Judge Reggie B. Walton yesterday rejected the defense Motion to Dismiss filed by Lewis Libby. His opinion is deeply flawed, and I think the arguments made by Libby's counsel are compelling, so I hope a special interlocutory appeal is allowed before the end of the trial.

Criminal cases generally are not subject to appellate review 'until after conviction and sentence.' [See Flanagan v. United States, 465 U.S. 259, 263 (1984); United States v. Pace, 201 F.3d 1116, 1118 (9th Cir. 2000).]

Courts, however, have carved out a small class of cases from this jurisdictional bar under the "collateral order doctrine." [Pace, 201 F.3d at 1119]

Criteria for an interlocutory appeal

An interlocutory appeal of this ruling of Judge Walton may be a possibility under the guidelines set in U.S. v. Nixon: Under 28 U.S.C. ｧ 1291.

To fall within this exception, the appealed order must

A.) 'conclusively determine the disputed question,'

B) 'resolve an important issue completely separate from the merits of the action,' and

C) 'be effectively unreviewable on appeal from a final judgment.' [United States v. Bird, 342 F.3d 1045, 1046 (9th Cir. 2003)]

Libby's arguments are very substantial, unlike the Court's rejection of them.

The statutory responsibility

Libby argued that the Special Counsel's appointment in this case violates the Attorney General's statutory duty to direct and supervise all litigation in which the US is a party and, further, that it violates the Appointments Clause of the Constitution. (I have discussed his arguments in greater depth here.The opinion is available in pdf format here)  
 
Even the Court recognizes that there is no authority for the question it is asked to deal with here. Judge Walton's argument, frankly, devolves to one of  pragmatic necessity, not law (p. 11) and ignores the facts of this case.

In his letter of appointment, Acting Attorney General Comey abdicates all of the authority of the Attorney General:

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.

It is ludicrous to say that "independent" of all direction and supervision is not abdication of direction and supervision responsibilities. Following Congress' refusal to continue the independent counsel provisions, Special Counsel regulations—ignored here—were adopted. The Court indicates the Attorney General isn't bound to follow those either. The Court finds in the general delegation powers of the Attorney General the power to delegate all his powers to a non—statutory special counsel.

After reading the delegation powers so broadly, the Judge argues that delegating all power does not violate the Attorney General's responsibility to direct and supervise all litigation. Of course, it does. It nullifies entirely the obligation of the Attorney General set forth clearly in law. 

The Appointments Clause argument

The Constitution requires that principal officers must be confirmed by the Senate. The Supreme Court's decision holds that the guiding question respecting whether a person is a principal or an inferior officer is whether the officer is subject to direction and supervision by  a properly appointed supervisor. On the Appointments Clause argument, the judge is forced to stretch yet again to find a superior officer. For if there is none, the Appointments Clause is violated in the appointment of Fitzgerald.

Judge Walton finesses the point by saying the appointment is akin to the appointment of an Independent Counsel, okayed in Morrison v. Olson, 487 U.S. 654 (1988). In so ruling, he ignores the fact that the Independent Counsel approved in Morrison had to report his activities regularly to a three judge panel and Congress retained the ability to cut off his funding at any time. Instead, he maintains that like the Independent Counsel, the Special Counsel can be removed at any time. But this fails to note the political firestorm such a termination would involve, and ignores the statements made by Comey that such a move would be difficult.

In fact it would be impossible to terminate the Special Counsel precisely because there is no information flowing upward, so little means of knowing what the Special Counsel was doing in the absence of supervision.

Judge Walton also ignores the later Edmonds v. United States, 520 U.S. 651 (1997) case, which if it does not entirely override Morrison, certainly limits its application and makes Libby's argument so persuasive. The Court virtually admits ignoring Edmonds which would compel a different result. 

And while the question of whether the Special Counsel in an inferior office under Edmonds is a much more difficult question because the Special Counsel's work in conducted largely without direction or supervision, the Court need [not] confront that analysis since Morrison remains binding authority.

Well, so does Edmonds, a later—decided case.
 
In finding supervision, the Court notes that it is a factual matter and then proceeds (fn7, p. 20) to reject out of hand some evidence that the defendant (and I) find probative to demonstrate there was no supervision.

— The Fitzgerald press conference announcing the appointment.

— The statements made by Comey in December of 2003 when he made the appointment.

— The utter absence of evidence of any consultation by Comey or by his two successors in office.

The Court does, however, reject out of hand the Comey and Fitzgerald affidavits contending the two had an undocumented, unstated understanding of limits on Fitzgerald's power.

[t]his Court finds that the affidavits submitted by the Special Counsel and former Deputy Attorney General Comey are entitled to less weight [than the press conference statements] as the affidavits appear to have been prepared for the sole purpose of responding to the defendant's dismissal motion and provide only affiant's subjective beliefs concerning the extent of the Special Counsel's authority.

It is interesting that the Judge relies on the two delegation letters from Comey I have quoted the heart of the  first letter above. The second letter, on February 5, 2004, says in the relevant part:

At your request, I am writing to clarify that my December 30, 2003, delegation to you....is plenary and includes the authority to investigate and prosecute violations of any 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....that are within the Attorney General's authority to impose or pursue. Further, my conferral on  you of the title 'Special Counsel' in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 C.F.R. Part 600.

The first letter authorized Fitzgerald only to investigate and prosecute the alleged unauthorized disclosure of a CIA employee's identity. The second letter(dated Feb 6) allows Fitzgerald to pursue other violations of law.

Why is this particularly key? Because without consultation and with no supervision, Comey was in the dark when he expanded Fitzgerald's delegation of authority. That seems to me further proof that Comey granted Fitzgerald carte blanche to do whatever he wished.
 
Elsewhere in Judge Walton's decision

Fn 13 p 25 seems utterly circular:

In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the AG, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter.

This comes after a footnote about the Fitzgerald press conference in which the Judge said:  

But even if violations[of Department policies] as alleged occurred, that does not mean they were authorized by the authority given to the Special Counsel.

We are perplexed... and running in circles.
 
And that confusion, is not made clearer by the Court's contention that

It would be illogical to ignore well—established Department of Justice policies without any clear authorization to otherwise do so.(p. 24)

Especially as that is followed (p. 25) with this:

"But even if violations as alleged occurred, that does not mean they were authorized by the authority given the General Counsel"(fn 12)

Or the Court's contention (fn 13) that

In fact, because the Special Counsel must comply with Department of Justice policies, many of which provide direction for how to proceed in prosecuting cases, the Attorney General, at least in an abstract sense, continues to direct and supervise the investigation and prosecution of this matter.

Further, while the Court notes that Fitzgerald hasn't the authority to ignore substantive or procedural policies and regulations, the Court ignores that supervision would bring other policy considerations, not codified in policies and regulations, to bear. There is a  cost/benefit analysis to be made. The likelihood of classified information having to be disclosed, for example. Or the effect of compelling journalists to testify narrowly in the grand jury proceedings when the requirements of a fair trial may compel they reveal more of their sources than ever before has been the case.

In other words, the practical effect of no supervision is a casting aside of all the discretionary considerations that would be brought to bear were this being handled in—house or were the Independent Counsel provisions in effect and the prosecutor answerable to a judicial panel. The Constitution's Appointment Clause embodies real wisdom, in addition to being the law of the land.

Clarice Feldman is an attorney in Washington, DC.