CS: Neither Bush nor the DoJ can fire Special Counsel Fitzgerald

[understandinglife]

... legal analysis explaining why Fitzgerald cannot "legally" be fired by Bush or anybody in the DOJ as the "Special Prosecutor" for Treasongate offenses.

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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.

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Much more at the links:

http://citizenspook.blogspot.com/2005/10/treasongate-comey-clarifies.html

And, here is the link to the August 8, 2005 blog:

http://citizenspook.blogspot.com/2005/08/treasongate-us-attorney-generals.html

And, here are the links to the three crucial DoJ letters:

http://www.usdoj.gov/usao/iln/osc/documents/ag_letter_december_30_2003.pdf

http://www.usdoj.gov/usao/iln/osc/documents/ag_letter_feburary_06_2004.pdf

http://www.usdoj.gov/usao/iln/osc/documents/ag_memo_august_12_2005.pdf

May be a good time to (re)read this analysis. I encourage everyone to do so and to distribute, widely.


Peace.

[texpatriot2004]

1. Thanks UL. I get it and I am so grateful. n.t

[understandinglife]

3. I think you and others at DU have understood all of this for sometime.

I just want to make sure that everyone who may need a handy reference has it readily available in the coming days, because it is likely the amount of dis-information being spewed by the Bush neoconster regime will be deafening.

Everyone needs to know that Special Counsel Fitzgerald has NO time limit on his investigation. And, he can request not just an extension of the current GJ, but he can impanel additional GJ.

Interesting times.


Peace.

[Media_Lies_Daily]

2. And if everyone recalls, the GAO has been at odds with the....

...NeoCon Junta since they tried to blame the outgoing (and legal) administration for trashing the equipment in the White House. The GAO did an investigation of that matter, and publicly announced that NO damage had been done by the outgoing Democrats.

From that point on, the GAO has been watching the NeoCon Junta very closely, and I would guess they were more than happy to sign the letter Fitz needed.

Yet another case of what goes around, comes around.

[fooj]

4. Truth is our most powerful weapon!

Peace.

[Tiggeroshii]

5. Without the Independent counsel law being in affect...

Fitzgerald is still working withint he executive branch and still technically working for Bush. This guy gives no convincing evidence -with whatever power given to him from the Acting ATtorney General or whoever, he is still legally a part of the executive branch and still lies at the fate of the person who represents the executive branch. Sure, there'll be political backlash and even congress may finally involve itself, but Fitzgerald is still with the Executive branch and at the fate of anybody else working for the executive branch.

The independent counsel law was the only thing protecting a special attorney and now it's gone. Even though he has "all the power of an independent counsel," that doesn't mean he is an independent counsel. He's still legally in the executive branch and can still legally be fired.

Due to a 1926 Supreme Court Case, the president has illimitable removal powers, that goes for somebody he hired to investigate him -fitzgerald.

http://www.law.cornell.edu/anncon/html/art2frag28_user.html

[understandinglife]

7. Thank you for sharing your opinion.

Given what the GAO has done and the basis upon which they have done it, should someone attempt to fire Special Counsel Fitzgerald he would be immediately able to use the Department of Justice's case before the GAO to challenge such action.

That would elicit the protracted media attention that anyone attempting to quash him would not relish.

I enjoy various folk expressing their opinion. CS has his. You have yours. We'll all see what happens.

Thanks for posting.


Peace.

[Tiggeroshii]

8. According to a 1926 Supreme Court Case, the President can fire anybody he

wants...

http://www.law.cornell.edu/anncon/html/art2frag28_user.html

...making CS wrong in his assertion that firing Fitz would be "illegal."

But you're right. It would be incredibly politically unsavvy to do so. As it was for Nixon during the Saturday Night Masacre

[understandinglife]

9. My gratitude, once again, for your comment and reference. What ...

... awaits all of us is the precipitous event. Perhaps it will be the 'true bill(s)' from the Grand Jury, perhaps it will be W attempting to axe the Special Counsel, perhaps it will be something unanticipated.

But, what we all already know is that a truly vast number of crimes have been committed - from lying to Congress to torture.

Rep Nadler is on a mission and Special Counsel Fitzgerald is on a mission and I don't think Bush and his neoconster regime have what it takes to block the wheels of justice from grinding them into nanoparticles.

Thank you again for your insights and reference.


Peace.

[Tiggeroshii]

10. I think Tuesday will be quite ceremonial

...assuming that we're right and he does decide to bring up indictments. There have ben crimes committed, and they need to pay for those crimes -that is indeed the bottom line. We all hope somebody will be held accountable for all that fairly soon.

[adwon]

11. Not exactly

If Fitzgerald is treated as a de facto IC, then he would also likely be protected by the firing provisions of the old law. Congress can set limits on the conditions under which an inferior officer can be fired because an IC doesn't act exclusively as an executive officer.

I do think W would likely be constrained by the old provisions, which were good cause, physical/mental disability, and the like.

[Tiggeroshii]

23. he's a special prosecutor.

And according to the provision giving by the people who hired him -The DOJ, who also work for the president, Fitzgerald can be fired due to a number of some things : incompetence, dishonesty, etc...

Fitzgerald was hired by the acting attorney general and according to that supreme ourt case, anybody hired by the president or anybody working for the president is firable. The Special prosecutor, despite his "powers and privileges" of an Independent counnsel is not an independent counsel and was not hired by congress(as an ID woul have been) but rather by the president...

[Inland]

21. I think you are much more persuasive.

Bush fires Fitzgerald, which he has complete authority to do, and whether the GAO goes after Comey or Bush for misleading it is completely irrelevant. One would think that the GAO is would be the least of BUsh's worries if he fires FItzpatrick.

[understandinglife]

6. "And, as Nadler reminded me, lying to Congress is a crime under several

... federal statutes."

This is the first call by members of Congress for an expansion of Fitzgerald's probe, amid mounting evidence that there was a well-orchestrated effort by what former State Department aide Larry Wilkerson dubbed last week, "the Cheney-Rumsfeld axis" to hijack US foreign policy and knowingly mislead the Congress in order to get its support for an unlawful war.

"We are no longer just talking about a Republican culture of corruption and cronyism," Nadler says. "We now have reason to believe that high crimes may have been committed at the highest level, wrongdoing that may have led us to war and imperiled our national security."

From Fitzgerald Must Broaden Investigation by Katrina vanden Heuvel on October 23, 2005

Link:

http://www.huffingtonpost.com/katrina-vanden-heuvel/fitzgerald-must-broaden-i_b_9386.html

Pertinent DU links:

Rep Nadler calls for expansion of Fitzgerald's investigation - WMD lies.

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=5117143

AfterDowningStreet.com -- Indicting a Sitting President by Richard Mathews

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=5118827

It is likely not an accident that Col. Wilkerson spoke today and said ...

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=5109514#5109883


Peace.

[understandinglife]

16. Raw Story on "Leak prosecutor eyed Niger forgeries in 2004"!!

Oh my ....

www.rawstory.com (banner only at this time)


Peace.

[DemReadingDU]

12. Great articles & DOJ letters. Recommended

I see those letters are on Fitzgerald's website
http://www.usdoj.gov/usao/iln/osc/index.html

[understandinglife]

15. Yes, they are. My personal favorite is the August 12, 2005 letter ...

.... because of when it was issued and the fact that it explicitly re-affirms the Special Counsel's AG authority at a time when Gonzales was AG.

In other words, Gonzales did not intervene or interfere with Comey. Comey instructs Margolis that ....

... Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, dated December 30, 2003, and Feburary 6, 2004, I delegated to Mr. Fitzgerald all of the authority of the Attorney General with respect to the Department’s investigation into 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, including 28 C.F.R. § 0.15(a), 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 delineated in that correspondence. This delegation to you in no way retracts or modifies the scope of the prior delegations of authority to Mr. Fitzgerald.

Not trivial, because you can bet Gonzales wanted this investigation stopped but he, as Ashcroft, remained recused as Comey passed the torch to Margolis.


Peace.

[enough]

13. Interesting thread. Thanks to the OP and responders.

I've been wondering about this.

[Time for change]

14. This is crucial

If Fitzgerald CAN be fired he will be. And then we will indeed be living under a dictatorship.

[texpatriot2004]

17. Neither Bush nor the DoJ can fire Special Counsel Fitzgerald nt

[texpatriot2004]

18. kick nm

[Catherine Vincent]

19. Can they persuade him to step down?

Although I think he would be hard to persuade.

[understandinglife]

20. Given that Feb 2004 letter and then the Aug 2005 letter, I'd say Nope.

Peace.

[texpatriot2004]

22. kick nm