How appropriate that Robert Bork would weigh in on the Libby conviction to assert that Fitzgerald's appointment might not be constitutional. Over thirty years later and he's still trying to fire the guy investigating the Republican Administration.
Mind you, Bork is not alone. Vikram Amar, Randy Barnett, Alan Dershowitz, Viet Dinh, Douglas Kmiec, Gary Lawson, Earl Maltz, Thomas Merrill, Robert Nagel, Richard Parker, and Robert Pushaw. Some interesting in names in that list, from a fwe good liberals, to architects of unitary executive, to Dershowitz, who served as such a nice liberal voice justifying torture.
At issue, these constitutional law scholars argue, is whether or not Fitzgerald was acting as an inferior or superior officer. His example is not precisely similar to previous examples of special counsels, and therefore it needs to be judged anew.
I'm going to go visit with my mom, so others are going to have to weigh in on the legal strength of this brief. I will say, from a rhetorical standpoint it is quite strong. I especially like how they use Lawrence Tribe to make many of their key arguments. They also use some of Comey's shrewdest moves designed to allow Fitzgerald to carry out his investigation against the constitutionality of the position now. No dummies, these guys.
That said, I do want to stress that this issue has ramifications beyond the question of whether Libby goes to jail before Bush pardons him. Here's what Judge Walton had to say about the issue (sorry that it's so sketchy--the server was crashing):
Walton: as far as appointment clause, the question is the extent to which there is appropriate supervision over Mr. Fitz and his operation. He was obviously confirmed by senate, occupies a position in Chicago as USA, he was tasked to conduct this investigation, even though AG, and DAG, have recused themselves, there was no indication they had recused themselves wrt supervisory issues if he did not conduct himself according to rules and regulations of DOJ.
Otherwise it seems to me that people who occupy high levels of DOJ, it would mean people who have direct responsibility for DOJ couldn’t be brought in. [my emphasis]
Walton provides a basic claim that Fitzgerald is an inferior officer since the AG could still fire him (hell--in this DOJ, even Kyle Sampson or Monica Goodling could fire him, apparently). More importantly, Walton explains the reason for the necessary legality of the Special Counsel: Because if we can't have a Special Counsel free of direct oversight of the AG, then there is no way to investigate those who occupy high levels of DOJ or those who have direct responsibility for it.
In other words, if Fitzgerald's appointment is unconstitutional, Walton was arguing, we can't hold Alberto Gonzales or Dick Cheney or George Bush to account.
That's not really a constitutional argument, mind you, it's a pragmatic one. But it really underscores the importance of this issue. Because Bork is not just trying to get Fitzgerald fired. He's trying to get the next Special Counsel--the one investigating BushCo constitutional violations--fired.