Neither Bush, Attorney General Gonzales, nor his designee, have any legal authority to supervise or fire Fitzgerald.
Why? When Fitzgerald was appointed Special Counsel to investigate the Valerie Plame outing of her CIA cover identity, he was authorized through unusual special orders as authorized by law, to have delegated to him complete authority (“plenary”) that the Attorney General would normally have as his supervisor over all aspects of the investigation.
The same initial order authorizing Fitzgerald’s investigation also granted Fitzgerald unlimited ability to expand his investigation as “he saw fit,” based on whatever evidence he encountered, with no need to seek approvals from above, and provided him whatever budget was necessary to carry out that work.
This gave Fitzgerald the ability to investigate not just the Valerie Plame outing, but the 2000 election, 911, going to war with Iraq under alleged false pretenses, money laundering, obstruction of justice, and on and on and on. It appears he's been very busy doing just that, and has issued indictments to Bush and many top officials.
The GAO has ruled on all the above issues, citing the law and precedent, confirming their validity. They have also audited Fitzgerald’s finances and gave him a clean bill of health.
Bush also does not have the legal ability to fire Fitzgerald even if he wanted to, on a potential indictment of Bush, which Bill is reported to have already been signed by the Chicago Grand Jury (Fitzgerald is operating with grand juries in Chicago and Washington, D.C.), because since it involved him, it would be a conflict of interest prohibited by law.
Folks, a lot is going on under the surface though it only feels like the calm before a very big storm.
Here is an extract of the legal mumbo-jumbo:
http://citizenspook.blogspot.com/Monday, August 08, 2005
TREASONGATE: The US Attorney General's Office AND President Bush Have NO LEGAL AUTHORITY To Remove Patrick Fitzgerald As Special Counsel
The Attorney General, Acting Attorney General or any other officer of the Department of Justice has NO LEGAL AUTHORITY to remove Special Counsel Fitzgerald from the Treasongate investigation or prosecution-- AND -- President Bush does NOT have the legal authority to fire Patrick Fitzgerald in his capacity as "Special Counsel".
Analysis of federal law (involved with both the appointment of -- and authority granted to -- Special Counsel Fitzgerald), Comey's press conference of December 30th, 2003, and Decision B-302582 (September 30, 2004) issued by the Government Accounting Office, leads to the following legal conclusions:
1. James Comey, in his capacity as Acting Attorney General, with respect to the Justice Department's investigation into "the alleged unauthorized disclosure of a CIA employee's identity" (hereinafter "Treasongate"), delegated his plenary authority to Special Prosecutor Patrick Fitzgerald, pursuant to 28 U.S.C. 508, 509, 510, and 515, conferring upon him "all of the authority of the Attorney General" thereby transferring his status as Acting Attorney General, in this matter, to Fitzgerald.
2. Special Counsel Fitzgerald is not serving as an "outside Special Counsel" pursuant to 28 USA § 600, so the provisions of that code are not applicable in this matter nor do they have any legal effect over Fitzgerald's investigation and/or prosecution.
3. While President Bush may fire or replace Fitzgerald as the "US Attorney for the Northern District of Illinois", the President has NO AUTHORITY to fire him as the "Special Counsel" in the Treasongate investigation.
Fitzgerald wears the following two hats:
1. US Attorney for the Northern District of Illinois.
2. Special Counsel in the Treasongate investigation "Acting" with the full authority of the US Attorney General.
We aspire to be a nation of laws. The Constitution was our protection from tyranny, but the dying document now faces its greatest challenge fighting off a disease so insidious its sickness threatens a global plague of bloodshed and repression.
From the draconian provisions of the Patriot Act, which allows federal agents to sneak into our homes without a warrant or probable cause, to the expanding psy ops of horrific murder and torture of men, women and children who haven't been given a scintilla of due process in their own sovereign land which we invaded based upon fake evidence, our laws are riddled with a malignant cancer.
Who will stand up for the law when the law is beaten and abused? Who will stand up for the guardians of the law when the guardians are beaten and abused?
As you will soon see, Fitzgerald's appointment as Special Counsel, the first of its kind in the history of the United States, was meticulously crafted to withstand the coming onslaught.
Speculation is running rampant as to whether Patrick Fitzgerald and his grand jury investigation will be shut down by Bush administration operatives. You may believe that Bush cannot risk the political fallout associated with removing Fitzgerald, but his team of fascist criminals will shoot first and ask questions...never.
These are the same people who carefully calculated they could openly commit Treason by outing Valerie Plame and her CIA network. They weren't worried about the fall out then, and they won't be worried about it now.
It's not political fall out that will prevent the Bush death squad from removing Fitzgerald; their obstacle is the law. It doesn't matter whether they put all of Skull and Bones in the Justice Department and relocate the DOJ to a tomb in New Haven, the law protects Patrick Fitzgerald's mandate from all intervention. Neither Bush nor his Justice Department cronies have the legal authority to remove Fitzgerald as Special Counsel or to prematurely end his grand jury. You can thank James Comey for this.
Comey's brilliant nuances involved with US Attorney Patrick Fitzgerald's appointment as "Special Counsel" are nothing short of genius. The foresight of Acting Attorney General Comey's "delegation of authority" to Fitzgerald will go down in history as one of the most stunning and brilliant acts of non-partisan patriotism this nation has ever seen.
I do not throw these words out lightly.
Federal regulations and decisions, germane to Fitzgerald's unique appointment, legally protect the integrity of the Special Counsel's unrestricted mandate from interference by political operatives in this investigation, an investigation to which Acting Attorney General James Comey (empowered as such by Attorney General John Ashcroft's recusal) provided unprecedented patriotic and non-partisan foresight.
Furthermore, Fitzgerald was empowered by Comey with unilateral authority to "expand" his jurisdiction and "pursue it wherever he wants to pursue it". Let your imagination run wild because it's all legally in play.
THE APPOINTMENT OF SPECIAL COUNSEL PATRICK FITZGERALD
On December 30th, 2003, Deputy Attorney General James Comey held a press conference wherein he announced that Attorney General John Ashcroft had recused himself, on that day, from all involvement with the Treasongate investigation. Comey stated that the recusal included all of Ashcroft's "staff" and that "a document was created ...that memorialized the recusal."
Comey announced:
"By that act, I automatically become the acting attorney general for purposes of this case with authority to determine how the case is investigated, and if warranted by the evidence, prosecuted."
Comey went on to say:
"
rior to his recusal, the attorney general and I agreed that it was appropriate to appoint a special counsel from outside our normal chain of command to oversee this investigation.
By his recusal, of course, the attorney general left to me the decision about how to choose a counsel, who that person should be and what that person's mandate should be...effective immediately, the United States attorney for the Northern District of Illinois, Patrick J. Fitzgerald, will serve as special counsel in charge of this matter."
Fitzgerald's authority was conferred from Comey to him via two official Justice Department notification letters. The first letter was issued on December 30, 2003. It stated:
"By the authority vested in the Attorney General by law, including 28 U.S.C. 509, 510, and 515, and in my capacity as Acting Attorney General pursuant to 28 U.S.C. 508, I hereby delegate to you all the authority of the Attorney General with respect to the Department's investigation into the alleged unauthorized disclosure of a CIA employee's identity, and I direct you to exercise that authority as Special Counsel independent of the supervision or control of any officer of the Department."
At the December 30 press conference, Comey further stated:
"Fitzgerald...does not have to come back to me for anything...I've told him, our instructions are: You have this authority; I've delegated to you all the approval authority that I as attorney general have. You can exercise it as you see fit.
And a U.S. attorney or a normal outside counsel would have to go through the approval process to get permission to appeal something. Fitzgerald would not because of the broad grant of authority I've given him.
So, in short, I have essentially given him -- not essentially -- I have given him all the approval authorities that rest -- that are inherent in the attorney general; something that does not happen with an outside special counsel."
Before we analyze the provisions of the law which enables this transfer of power, please note that Comey removed all "supervision or control of any officer of the Department" while also conferring "all the approval authority" that Comey, "as Attorney General" had.
From the December 30th press conference:
"Q: You mentioned that the -- you felt that Fitzgerald will have a broader -- actually a broader mandate, broader abilities than an outside counsel. Can you expand on that a little bit? In what respect will he have a --
MR. COMEY: Yes. An outside counsel has a -- the regulations prescribe a number of ways in which they're very similar to a U.S. attorney. For example, they have to follow all Department of Justice policies regarding approvals. So that means if they want to subpoena a member of the media, if they want to grant immunity, if they want to subpoena a lawyer -- all the things that we as U.S. attorneys have to get approval for, an outside counsel has to come back to the Department of Justice. An outside counsel also only gets the jurisdiction that is assigned to him and no other. The regulations provide that if he or she wants to expand that jurisdiction, they have to come back to the attorney general and get permission.
Fitzgerald has been told, as I said to you: Follow the facts; do the right thing. He can pursue it wherever he wants to pursue it."
On February 6, 2004, a second official letter was sent to Fitzgerald by Comey. This second letter (as well as the first) was discussed in Decision B-302582 issued by the Government Accountability Office (hereinafter GAO) on September 30, 2004. (The GAO Decision paper was drafted in relation to oversight of appropriations granted to Fitzgerald's office for the investigation. This is discussed in detail below).
The GAO quoted Comey's second letter to Fitzgerald as follows:
"In February 2004, Acting Attorney General Comey clarified Special Counsel Fitzgerald's delegation of authority to state that the authority previously delegated to him is plenary. It also states, 'Further, my conferral on you of the title of Special Counsel' in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 CFR Part 600.' <4>"
Comey went to great lengths to shield Fitzgerald from the restrictions of 28 CFR Part 600. These regulations, enacted by former Attorney General Janet Reno, demand that an "outside Special Counsel" submit his investigation to various oversight by others in the Justice Department.