Posted on 02/23/2006 7:56:53 AM PST by PJ-Comix
Office of the Deputy Attorney General
Washington, D.C. 20530December 30, 2003
The Honorable Patrick J. Fitzgerald
United States Attorney
219 S. Dearborn Street
Chicago, IL 60604Dear Patrick,
By the authority vested in the Attorney General by law, including 28 U. S .C. §§ 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. § 508, I hereby delegate to you 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, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department.
/s/ James B. Comey
James B. Comey
Acting Attorney General
http://www.usdoj.gov/usao/iln/osc/documents/ag_letter_december_30_2003.pdf
Office of the Deputy Attorney General
Washington, D.C. 20530February 6, 2004
The Honorable Patrick J. Fitzgerald
United States Attorney
Northern District of Illinois
219 S. Dearborn Street
Chicago, Illinois 60604Dear Patrick:
At your request, I am writing to clarify that my December 30, 2003, delegation to you of "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" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue. Further, my conferral on you of the title of "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.
Sincerely,
/s/ James B. Comey
James B. Comey
Acting Attorney General
http://www.usdoj.gov/usao/iln/osc/documents/ag_letter_feburary_06_2004.pdf
By "specific," I meant that it was focused on the Plame leak and associated contingent events.
I haven't studied the legal argument that the DoJ's grant of power to Fitzgerald is fatally flawed. If it is, Miller must be kicker her lawyers' asses right about now. ANd I've got to wonder just how incompetent the government is, if it can't even get appointment of a prosecutor "right."
Well, you see he read it differently, In his January 23 affidavit Fitz said he only investigated leaks against the "whistleblower"lyin'Joe and not the leaks by lyin Joe and his gang against teh Administration. Moreover, he admits other reporters and others generally knew about Plame, but he only considered relevant those reporters who Libby recalled speaking with.
Since at the heart of the case is whether the CIA took sufficient steps to protect her identity from disclosure, I regard that as another crackpot notion of his.
yup , and "great post!"
... I hope Libby's team doesn't let Fitz just do an OliverHardy ,...
... sort of an Emily Latella/Oliver Hardy "nevermind" , with a flip of the necktie
Grant above, statutory provisions and other material below.
28 U.S.C. § 508. VacanciesThis section is used by AG Comey to assert that in the matter of appointing Fitz, he is acting in the capacity of AG. I am guessing that Libby's argument might be that the DoJ can't "delegate the delegator power," where the authority to delegate is found in 28 U.S.C. § 510. The only way the authority to delegate can be transferred to the Assistant AG is by vacancy (and maybe by absence or disability).(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.
(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.
There was a press conference on the day that Comey appointed Fitz, and the relationship of Ashcroft to Comey, and of Comey to Fitzgerald were discussed therein.
The first development is that effective today, the attorney general has recused himself and his office staff from further involvement in this matter. By that act, I automatically become the acting attorney general for purposes of this case with authority to determine how the case is investigated, and if warranted by the evidence, prosecuted.The attorney general, in an abundance of caution, believed that his recusal was appropriate based on the totality of the circumstances and the facts and evidence developed at this stage of the investigation. I agree with that judgment. And I also agree that he made it at the appropriate time, the appropriate point in this investigation.
The second development is that prior to his recusal, the attorney general and I agreed that it was appropriate to appoint a special counsel [read: special prosecutor] from outside our normal chain of command to oversee this investigation.
By his recusal, of course, the attorney general left to me the decision about how to choose a counsel, who that person should be and what that person's mandate should be. In anticipation of this development, I have given a great deal of thought to this in recent days and have decided that, effective immediately, the United States attorney for the Northern District of Illinois, Patrick J. Fitzgerald, will serve as special counsel in charge of this matter. I chose Mr. Fitzgerald, my friend and former colleague, based on his sterling reputation for integrity and impartiality. He is an absolutely apolitical career prosecutor. He is a man with extensive experience in national security and intelligence matters, extensive experience conducting sensitive investigations, and in particular, experience in conducting investigations of alleged government misconduct.
I have today delegated to Mr. Fitzgerald all the approval authorities that will be necessary to ensure that he has the tools to conduct a completely independent investigation; that is, that he has the power and authority to make whatever prosecutive judgments he believes are appropriate, without having to come back to me or anybody else at the Justice Department for approvals. Mr. Fitzgerald alone will decide how to staff this matter, how to continue the investigation and what prosecutive decisions to make. I expect that he will only consult with me or with Assistant Attorney General Ray, should he need additional resources or support
You should know that as I thought about this matter in recent days, I considered other alternatives. I first considered having the matter handled by Assistant Attorney General Ray and myself acting as ultimate supervisors and decision-makers.
You will not be surprised to learn that I have great confidence in my own ability to be fair and impartial. I also have complete confidence in Chris Ray's ability to be fair and impartial. He is -- those of you who don't know him, he is a total pro and one of the people who makes this department great.
But as I said, both the attorney general and I thought it prudent -- and maybe we are being overly cautious, but we thought it prudent to have the matter handled by someone who is not in regular contact with the agencies and entities affected by this investigation. As part of our counterterrorism responsibilities, Assistant Attorney General Ray and I work every single day with the national security intelligence community here in Washington. Mr. Fitzgerald, in Chicago, does not. ...
http://news.findlaw.com/hdocs/docs/doj/comey123003doj-pconf.html
28 U.S.C § 509. Functions of the Attorney GeneralAndrew McCarthy has a basic rebuttal to Libby's argument at ...All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions--
(1) vested by subchapter II of chapter 5 of title 5 in administrative law judges employed by the Department of Justice;
(2) of the Federal Prison Industries, Inc.; and
(3) of the Board of Directors and officers of the Federal Prison Industries, Inc.28 U.S.C. § 510. Delegation of authority
The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.
28 U.S.C. § 515. Authority for legal proceedings; commission, oath, and salary for special attorneys
(a) The Attorney General or any other officer of the Department of Justice, 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 and proceedings before committing magistrate judges, 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.
(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.
http://corner.nationalreview.com/06_02_19_corner-archive.asp#090789
http://corner.nationalreview.com/06_02_19_corner-archive.asp#090811
http://corner.nationalreview.com/06_02_19_corner-archive.asp#090823
http://corner.nationalreview.com/06_02_19_corner-archive.asp#090839
Mark Levin has the most concise description of Libby's argument I have seen (assuming it is an accurate take) ...
The delegation of authority to Fitzgerald could not have been withdrawn at any time by the attorney general as he recused himself. While the current attorney general could pull Fitzgerald's appointment, to do so would result in the kind of firestorm not seen since the Saturday Night Massacre. But that's not Libby's problem. He's questioning the constitutionality of the assignment of the attorney general's power to a subordinate by a subordinate.If Andy is right, than succeeding attorneys general have been wrong. They needn't have spent so much time worrying about appointments and succession -- especially the mechanism for appointing what we used to call "regulatory special counsel." I am less impressed with analogies all both sides to the Independent Counsel Act and more impressed with arguments relating to the fundamental constitutional authority of an inferior constitutional official trying to confer upon another inferior constitutional official the authority of a superior constitutional official. Under the Independent Counsel Act, the special appellate division made the selection per statute. In this case, Fitzgerald may have skirted the statutory or regulatory process. Time will tell.
http://corner.nationalreview.com/06_02_19_corner-archive.asp#090861
I still haven't studied the arguments to the point that I have a reasoned opinion that I could rephrase in my own words, or that I could carry on a casual conversation on the subject. But that being said, I think McCarthy's arguments represent the more likely conclusion -- that this argument of Libby's will not prevail. I think the bottom for that will be that Fitz's grant of authority while deep in the sense that he could act as prosecutor, was narrow in that the assignment was limited to investigation of the Plame leak. He wasn't free to pick and choose cases - he was charged with one quite specific assignment, "find out who leaked Plame, and bring indictments if the facts support."
Actually Clinton (or any President) is immune from a civil lawsuit for any actions he took as president. Ernest Fitzgerald (no relation to US Attorney Patrick or former Senator Peter) was a Pentagon whistlerblower who the Nixon adminstration tried to discredit. When EF sued Nixon, the Supreme Court tossed the case, basically laying out the rule what the president does in office is immune from a civil suit.
Paula Jones was suing Clinton for a tort that occurred BEFORE he was President. Not really relevant to the present case (Bush isn't being charged, and in any event, its a criminal case). Its just that Jones couldn't be awarded any damages for Clinton slandering her while he was president.
Having said that, Clinton was such an idiot. Starr wasn't a very good prosecutor (as cboldt mentioned, Fitzgerald would have been much more aggressive on stonewalling witnesses), if Clinton had just kept his hands off of Monica, he would have skated on everything.
McCarthy is being foolish and looking wacked out--out of loyalty to his friend Fitzgerald. The arguments in Libby's motion to dismiss are solid..This delegation was to a "principal" position by someone in an "inferior position" and could not be done. Aside from the flaws in the delegation process, the utter lack of oversight except nominally from another person in an inferios position (Margolis, Comey's assistant and former Kennedy staffer) did not meet the oversight requirements of the Special Counsel Act.In fact, Fitz ended up with more power than the Independent Counsels under the old act ever had.
So, the investigators are looking ONLY at 18 USC 793 et seq, and not considering the "whodunnit" part until it is clear a criminal leak or publication took place? Or just that there won't any interviews until there is clarity that all elements of the crime are reasonably within proving distance?
Federal prosecutors will focus their examination on who may have unlawfully disclosed classified information about the program to the New York Times, which reported two weeks ago that Bush had authorized the National Security Agency to monitor the international telephone calls and e-mails of U.S. citizens and residents without court-approved warrants, officials said.
If it's true that they are not interviewing anyone until they first establish that the Espionage Act can cover such a situation, I have to ask "Why worry about 'who' until there is clarity that the 'what' of the crime is within proving distance?"
Inquiry Into Wiretapping Article WidensPlease notice in the investigation of the NSA leak, the prosecutors have said they are following the logical order I think Fitz should have--first determining whether had there been a leak, the law would have been violated. ...
By DAVID JOHNSTON - NYTWASHINGTON, Feb. 11 Federal agents have interviewed officials at several of the country's law enforcement and national security agencies in a rapidly expanding criminal investigation into the circumstances surrounding a New York Times article published in December that disclosed the existence of a highly classified domestic eavesdropping program, according to government officials.
http://www.freerepublic.com/focus/f-news/1576579/posts
NSA Senate Hearings of February 6, 2006GRASSLEY: Thank you very much.
I'm going to start with something that's just peripheral to the issues we're on, but it does deal with our national security, and it's the leak of this information to the New York Times. And I'm greatly concerned about this. And these leaks could be putting our nation's safety into serious jeopardy.
Could you tell us what is being done to investigate who leaked this national security information and whether the Department of Justice will initiate a prosecution of an individual leaking the information?
GONZALES: Senator, we have confirmed the department has initiated an investigation into possible crimes here. And consistent with department practice, I'm not going to talk much further about an ongoing investigation.
Obviously, we have to look at the evidence, and if the evidence shows that a crime has been committed, then obviously we'll have to make a decision about moving forward with a prosecution. ...
CORNYN: Let me turn to another subject that's caused me a lot of concern, and that is our espionage laws and the laws that criminalize the intentional leaking of classified information.It's my understanding from the news reports that the Department of Justice has undertaken an investigation to see whether those who actually leaked this program to the New York Times or any other media outlet might have violated our espionage laws.
CORNYN: Is that correct?
GONZALES: I can confirm, Senator, that an investigation has been initiated.
CORNYN: Does that investigation also include any potential violation for publishing that information?
GONZALES: Senator, I'm not going to get into specific laws that are being looked at. But, obviously, our prosecutors are going to look to see all the laws that have been violated. And if the evidence is there, they're going to prosecute those violations.
CORNYN: Well, you may give me the same answer to this next question.
But I'm wondering, is there any exclusion or immunity for the New York Times or any other person to receive information from a lawbreaker seeking to divulge classified information? Is there any explicit protection in the law says that if you receive that and you publish it, you are somehow immune from a criminal investigation?
GONZALES: Senator, I'm sure the New York Times has their own great set of lawyers, and I would hate in this public forum to provide them my views as to what would be a legitimate defense.
They said very specifically, they are not interviewing anyone until they first establish that the Espionage Act can cover such a situation.
116 posted on 02/24/2006 4:35:13 PM EST by the Real fifi
I'll get and post the NSA prosecutor's remarks in a few minutes.
118 posted on 02/24/2006 5:10:12 PM EST by the Real fifi
I'm looking forward to learning more about the new tone in investigative strategy.
Nothing about this--Inquiry Into Wiretapping Article Widens
By DAVID JOHNSTON - NYT
WASHINGTON, Feb. 11 Federal agents have interviewed officials at several of the country's law enforcement and national security agencies in a rapidly expanding criminal investigation into the circumstances surrounding a New York Times article published in December that disclosed the existence of a highly classified domestic eavesdropping program, according to government officials.--is inconsistent with the report I cited that no target or press investigations would take place until it was determined that any leak would violate the law.
Unless you presume as I don't the interviewing law enforcement and people at the national security agencies must mean they are NOT doing that to establish under what circumstances the law would be violated.
You mentioned it, but I haven't seen your citation. Therefore, I still haven't read the report that states no target or press investigations would take place until it was determined that any leak would violate the law.
I took your assertion fairly literally, that prosecutors would look at waht was published, and if that didn't represent fact that would support a criminal indictment, they would close shop. Read the papers, read the book, read and research the law, reach a "criminal or not" conclusion and move on.
And I agree, the NYT story (indeed, just about ANY investigation beyond reading) conflicts with that image.
--Nothing in-- [The Feb 11 NYT article] is inconsistent with the report I cited ...
The quote or cite at post 119 is from the same article.
The Justice Department took the unusual step of announcing the opening of the investigation on Dec. 30, and since then, government officials said, investigators and prosecutors have worked quickly to assemble an investigative team and obtain a preliminary grasp of whether the leaking of the information violated the law. Among the statutes being reviewed by the investigators are espionage laws that prohibit the disclosure, dissemination or publication of national security information.Unless you presume as I don't the interviewing law enforcement and people at the national security agencies must mean they are NOT doing that to establish under what circumstances the law would be violated.An FBI team operating under the direction of the bureau's counterintelligence division at FBI headquarters has questioned employees at the FBI, the National Security Agency, the Justice Department, the CIA and the office of the Director of National Intelligence, the officials said. In addition, prosecutors have taken steps to activate a grand jury in the case.
Yes, I did jump to a conclusion. I figure the DoJ is the legal expert, and need not interview anybody to determine the parameters of the law. I assumed that interviews at national security agencies would ask stuff like "did you talk to any reporters?," since any leak would have to come out of a national security agency in order to reach the NYT.
It could be a bad assumption on my part, and was a bad assumption if FBI investigators limited their inquiry to answering the question "Does anything in this NYT article or this book by Risen disclose a classified method or procedure used in the interception of communications?"
An FBI team operating under the direction of the bureau's counterintelligence division at FBI headquarters has questioned employees at the FBI, the National Security Agency, the Justice Department, the CIA and the office of the Director of National Intelligence, the officials said. In addition, prosecutors have taken steps to activate a grand jury in the case. ________
May be necessary to establish if the law was violated-i.e. what info was classified; did the agencies take the appropriate steps to keep it so; whether the content of the info was the kind of stuff covered by the espionage act..
Here's the best analogy I can think of to explain what Fitz did>
Let's assume the prosecutor had an idea Mr x had been murdered. He didn't go to the morgue to check if Mr X's body had been brought in. If he had he'd have found out that it hadn't. He didn't check with the police to see if they'd a report that Mr. X was dead. If he had he'd have found out they had no such information. He didn't even go to Mr X's house. If he had Mr. X was alive and often seen habituating the dives on Main Street.In fact, half the reporters in town had been drinking with him.
Instead of doing any of those things, the prosecutor empanels a grand jury. In the course of that gj, you are called as a witness and say reporters said that Mr X was seen on Main Street.The prosecutors ask which reporters. You say you can't remember perfectly, you speak to lots every day but you name those to the best of your knowledge. The prosecutor interviews some reporters. He picks which ones, and some knew and some didn't and two of them remember speaking to you about Mr X being alive. They say they didn't tell you. The prosecutor indicts you for perjury and obstruction.
Mr. X waves at you as you leave the courthouse.
I'm not one to defend Fitz, per se, as I agree the investigation should not have gone ahead. At the same time, I've tried to keep an open mind about why the extensive investigation into whodunnit occurred. The President was infoemed of and had opportunity to input the direction of the investigation. I wonder if he knew there was no way Plame was covert, and let the investigation go anyway.
And Fitz is not a DC insider, and seems to have trusted that the referral wasn't some crank call from the CIA. He'll kick his own ass some years down the road, I predict, for being so gullible. He might be doing that now.
But as a matter of Fitz's truthfulness to investigators, the indictment paints a picture much different from your advocacy analogy. A better one would be that I know X is alive, I know it for a FACT. But I mislead the investigator to think that, as far as I know, x is dead. After all, the investigator is prosecuting a murder.
We've had this discussion before ... http://www.freerepublic.com/focus/f-news/1569428/posts?page=70#70 <- read on from there
Is this the same Patrick Fitzgerald that helped write the indictment against OBL which tied al Qaeda with Iraq?
All of which is irrelevant to the inquiry of whether or not I told INVESTIGATORS that I KNEW FOR A FACT that "X" was alive.
You are morphing this back into a leak case - where a failure on the part of the investigator to determine "X"'s status, independent of my testimony, legitimizes my lie.
I;m saying that nothing was material and nothing could have obstructed anything..We have two different versions (minor differences) between 2 reporters and i man and none of them made a bit of difference because there never was a crime under the very specific narrow terms of the only applicable statute.
Very hard cheese. But folks gotta know there are many places where the law and common sense do NOT cross paths. The Scooter's wheels fell off at just such an intersection. His defense team is throwing smoke bombs and yelling "Whiplash," "Foul Ball," and everything else they can find.
If the Judge allows common sense to shine into this dark corner, Scoot has a shot. But, they don't pay judges for having common sense.
My prediction? I hope his defense team is smart enough to walk him out a free man. More likely? Scooter gets a very bloody nose and a huge fine. Payback from the friends of Sandy Berger.
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