Media misrepresented 2004 letter clarifying Fitzgerald's authority to investigate perjury, obstruction of justice in CIA leak case
Citing a February 6, 2004, letter from then-acting Attorney General James B. Comey, recent news stories have falsely reported that special prosecutor Patrick J. Fitzgerald asked for and received "expand[ed]" authority to investigate crimes, such as perjury and obstruction of justice, that may have arisen during the investigation into whether senior White House officials illegally outed CIA agent Valerie Plame. In fact, Comey's letter did not grant new authority to Fitzgerald; it provided clarification that Fitzgerald had the authority to pursue those crimes from the time he was initially appointed to investigate the case on December 30, 2003. The distinction is critical in light of the concerted effort on the part of White House allies to minimize the impact of any charges that are brought against Bush administration officials by depicting Fitzgerald as overzealous and by falsely suggesting that he might be exceeding his original mandate. His investigative and prosecutorial authority is, and always has been, plenary, as the Comey letter made clear.
In an October 22 article, Los Angeles Times staff writers Tom Hamburger and Richard B. Schmitt reported that the letter permitted Fitzgerald "to expand his investigation to other possible federal crimes, 'such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.' " Washington Post staff writer Walter Pincus similarly reported on October 23 that the letter gave Fitzgerald "authority from the Justice Department to expand his inquiry to include any criminal attempts to interfere with his probe," and again wrote on October 24 that Fitzgerald "asked for and received expanded authority from Justice to investigate crimes associated with his inquiry including perjury and obstruction of justice." Also on October 24, a Wall Street Journal editorial stated that "in February 2004 he [Fitzgerald] asked for permission for much broader investigative authority," and United Press International editor Martin Walker wrote that "Fitzgerald last year sought and obtained from the Justice Department permission to widen his investigation from the leak itself to the possibility of cover-ups, perjury and obstruction of justice by witnesses."
But Comey's letter didn't permit Fitzgerald to "widen" or "expand" his inquiry. Rather, it merely "clarif[ied]" -- at Fitzgerald's "request" -- that Fitzgerald already had the authority "to investigate and prosecute ... federal crimes committed in the course of, and with intent to interfere with, your investigation":
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.
That giant *THUD* you just heard was another GOP talking point falling flat on its face
I'm sorry to see Media Matters continue to call Mr. Fitzgerald a "special prosecutor." Whether it's George Will, Bill Kristol, MM, AP, the Washington Post, et. al. - when one reads that, one is forced to assume the author doesn't understand the topic. Mr. Fitzgerald is a special counsel - and there is a world of difference between a special prosector and a special counsel.
For those who enjoy coincidences in real life, the final law authorizing the appointment of an independent counsel - the office most folks mean to refer to when they mistakenly characterize Mr. Fitzgerlad as a special prosector - expired at midnight on September 11, 2001...
newzhound - Monday October 24, 2005 04:28:53 PM EST
While your point is accurate, since Mr Fitzgerald is a special counsel acting as a prosecuter it could be seen as a distinction without a difference.
Its beggining to smell a lot like Fitzmas, everywhere I go. (sung to the tune of you know what)
Thank you for proving my point. There is a huge difference between a special prosecutor and a special counsel. A special prosecutor comes from outside the Federal government, for example. Mr. Fitzgerald could be removed from this case at any time. Additionally, his time is up when the grand jury's term expires.
Finally, the wide misuse of the term "special prosecutor" invariably leads to misleading and wildly inaccurate comparisons with the "independent counsel" of times past (the term that has been assigned to this office)...there are many of these available on the Media Matters website.
One more time - anyone offering an opinion on this topic who can't properly title Mr. Fitzgerald is, in my view, probably not going to be accurate about other matters, as well.
newzhound - Monday October 24, 2005 06:07:35 PM EST
I completly understand the difference and that there is one. This is why I said it was accurate. What I mean is that he IS a prosecuter so as far as the terminology is this really a big gaffe. Yes the powers of a special prosecuter are much more sweeping and their immunity is different, even though Nixon fired Archibald Cox, still I know what you mean. I am only saying that as a term of reference, calling him a special prosecuter (a position which no longer exists under the law) isnt that big a stretch. Is it misleading? I dont think so, he is a special counsel acting as a prosecuter. The difference in fact exists I know, I just dont see the designation as any real problem
"The Office of the Independent Counsel is not to be confused with the U.S. Office of Special Counsel (OSC) which is a permanent independent federal investigative and prosecutorial agency whose basic legislative authority come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act."
However, the fact that people use the wrong term is not, as this poster asserts, evidence that they have no credibility on this subject at all. It is only evidence that they do not understand exactly how these people are appointed or assigned tasks. It has little import. The fact that they use the wrong term has little to nothing to do with how believable they might be on other aspects being discussed.
"For those who enjoy coincidences in real life, the final law authorizing the appointment of an independent counsel - the office most folks mean to refer to when they mistakenly characterize Mr. Fitzgerlad as a special prosector - expired at midnight on September 11, 2001..."
I thought the Independent Counsel Law expired June 30, 1999. To which Independent Counsel Law are you referring and could you please provide a link supporting your assertion of a 9/11 expiration date.
Happily - Same place that included Wickipedia where, it appears, you got the four paragraphs you quoted in full below without attribution.
Please see "www.answers.com" Look up "Independent Counsel." There is an interesting "History of the Office." I won't quote it all here - final two bullet points, however:
. Reinstituted by the Independent Counsel Reauthorization Act of 1994 (PL 103-270) June 4, 1994.
. Expired at midnight on September 11, 2001.
The phrase "special counsel" refers to at least two distinct individuals within the government of the United States. The first is the Office of the Special Counsel, a US government agency that protects Civil Service employees from unfair personnel practices. The second is the Special Counsel within the Department of Justice. This office replaces the former Office of the Independent Counsel, and is charged with investigating alleged misconduct in the Executive Branch.
A special prosecutor is a lawyer from outside the government appointed by the attorney general or Congress to investigate a federal official for misconduct while in office.
The reasoning is that the Department of Justice may have political connections to those it might be asked to investigate. Inherently, this creates a conflict of interest. The solution is to have someone from outside the department lead the investigation.
Archibald Cox was one of the most notable special prosecutors. He was fired during the Saturday Night Massacre. See also Watergate Scandal.
The term is sometimes used as a synonym for Independent Counsel, but under the former law authorizing the Independent Counsel, the appointment was made by a special panel of the United States Court of Appeals for the District of Columbia Circuit. The Independent Counsels law expired in 1999, and was effectively replaced by Department of Justice regulation 28 CFR Part 600, under which Special Counsel Patrick Fitzgerald was appointed to look into the Plame affair.
Technically, the Independent Counsel Law EXPIRED on JUNE 30,1999. But, provisions within the law allowed to IC office to continue any ongoing investigations which concluded on different dates.
History of the Office
*Originally created by the Independent Counsel Act (1978) and the Ethics in Government Act Amendments of 1982 (96 Stat. 2039), January 3, 1983
*Reauthorized for five years by the Independent Counsel
*Reauthorization Act of 1987 (101 Stat. 1293), December 15, 1987
*Lapsed, December 15, 1992, by failure of reauthorization
*Reinstituted by the Independent Counsel Reauthorization Act of 1994 (PL 103-270), June 30, 1994
*Expired at midnight on June 30, 1999
"A special prosecutor comes from outside the Federal government, for example. Mr. Fitzgerald could be removed from this case at any time."
After Asscroft recused himself, he appointed Fitzgerald, a U.S. prosecutor, who is NOT from "outside the Federal government". In your dismissive quest to nitpick others on their usage of "special prosecutor" vs. "special counsel", you've only shown your own ignorance of such matters.
Lighten up, Francis! Actually, you missed a step in the appointment process, but I don't want to give you a coronary by pointing it out...You've managed to completely misinterpret my comments and get all wrapped up around yourself - making a very small package in the process.
Dude - You have waaaay too much time on your hands!
"Lighten up, Francis!"
High praise indeed, coming from someone who had the time to waltz in here to chide others for their usage of "special prosecutor" instead of "special counsel" and to dismiss their arguments/knowledge as questionable based upon an irrelevant point.
Wikipedia, btw...LOL!
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.
"When nothing is working, attack the person not the issue." That is the signature attack posture of the Republican Party. In settle form, the questions regarding the request for authority is the beginning of "Ronnie Earl" style attack soon to be released in full on Fitzgerald.
In advance of what is to come, the Republicans are already trying to build talking points that will be needed to avoid the impeachment of Mr. Bush. The Republicans are now focused on Joseph Wilson's claim that Iraq sought yellow cake uranium. By silencing this claim, there will be no serious claim to lies leading our country to War. Yes, the Republicans are looking pass the indictments with this defense to the worse case scenario. Talking about seeing the "writing on the wall;" this is a natural lock step defense that speaks to the almost inborn predictable unity of the Republican Party.
"When nothing is working, attack the person not the issue." That is the signature attack posture of the Republican Party. In settle form, the Republican questions regarding Fitzgerald's request for authority to look at other charges is the beginning of the "Ronnie Earl" style attack soon to be released in full on Fitzgerald.
In advance of what is to come, the Republicans are already trying to build talking points that will be needed to avoid the impeachment of Mr. Bush. The Republicans are now focused on Joseph Wilson's claim that the administration lied about Iraq seeking yellow cake uranium. By saying Wilson's claim was untrue, there will be no serious claim to lies leading our country to war and no foundation for impeachment. Yes, the Republicans are looking pass the indictments with this defense to the worse case scenario. Talking about seeing the "writing on the wall;" this is a natural lock step defense that speaks to the almost inborn predictable unity of the Republican Party.
Joseph