Libby’s Lawyers Seek to Dismiss His Indictment

Lawyers for Vice President Dick Cheney’s former top aide asked a federal judge Thursday to dismiss his indictment, arguing that the special prosecutor in the CIA leak case lacked authority to bring the charges.

In a court filing, lawyers for I. Lewis “Scooter” Libby said his indictment violated the Constitution because Special Prosecutor Patrick J. Fitzgerald had not been appointed by the president with the consent of the Senate.

The defense lawyers also said Fitzgerald’s appointment violated federal law because his investigation had not been supervised by the attorney general. They said only Congress could approve such an arrangement.

“Those constitutional and statutory provisions have been violated in this case,” Libby’s lawyers wrote.

Legal experts were skeptical of Libby’s argument, noting that Fitzgerald was the U.S. attorney for Chicago -- nominated by President Bush -- at the time he was named special prosecutor in the leak case.

“This seems like a real stretch,” said Stephen Saltzburg, a professor at George Washington University Law School. “Patrick Fitzgerald was appointed by the president and confirmed by the Senate. He is essentially a confirmed U.S. attorney who has been given an extra case.”

The Supreme Court backed the use of independent counsels in 1988 and ruled that the Constitution did not require that all federal prosecutors be directly accountable to the president. At the time, Congress authorized a panel of judges to appoint an independent counsel when there were allegations of wrongdoing involving the president or his top appointees.

That law was allowed to lapse after Republicans and Democrats concluded that the system had failed to remove politics from high-profile cases.

Afterward, the president and his attorney general retained control over law enforcement, but they could choose to appoint a special prosecutor in a case that involved possible wrongdoing at the White House.

Fitzgerald was appointed in December 2003 after then-Atty. Gen. John Ashcroft recused himself from the investigation because of his close relationship with White House officials. Then-Deputy Atty. Gen. James B. Comey, acting in Ashcroft’s place in the matter, selected Fitzgerald.

Comey gave Fitzgerald sweeping power to conduct the investigation into the leak of CIA operative Valerie Plame’s identity, exempting the special counsel from following rules that usually apply to U.S. attorneys.

Unlike other federal prosecutors, Fitzgerald did not have to seek approval from senior Justice Department officials to grant immunity or subpoena reporters and news organizations. Nor did he have to advise Justice Department officials before he sought Libby’s indictment.

“The attorney general may delegate powers but he may not abdicate responsibility,” Libby’s lawyers wrote.

Libby, 55, resigned as Cheney’s chief of staff after he was charged with lying about how he had learned Plame’s identity and when he subsequently had told reporters.