I'm wondering why Comey’s so-called appointment (not what I would call it) of Patrick Fitzgerald as Special Counsel in the Plame scandal really matters. So what if it wasn’t technically valid? What difference would it make if some court found the “appointment” to be technically invalid? Isn’t that a moot point, since Fitz was already a U.S. Attorney, fully empowered to investigate, bring charges, etc.?

First of all, Fitz was already a U.S. Attorney, nominated by the President and confirmed by the Senate. He could only be removed by the President. So why would Comey’s delegation memo make him subject to lesser regs like the Special Counsel reg, that would apply to outsiders like Ken Starr, but not high-ranking insiders like a U.S. Attorney? Per 28 USC 600.3, “The Special Counsel shall be selected from outside the United States Government.” These regs simply don’t apply to Fitz as a U.S. Attorney.

Second, I don’t see why everyone keeps calling this an appointment. Fitz was already a Fed. He already had a U.S. Attorney appointment. Comey just delegated his authority as acting AG limited to this investigation, since the AG had already recused himself and Comey was Acting AG at the time. He didn’t appoint Fitz to anything, he gave him limited delegated authority to investigate and prosecute this case.

Third, what is this removal issue about? The AG could have removed Fitz from the case, but not his position as U.S. Attorney. Only the President has the power to remove a U.S. Attorney (oops, guess someone should tell all those folks who were fired last year to get back to work). The delegation was by an (Acting) Attorney General, therefore it is obvious that another Attorney General (other than one who had recused himself) could have cancelled it or otherwise removed Fitz from the case. Is that really not obvious?

Lastly, my contention is that this wasn’t an appointment as a “Special Counsel” (as Comey so nicely tried to point out in his second memo on the subject), but merely a delegation of authority to fill in the missing blanks between Fitz’ status as a U.S. Attorney and his needs in this particular investigation (e.g., working outside his home district). 28 CFR 510 permits the AG to delegate any function of the AG to any officer, employee or agency of DOJ. So what’s the problem? This kind of thing goes on all the time. We have delegations of authority all over the place. Do you think the AG does any real work? Well, certainly not this AG.

Huh. MS wont let me embed a graphic here. I was trying to insert Comey's December 30, 2003 memo here. Oh well.

Here's some US Code if you're having trouble sleeping. 

US Code

TITLE 28 > PART II > CHAPTER 31 > § 508

§ 508. Vacancies

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

§ 509. Functions of the Attorney General

All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions—

(1) vested by subchapter II of chapter 5 of title 5 in administrative law judges employed by the Department of Justice;

(2) of the Federal Prison Industries, Inc.; and

(3) of the Board of Directors and officers of the Federal Prison Industries, Inc.

§ 510. Delegation of authority

The 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.

§ 515. Authority for legal proceedings; commission, oath, and salary for special attorneys

(a) The Attorney General or any other officer of the Department of Justice, or any attorney specially appointed by the Attorney General under law, may, when specifically directed by the Attorney General, 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.

(b) Each attorney specially retained under authority of the Department of Justice shall be commissioned as special assistant to the Attorney General or special attorney, and shall take the oath required by law. Foreign counsel employed in special cases are not required to take the oath. The Attorney General shall fix the annual salary of a special assistant or special attorney.

[Note: Keep in mind Fitz was already a U.S. Attorney and only needed certain parts of this section as  Special Counsel.]