Can Bush Fire Fitzgerald?

[ruggerson]

After all, he's not a "Special Prosecutor," because Congress conveniently let that law expire after they used it to bludgeon Clinton to death.

He's an "Independent Prosecutor" hired by the Justice Dept. Does that not mean Bush can sack him at any time (if he wants to try to brave the political firestorm that would follow)?

[Kagemusha]

1. Ayup, he can.

Just like Nixon.

[FreedomAngel82]

5. I think if they do though

they're screwed in the public eye. From my watching Bush seems like the type of person who loves people to adore him and whatnot so he's trying to keep that. He has to keep Karl Rove because if he fires Karl or the prosecutor I think it would show they were guilty of this event. So I think they couldn't. Of course now they have their stolen second term it doesn't really matter.

[Virginian]

11. After Nixon sacked Archibald Cox,

I saw a bumper sticker that read,
Impeach the Cox sacker.

Some how, "Impeach the Fitzgerald firer" doesn't have the same ring to it.

[Lone_Star_Dem]

2. He sure can...

The real question here is, would he dare?

[pk_du]

3. He cant personally....would have to have the Justice Dept

make up lame excuse for having him replaced......( think "Three Judge Panel replacing Starr's predecessor with the slimeball himself.)

[Carla in Ca]

17. That is the question in this dkos diary

http://www.dailykos.com/storyonly/2005/7/22/12239/1486
From the end of the Bloomberg article:


Fitzgerald's term of service lasts until October, which is also the length of time remaining for the grand jury hearing evidence in the case.

So basically, expect the charges to come down hard very very soon.

But, if charges are filed, will Fitzgerald get to handle the case no matter what? or will his term have to be extended?

(more pondering under the fold)

RBH's diary :: ::
Sorry if this is too short, but i'm sensing that one scenario involves trying to nudge Fitzgerald out of the case.

I'm not sure on the specifics here, but here's some possible details

#1 - Fitzgerald was confirmed on October 24th, 2001. I think that means his term ends on that date, or around that date.

#2 - Bush would have to reappoint Fitzgerald to that spot. But, if he doesn't, that gives the job to somebody else.

Please, clarify the details for us all.

In closing, if Fitzgerald is out the door in October, it wouldn't be the first famous 'firing' in October. Archibald Cox. October 1973.

EDIT:

So yeah, if anybody can tell me if Fitz gets to prosecute if he makes the charges, that would be good.

Also, we should put pressure on Bush to reappoint Fitzgerald. To basically make anything less than reappointment as a 'firing'

[bluestateguy]

4. I believe he can

Without that Independent Counsel Law he is basically the equivalent of a regular presidential appointee who can be fired for any reason.

[RagAss]

7. He will very shortly. nm

[madeline_con]

6. FWIW...

something from The Middle Earth Journal (?)

So what does Bush do? Fire Fittzgerald? That really didn't work out for Nixon
did it? Turn the slime machine on him-- that may have already started. ...
http://ronbeas2.blogspot.com/

[Wetzelbill]

8. Yes and this administration has no shame whatsoever....

If you doubt that they won't do it for fear of how bad they may look then you forget just how they've been acting for five years.

They definitely have the gall to fire him. I don't doubt that. Whether they actually do or not, nobody could predict as of now.

[tandem5]

9. yes, but it's generally frowned upon.

;-)

[Media_Lies_Daily]

10. No. He is working outside the chain of command in much the same....

...way that the old Independent Counsel used to work. He also has most, if not all, of the powers of an Independent Counsel.

[aint_no_life_nowhere]

12. Firing Fitzgerald would create the lesser of two political firestorms

If indictments are returned by the Grand Jury and a criminal prosecution commenced, that stigma doesn't wear off and can't easily be spun. And a public trial could drag on for months, with daily revelations and embarrassments for the Bush Administration. I agree with those on here who feel that Fitzgerald's departure is imminent; it's their only choice. I truly hope I'm completely mistaken.

[rumpel]

13. Info on Special Counsel

http://writ.news.findlaw.com/dean/20050211.html

Unfortunately, the Bush Administration is ignoring those regulations. It is entitled to repeal them - but it ought not simply to pretend they do not exist.

The regulations state: "The Special Counsel shall be selected from outside the United States Government." However, the Plame Special Counsel, Patrick Fitzgerald, was - and still is - the U.S. Attorney from the Northern District of Illinois.

The regulations also state that "Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation." But Fitzgerald remains in his U.S. Attorney position - a position that is typically a very demanding full-time job.

snip

The result of all this is that, as a result of a breach of regulations, Patrick Fitzgerald serves in an unsupervised position with authority equal to that of the Attorney General himself - yet he is not subject to the restraints that fall upon an Attorney General. (Presumably, Alberto Gonzales will recuse himself from this matter, just as John Ashcroft did - for reasons I discussed in a prior column.)
and more

unfortunately the link to "regulations" did not work for me

found the regulations here:

http://news.findlaw.com/hdocs/docs/doj/28cfr600.1.html

[mmonk]

15. So are there any implications?

[rumpel]

18. I don't know. I am looking for the whole regulation section. Maybe we

should post the question to John W Dean's site.

I would like to know what Dean is referring to when he says * is ignoring the regulations.
Aside from his conclusion that he has in this case equal powers to the AG


found it




From the U.S. Government Printing Office via GPO Access




TITLE 28--JUDICIAL ADMINISTRATION

CHAPTER VI--OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE

PART 600_GENERAL POWERS OF SPECIAL COUNSEL--Table of Contents




--------------------------------------------------------------------
Part Page
600 General powers of Special Counsel........... 687
601 Jurisdiction of the Independent Counsel:
Iran/Contra............................. 690
602 Jurisdiction of the Independent Counsel: In
re Franklyn C. Nofziger................. 690
603 Jurisdiction of the Independent Counsel: In
re Madison Guaranty Savings & Loan
Association............................. 692

<[Page 687>]





Sec.
600.1 Grounds for appointing a Special Counsel.
600.2 Alternatives available to the Attorney General.
600.3 Qualifications of the Special Counsel.
600.4 Jurisdiction.
600.5 Staff.
600.6 Powers and authority.
600.7 Conduct and accountability.
600.8 Notification and reports by the Special Counsel.
600.9 Notification and reports by the Attorney General.
600.10 No creation of rights.

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.

Source: 64 FR 37042, July 9, 1999, unless otherwise noted.

Sec. 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is
recused, the Acting Attorney General, will appoint a Special Counsel
when he or she determines that criminal investigation of a person or
matter is warranted and--
(a) That investigation or prosecution of that person or matter by a
United States Attorney's Office or litigating Division of the Department
of Justice would present a conflict of interest for the Department or
other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest
to appoint an outside Special Counsel to assume responsibility for the
matter.

Sec. 600.2 Alternatives available to the Attorney General.

When matters are brought to the attention of the Attorney General
that might warrant consideration of appointment of a Special Counsel,
the Attorney General may:
(a) Appoint a Special Counsel;
(b) Direct that an initial investigation, consisting of such factual
inquiry or legal research as the Attorney General deems appropriate, be
conducted in order to better inform the decision; or
(c) Conclude that under the circumstances of the matter, the public
interest would not be served by removing the investigation from the
normal processes of the Department, and that the appropriate component
of the Department should handle the matter. If the Attorney General
reaches this conclusion, he or she may direct that appropriate steps be
taken to mitigate any conflicts of interest, such as recusal of
particular officials.

Sec. 600.3 Qualifications of the Special Counsel.

(a) An individual named as Special Counsel shall be a lawyer with a
reputation for integrity and impartial decisionmaking, and with
appropriate experience to ensure both that the investigation will be
conducted ably, expeditiously and thoroughly, and that investigative and
prosecutorial decisions will be supported by an informed understanding
of the criminal law and Department of Justice policies. The Special
Counsel shall be selected from outside the United States Government.
Special Counsels shall agree that their responsibilities as Special
Counsel shall take first precedence in their professional lives, and
that it may be necessary to devote their full time to the investigation,
depending on its complexity and the stage of the investigation.
(b) The Attorney General shall consult with the Assistant Attorney
General for Administration to ensure an appropriate method of
appointment, and to ensure that a Special Counsel undergoes an
appropriate background investigation and a detailed review of ethics and
conflicts of interest issues. A Special Counsel shall be appointed as a
``confidential employee'' as defined in 5 U.S.C. 7511(b)(2)(C).

Sec. 600.4 Jurisdiction.

(a) Original jurisdiction. The jurisdiction of a Special Counsel
shall be established by the Attorney General. The Special Counsel will
be provided with a specific factual statement of the matter to be
investigated. The jurisdiction of a Special Counsel shall also include
the authority to investigate and prosecute federal crimes committed in
the course of, and with intent to interfere with, the Special Counsel's
investigation, such as perjury, obstruction of

<[Page 688>]

justice, destruction of evidence, and intimidation of witnesses; and to
conduct appeals arising out of the matter being investigated and/or
prosecuted.
(b) Additional jurisdiction. If in the course of his or her
investigation the Special Counsel concludes that additional jurisdiction
beyond that specified in his or her original jurisdiction is necessary
in order to fully investigate and resolve the matters assigned, or to
investigate new matters that come to light in the course of his or her
investigation, he or she shall consult with the Attorney General, who
will determine whether to include the additional matters within the
Special Counsel's jurisdiction or assign them elsewhere.
(c) Civil and administrative jurisdiction. If in the course of his
or her investigation the Special Counsel determines that administrative
remedies, civil sanctions or other governmental action outside the
criminal justice system might be appropriate, he or she shall consult
with the Attorney General with respect to the appropriate component to
take any necessary action. A Special Counsel shall not have civil or
administrative authority unless specifically granted such jurisdiction
by the Attorney General.

Sec. 600.5 Staff.

A Special Counsel may request the assignment of appropriate
Department employees to assist the Special Counsel. The Department shall
gather and provide the Special Counsel with the names and resumes of
appropriate personnel available for detail. The Special Counsel may also
request the detail of specific employees, and the office for which the
designated employee works shall make reasonable efforts to accommodate
the request. The Special Counsel shall assign the duties and supervise
the work of such employees while they are assigned to the Special
Counsel. If necessary, the Special Counsel may request that additional
personnel be hired or assigned from outside the Department. All
personnel in the Department shall cooperate to the fullest extent
possible with the Special Counsel.

Sec. 600.6 Powers and authority.

Subject to the limitations in the following paragraphs, the Special
Counsel shall exercise, within the scope of his or her jurisdiction, the
full power and independent authority to exercise all investigative and
prosecutorial functions of any United States Attorney. Except as
provided in this part, the Special Counsel shall determine whether and
to what extent to inform or consult with the Attorney General or others
within the Department about the conduct of his or her duties and
responsibilities.

Sec. 600.7 Conduct and accountability.

(a) A Special Counsel shall comply with the rules, regulations,
procedures, practices and policies of the Department of Justice. He or
she shall consult with appropriate offices within the Department for
guidance with respect to established practices, policies and procedures
of the Department, including ethics and security regulations and
procedures. Should the Special Counsel conclude that the extraordinary
circumstances of any particular decision would render compliance with
required review and approval procedures by the designated Departmental
component inappropriate, he or she may consult directly with the
Attorney General.
(b) The Special Counsel shall not be subject to the day-to-day
supervision of any official of the Department. However, the Attorney
General may request that the Special Counsel provide an explanation for
any investigative or prosecutorial step, and may after review conclude
that the action is so inappropriate or unwarranted under established
Departmental practices that it should not be pursued. In conducting that
review, the Attorney General will give great weight to the views of the
Special Counsel. If the Attorney General concludes that a proposed
action by a Special Counsel should not be pursued, the Attorney General
shall notify Congress as specified in Sec. 600.9(a)(3).
(c) The Special Counsel and staff shall be subject to disciplinary
action for misconduct and breach of ethical duties under the same
standards and to the same extent as are other employees of the
Department of Justice. Inquiries into such matters shall be handled

<[Page 689>]

through the appropriate office of the Department upon the approval of
the Attorney General.
(d) The Special Counsel may be disciplined or removed from office
only by the personal action of the Attorney General. The Attorney
General may remove a Special Counsel for misconduct, dereliction of
duty, incapacity, conflict of interest, or for other good cause,
including violation of Departmental policies. The Attorney General shall
inform the Special Counsel in writing of the specific reason for his or
her removal.

Sec. 600.8 Notification and reports by the Special Counsel.

(a) Budget. (1) A Special Counsel shall be provided all appropriate
resources by the Department of Justice. Within the first 60 days of his
or her appointment, the Special Counsel shall develop a proposed budget
for the current fiscal year with the assistance of the Justice
Management Division for the Attorney General's review and approval.
Based on the proposal, the Attorney General shall establish a budget for
the operations of the Special Counsel. The budget shall include a
request for assignment of personnel, with a description of the
qualifications needed.
(2) Thereafter, 90 days before the beginning of each fiscal year,
the Special Counsel shall report to the Attorney General the status of
the investigation, and provide a budget request for the following year.
The Attorney General shall determine whether the investigation should
continue and, if so, establish the budget for the next year.
(b) Notification of significant events. The Special Counsel shall
notify the Attorney General of events in the course of his or her
investigation in conformity with the Departmental guidelines with
respect to Urgent Reports.
(c) Closing documentation. At the conclusion of the Special
Counsel's work, he or she shall provide the Attorney General with a
confidential report explaining the prosecution or declination decisions
reached by the Special Counsel.

Sec. 600.9 Notification and reports by the Attorney General.

(a) The Attorney General will notify the Chairman and Ranking
Minority Member of the Judiciary Committees of each House of Congress,
with an explanation for each action--
(1) Upon appointing a Special Counsel;
(2) Upon removing any Special Counsel; and
(3) Upon conclusion of the Special Counsels investigation,
including, to the extent consistent with applicable law, a description
and explanation of instances (if any) in which the Attorney General
concluded that a proposed action by a Special Counsel was so
inappropriate or unwarranted under established Departmental practices
that it should not be pursued.
(b) The notification requirement in paragraph (a)(1) of this section
may be tolled by the Attorney General upon a finding that legitimate
investigative or privacy concerns require confidentiality. At such time
as confidentiality is no longer needed, the notification will be
provided.
(c) The Attorney General may determine that public release of these
reports would be in the public interest, to the extent that release
would comply with applicable legal restrictions. All other releases of
information by any Department of Justice employee, including the Special
Counsel and staff, concerning matters handled by Special Counsels shall
be governed by the generally applicable Departmental guidelines
concerning public comment with respect to any criminal investigation,
and relevant law.

Sec. 600.10 No creation of rights.

The regulations in this part are not intended to, do not, and may
not be relied upon to create any rights, substantive or procedural,
enforceable at law or equity, by any person or entity, in any matter,
civil, criminal, or administrative.

<[Page 690>]

http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=0110457297+53+0+0&WAISaction=retrieve

[The_Casual_Observer]

14. They'll do it in interest of 9/11/2001National Security

It would be then blessed by the rw.

[LSK]

16. and does Fitzgerald squeel like a pig if it happens???

Does he write books, appear on every news show under the sun, start a reality TV show???

Would Fitzgerald go public with what he knows??

Would Fitzgerald then have a "fatal accident" on a dark rainy night on a deserted road?

[ladjf]

27. Hope he doesn't "commit suicide".

[rumpel]

19. Here it is: AG has to fire him not *. Gonzales! CFR 28 Sec 600

technically speaking, as Gonzales is * minion

(d) The Special Counsel may be disciplined or removed from office
only by the personal action of the Attorney General. The Attorney
General may remove a Special Counsel for misconduct, dereliction of
duty, incapacity, conflict of interest, or for other good cause,
including violation of Departmental policies. The Attorney General shall
inform the Special Counsel in writing of the specific reason for his or
her removal.

[demobabe]

22. That says "good cause"

According to this, there is nothing that would apply to Fitzgerald. Theoretically, according to this, there is no way to fire Fitzgerald, unless they can find a conflict of interest.

[Lannes]

20. I think they will use their SOP instead of firing him

As has been suggested in the blogs and on these boards.Try to find some dirt on him and ruin his career.

[KharmaTrain]

21. He's Not A Ken Starr Prosecutor

That law...investigation headed by Congress rather than the judiciary died in '99 and I'm glad it did. I didn't favor it when Democrats tried to use that rather than issues to beat Repugnicans and I totally destested how it was perverted to get Clinton.

As noted above, Fitzgerald was appointed when Asskroft recused himself and HE was the one who called for the Special Prosecutor operating under long-established DOJ standards. It's a far better system and one that Asskroft has probably regretted being forced to make...and he was forced. The stupidity is this regime thought it could job the judicial system like they've jobbed everything else.

Gonzalez could fire Fitzgerald but the shitstorm that would ensue would have the same effect that happened when Nixon fired Cox in the infamous Saturday Night Massacre...he'd be forced by public opinion to bring in another Prosecutor.

What I'd be interested in learning...if there's someone with the legal insight, could the judge hearing the case force Fitzgerald to stay on the case if he's fired (and contests the firing)?

Right now the best chances this regime has in getting Fitzgerald out of their hair is to kick him upstairs somewhere...and I have no doubts there's some offer already being readied...along with the bucket of slime if he refuses and brings in an indictment. I've already heard wingnut commentators call him "a Democratic Prosecutor"...get ready to shoot down that meme.

Cheers...

[rumpel]

23. The good part of this is we have Conyers. See this part?

(a) The Attorney General will notify the Chairman and Ranking
Minority Member of the Judiciary Committees of each House of Congress,
with an explanation for each action--
(1) Upon appointing a Special Counsel;
(2) Upon removing any Special Counsel; and
(3) Upon conclusion of the Special Counsels investigation,
including, to the extent consistent with applicable law, a description
and explanation of instances (if any) in which the Attorney General
concluded that a proposed action by a Special Counsel was so
inappropriate or unwarranted under established Departmental practices
that it should not be pursued.

If as Dean says Gonzales will recuse himself, who will be in charge of this at the DOJ?

[rumpel]

25. got to go sleep now, but thanks for an interesting question

[DanCa]

24. Hell this is the Bush administration

Firing is the least of Fitzgerald's worries.

[wli]

26. BFEE understands nothing so subtle as firing; they'll try assassination

I'm quaking with fear daily, hoping beyond hope they fail to get to him.