Bork Tries to Fire Another Prosecutor by emptywheel / Next Hurrah

[Demeter]

http://thenexthurrah.typepad.com/the_next_hurrah/2007/06/bork_tries_to_f.html


Bork Tries to Fire Another Prosecutor
by emptywheel

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 interested in names in that list, from some who helped justify torture 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...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 against Fitzgerald. No dummies, these guys.

(Judge) 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.

[MNDemNY]

1. Why does anyone listen to that

Senate rejected ass , anyway?

[The Backlash Cometh]

2. Law? Have you happened to notice that no one is paying attention to the

law or proper process these days. So, if it takes a quirk in the process to get the baddies down, so be it. They've been circumventing the laws for so long, it would be poetic justice.

[bleever]

3. This is some serious stuff.

I'm looking forward to studying their arguments and hearing other DUers' analysis.