The opinion of the court was delivered by: Reggie B. Walton United States District Court
Currently before the Court is the Motion of I. Lewis Libby to Dismiss the Indictment ("Def.'s Mot.").*fn1 The defendant's motion claims that the indictment should be dismissed because it "was obtained, approved and signed by an official-Special Counsel Patrick J. Fitzgerald-who was appointed and exercised his powers in violation of the Appointments Clause of the Constitution and applicable federal statutes." Def.'s Mot. at 1. For the reasons that follow, the defendant's motion is denied.
In September 2003, the Department of Justice authorized the Federal Bureau of Investigation ("FBI") to commence a criminal investigation into the possible unauthorized disclosure of classified information-Valerie Plame Wilson's affiliation with the Central Intelligence Agency ("CIA")-to several journalists. Indictment at 8, ¶ 25. Initially, the investigation was conducted by career attorneys within the Department of Justice's Criminal Division, who reported through the Deputy Attorney General to then-Attorney General John Ashcroft. Def.'s Mem., Ex. A at 2. On December 30, 2003, Deputy Attorney General James Comey held a press conference at which he announced that, effective that day, the Attorney General had recused himself from all matters involving the investigation into the possible unauthorized disclosure of classified information. Id. at 1. Comey also announced that he would serve as Acting Attorney General for the purposes of the investigation, pursuant to 28 U.S.C. § 508 (2000), and that, prior to Ashcroft's recusal, the two had agreed that a special counsel should be appointed to oversee the investigation. Id. Comey selected Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, for this role. Id. 1-2. That same day, Comey delivered the following letter to Fitzgerald:
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.
Def.'s Mem., Ex. C. A subsequent letter, dated February 6, 2004, further clarified the authority given to Fitzgerald.
At your request, I am writing to clarify that my December 30, 2003, delegation to you of "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" is plenary and includes the authority to investigate and prosecute violations of any federal criminal laws related to the underlying alleged unauthorized disclosure, as well as federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General's authority to impose or pursue. Further, my conferral on you of the title "Special Counsel" in this matter should not be misunderstood to suggest that your position and authorities are defined and limited by 28 C.F.R Part 600.
Def.'s Mem., Ex. D. As a result of this delegation of power, the Special Counsel investigated the possible unauthorized disclosure of classified information. And, on October 28, 2005, a federal grand jury returned a five count indictment charging the defendant with obstruction of justice in violation of 18 U.S.C. § 1503 (2000), two counts of false statements in violation of 18 U.S.C. § 1001(a)(2) (2000), and two counts of perjury in violation of 18 U.S.C. § 1623 (2000). Indictment at 1.
The defendant's motion to dismiss is premised on two grounds: First, that the Special Counsel's appointment violates the Attorney General's statutory duty under Title 28 of the United States Code to direct and supervise all litigation in which the United States is a party, and second, that his appointment violates the Appointments Clause of the United States Constitution, Article II, Section 2, clause 2. Def.'s Mem. at 1. It is well-settled that a Court should "avoid deciding constitutional questions presented unless essential to proper disposition of a case." Harmon v. Brucker, 355 U.S. 579, 581 (1958). Accordingly, the Court looks first to the defendant's non-constitutional claim that the power delegated to the Special Counsel violates Title 28 of the United States Code. Then, the Court will address the defendant's constitutional challenge.
(A) The Defendant's Statutory Claim
The defendant alleges that the authority delegated to the Special Counsel under 28 U.S.C. §§ 509, 510, and 515 to investigate and prosecute alleged violations of federal law relating to the investigation of the potential unauthorized disclosure of classified information violates the statutory requirements that the Attorney General supervise and direct all litigation to which the United States is a party as mandated by 28 U.S.C. §§ 516 and 519. Def.'s Mem. at 16; Def.'s Reply at 16. Before turning to the parties' arguments, the Court will first review the statutes at issue.
The applicable statutory provisions at issue in this case are codified in Chapter 31 of Title 28 of the United States Code, and include Sections 501 through 530D. Among other things, these provisions establish the Department of Justice, provide for the nomination and appointment of various Department of Justice officials, and establish a procedure to fill a vacancy in the office of the Attorney General should one occur due to absence or disability. 28 U.S.C. §§ 503-508. When a vacancy occurs due to the Attorney General's absence or disability, Section 508 provides that "the Deputy Attorney General may exercise all the duties of that office." 28 U.S.C. § 508(a). This Section also establishes an order of succession should the Deputy Attorney General be unable to fulfill the duties of the Attorney General. Id. § 508(b).
Title 28 also describes the functions and duties of the Attorney General, 28 U.S.C. §§ 509, 511-513, and explicitly provides that "[t]he Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." 28 U.S.C. § 510. The Attorney General may also specially appoint an officer of the Department of Justice to "conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrate judges, which United States attorneys are authorized by law to conduct, whether or not he is a resident of the district in which the proceeding is brought." 28 U.S.C. § 515(a). However, two provisions within Chapter 31 require the Attorney General to direct and supervise all litigation in which the United States is a party. 28 U.S.C. §§ 516, 519. Specifically, Section 516 provides that "[e]xcept as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General." Id. § 516. And Section 519 provides that
[e]xcept as otherwise authorized by law, the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties.
(2) The Parties' Arguments
The defendant contends that the Special Counsel's appointment violates Sections 516 and 519 of Title 28, which mandate that the prosecution of criminal actions be supervised and directed by the Attorney General. Def.'s Mem. at 26-27. To support this argument, the defendant directs this Court to the letters from former Deputy Attorney General Comey to Fitzgerald detailing his authority as Special Counsel. Id. These letters, the defendant opines, establish that Comey "expressly abdicated the supervision and direction" of both the investigation and prosecution of the matters in this case. Def.'s Mem. at 26-27. Thus, the defendant concludes that because the Special Counsel acts without the supervision or control of any officer of the Department of Justice, his authority is so great that it deprives the Attorney General of his statutory obligation to direct and supervise all litigation in which the United States is a party and thus violates Sections 516 and 519.*fn2 While the defendant recognizes that Sections 516 and 519 allow for unsupervised litigation, "if otherwise provided by law," he posits that there is no statutory exception that is applicable in this case. Id. at 28. Moreover, the defendant argues that Sections 510 and 515, which permit the delegation of "any function" of the Attorney General, cannot be interpreted to permit the ...