Saturday, October 22, 2005

TREASONGATE: Comey Clarifies Fitzgerald's Plenary Authority

On August 8th, 2005, I wrote a very detailed legal analysis explaining why Fitzgerald cannot "legally" be fired by Bush or anybody in the DOJ as the "Special Prosecutor" for Treasongate offenses. I explained that Fitzgerald wears two hats, US Attorney for the Northern District of Illinois AND Special Prosecutor for the Plame leak investigation. As US Attorney he can be fired at any time by Bush.

As Special Prosecutor he cannot be fired. Why? Read my August 8th, 2005 article for the detailed answer including extensive links.

The short version goes something like this:

Fitzgerald's plenary authority was delegated to him by acting Attorney General James Comey. Two official DOJ letters were used by Comey to establish Fitzgerald as the "Acting US Attoney General" in this matter. That means he is effectively the Attorney General for this case and he doesn't have to answer to anybody.

OK, but even the Attorney General can be fired by the President. This is true. So why can't Bush fire Fitzgerald even if Fitz is the Acting Attorney General with plenary authority?

That's where the Government Accountability Office (GAO) comes in. The DOJ made a very extensive argument to the GAO that Fitzgerald has all of the power of an Independent Counsel (like Ken Starr when he was investigating Clinton). Even though the Indepenent Counsel law has expired, DOJ argued that under this set of facts and this unique delegation of power from Comey to Fitzgerald, the GAO should recognize Fitzgerald as having all the power of an Independent Counsel so that unlimited funds could be released to Fitzgerald so this investigation could be properly conducted.

The GAO bought this argument and granted the funds on this basis. Read the GAO decision

How does this effect the possibility of Fitzgerald being fired?

If DOJ and the GAO both agree that Fitzgerald has all the power of an Independent Counsel then Fitzgerald cannot be fired because under the Independent Counsel law, an Independent Counsel could not be fired.

Bush and DOJ cannot "legally" fire Fitzgerald. But they can try to illegally fire him. However, they are already on the record, via the zealous arguments by DOJ to the GAO, insisting that Fitzgerald should be treated like an Independent Counsel operating under the expired Independent Counsel law.

For the DOJ to turn around and now argue that Fitzgerald does not have that power would be the same as admitting they flat out lied to the GAO and all of their arguments are bullshit. Fitzgerald, were he to fight the DOJ after illegally firing him, would dismantle them in court with their own arguments and legal citations. He wouldn't even have to come up with one single argument defending himself, DOJ (and by extension Bush) has already made his case to the GAO.

Yesterday, Fitzgerald launched his own web site as Special Counsel. It's very interesting to see that the first three documents listed at the site are the three letters on official DOJ letterhead from Comey delegating plenary authority to Fitzgerald.

Whoops, did I say three letters? Yes, I did. But, in my original article of August 8th, 2005 I only mentioned two letters.

GREEK CHORUS: "Spook, why didn't you mention three letters?"

Because at the time I wrote the article only two delegation letters existed.

However, four days after my article was published (August 8th, 2005), Comey issued a third delegation of authority to Fitzgerald. This letter was issued on August 12, 2005. And it only came to my attention yesterday when it was published at Fitzgerald's
new web site.

Apparently, since the original delegation letters were issued, and the GAO decision came down, Comey was finally able to answer the question of whether he, or anybody taking his place at DOJ, could fire Fitzgerald or revoke his authority. And Comey has decided that Fitzgerald's authority cannot be retracted or modified .

I quote
Comey's letter of August 12, 2005, written just before he resigned, delegating to his replacement the authority of deputy Attorney General:

"In the attached correspondence to Patrick Fitzgerald, United States Attorney for the Northern District of Illinois, dated December 30, 2003, and February 6, 2004, I delegated to Mr. Fitzgerald all of the authority of the Attorney General, with respect to the Department's investigation in the alleged unauthorized disclosure of a Central Intelligence Agency employee's identity. By virtue of the authority vested in me as Deputy Attorney General under the law...I delegate to you all of my authority as acting Attorney General with respect to that investigation and Mr. Fitzgerald's service as Special Counsel, as dilineated in that correspondence. This delegation to you in no way retracts or modifies the scope of the prior delegations of authority to Mr. Fitzgerald."

By Citizen Spook


The Neocon psychos are starting to crack up real bad. It's incredble to see Bill Kristol arguing today that the Special Prosecutor should not use the laws of this nation. If you haven't seen it, have a look at Kristol's latest, entitled -- Fitzgerald's Moment.

He argues that Fitzgerald should prosecute any violations under the IIPA, perjury or obstruction, but that any use of the Espionage Act (i.e. 18 USC 793 and 794) would be evidence that Fitzgerald is overreaching his mandate and would equate to prosecutorial misconduct.

Hey Bill, get a freakin' life. Everybody in the White House signed a non disclosure agreement agreeing to follow the laws of this nation and 18 USC 793 and 794 are clearly listed. Here's what it says Billy boy:

"I have been advised and am aware that any unauthorized disclosure of classified information by me may constitute a violation of violations of United States criminal laws, including the provisions of Sections 641, 793, 794, 798, and 952 Title 18 United States Code, the provisions of Sections 783 (b), Title 50, United States code, and the provisions of the Intelligence identities Prosecution Act of 1982."

Notice how 18 USC 793 and 794 are listed BEFORE the IIPA which is last on the last. If your neocon cronies didn't want to sign it, that was their prerogative. They wouldn't have been given the confidence of the American People and they wouldn't have been hired for security clearance positions and we'd all be a hell of a lot safer today.

You damn neocon waterboy. Get the hell off my planet you bushy haired evil empire crony son of a bitch. How dare you.

I challenge you to show me where in Comey's official DOJ delegation of authority it says Fitzgerald is limited to the IIPA? Read the damn letters, Billy boy.

It's been you and your cronies who have been pounding the podium for the IIPA with David Corn and Joe Wilson giving the assist.

But you don't make the laws and you don't dictate to the American people what laws you would prefer your cronies be prosecuted under.

Sorry, too bad. Don't let the cell door hit you in the ass on the way in fellas (and ladies).

The AIPAC indictments were brought under the Espionage Act and I didn't see Mr. Kristol whining that those poor lobbyists were victims of prosecutorial abuse.

Just because you don't like the law, doesn't make the law go away. You've backed the wrong team Bill. And furthermore, you've been outed as a knee pad wearing neocon fixer. Now, get the hell out of my blogosphere you freak of nature.

ATTENTION: Firedoglake and

I have been reading these two blogs and I find them to be very insighful. I've quoted Justin Raimondo previously and I find his reporting to be extremely sharp. I would appreciate if the readers of this Blog could bring my article of August 19th, 2005, IN CAHOOTS -- How The White House, Wilson, Novak, Corn and Plame Conspired for Treason to their attention.

I think they could possibly be the type of journalists who would understand the many levels of conspiracy involved with Treasongate. The rabbit hole is so damn deep, people. There's no way the White House didn't see this coming. And yet, for the petty motive of a bitch slap to Joe Wilson they were willing to face Capital punishment under 18 USC 794? Isn't all just a little to neat? It's like a script and Wilson was assigned this role. I don't trust him at all.


Many thanks to the readers of this blog. I simply post my analysis here, but it's you who have carried the message to the forums, comments and attention spans of the nation.

There was almost no mention of 18 USC 794 (the Espionage Act) in the blogosphere prior to CS reporting on it. I can't take sole credit for mentioning it, others did before me, but since the detailed analysis was published here, the word has certainly spread and the IIPA chatter has been squelched. You can see that the neocons and their cronies like our pal Billy are freaking out. They know damn well the laws that were broken and they arrogantly thought they could steer the whole nation away from those laws.

They had Wilson and Corn cheerleading for the IIPA and that was their ploy. It failed.

The people who got the word out in the blogosphere have truly helped the law win an important battle.

It will be hilarious watching them squeel that the laws are not fair. Tell it to the poor men and women sitting in jail for using medicinal marijuana.

Treasongate, what a concept.

by Citizen Spook