Tom Maguire notes an amicus brief filed in the Libby case by some of the heaviest hitters in constitutional law including Judge Robert Bork and Alan Dershowitz. They argue that Independent Counsel Patrick Fitzgerald’s powers were too broad for him to have been considered to be an “inferior Officer” under the Appointments Clause (Art. II. §2, cl. 2). Congress can allow the President to hire such “inferior Officers” alone, but anyone who has more power than that must be nominated by the President and confirmed by the Senate.
As the brief states:
With no supervisor, Special Counsel Fitzgerald is too independent to make his supposed “superiors” politically accountable for his actions, and it is at the very least a close question whether the mere power of removal does anything to solve the problem.
The United States relied on Morrison v. Olson, 487 U.S. 654 (1988) as their controlling authority for finding that Fitzgerald’s appointment was constitutional. However, the amici in this case find reason to believe that Morrison is bad law that should be overturned. While Morrison was an 7-1 decision (with Justice Scalia dissenting and Justice Kennedy abstaining), there’s reason to believe that today’s Court would be less likely to uphold the rule established in Morrison. The only Member of the Morrison majority left is Stevens. It’s quite possible that the closeness of the legal question at stake in Morrison is enhanced by the changed face of the Supreme Court.
In Justice Scalia’s dissent in Morrison, he notes that the Independent Counsel in that case could not be reasonably construed to be an inferior officer under the Appointments Clause because of the lack of accountability to another member of the Executive Branch. The very same analysis applies to Patrick Fitzgerald in the Libby case. Even though Fitzgerald could be removed, his powers were not constrained by a superior officer in the Justice Department or the Executive Branch.
Scalia noted in his dissent that even in cases where a branch was investigating itself, the Constitution did not allow them to delegate their Constitutional duties to another. As Scalia observed: “A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.” Id. at 710. In this case, the Executive Branch may have wanted to give Fitzgerald independence from the Executive Branch, but in so doing they cannot diminish the executive power granted to the Presidency under the Constitution — even for seemingly good reason.
This issue does present a close case under the Constitution, and it is very likely that the current Court may see the issue of Fitzgerald’s appointment differently than the Morrison case did. Given the change in the Court and the legal circumstances between Morrison and today, it seems somewhat likely that this case may be on the Supreme Court’s docket in the future and that Morrison may yet be overturned.
In any event, what Fitzgerald did was a classic case of prosecutorial overreach. While a jury did find Mr. Libby guilty, the way in which the system was abused in this investigation goes well beyond Mr. Libby’s guilt or innocence. Ensuring that such gross misuses of prosecutorial discretion do not become the norm is a critical issue for the rule of law in this country.