TREASONGATE: Comey Clarifies Fitzgerald's Plenary Authority

Saturday, October 22, 2005
TREASONGATE: Comey Clarifies Fitzgerald's Plenary Authority
http://citizenspook.blogspot.com/

On August 8th, 2005, I wrote a very detailed legal analysis explaining why Fitzgerald cannot "legally" be fired by Bush or anybody in the DOJ as the "Special Prosecutor" for Treasongate offenses. I explained that Fitzgerald wears two hats, US Attorney for the Northern District of Illinois AND Special Prosecutor for the Plame leak investigation. As US Attorney he can be fired at any time by Bush.

As Special Prosecutor he cannot be fired. Why? Read my August 8th, 2005 article for the detailed answer including extensive links.

The short version goes something like this:

Fitzgerald's plenary authority was delegated to him by acting Attorney General James Comey. Two official DOJ letters were used by Comey to establish Fitzgerald as the "Acting US Attoney General" in this matter. That means he is effectively the Attorney General for this case and he doesn't have to answer to anybody.

OK, but even the Attorney General can be fired by the President. This is true. So why can't Bush fire Fitzgerald even if Fitz is the Acting Attorney General with plenary authority?

That's where the Government Accountability Office (GAO) comes in. The DOJ made a very extensive argument to the GAO that Fitzgerald has all of the power of an Independent Counsel (like Ken Starr when he was investigating Clinton). Even though the Indepenent Counsel law has expired, DOJ argued that under this set of facts and this unique delegation of power from Comey to Fitzgerald, the GAO should recognize Fitzgerald as having all the power of an Independent Counsel so that unlimited funds could be released to Fitzgerald so this investigation could be properly conducted.

The GAO bought this argument and granted the funds on this basis. Read the GAO decision here.

How does this effect the possibility of Fitzgerald being fired?

If DOJ and the GAO both agree that Fitzgerald has all the power of an Independent Counsel then Fitzgerald cannot be fired because under the Independent Counsel law, an Independent Counsel could not be fired.

Bush and DOJ cannot "legally" fire Fitzgerald. But they can try to illegally fire him. However, they are already on the record, via the zealous arguments by DOJ to the GAO, insisting that Fitzgerald should be treated like an Independent Counsel operating under the expired Independent Counsel law.

For the DOJ to turn around and now argue that Fitzgerald does not have that power would be the same as admitting they flat out lied to the GAO and all of their arguments are bullshit. Fitzgerald, were he to fight the DOJ after illegally firing him, would dismantle them in court with their own arguments and legal citations. He wouldn't even have to come up with one single argument defending himself, DOJ (and by extension Bush) has already made his case to the GAO.

Yesterday, Fitzgerald launched his own web site as Special Counsel. It's very interesting to see that the first three documents listed at the site are the three letters on official DOJ letterhead from Comey delegating plenary authority to Fitzgerald.

Whoops, did I say three letters? Yes, I did. But, in my original article of August 8th, 2005 I only mentioned two letters.

GREEK CHORUS: "Spook, why didn't you mention three letters?"

Because at the time I wrote the article only two delegation letters existed.

However, four days after my article was published (August 8th, 2005), Comey issued a third delegation of authority to Fitzgerald. This letter was issued on August 12, 2005. And it only came to my attention yesterday when it was published at Fitzgerald's new web site.

Apparently, since the original delegation letters were issued, and the GAO decision came down, Comey was finally able to answer the question of whether he, or anybody taking his place at DOJ, could fire Fitzgerald or revoke his authority. And Comey has decided that Fitzgerald's authority cannot be retracted or modified .

I quote Comey's letter of August 12, 2005, written just before he resigned, delegating to his replacement the authority of deputy Attorney General:

"In the attached correspondence to Patrick Fitzgerald, United States Attorney for the Northern District of Illinois, dated December 30, 2003, and February 6, 2004, I delegated to Mr. Fitzgerald all of the authority of the Attorney General, with respect to the Department's investigation in the alleged unauthorized disclosure of a Central Intelligence Agency employee's identity. By virtue of the authority vested in me as Deputy Attorney General under the law...I delegate to you all of my authority as acting Attorney General with respect to that investigation and Mr. Fitzgerald's service as Special Counsel, as dilineated in that correspondence. This delegation to you in no way retracts or modifies the scope of the prior delegations of authority to Mr. Fitzgerald."

By Citizen Spook
citizenspook@hotmail.com

FURTHER COMMENTS ON TREASONGATE FOR OCTOBER 22, 2005
http://citizenspook.blogspot.com/