Libby's lawyers declare Patrick Fitzgerald unconstitutional

As judge hears motion on classified documents, Libby's defense team moves to have the case dismissed entirely.

Published February 24, 2006 1:47PM (EST)

Lawyers for Scooter Libby go to court today to argue that they're entitled to access to thousands of pages of classified documents that have little, if anything, to do with whether he told the truth to FBI agents and Patrick Fitzgerald's grand jury. It's the first step in what will almost certainly be a two-step process: If U.S. District Court Judge Reggie Walton refuses to hand over the documents, Libby lawyer's will likely seek to have the case against their client dismissed on the ground that he can't receive a fair trial without them.

But why wait for that?

A day ahead of the discovery hearing, Libby's lawyers moved Thursday to have the case dismissed on other grounds, arguing that Patrick Fitzgerald's appointment -- and the way in which he has used it -- violated the appointments clause of the U.S. Constitution. The appointments clause says that the president shall appoint "officers" of the United States with the advice and consent of the U.S. Senate, but that Congress can grant the president, the courts or heads of departments the power to appoint "inferior officers" as it sees fit. Libby's lawyers argue that Fitzgerald's job as special counsel falls within the first of these categories. Therefore, they say, he should have been nominated by the president and confirmed by the Senate, not put in place unilaterally by then Deputy Attorney General James Comey after then Attorney General John Ashcroft recused himself.

It's a variation on an argument the Supreme Court rejected in 1988 when it upheld the independent counsel law in Morrison v. Olson, and at least one legal expert says it's unlikely to have much traction now. "I think it's a nice try, but I don't give it much chance of success," Scott Fredericksen, an associate independent counsel during the Reagan administration, tells the Washington Post.

In addition to assessing the odds on Libby's lawyers' latest motion, the Post checks in on the state of Fitzgerald's investigation. The paper says Fitzgerald is still investigating whether Karl Rove made false statements about his role in Valerie Plame's outing, and that he's also looking into why "a Bush administration official who had previously testified in the investigation" didn't tell him until November 2005 that he had told the Post's Bob Woodward about Plame in June 2003.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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