. … Further, 28 U.S.C. §§ 516 and 519 provide that no federal officer may represent the United States in litigation without the Attorney General’s direction and supervision unless the Congress has expressly authorized it.”^[7]

Section 516 states that “[e]xcept as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefore, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” Section 519 states that “[e]xcept as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of [title 28] in the discharge of their respective duties.”

Mr. Libby points out that Mr. Fitzgerald’s charter states that he “operates ‘independent of any supervision or control of any officer’ within the Department of Justice or elsewhere,” which makes him a principal officer for Appointments Clause purposes.^[8]

In the end, this motion will come down to whether the Attorney General can delegate Attorney General-like powers to a person who is not the Attorney General, and most commentators believe the motion will fail.^[9]

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[1] Libby’s Lawyers Seek to Dismiss His Indictment, LA Time, Feb. 24, 2006.
[2] Carol D. Leoning, Special Counsel in Plame Case Invalid, Libby Contends, Wash. Post, Feb. 24, 2006.
[3] Id.
[4] Id.
[5] James B. Comey, Letter to Patrick Fitzgerald, Dec. 30, 2003.
[6] 28 U.S.C. § 515(a).
[7] Motion of I. Lewis Libby to Dismiss the Indictment and Memorandum in Support Thereof, United States v. Libby, No. 1:05-cr-00394 at 1 (D.C. Cir. 2006) (available through ECF).
[8] Id. citing Edmond v. United States, 520 U.S. 651, 662-63 (1997).
[9] See LA Times, supra note 1; Leoning, supra note 2.