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You retreated to your credential to try to support your argument because it was becoming clear you spouted off an opinion before really understanding the specific issue I was raising.

And that’s fine, that’s what internet chats are for - an ad hoc quick take on something.

But I think it’s a poor idea generally for lawyers to claim to be speaking as lawyers when posting on boards like this because we typically don’t go through the careful work we do for a client in terms of understanding all the facts and thoroughly researching the legal authorities before giving a legal opinion.

And I haven’t either on this point. I haven’t done the same level of thinking and research on this issue I would do for a paying client.

But I did go back and read the regulations and the statute and I was already familiar with the Morrison v Olson case.

Will my argument prevail? It’s a legitimate issue. It’s not the same issue litigated in Morrison v. Olson.

Yes, to some extent, one could characterize what I am pointing to as a drafting flaw that could have been avoided through more careful language in the regulations. A lot of judges will not be sympathetic to invalidating a criminal prosecution on what might appear to them a technicality.

On the other hand, since Morrison v. Olson a lot of opinion has swung in favor of Scalia’s dissent, and as we saw with Judge Ellis, judges may be willing to take a closer look at a situation if it appears to be the case of someone assuming unfettered power without proper authorization.

I do hope this issue is properly framed, argued and resolved in this set of cases.